During the seventeenth century and into the eighteenth century the political philosophers of Europe were writing and discussing some new and radical ideas on what a government should look like and how it should function. They would reshape the political landscape in the late eighteenth century and well into the twentieth. One of the most influential of those men was an Englishman, John Locke. His writings had a huge influence on the leaders of the American Revolution. Americans, especially radicals like Samuel and John Adams, Patrick Henry, and Richard Henry Lee were much influenced by him.
In order to come to an understanding of Locke and his ideas on government, we need to understand certain key terms. They are “government,” “state of nature,” “property,” slavery,” and “social contract.” Definitions for these terms can be found in Book II of his Treatise on Civil Government.
In Chapter 1, paragraph 3 he defines government as that “political power then, I take to be a right of making laws with penalties . . . for the regulation of preserving property, and of employing the force of the community, in the execution of such laws, and in the defense of the commonwealth . . . all this only for the common good.”
In Chapter II, paragraph 4 tells us that a state of nature is that “state that all men are naturally in . . . a state of perfect freedom to order their actions and dispose of their possessions, as they see fit, within the bounds of the law of nature.”
Chapter II, paragraph 13 says, “In the state of nature everyone has the executive power of the laws of nature . . . it is unreasonable for men to be judges in their own cases, that self-love will make men partial to themselves and their friends; and on the other side, that ill nature, passion, and revenge will carry them too far in punishing others, and hence nothing but confusion and disorder will follow: and that therefore God has certainly appointed government to restrain partiality and violence in men . . . Civil government is the proper remedy for this inconvenience of the state of nature . . . I desire to know what kind of government that is, and how much better it is than the state of nature.”
Chapter V, paragraph 27 says, “Every man has a property in his own person: this nobody has any right to but himself. The labor of his body, and the work of his hands . . . are properly his . . . for this labor being the unquestionable property of the laborer, no man but he can have a right to . . . at least where there is enough, and as good, left in common for others.”
In Chapter VIII, paragraph 95 Locke wrote, “Men being . . . by nature, all free and equal, and independent . . . the only way, whereby any one divests himself of his natural liberty, and puts on the bods of civil society, is by agreeing with other men to join and unite into a community, for their comfortable, safe, and peaceable living one amongst another . . . when any member of men have so consented to make one community or government, they are thereby presently incorporated, and make one body politic, wherein this majority have a right to act and conclude the rest.”
Chapter VIII, paragraph 112: “Thus we may see . . . that people that were naturally free . . .[and] we have reason to conclude, that all peaceful beginnings of government have been laid in the consent of the people.”
In 1764 things began to change in America. For the first time since the founding of the American colonies, Americans were going to be taxed by a political authority other than their own colonial legislatures. This was totally without precedent and unacceptable to almost all Americans. One of the first to speak out on this issue was an old hero of John Adams, James Otis, Jr. When Otis spoke in the courts against the Writs of Assistance the year before, his speech lit a fire in John Adams’ heart and throughout the American colonies. Now with the Stamp Act, Otis was going to speak out again. This time he did it through publication of a pamphlet entitled The Rights of the British Colonies Asserted and Proved. Otis recognized and gave credence to the one issue with respect to the British parliament that was to bedevil American rights advocates right up to the Declaration of Independence. Otis declared that while Parliament had erred in taxing Americans—they had violated English law and American rights—he nonetheless said, “I believe there is not one man in a hundred . . . who does not think himself under the best national civil constitution in the world . . . I also hold it dear that the act of Queen Anne, which makes it high treason to deny ‘that the king with the authority of parliament is of sufficient force and validity of sufficient force to limit and bend the crown.’”
Here Otis was fully agreeing with David Hume. Otis recognized that with the Glorious Revolution of 1688, Parliament had finally mastered the monarchy. No kings or queens of Great Britain could ever again make laws on their own. All laws had to pass through Parliament, the people’s elected representatives. The king ruled through Parliament, Parliament was the supreme law of the land.
