CHAPTER VIII.
THE CREATION OF A SYSTEM OF RIGHTS OF MAN AND OF CITIZENS DURING THE AMERICAN REVOLUTION.
The seventeenth century was a time of religious struggles. In the following century political and economic interests pressed into the foreground of historical movement. The democratic institutions of the colonies were repeatedly in opposition to those of the mother-country, and the ties that bound them to her lost more and more of their significance. The great antagonism of their economic interests began to make itself widely felt. The economic prosperity of the colonies demanded the least possible restriction upon free movement. Finally they felt that they were ruled not by their old home but by a foreign country.
Then the old Puritan and Independent conceptions became effective in a new direction. The theory of the social compact which played so important a rôle in the founding of the colonies, and had helped to establish religious liberty, now supported in the most significant way the reconstruction of existing institutions. Not that it changed these institutions, it simply gave them a new basis.
The colonists had brought over the ocean with them their liberties and rights as English-born subjects. In a series of charters from the English kings it was specifically stated that the colonists and their descendants should enjoy all the rights which belonged to Englishmen in their native land.[97] Even before the English Bill of Rights the most of the colonies had enacted laws in which the ancient English liberties were gathered together.[98] There occurred, however, in the second half of the eighteenth century a great transformation in these old rights. The inherited rights and liberties, as well as the privileges of organization, which had been granted the colonists by the English kings or had been sanctioned by the colonial lords, do not indeed change in word, but they become rights which spring not from man but from God and Nature.
To these ancient rights new ones were added. With the conviction that there existed a right of conscience independent of the State was found the starting-point for the determination of the inalienable rights of the individual. The theory of a Law of Nature recognized generally but one natural right of the individual—liberty or property. In the conceptions of the Americans, however, in the eighteenth century there appears a whole series of such rights.
The teaching of Locke, the theories of Pufendorf[99] and the ideas of Montesquieu, all powerfully influenced the political views of the Americans of that time. But the setting forth of a complete series of universal rights of man and of citizens can in no way be explained through their influence alone.
In 1764 there appeared in Boston the celebrated pamphlet of James Otis upon The Rights of the British Colonies. In it was brought forward the idea that the political and civil rights of the English colonists in no way rested upon a grant from the crown; even Magna Charta, old as it might be, was not the beginning of all things. "A time may come when Parliament shall declare every American charter void; but the natural, inherent, and inseparable rights of the colonists as men and as citizens would remain, and, whatever became of charters, can never be abolished till the general conflagration."[100]
In this pamphlet definite limitations of the legislative power "which have been established by God and by Nature" are already enumerated in the form of the later bills of rights. As the center of the whole stood the principal occasion of strife between the colonies and the mother-country, the right of taxation. That the levying of taxes or duties without the consent of the people or of representatives of the colonies was not indeed contrary to the laws of the country, but contrary to the eternal laws of liberty.[101] But these limitations were none other than those enumerated by Locke, which "the law of God and of Nature has set for every legislative power in every state and in every form of government".