An Argument in Defense of the Exclusive Right Claimed by the Colonies To Tax Themselves

The American Revolution emerged from a constitutional crisis in the British Empire. The existing British constitution could accommodate colonies that existed as satellites of the empire, maintained so long as they shipped plentiful raw materials back to the mother country to be used in manufacturing. Extractive colonies (Koyama and Rubin 2022) could function like enfranchised monopolies with hierarchical governance, and all activities coordinated toward a single end.

Settler colonies, on the other hand, include individuals dedicated to purposes of their own, above advancement of the empire. The North American colonies were settled by individuals pursuing their own ideas, goals, and visions of the good life. Not satisfied to merely produce raw materials for refinement in the British Isles, the American colonists built manufacturing facilities of their own, developed internal trade networks, and artificed governing institutions that suited their own concerns.

The colonists adapted the British constitution and Common Law to their own circumstances, proving the robustness of these institutions. But representation in Parliament at such a distance was impractical and, if proportional to populations, would threaten to overwhelm Parliament with colonial representatives. Adam Smith explained that “private interest[s]” in Britain would never allow that outcome (WN V.iii.68, IV.vii.c.75).

Parliament came to treat the settler colonies as extractive colonies. A constitutional innovation might have resolved the crisis. Many put forward proposals. Others did not see a resolution ready for implementation, and for the sake of preserving human liberty recommended dissolution of the bonds.

Among those for separation was James Otis, a Bostonian barrister and orator. In 1774 Otis produced his pamphlet: An Argument in Defense of the Exclusive Right Claimed by the Colonies to Tax Themselves with a Review of the Laws of England, Relative to Representation and Taxation, to Which is Added, and Account of the Rise of the Colonies, and the Manner in which the rights of the subjects within the realm were communicated to those that went to America, with the exercise of those rights from their first settlement to the present time. This is, to the best of our knowledge, the last of Otis’ pamphlets, produced after he had largely left the public sphere. Otis relied extensively on Montesquieu, Coke, and Blackstone. Otis threw the British constitution in the face of the British Empire, demonstrating its violations of its own principles, and the limits of that constitution’s application to the situation of settler colonies.

Manasseh Dawes, a British barrister of the Inner Temple, wrote in 1776: A letter to Lord Chatham, concerning the present war of Great Britain against America; Reviewing Candidly and Impartially Its unhappy Cause and Consequence; and wherein the doctrine of Sir William Blackstone, As Explained In his celebrated Commentaries on the Laws of England, is Opposed to Ministerial Tyranny, and Held Up in Favor of America. With Some Thoughts on Government by a Gentleman of the Inner Temple. Dawes urged Britain to end its war on the colonies. Chatham was William Pitt the Elder, Prime Minister from 1766 to 1768, and broadly sympathetic towards the colonies’ cause. Pitt was lauded for his successful foreign policy, including management of the Seven Years War. Pitt spoke against the Stamp Act, arguing that “parliaments were ashamed of taxing a people without their consent” and responded to the query “when were the colonies emancipated? But I desire to know, when were they made slaves” (1766). Pitt had retired from public life by the time Dawes’ open letter was published. Dawes pointed to Blackstone’s Commentaries on the Laws of England and showed how the Common Law resonated with the language employed in the colonists’ new Declaration of Independence. Again, Great Britain was challenged to act in consistency with its own principles.

Imperial ambitions are not consistent with domestic liberty. Great Britain, looking for revenue to pay down debts incurred in the Seven Years War, established a series of statues that encroached on the American colonies’ right to self-governance. The Stamp Act required colonists to purchase at a premium British-stamped stationery for legal documents, such as licenses, contracts, deeds, court records, and wills. It also required stamps on newspapers, diplomas, and advertisements. The Stamp Act was repealed in 1766. The Townshend Acts followed in the summer of 1767. These acts expanded Great Britain’s imposed duties on imports and usurped colonial self-government. The colonists were being treated as subjects obliged to enrich Great Britain. The colonists complained, resisted, and eventually sought independence.

Settler colonies are inhabited by free men with the capacity for self-governance and will resist being used to serve the ends of empire. Otis provided the colonists justification for separation founded in the principles of the English constitution and the colonists’ peculiar origin story. Dawes justifies the Declaration of Independence to the British ruling class on similar grounds.

Otis argues for protecting natural rights as outlined by John Locke. Locke was an English philosopher from the seventeenth century who wrote about governmental legitimacy and human nature. He believed that all human beings have natural rights, such as life, liberty, and property. Otis expressed a similar framework when claiming, “The great end of men uniting together, and putting themselves under government, is for the mutual preservation of their lives, liberties and estates” (Otis 67). Locke asserted that human beings are born with inalienable basic rights. He justified this theory using the Christian belief that God grants these rights to all people.

Locke, and later Montesquieu, theorized that governments exist to protect and balance individual rights. In society, people entrust their rights to the government by forgoing a degree of individual freedom. For instance, laws prohibit individuals from being violent toward one another because they prioritize the right to life. Citizen consent is fundamental to government legitimacy. “The liberties of the people being the direct end of our laws, the power of making them implies, the consent of the people actually given” (Otis 75). Through democratic means, the prioritization of competing values within a society is determined and balanced by the constitution, politicians, and citizens.