Otis in his pamphlet said, “I lay it down as one of the first principles from whence I intend to deduce the civil rights of the British colonies, that all of them [the American colonies] are subject to and dependent on Great Britain; and that therefor as over subordinate governments, the parliament of Great Britain has an undoubted power and lawful authority to make acts for the general good.” Otis was making it clear that the American colonies, and their legislatures, were subordinate to the British Parliament. It was clear, in his mind, that if the colonists claimed the rights of Englishmen, the colonists could not disavow the authority of the body that guaranteed British liberty.
Otis was not quite done yet. He went on to state that all Britons, including Americans, had rights, even God given ones, but this did not exist in a vacuum.
Every British subject borne on the continent of America, or in any other part of the British dominions, is by the law of God and nature, by the common law and by act of parliament, entitled to all the natural, essential inherent and inseparable rights of fellow subjects in Great Britain.
He then went on to say something even more extraordinary considering it was written in 1765:
Colonists, black and white, borne here, are free British subjects entitled to all the essential civil rights as such, is a truth no only manifest from the provincial charters, from the principles of common law, and acts of parliament; and from the British constitution, which was re-established at the revolution [of 1688], with all a professed design to lecture the liberties of All British subjects to all generations.
Otis, in 1765, declaring that black as well as white were protected in their civil rights by all the laws in existence.
Otis now put the matter squarely on the table. First, he said, Parliament was the supreme law of the land and the guarantor of British rights. Americans were subjects of Parliament. It is clear here, that Otis saw the commonwealth as the whole of the social contract, that the Empire was the whole of British society, and by common agreement as spelled out in the English Constitution Parliament spoke for the majority of the Empire. Americans, as British subjects, had rights that could not be taken away, even by Parliament. And he admitted that Parliament had deprived Americans of their rights.
That [the] imposition of taxes . . . in the colonies is absolutely irreconcilable with the rights of the colonists, as British subjects and as men. I say as men, for in nature, no man can take away my property from me without my consent: if he does, he deprives me of my liberty and makes me a slave.
But, Otis said, Americans not only had rights, they had responsibilities.
The power of parliament is uncontrollable, but by themselves, and we must obey. Only they can repeal their own laws. There would be an end to all government if one or a number of subjects should take upon themselves so far as to judge the justice of an act of parliament, to refuse obedience to it . . . therefor let the parliament lay what burdens they please on us, we must, it is our duty to submit and to patiently bear them, till they are pleased to relieve us.
Here Otis built upon Locke’s thesis that the legislature, as the voice of the majority, had the sole right to make laws that were binding on the whole body, including the minority who may disagree with the majority. Only Parliament as the voice of the majority could reverse their own decisions.
Otis concluded by saying that obedience did not mean complete subservience.
If our hands are tied by the passing of an act of parliament, our mouths are not stopped, provided we speak of that . . . body with decency . . . the equity and justice of a bill [that] may be questioned, with perfect submission to the legislative. Reasons may be given why an act ought to be repealed and yet obedience must yield to it until that repeal takes place.
That was not what the radicals in Boston wanted to hear, especially Samuel Adams and to some extent John Adams also. John Adams had been reluctant to get too far into league with the radicals as he felt that, at times, Samuel Adams had gone too far in resisting Parliament. But he did feel that there needed to be a response to Parliament and guidance in the resistance movement. So in 1765 John Adams decided to take a step into the fray. If it was true that Parliament had erred in trying to tax Americans directly it was also true that the radicals were going about it outside the law. Adams loved Otis and almost worshiped him. Yet he was disappointed in Otis’s seeming mild response as to how to oppose Parliament. Some new way had to be proposed that would show a middle path between mere acceptance of Parliament’s authority and the riots and physical and personal attacks that were occurring in Boston all too frequently. And Adams thought he had found the answer: Education. It was not enough to just demand rights, it was necessary to explain just what those rights were, where they came from and what kind of laws were bad laws. So he decided to write, and started with an indictment of Christianity when he published his pamphlet called a Dissertation on Canon and Feudal Law.
