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CHAPTER ONE THE ENGLISHNESS OF RIGHTS When the ailing James Otis retired to the country on the advice of his physician, the people of Boston, assembled in their town meeting, voted him thanks "for his undaunted Exertions in the Common Cause of the Colonies, from the Beginning of the present glorious Struggle for the Rights of the British Constitution." The description, "Rights of the British Constitution ," was unusual, but not ambiguous. The Stamp Act Congress, in its petition to the king, a document Otis helped draft, had spoken of "securing the inherent Rights and Liberties of your Subjects here, upon the Principles of the English Constitution." Although one might object that there was, in 1765, no such thing as an English constitution, the claim could not be misunderstood. What was being sought was both English and British- English rights under the British constitution. Quite often colonial whigs professed to be defending American rights, as when the Stamp Act Congress asserted "the most Essential Rights and Liberties of the Colonists," and the people of Lebanon, Connecticut, wrote of ,"the rights of America." Although the language was less precise than we would like, the meaning was clear enough. Colonial whigs might speak of American rights but they were thinking of English rights guaranteed to Americans by the British constitution. Those were the rights Virginia's House of Burgesses meant when asking for "our just Liberties 9 10 THE ENGLISHNESS OF RIGHTS & Privileges as free born British Subjects," or, as New Hampshire's House of Representatives told the burgesses, "those Liberties and priviledges which are the Impregnable Bulwarks of the British Government."l The argument must not be misunderstood. It is not just that American whigs were defending English rights. More to the point, they were not defending or seeking other types of rights. American rights were not generally questioned by the London government during the revolutionary controversy, and therefore were not at issue. And Americans, both whigs and loyalists, were not interested in British rights that were not English rights. They never sought Scottish rights and the last thing they wanted were Irish rights. It was for English rights that they disputed. The fact is not certain, but it is possible that only once did a suggested claim for a non-English right appear in the revolutionary literature. Significantly, it was not asserted in any official remonstrance, declaration, petition, or letter voted by a unit of colonial government or by a whig committee. Rather, it is to be found in a pamphlet written by Arthur Lee and published anonymously in London. Lee thought that the provision against standing armies in the "Declarations of Rights for Scotland" was more suitable for the colonies' protection than was the related provision in the English "Declaration of Rights." England's Declaration provided "That the raising or keeping a standing army within the Kingdom, in time of peace, unless it be with consent of Parliament, is against Law." The Scottish Declarations said "That the sending of an army, in a hostile manner, upon any part of the Kingdom, in a peaceable time, is contrary to Law." "With how much more propriety," Lee asked, "may the Colonies declare, 'That the sending an army among them in a hostile manner, to collect taxes not authorised by the consent of their Representatives, and to enforce laws made without their consent, is dangerous, arbitrary, and illegal '?" Lee was not asking for a Scots right. He was redrafting a Scots right to help solve the American constitutional crisis. It is possible that this was not the only occasion during the revolutionary controversy that a non-English constitutional right was suggested as a model for Americans . If, in fact, other rights were suggested they most likely were natural rights, and their very paucity proves the rule that it was English rights that were at issue.2 Rights such as the one Lee cited, promulgated in constitutional instruments like the Bill of Rights or the Petition of Right, were reasonably precise. Most rights asserted in eighteenth-century Great Britain or British North America were more vague. This fact was due in large part to the nature of British constitutional doctrine, arising from unwritten tradition , which had no supreme tribunal for settling controversies and clarifying specifics, and also in small part to a belief held by some legal theorists THE ENGLISHNESS OF RIGHTS 11 that it was best to keep rights somewhat imprecise. "It perhaps would be dangerous," a reviewer for The Scots Magazine explained...

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