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INTRODUCTION Rights were taken seriously in the eighteenth-century British Empire: the rights of the individual, the rights of Englishmen, the rights of mankind . People cherished them, championed them, and defended them. "I speak, Sir, as a friend of England and America," John Wilkes boasted to the Speaker of the House of Commons, "but still more to universal liberty, and the rights of all mankind." "The rights ofAmerica have often been declared to the public," John Mackenzie reminded South Carolinians . "Related strokes on the anvil, tempers the metal: They cannot be too often mentioned." Because Americans took rights seriously, they were intent on claiming them during the controversy leading to the Declaration of Independence. That is why they betrayed such anxiety about losing their rights when they perceived those rights threatened by British government policy in the decade and a half before 1776. "The bare Mention of the Word Rights always strikes an Englishman in a peculiar Manner ," Chief Justice Thomas Hutchinson told the 1769 session of the Suffolk County (Massachusetts) grand jury. "But, in Order to support and defend the Rights, of which we are so fond, we ought to have a just Apprehension of what they are, and whereon they stand." The task Hutchinson set for the grand jury is the task of this study: to identify the rights that Americans feared were in jeopardy, and to learn on what theory of law they claimed those rights. l 3 4 INTRODUCTION This study seeks to dispel several notions about the American Revolution . One, which follows from the assertions that rights were taken seriously and that they were constitutional, is the notion that the Revolution was unconcerned with constitutional and legal ideology. Another is the claim that colonial Americans "failed to define their liberty, [or] to catalog their rights." The task undertaken in the first chapters is to show that the colonists not only cataloged their rights, they also were in general agreement about their definitions and purpose. Eighteenth-century constitutional rights, however, were not twentieth-century constitutional rights. For example, a right given much emphasis then - one of the most cherished and utilized that the British people possessed-was the right of petition. It is so unimportant now that it is seldom mentioned in treatises on American constitutional law. By contrast, rights that today monopolize our attention, such as freedom of occupation, the right to abortion, freedom of association, the rights of women, and the right to privacy, were unknown during the revolutionary era. The closest that eighteenth-century political theorists came to discussing privacy was when British pamphleteers protested the cider excise of 1763. "Is not subjecting the dwelling houses oj private persons, to be entered and searched at every hour of the day by any petty excise officer . . . very great grievances?" it was asked. "Nay, is it not striking at, and undermining the very foundations of our constitution?" The language seems to presage the twentiethcentury American constitutional right of privacy, but only in the most attenuated sense. The "very great grievances" referred to by the writer were not invasions of privacy, but arbitrary entrances and general search warrants. Other rights now extant existed in quite different guises during the eighteenth century. One example is the right to trial by jury. No civil privilege was more highly cherished in the European or American dominions of George III than jury trial. It is one we think we still possess- but do we? In the eighteenth century the privilege of jury trial did not include the right to professional counsel in felony prosecutions, or the right of defendants accused of crime to testify on their own behalf. A second example is freedom of printing and publication. "The LIBERTY of the PRESS is one of the most valuable privileges of Englishmen," a barrister contended in 1768, and the political literature was filled with defenses of the right, claiming that it "is undoubtedly a very great benefit in our constitution," and asserting that should the right be abrogated "we shall then be truly without a constitution." It was not the same freedom of the press that we know today, however, for there was no right to publish criticism of public officials or to report certain happenings such as parliamentary debates.2 INTRODUCTION 5 Another notion this study seeks to correct is the thesis that American whigs, unable to answer British constitutional arguments, were forced to abandon claims to English rights "and resort instead to the natural rights of man rather than...

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