He started by saying that “Ignorance and inconsideration are the two great causes of the ruin of mankind.” As a result, the principle of “love of power” had been the cause of “arbitrary government and every kind of oppression.” He then made a rather striking conclusion: “Since the promulgation of Christianity, the two great systems of tyranny that have sprung from [the above facts] are the canon and feudal law.”
Canon Law, Adams said, was used in defense of orthodoxy and in confining and controlling the free expression of faith and every outward aspect of behavior. It was used to control faith within narrow limits and attack and silence the non-orthodox, commonly referred to as “heretics.”
Adams went on to explain feudal law. He granted that feudal law may have been of benefit in bringing order out of chaos after the collapse of the Roman Empire, but the “common people were gathered into herds and clans in a state of servile dependence on the lords . . . in a state of ignorance of everything divine and human.”
Then, Adams said, “a wicked confederacy developed.” As time went on canon law and feudal law confederated into a system of mutual support, each giving support and validation to the other. Adams described a situation in which the “temporal grandees . . . [contributed] everything in their power to maintain the ascendency of the priesthood, and that the spiritual grandees in their turn, employed their ascending over the people in impressing the minds of the blind, implicit obedience to the civil majestry.”
Adams said that as long as this confederacy between Canon Law and Feudal Law should last the people would be “held in ignorance,” and that “liberty, knowledge and virtue” would seem “to have deserted the earth.” Now, Adams taught, there needed to be a new way of thinking. If canon law and feudal law were not viable forms of government, then what is and what is the basis for such a new form of government?
Adams said that people have rights, “antecedent to all earthly government, – rights that cannot be repealed or restrained by human laws, rights derived from the great legislature of the universe.” Adams explained to his readers that all persons have what are called “natural rights,” rights given by nature by the mere fact that people are human beings, born with certain rights. These were the rights that humankind had in a state of nature as described by Locke above.
For Adams, natural rights stood in contrast to Canon and Feudal Laws. Adams disagreed with Locke where he insisted that humankind surrenders their natural rights when they enter into a social compact. Adams felt that each and every one retains those rights even within the social compact. One other idea that Adams really insisted upon when considering the nature of the social compact was that society was not a unique whole with a life of its own, but rather, was a group of individuals all with competing interests. The social compact, rather than making a whole body, instead, organizes the individual bodies each with their own interests into a structure in which there is a kind of balance in the powers of the various groups of people. A system of checks and balances.
With the publication of the papers from Otis and Adams, Americans began the great debate, and many wrote and spoke contributions to the debate, from John Dickinson, Charles Thomson, and James Wilson in Pennsylvania to John Zubly in Georgia as well as many others in between.
When the First Continental Congress had their first session on September 6, 1774, they immediately agreed that there should be a committee formed to write a draft to declare what the rights of Americans were. The committee was formed the next day and it was agreed that the committee would consist of two members from each colony in attendance. The North Carolina delegation had not yet arrived and Georgia had decided not to send a delegation to the congress that year. The committee was made up of the following men:
New Hampshire—John Sullivan and Nathanial Folsom
Massachusetts—Sam Adams and John Adams
Rhode Island—Stephen Hopkins and Samuel Ward
Connecticut—Stephen Dyer and Roger Sherman
New York—James Duane and John Jay
New Jersey—William Livingston and John Dehort
Pennsylvania—Joseph Galloway and Edward Biddle
Delaware—Caesar Rodney and Thomas McKean
Maryland—Thomas Johnson and Robert Goldsborough
Virginia—Richard Henry Lee and Edmund Pendleton
South Carolina—Thomas Lynch and John Rutledge
The committee met on the 8th of September and began debating the question of rights, and it immediately became plain that the members of the committee were not all in one place on the issue.
There was a broad spectrum of ideas on what were and were not rights and where they did or did not come from. John Adams made notes of the debates over the next two days in cryptic form, which survive in his private papers. Adams recorded the following statements by delegates:
Richard Henry Lee: “Rights are best laid on a fourfold foundation, the law of nature, the British Constitution, the colonial charters, and immemorial usage.”
