Property Rights & Revolution
The date was December 20, 1765. The location was Castle William, a royal castle just outside of Boston that protected the harbor.
James Otis and John Adams were meeting with Royal Governor Bernard. Legally, the Stamp Act had gone into effect the month before, but the Sons of Liberty patrolled the streets at night, and Otis and Sam Adams were the de facto government of Boston. The other twelve colonies were watching closely and soon the eyes of the world would be transfixed on Boston. Would that winter’s meeting change the course of history? Would the rebels press Algernon Sidney’s radical philosophy of rights into action against the burgeoning new Rome that was the British Empire?
Adams made an argument that Bernard had heard many times before. The Stamp Act, enacted without the consent of the governed, breached the rights of Englishmen. It violated the (unwritten) constitution, and thus was void. Bernard was unmoved by this argument, given Parliamentary Supremacy and the divine imprimatur of the King. The divine right of Kings had been substantially subsumed by Parliament, and the Parliament could do whatever it wanted.
But James Otis offered an entirely different argument. He conjured the specter of Algernon Sidney with the incantation “abdication of government.” The formulation was simple. The court could not operate without stamps, and the Sons of Liberty were ensuring that stamps didn’t get distributed. Therefore, the courts were not operating. But if the government failed to fulfill its basic duties, then the people had the right to establish their own government. Consent of the governed was paramount; consent of the government was irrelevant. Bernard and his Parliament and even his king were irrelevant. The Puritans, fueled by a highly concentrated version of the Protestant Reformation, believed they communed directly with God.
A century earlier, Sidney had argued that government’s primary role is to secure “justice and protection.” For Sidney, this entailed protecting life and property and operating the courts necessary to fulfill that “protection” obligation. Obedience to a government that fails to deliver “justice and protection” is not required. While Sidney’s Discourses and Locke’s Two Treatises are considered the foundation of colonial rebel thought, colonial writers often referred to Locke when they meant Sidney. Otis wrote that Sidney was deemed too incendiary to “Jacobites and stupid bigots,” thus acknowledging that royalists believed summoning Sidney was a call to armed rebellion. Direct references to Sidney were considered impolite and dangerous because he conjured memories of hostile rebellion (the English Civil War) and regicide (the beheading of Charles I). And everyone was aware that Sidney’s Discourses was used to convict Sidney of treason, a conviction for which he literally lost his head.
For Locke and Sidney, the practical application of the intangible concept of “liberty” was the protection of property. A government that does not protect property has enslaved the people to arbitrary justice. For the Founders, “arbitrary” was a litmus test (and often code) for “tyranny.” Tyrants are not always cruel, but they are arbitrary.
Sidney had argued that property “is an appendage to liberty,” and liberty was a natural right. Natural rights were acquired directly from God and placed in the soul of each person, and thus no government have the right to abrogate such rights. If people are “endowed by their Creator with certain unalienable Rights,” then the government that does not fulfill these rights is defying the will of God.
The direct line from protection of property to liberty to God established the connection between seemingly mundane “property crimes” and the will of God. For the children of Puritans, animating the will of God into action was instinctual. After all, they were living in a city that was, to the people who founded Boston, but the manifestation of the will of God. For royalists, these were dangerous people and anarchic ideas. These Puritans were expert at translating ideas to action, which meant their words could prove to be, quite literally, lethal. It was these Puritans who charged King Charles with “misgovernment” because, instead of protecting the rights “reserved on the peoples,” he used government to enrich and protect “himself and his adherents.” The King’s crimes included: “much innocent blood of the free people of this Nation hath been spilt, many Families have been undone, the public Treasure wasted and exhausted, Trade obstructed and miserably decayed, vast expense and damage to the Nation incurred, and many parts of this Land spoiled, some of them even to desolation.” And then the Puritans cut of his head. The royalists had returned the favor three decades later by beheading Sidney. Puritans generated a unique fear in royalists and some royalists suspected that perhaps the Puritans haven’t forgotten about Sidney’s ghastly end.
In 1762, Otis wrote that the only possible outcome of a government does not secure these rights is an “appeal to Heaven, and the longest sword.” Otis referred to Sidney as the “British martyr” and, by 1763, it was common for Bostonian rebels to refer to him as the “Rebel Saint.” First widely introduced in the 1750s by clergyman Mayhew — the leader of the Black Regimen — by 1763, Sidney’s Discourses was circulating throughout the colonies, in part due to the enthusiastic support of Thomas Hollis (whose father had endowed the Hollis Chair at Harvard).
It was that formulation — an appeal to Heaven, and the longest sword — that Otis summoned on December 20, 1765. For Otis, the only response to persistent rights violations and arbitrary government was holy war. Royal Governor Bernard was perfectly aware of the gravity of Otis’ threat.
It took a few years for other rebels to concur, but Jefferson in Virginia was coming to largely the same conclusion: a government that didn’t secure the rights of the people was an enemy of God.
Thus any formulation of something being “just a property crime” is ignorance of this core founding principle. Sidney wrote that property is “an appendage to liberty” and that it was “impossible” to have liberty without securing property. Persistent property crimes are a symptom of arbitrary government and an anathema to God. The catalyst for that winter’s meeting was not taxes or some theoretical political difference; the substance of the problem was the non-functioning of the criminal justice system.
A year later, Governor Bernard wrote that the “Troubles in this Country take their rise from and owe their Continuance to one Man.” The following decade, oligarch Peter Oliver placed the blame entirely on the “young Mr. Otis, as he was the first who broke down the barriers of Government to let in the Hydra of Rebellion.”
While there was a long line of grievances, the invocation of Sidney at that winter’s meeting was triggered by the closure of the Massachusetts courts for barely over a month. For Otis, the unpredictable operation of the colonial criminal justice system was the purest symptom of an abdication of government and the harbinger that it would soon become necessary for one people to dissolve the political bands which have connected them with another.