Two constitutionalisms in the 18th century

Three theories competed to explain the British constitution in the 18th century: divine right, the original contract, and the ancient constitution.

Most of us are familiar with the "divine right of kings," of course, so I won't bother to elaborate on that. The second theory in this list, the "original contract," was the belief that the British constitution was the result of a social compact, an agreement by which the people had handed over some of their freedom to a government so that it would protect their interests. Last, the "ancient constitution" was the belief that Britain was governed according to venerable customs; the people had liberties, but these liberties were theirs because of historical precedent rather than because of natural rights.

According to H.T. Dickinson, the first of these theories began losing importance after the Glorious Revolution of 1688 and had largely disappeared from British thought by the middle of the 1700s. The second, articulated most notably by John Locke around 1690, gained the support of some radicals in the second half of the 18th century but was not very influential in the first half. The last theory, the ancient constitution, was the only one to receive "overwhelming support" during the 1700s, even among Whigs.

Yet although the original social contract was a minority view in Britain, it seems to have had widespread following on the other side of the Atlantic during the same period. Bernard Bailyn notes that Enlightenment natural-rights theorists, including John Locke, were so widely accepted by the time of the American Revolution that "everyone, whatever his position on Independence or his judgment of Parliament's actions, cited them as authoritative." Right up to the time that independence was declared, American loyalists rarely rejected the views of Locke, Montesquieu, Voltaire, "or even Rousseau"; in fact, sometimes they cited Locke to justify their loyalism. By the 1760s, it seems, the colonists generally accepted a contractarian account of government -- a view that was still relatively unusual in the home country.

I'm going to cite several 18th-century American sermons and political pamphlets to illustrate that discrepancy and trace the influence of the social contract theory in the colonies during the century. I think I have an explanation for the early and widespread acceptance of contractarianism in America. Two factors in particular seem to be responsible for allowing the language of contract to capture the colonial imagination so easily: Puritan covenant theology in New England, and colonial experiences with self-government. These elements facilitated the enthusiastic reception of Lockean ideas, and thereby helped to create a distinct American view of the British constitution.

By the 1760s, when the American revolutionaries claimed certain rights, they asserted them using the language not of the ancient constitution but rather of the original contract. Natural rights and popular sovereignty were already essential features of American Whig discourse. In 1764, Stephen Hopkins could claim that the "glorious" British constitution "will be confessed by all, to be founded on compact, and established by consent of the people." In 1768, William Hicks agreed: "The very spirit of the English constitution requires [...] that no man shall be deprived of life, liberty or property, but by the force of those laws to which he has voluntarily subscribed." He characterized this arrangement as "a rational and well-digested compact." In 1772, Samuel Adams defined the state as "a civil society of men, united together to promote their mutual safety and prosperity"; on this basis, he asserted that not only all Englishmen but also "all freemen in or out of Civil society" had "absolute Rights" of "personal security, personal liberty and private property." Each of these writers took almost for granted a contractarian view of government. By 1776, the doctrine had such great appeal in America that Thomas Paine's bestselling Common Sense could go a step further; on the basis of social contract theory, Paine turned on the British constitution itself, condemning it as a threat to the innate rights of the people. His pamphlet's popularity and influence suggest that the theory of the ancient constitution had already been eclipsed in the colonies.

The social contract did not appear suddenly in the political pamphlets of the 1760s. On the contrary, it had a long tradition in American writing, even in the work of Puritan preachers, who otherwise had little in common with Enlightenment philosophers. As early as 1717, pastor John Wise, taking "Baron Puffendorf for my Chief Guide and Spokesman," contended that civil government "needs be acknowledged to be the Effect of Humane Free-Compacts and not of Divine Institution." Wise developed the idea of the social contract in full, beginning at "the State of Humane Nature in its Original Capacity" and arriving at the idea that "when the Subject of Sovereign Power is quite Extinct, that Power returns to the People again." I think it is significant that Wise advanced this teaching as a support for his congregational view of church polity, not a particular position on civil government -- suggesting that he expected his audience already to accept the doctrine, or at least to be willing to accept it, where the latter was concerned. Wise was followed in 1744 by Elisha Williams, who also provided a thorough summary of social contract theory, citing "the celebrated Lock" as his source and echoing Locke's contention that government exists solely by the agreement of the people in order to protect "their Persons, their Liberties and Estates, or their Property." By 1762, Massachusetts minister Abraham Williams could write a sermon urging civil order and dutiful submission to magistrates, yet casually remark in it that "Men enter into civil Societies, and agree upon rational Forms of Government" in order to "secure the Rights and Properties" of the people, whose voice "in this Case is the Voice of God." Such writing suggests that the social contract was widely accepted in New England even in the first half of the 18th century.

