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Civil Liberties in the Colonies - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]

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Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Civil Liberties in the Colonies

Among the civil liberties that are enumerated in the Bill of Rights of the American Constitution, those providing for the free exercise of religion, freedom of speech, and freedom of the press are noteworthy. It is instructive to examine the status of these freedoms in the Thirteen Colonies on the eve of the American Revolution.

First, the free exercise of religion. In the seventeenth century, America was a refuge for fugitives from religious persecution, including Puritans, Quakers, and Catholics. But the persecuted, when they have opportunity, sometimes persecute in turn, and so it was in North America until religious hostilities diminished in the eighteenth century on both sides of the Atlantic.

By 1763 the congeries of religious sects and denominations had learned tolerably well how to get along peaceably with one another. The Congregationalists of Massachusetts, for example, had found it necessary to permit Anglicans to settle among them in large numbers; the Quakers of Pennsylvania had come to terms with the Scotch-Irish Presbyterians of the western regions; Methodist preachers were evangelizing the backwoods and the frontier; the feeble Catholic minority in Maryland and New Jersey was tolerated; the handful of Jews were not even noticed; and the Deists, though as few in number as the Jews, had won over some eminent men, including Thomas Jefferson, Benjamin Franklin, and John Adams. Nine of the Thirteen Colonies had established churches in 1763: the Church of England in Virginia, Maryland, the Carolinas, Georgia, and the southern counties of New York; the Congregational Church in Connecticut, New Hampshire, and Massachusetts and its dependencies.

“Establishment” of a church meant that it was a “preferred” sect that might enjoy certain economic privileges; it did not mean that other churches were banned. For the colonial governments were far more tolerant of dissenting churches than were European governments. Sometimes religious minorities were exempted from paying tithes (church taxes enforced by the public authority); sometimes members of congregations were permitted to pay their tithes directly to the church of their choice. Such liberality on the part of the state was unknown in much of Europe at the time.

There was, nonetheless, discrimination against Roman Catholics, Jews, and even dissenting Protestants, particularly the Baptists, if they refused to comply with local laws that benefited a preferred sect. For example, colonial governors were instructed not to indulge Catholics in “liberty of conscience,” because Catholics were regarded as potentially subversive of the established state and church. On the eve of the Revolution, only in Pennsylvania could Catholic masses be celebrated publicly. The British government’s policies in 1763 that seemed to protect the French Catholics of Canada were especially frowned upon by New Englanders, New Yorkers, and other Americans who had hoped that British victory in the recent Seven Years’ War (French and Indian) would result in the subjugation and possible suppression of Catholicism in Canada. Eleven years later, when Parliament passed the generous Quebec Act, patriots in America denounced the legislation as one of the “Intolerable Acts” because it guaranteed religious freedom to the Quebec Catholics. Sometimes the more ardent advocates of civil rights angrily draw the line at a proposal for the civil rights of other people.

All in all, though, Americans enjoyed the benefits of religious liberties—although some American leaders feared that fierce intolerance lay just beneath the surface of the religious calm. Nearly all Americans professed to be Christians, even if they sometimes were rather eccentric Christians. But not all Christians always observe the doctrine of brotherly love. Had it not been for the British Toleration Act of 1689, religious minorities in several of the Thirteen Colonies might have been driven away.

Second, what of “the freedom of speech, or of the press”? By 1763, a score of newspapers were published in the Thirteen Colonies, though sometimes eleven of a paper’s twelve columns might be filled with advertisements. Two years after the British took Quebec from the French, there was little controversy within British North America. The only alarming news came from the region of the Great Lakes, where Chief Pontiac’s Indians were attacking British garrisons. Freedom of the press and of speech seemed well established.

This had not been the case earlier in the eighteenth century, when printing and publication had required licenses from public authority in both Britain and America. In the early years of newspaper publication, before the average man had grown accustomed to newspapers, governments had feared (not without reason) the extent to which public opinion might be misled by libels and false reports printed in newspapers. But gradually controls upon the press on either side of the ocean had been relaxed, in part by court decisions, and, although some government power of licensing the press and of prior censorship remained in 1763, the American press was much freer than that of most of Europe. Freedom of speech was also protected by British statutes and by common law—short of speech that might encourage sedition, incite to riot, be slanderous, blasphemous, or obscene, or otherwise result in breaches of the peace. In 1763 there was no political dispute in America controversial enough to justify the breaking up of a public meeting by the guardians of the peace.

Only two years later, however, in 1765, this era of good feeling came to a most abrupt and disastrous end. The cause of disruption was the Stamp Act that the British imposed upon the colonies as a means of raising sixty thousand pounds in annual taxes to help defray the costs of the war with Pontiac’s Indians on the northwestern frontier. (The British government expected to have to pay 350,000 pounds a year to maintain troops in North America.) Soon the famous cry “No taxation without representation” was heard from the Patriots. That the Stamp Act taxed newspapers and legal documents infuriated America’s newspaper publishers and lawyers—and these were powerful classes to offend. One consequence was a concerted attack by most of the American newspapers upon both Parliament and King George III—and attacks by mobs upon the printing houses of the few Tory (or pro-British) newspapers.

Civil rights are sorely battered in time of war. Until the fighting ended in 1783, little freedom of speech or of the press was allowed, from New Hampshire to Georgia—except freedom of a sort for whichever side, Patriot or Loyalist, happened to be in control of a town or a region. Those two decades of violent interference with publication and public speaking were not forgotten when the first State constitutions were drafted.