John Jay: “Limited the basic rights as the law of nature and the British constitution.”
John Rutledge: “He did not agree to the law of nature but rather on the British constitution.”
John Jay asked, “From where did the [British] constitution derive its authority? From the social compact.”
William Livingston: “It will not due for Americans to rest wholly on the laws of England.”
Roger Sherman: “The colonies are not bound to the king or crown . . . but by their consent to it.”
James Duane: “The law of nature is but a ‘false support’ for grounding our rights. But the colonial charters are a firm foundation. England is governed by a limited monarchy, and a free constitution. He objected to the idea of the rights of Englishmen can make us independent.”
Richard Henry Lee: “Objects to the idea that life and liberty are given up “‘when they enter society.’”
John Rutledge: “The first immigrants were not in a state of nature. They were bound by the charters and the stipulation in the charters that all laws made by the local legislatures must conform to the laws of England.”
Joseph Galloway: “I have looked for, but could not find our rights in . . . the laws of nature, but always in a state of political society. I have looked for them in the constitution of the English government, and found them there.”
At this point in Adams notes it appears that some new person is speaking. The remarks are attached to Galloway’s comments, but clearly do not reflect Galloway’s thinking. It may well be the comments are those of Adams and he merely jotted them at the bottom of his notes on Galloway’s comments. The comments do clearly represent the thinking of Samuel Adams, who was a member of the committee as well as John Adams:
I never could see any reason to allow that we are bound to any laws made by [parliament since the settlement of the colonies], nor could I ever make any distinction between these sorts of laws. I have ever thought we might reduce our rights to one, an exemption from all laws made by the British parliament since the emigration of our ancestors. It follows, therefore, that all the acts of parliament made since, are violations of our rights . . . I am well aware that my arguments tend toward an independency of the colonies.
On the 9th, the committee, compromised and agreed that American rights should be based on the laws of nature, the principles of the English constitution and the colonial charters.
On the 19th the congress as a whole received the committee’s draft and instructed the committee to “confine themselves to the consideration of such rights only as have been infringed upon us by the British parliament since the year 1763.”
This restriction was to be the last victory for the moderates and conservatives in the First Congress, though there was one more attempt by Joseph Galloway, the leader of the conservatives in the congress.
On September 28 Galloway made a proposal to the committee that he thought would satisfy everyone – it would cement the American colonies in the British Empire and guarantee to the radicals a form of self-government separate from the British parliament. He called it “A Plan of Union.” It was a bold plan in which Galloway thought would satisfy Americans, conservatives and radicals as well as Britons. He was wrong. The plan was ordered laid on the table to be reconsidered after further discussion. In October when it was supposed to be reconsidered, Galloway found that the radicals had garnered enough votes to have it defeated and then to rub salt in his wounds, had the votes to have the whole plan stricken from the records as if it never existed. Thus, in the official journals of the congress there is no mention of any debate or even that Galloway’s plan existed.
For the next several weeks Congress busied itself with a Plan of Association for all the colonies, an embargo agreement to forbid trade with Britain, a message to be sent to the King of England, and a message to the people of Canada to invite them to join the congress. It was not until later in October that the committee on rights got back to work. What happened after that with respect to the committee on rights is confusing at best. Congress was nearing its end and planning on dissolving. They recommended to the various colonies that a new congress be appointed to meet the following May. The congress adjourned on October 26 and there is a note in the journals that “the papers are not all got ready.” Charles Thomson, as secretary, would have to continue to work after everyone else went home to get all the papers straight.
One of the unfinished items of business was the report of the committee on rights. On October 14 Congress met to consider “resolutions,” but the journals of Congress do not reflect which resolutions. The editors of the journals inserted a copy of the declaration of rights in Sullivan’s hand writing that was found in the private papers of John Adams many years later, and a copy of a far shorter version of a declaration written by John Dickinson, who was added to the committee on October 17.