The sermons I've just cited suggest an important reason for the success of contractarianism in America, particularly in New England. As Gordon Wood notes, "for New Englanders, contracts were part of their ordinary everyday lives." Puritan theology stressed covenants as the ligaments of just human society; covenants were the cement for relationships between God and man, among members of a community, and even between superiors and subordinates. So it is not surprising that some of the earliest contractarian writing in 18th-century America came from Puritans like John Wise.

In fact, American Puritans had been advancing contractarian ideas from a very early date. Well before John Locke published his Second Treatise on Government in 1689 -- even before Thomas Hobbes published Leviathan in 1651 and before the English Civil War broke out in 1642 -- governor John Winthrop told the Massachusetts Bay colony in 1637 that "it is clearely agreed, by all, that the care of safety and the wellfare was the original cause or occasion of common weales and of many familyes subjecting themselves to rulers and laws; [...] No common weale can be founded but by free consent." This declaration was echoed and expanded in 1644 by the heterodox Roger Williams, who asserted that "the Soveraigne, originall, and foundation of civill power lies in the people [...] a People may erect and establish what forme of Government seemes to them most meete for their civill condition." These statements lack the philosophical sophistication of the tract Elisha Williams published a century later, but they lack none of its clarity. The conviction that a community must be governed according to a compact among its members, in order to secure those members' rightful welfare, existed in New England long before the 18th century began.

Another reason that Americans embraced the social contract so early could be that the colonies, unlike the boroughs of England, had experience with putting together new governments. Colonial society was young, at least by ancient-constitution standards, and it had produced governments to meet the needs of communities establishing themselves in a wilderness. Such memories may have rendered the social contract more plausible to Americans. (Fittingly, to explain the state of nature, Locke had written that "in the beginning all the World was America"; in America, Locke's ideas made more sense than they did in a country with no memory of a time before its present civilization.) The colonists could more easily imagine a state of nature than their British relatives could, and they could thus more easily accept the doctrine that government existed to correct its shortcomings. Furthermore, it is possible that the erection of separate local legislatures allowed the colonists to imagine that the British Parliament ruled according to a universal principle of government. The multiplication of parliaments in America suggested that some sort of natural right, not merely the ancient custom of a particular country, accounted for their authority.

Not surprisingly, this division between British and American theories of government led to sharp differences of opinion on practical questions. I think we can say that by the 1760s, the patriot movement took the theory of original contract for granted, while the ministry in Britain continued to adhere to the doctrine of the ancient constitution. The former view led logically to belief in popular sovereignty, while the latter upheld the combined sovereignty of the king and Parliament. Furthermore, the former view entailed Locke's idea that government "cannot take from any Man any part of his Property without his own consent" -- which presented a clear challenge to Parliament's authority to tax the colonies. Had the theory of the ancient constitution dominated American constitutional thought in the 18th century as it did in Britain, the debate over parliamentary and royal power might have had a much different outcome. As it was, John Adams was able to proclaim in 1775 that the patriots were upholding "the principles of Aristotle and Plato, of Livy and Cicero, and Sydney, Harrington, and Locke. The principles of nature and eternal reason" -- which happend to be also "the principles on which the whole government over us, now stands." Thirteen British colonies agreed with him.

So in the end, I think we may be able to characterize the dispute between Britain and her colonies in the late 18th century as a dispute between two constitutional models. Both of these models tried to account for the same body of history and laws, and both of them had exponents on both sides of the Atlantic. However, the unique experiences of the colonists, including their history of new systems of government and in particular the Puritan experiment in rule by social covenant, made one of these theories much more plausible than it seemed in Britain. The acceptance of this view among the people of America eventually resulted in a constitutional crisis and a new design for national government.

Bibliography

Bailyn, Bernard. The Ideological Origins of the American Revolution, enlarged ed. Cambridge, Mass.: Harvard University Press, 1992.

Dickinson, H.T., ed. A Companion to Eighteenth-Century Britain. Oxford: Blackwell Publishers, 2002.

Jensen, Merrill, ed. Tracts of the American Revolution 1763-1776. Indianapolis: Hackett Publishing, 2003.

Locke, John. Two Treatises of Government. Ed. Peter Laslett. Cambridge University Press, 1988.

Morgan, Edmund, ed. Puritan Political Ideas 1558-1794. Indianapolis: Hackett Publishing, 2003.

Wood, Gordon S. The Radicalism of the American Revolution. New York: Vintage Books, 1991.

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