Chapter 4. “A Right Which Nature Has Given to All Men”

Between 1773 and 1775, lawyers who favored resistance shifted from arguments that looked like common law pleading to hybrids, part legal, part political. Content followed form, as they cast off from the familiar shores of English liberty to chart a course through what modern jurists have called rights talk. In the process, the revolutionary lawyers did not abandon the common law entirely but used legal modes of reasoning to transform the common law from a body of precedent to an abstract ideal of what good law should be, a kind of meta-law. One should be careful in dealing with terms here. “Rights talk” is now a staple of liberal jurisprudence associated with Civil Rights advocacy, while conservative jurisprudence is primarily concerned with private property rights. The revolutionary lawyers did not divide these topics—they saw personal liberty and the sanctity of private property as part of the same cause.