How we regard the birth of liberty in North America greatly influences our appreciation of its value today. Scholarship has long and rightly portrayed its origins in traditions antedating the American Revolution. They derive it from the English Common Law and see in the American founding a confirmation of that tradition of English law and custom. The colonists are regarded as having gradually acquired the arts of independent self-government from the historic practices of English indulgence. In that light, they have seen the Revolution as a break from English administration of the colonies, rather than as a decisive advance in theory and principles of self-government. Accordingly, they have systematically discounted the influences of thinkers—English, Scottish, and continental—in originating the Revolution. Rather, they insist, Whiggish activists borrowed the rhetoric of their English cousins to defend their unparalleled exertions on behalf of independence, but with little idea whatsoever of a way of life other than that for which colonial experience had prepared them.

There is considerable truth in this account, inasmuch as the Americans treasured most highly the rights and liberties of Englishmen. They began to defend and articulate their rights to life, liberty, and estates from the earliest date. The 1646 case of Robert Childs et al. testifies powerfully to this history, and not alone. We would be neglectful, however, if we failed to note that these early challenges were generally directed toward colonial exercises of power—as was the rhetoric of Patrick Henry in the Parson's fee case of the late 1750s. In short, it was in the context of seeking out limitations on the colonial exercise of power that Americans so frequently and habitually invoked their ancient rights under the British constitution. This process reached its peak in the use made of the work English Liberties, by Henry Care. It was no accident, to be sure, that Care was probably the most radical of post-settlement Whigs. Yet he did not go far enough for the Americans. In the case of men like Sam Adams, his virulent anti-popery survived far better than his scholarly reliance on English law.

Accordingly, contemporary scholarship is wrong in its central claim—that prior to the Revolution Americans did not meaningfully divide over questions of rights and liberties. They are also wrong to minimize the influence of modern political philosophy in the direction that debate ultimately took.