The lengthy draft by Sullivan is written in bullet form as opposed to the more normal narrative form that most proposed resolutions were submitted in. This document can be found on pages 63 through 73 of the published edition of Congress’s journals. Pages 63 to 67 outline the various offenses committed against Americans by parliament. On page 67 are a number of paragraphs stating the rights determined by the committee. The fourth paragraph is not in Sullivans handwriting but rather is in John Adams’ handwriting. The short paragraph just preceding the four numbered paragraphs also appears to be by Adams. The editors of the published journals, led by Worthington Chauncey Ford, note that “the fourth article was prepared by John Adams, and caused much debate in congress. Joseph Galloway and his fellow conservatives thought it aimed at independence and sought to have it amended. It was left unaltered in its essentials and the final form of the report was the work of John Adams.”
There is a lengthy analysis found in Letters of Delegates to Congress. This publication, being decades more recent that the journals, has the benefit of more recent research and thus the editors were able to expand and correct the observations on the document found in Adams’ papers.
In Letters the editors state that Ford may have been in error in concluding that the document was but a first draft. We now know that John Dickinson wrote a draft of American rights, even though he was not added to the committee until October 17. They feel, based on correspondence from several congressmen, that the entry of the report on October 14 could not have been actually written on that date. “We know from the correspondence, that the committee continued the debates from October 15 through October 17.” Also, John Adams stated that he spent “all day Sunday October 16” putting the proceedings of the congress in order. The editors of Letters suggest that Dickinson, who was at that time an ally of John Adams, gave Adams a copy of his draft that he had worked on by himself. The editors go on to state that just how the copy of the declaration of rights finally got into the journals is a “mystery.”
The draft authored by Sullivan listed a number of complaints against parliament and the King and then listed the rights of Americans. Just before the list of rights is a preamble, apparently added by Adams. The preamble states, “That the inhabitants of the English colonies in North America, by the immutable laws of nature, the principles of the English Constitution and the several charters or compacts, have the following rights.” Here we see that Adams was able to have inserted the “laws of nature” as an equal source of rights with the “English Constitution” and the charters of the colonies.
The list of rights in Sullivan’s draft is found in the three following paragraphs. In short form they are:
Resolved 1. That all statutes . . . for the purpose of raising revenue by imposing rates and duties . . . are illegal and void. That judges within the colonies ought not to be dependent on the crown only . . .
Resolved 2. That our ancestors who settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural born subjects within the realm of England.
Resolved 3. That by such emigration they, by no means, forfeited, surrendered or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them as their rights as . . . circumstances enable them to exercise and enjoy.
Next is a paragraph in John Adams’ handwriting.
Resolved 4. That the foundation of English liberty, and of all free government, is a right in the people to participate in the legislation council; and as the English colonies are not represented, and from this and other circumstances, cannot properly be represented in the British parliament, they are entitled to a free and exclusive power of the legislature in their several provincial legislatures . . . subject only to the negative of the sovereign.
This is clearly a call to independence. Independence from all authority of parliament. Only the king had the power to veto the acts of the colonial charters, in Adams’ view. Then Adams did something strange, for him. He gave a temporary sop to the conservatives by adding a sentence at the end of the fourth resolution: “But, from the necessity of the case, and in regard to the mutual interest of both countries, we cheerfully consent to the operation of such acts of the British parliament.” Here he gave back all that he had taken away earlier in the paragraph. One can only assume that he made his statement on what the rights of Americans should be, but was biding his time before forcing the issue.
There were several more resolves but those listed above are the key and the most consistently debated.
So, we know that there was one draft of the Declaration of Rights and possibly two, with the second coming from Dickinson. So how did the draft written by Sullivan, and it was a draft, not a finished product, get added into the official journal of the congress with Adam’s additions, especially if Galloway was right in saying, later, that the final draft was never voted on by the full committee? Historian, James C. Thomson II believes he has the answer and has a theory to clear up the “mystery.”
