February 19, 2013 essays

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Freedom, Rights, and Political Philosophy, Part 4

On June 26, 1826, shortly before his death, Thomas Jefferson wrote to Roger Weightman, chairman of an upcoming Independence Day celebration in Washington, explaining that he could not attend the festivities because of illness. (Both Jefferson and John Adams died on July 4,1826.) In what was probably his last letter, Jefferson expressed hope that the example and principles of American Independence would encourage other nations to “burst the chains” in which they had bound themselves. He continued:

The general spread of the light of science has already laid open to every view the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God.

Jefferson was not the first to use the “booted and spurred” metaphor; it appears frequently in the writings of Radical Whigs and other libertarian types. The striking phrase originated with Col. Richard Rumbold (1622-1685), an English Leveller and veteran of the English Civil War who served as a guard during the execution of Charles I in 1649.

After the Restoration of the Stuarts in 1660, Rumbold acquired ownership of Rye House, a fortified mansion near the town of Hoddesdon. He played a leading role in the Rye House Plot—a conspiracy to assassinate King Charles II and his brother, the Catholic Duke of York (later King James II), as they returned from the races at Newmarket. This plot was foiled when a fire at Newmarket caused the royal brothers to return earlier than expected.

Rumbold fled to Holland to escape arrest, as did Lord Shaftesbury (leader of Whig opposition to the Stuarts) and his protégé, John Locke, who were also implicated in the plot. Then in 1685, after joining the Duke of Argyll’s invasion of Scotland—one wing of Monmouth’s Rebellion, a disastrous attempt to overthrow James II — Rumboldt was captured and executed. While on the scaffold, he is reported to have said: “None comes into the world with a saddle upon his back, neither any booted and spurred to ride him.”

This metaphor reflected the doctrine of Levellers and Radical Whigs that humans are born morally equal, so no person can legitimately claim political power or dominion over others as a matter of natural right. As the Leveller Richard Overton explained in An Arrow Against All Tyrants (1646):

To every individual in nature is given an individual property by nature not to be invaded or usurped by any. For every one, as he is himself, so he has a self-propriety, else could he not be himself; and of this no second may presume to deprive any of without manifest violation and affront to the very principles of nature and of the rules of equity and justice between man and man. Mine and thine cannot be, except this be. No man has power over my rights and liberties, and I over no man’s. I may be but an individual, enjoy my self and my self-propriety and may right myself no more than my self, or presume any further; if I do, I am an encroacher and an invader upon another man’s right—to which I have no right. For by natural birth all men are equally and alike born to like propriety, liberty and freedom; and as we are delivered of God by the hand of nature into this world, every one with a natural, innate freedom and propriety—as it were writ in the table of every man’s heart, never to be obliterated—even so are we to live, everyone equally and alike to enjoy his birthright and privilege; even all whereof God by nature has made him free.

According to Overton, “every man by nature being a king, priest and prophet in his own natural circuit and compass, whereof no second may partake but by deputation, commission, and free consent from him whose natural right and freedom it is.” This is the ultimate source of political authority. Unlike the mere ability to coerce others, political authority entails the right to exercise political power. (What makes power specifically “political” in nature is an issue that I cannot discuss at this point.) And since individuals are born with equal rights, since no person can claim special rights not possessed by others, political authority can arise only when individuals voluntarily delegate certain of their rights, or rightful powers, to a specific government. The right of rulers to demand obedience is therefore an acquired right (often called an “adventitious” right), not a natural right, and it can be acquired only through consent.

Years before Jefferson used Rumbold’s “booted and spurred” metaphor, it had been employed by James Wilson, the brilliant American legal theorist who was only one of six men to sign both the Declaration of Independence and the Constitution. Wilson played a major role during the Constitutional Convention, where he was virtually the only delegate to call for the complete abolition of slavery, and he later served on the Supreme Court.

In 1790, after being appointed professor of law at the College of Philadelphia (later the University of Pennsylvania), Wilson delivered an extensive series of lectures on law. Although his lectures were not published during his lifetime, Wilson hoped they would eventually serve as an American version of Sir William Blackstone’s Commentaries on the Laws of England. Wilson’s lectures covered far more than law in the strict sense; they also explored the philosophy of law in considerable detail. Wilson was especially interested in the authority of law. Why are people obligated to obey laws? What is the ultimate source of this political duty?

Wilson did not like Blackstone’s answers to such questions, and he traced Blackstone’s errors to his definition of “law.” According to Blackstone (who was following the lead of Samuel Pufendorf and other previous philosophers of law), “Law is that rule of action, which is prescribed by some superior, and which the inferior is bound to obey.” This definition provoked a spirited response by Wilson.

A superior! Let us make a solemn pause—can there be no law without a superior? Is it essential to law, that inferiority should be involved in the obligation to obey it? Are these distinctions at the root of all legislation?

A little later, Wilson continued:

If I mistake not, this notion of superiority, which is introduced as an essential part in the definition of a law…contains the germ of divine right—a prerogative impiously attempted to be established—of princes, arbitrarily to rule; and of the corresponding obligation—a servitude tyrannically attempted to be imposed—on the people, implicitly to obey.

Wilson did not believe Blackstone was a “votary of despotick power.” Nevertheless, regardless of what Blackstone’s intentions might have been, his conception of law logically entails the right to exercise despotic (or absolute) power and so would poison “the science of man and the science of government…to their very fountains.” The inner logic of ideas—the fact that premises will out, as Ayn Rand might have said—demands that we “lay the foundations of knowledge deep and solid” and carefully examine the claims of others, regardless of how “venerable they may have become by reputation.” The doctrine that law presupposes a superior/inferior relationship is “dangerous,” so it was of “radical importance” to examine that doctrine meticulously.

It was during his extensive criticism of Blackstone’s theory of law that Wilson invoked Rumold’s “booted and spurred” metaphor.

Had it been the intention of Providence, that some men should govern the rest, without their consent, we should have seen as indisputable marks distinguishing these superiors from those placed under them, as those which distinguish men from the brutes. The remarks of Rumbald [sic], in the nonresistance time of Charles the second, evinced propriety as well as wit. He could not conceive the Almighty intended, that the greatest part of mankind should come into the world with saddles on their backs and bridles in their mouths, and that a few should come ready booted and spurred to ride the rest to death.

Wilson recalled another illustration to make his point, one that was “still more apposite to our purpose.” According to this saying (which seems to have been well known in Wilson’s day), we should never subscribe to the “doctrine of the divine right of princes” until we see subjects born with “bunches on their backs, like camels, and kings with combs on their heads, like cocks.” These visible indicators might convince us that subjects were “designed to labour and to suffer” and that kings were designed “to strut and to crow”—but in the absence of such “striking marks” we have no reason to think that some individuals are born with political authority over other individuals.

The claim that humans are naturally equal, so far as rights and political dominion are concerned, has a long and distinguished ancestry. The doctrine of natural equality had been used even by political philosophers who reached conclusions that were anything but libertarian. (I shall explore some features of this complex and fascinating history at another time.) But during the seventeenth and eighteenth centuries, when the rights of resistance and revolution were live and hotly contested issues, the doctrine of natural equality was pressed into the service of radical individualism, as it was repeatedly invoked to undermine the authority of established governments.

The reasoning involved here will be explained later in this series. For now, suffice it to say that the stress on natural equality had a good deal to do with the libertarian conception of “freedom” as equal freedom under the rule of law, a condition in which each person is free to dispose of his property—including his body, labor, and external goods—as he sees fit.

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