Thomson summarizes this in his book, The Dubious Achievement of the First Continental Congress. The introduction states that the full committee on rights eventually broke into two smaller subcommittees in order to speed the process. The first subcommittee, headed by Sullivan, was to prepare a draft listing the grievances against Britain and parliament. The second subcommittee, headed by Adams, was to report on the rights that Americans should be able to enjoy. The paragraph written by Adams did pass the approval of his subcommittee. When, however, the full committee met to combine the two products, Galloway and his conservative associates strongly objected to Adams’ paragraph. As a result, the committee was tied five to five with two colonies abstaining. Thus, no final draft was ever voted and approved. It may have been that Adams, knowing that eachpart had been approved by a subcommittee, felt that the only logical conclusion in the absence of a full committee vote was to simply insert the paragraph approved by the second committee into the draft approved by the first, add a preamble and present them to the secretary of Congress.
Time was getting short. We know that they committee met on the 24th and the congress wanted to dissolve before the end of October. Winter was setting in and travel home would become difficult.
Historian Thomson theorizes that as the committee had come up with two drafts, one by Sullivan’s subcommittee and one by Adams’ subcommittee, all that was needed was for the two to be edited and put together. Thomson thinks that one of the conservatives was supposed to work with Adams on the final draft to be left with the secretary. He feels that probably either James Duane or Joseph Galloway was supposed to help. Duane, however, was eager to go home and left immediately after the final session of the congress, and Galloway went to New York to publish to the world what he had proposed in his Plan of Union. That left Adams alone to put the finishing touches on the draft. Adams simply added his paragraph to the draft that had been prepared by Sullivan as the full committee chairman, added the preamble, and gave it to the secretary, Charles Thomson. Thomson was an early ally of Adams in the first congress, and also a radical in the years leading up to the revolution in Philadelphia, so much so that he had been blocked from being a delegate from Pennsylvania by the Pennsylvania legislature, led by Joseph Galloway, who was Speaker of the House. When the first act of the Continental Congress was to elect Thomson as secretary, conservatives like Duane and Galloway were shocked.
Historian James Thomson concludes that secretary Charles Thomson deliberately, in agreement with Adams, inserted the draft as amended by Adams into the official journals knowing that there had never been a vote on the wording by the full congress. In doing so it became stipulated in the First Continental Congress that “the law of nature” was co-equal with the British Constitution and colonial charters as the basis for American rights, something that a sizable number, perhaps even a majority at the time, would not have agreed to. In the fourth resolve, Adams declared that the colonial legislatures, having sole authority to make laws for Americans, also had “exclusive” authority for making those laws, and that there was absolutely no connection between the American colonies and the British parliament. This was tantamount to declaring the American colonies independent, which in 1774 probably did not reflect the majority of opinion in the First Continental Congress.
When the Second Continental Congress met in May 1775 all this was moot. War had begun a month earlier; Congress was saddled with many, many urgent matters from then on and did not have time to go back and finish the vote on American rights.
The final completed and fully narrative Declaration of Rights by the First Continental Congress is in the archives of the U. S. government. A copy can be found on line at a website posted by the Yale University School of Law. How it got from the rough outline form as found in the journals to the final narrative form is not clear. Thomson was not only secretary of Congress, he was the keeper of the seal, and no document was official until it had the signatures of both the presidentand secretary of Congress. Thomson was also the keeper of Congress’s official documents. It would seem that over the winter, while Congress was in recess, he simply put the rough notes of the declaration that he had inserted in the journals into narrative form, sealed them and placed them in the archive of official documents he was keeping. At the end of the Continental Congress in 1789, Thomson personally presented all the official journals and archives to George Washington as president under the new constitution. Among them was a document that boldly declared the rights of Americans, yet had never had a full vote in the Continental Congress.
John Locke, Two Treatises of Government,www.thefederalistspapers.org.
James Otis, The Rights of the British Colonies Asserted and Proved, oll.libertyfund.org/index.php?option=com_content&task=view&id=1069itermid.