Otis, rehearsing Montesquieu, reminds the colonists of the virtue of the English constitution. Montesquieu, a political philosopher from the Enlightenment, concurred with Locke’s belief in natural rights, examining how governments should operate to best protect these rights. He is largely credited for crystallizing the idea of separation of powers among different branches of government, including a legislative, executive, and judicial system. Otis elaborates, “These three powers should naturally form a state of repose or inaction. But as there is a necessity for movement in the course of human affairs, they are forced to move” (Otis 19). All bodies are to be bound by the rule of law, meaning institutions are accountable to the laws and the public. Each branch’s powers were checked and balanced by the others to minimize corruption.

In Locke’s Second Treatise on Government, when the government ignores the will of the people, he asserts that revolution is within the rights of citizens when they face such tyranny. Unjust governments should be dissolved and replaced with legitimate institutions. Dawes agrees with the revolutionary stance but rejects the deontological premises of Lockes. Rather, Dawes justifies his opinions using Benthamite utilitarianism. This philosophy outlines that actors ought to pursue courses of action that lead to the best results for the greatest number of people. “They have delighted in the name of Englishmen, even while they thought themselves entitled to it in a secondary degree; but when convinced of our attempts to deprive them of the benefits common among ourselves in England, and to force obedience to laws from them, to which they are no parties, they made a stand on principles of UTILITY, the destruction of, or infringement upon which, in any way whatever, is to undermine the stately pillars of government” (Dawes 34). For Dawes the war against the colonies violated the Utilitarian principle. Great Britain sought not the greatest good of the greatest number, but the good of its own, and its Ministers of government primarily.

The Stamp and Townsend Acts were passed without colonial representation in Parliament. Otis points out the irony in this, as Parliament was formed following the signing of the Magna Carta to prevent tyranny and ensure that all citizens had a degree of agency over policies that impacted them. Yet, the British government excludes “every one of your fellow subjects in America, from any share in this great privilege granted in common to all the people” (Otis 54). Without representation in Parliament, the colonists had no voice in the policies that impacted their livelihood, subjugating them to “taxation without representation” and creating the same sort of tyranny that Parliament was intended to prevent.

The conflict over the Stamp and Townsend Acts revealed an inconsistency in the structure of the British government. Colonists who moved  from Britain or were born in the colonies experienced no change in authority or nationhood and thus felt entitled to hold the same political power. Otis states, “The people in America, and those of England, Wales, Scotland, and Ireland, are sons of the same common forefathers; they are therefore the common heirs of the same rights and privileges” (Otis 93). The Stamp and Townsend Acts showed that the protection of these “rights and privileges” was not universally applied by showing that some subjects had more political authority than others.

In addition to this inequality, Parliament during this period failed to uphold inalienable rights. Taxes are a direct imposition on the right to property, confiscating private wealth for public use. Otis concedes that this is necessary to provide the benefits of being a British citizen. However, in instances where individuals are not provided with all of the benefits of citizenship, such as political representation, it is unjust for them to bear all of the responsibilities, such as taxation. Regarding colonists being forced to pay a tax they had no representation in the passage of, Dawes states, “The pretense is an insult to the British constitution, to enforce obedience to a law from a people, who are in no instance parties to it” (Dawes 9). By explaining how the Stamp and Townsend Acts failed on the principles of equality and inalienable rights, the authors reveal how addressing this injustice, either through reform or revolution, was urgent for the colonists.

The purpose of government is to protect the basic rights of life, liberty, and property. When the British government failed to do so, its legitimacy in the eyes of the people was compromised. Otis asserts, “…[W]herever men see their private rights are injured, their strongest motives of attachment to the government under which they live, are weakened or destroyed” (Otis 98). The loss of “attachment to the government” leads members of a society to pursue alternatives. For Otis, pursuing an alternative meant reforming existing systems to better protect colonists’ right to property; for Dawes, it meant establishing new institutions through revolution.

Otis argues the solution to the abuse of power is to offer the colonists representation in Parliament, believing that this would resolve colonial discontent and support the principles of the English constitution. Otis states, “[The English constitution] as established by laws is utterly repugnant to every attempt to divide the right of taxation from the privilege of representation” (Otis 68). Otis believed that, by extending the benefits of the English constitution to the colonists, Britain would create a more just government and improve its relationship with the colonies.

Otis’ solution, had it been implemented, may have led to a more cohesive empire. However, the British government opted to ignore these concerns and to continue their abuse of power. By the time Dawes published his open letter, the American Revolution had begun, and Britain and the colonies were irreconcilable. As a result, Dawes focused on the success of the colonies in the war as the only way to escape British tyranny. Otis examines the intricacies and underlying values of the English constitution before making his argument. In contrast, Dawes writes dogmatically about his support for the colonies, that he believes are destined to win due to their moral superiority. Dawes declares, “[Britain’s] conquest then will be mere defeat; [the colonists] will be our conquerors for having exhausted and risked their all against us, while we shall be the vanquished by our loss of time, blood, and treasure” (Dawes 10). By narrativizing the American Revolution as a conflict between tyranny and liberation, Dawes argues in favor of working outside political structures in times when the government threatens individual rights. While this is an approach that is more radical than Otis’ proposed reforms, the American Revolution alone exemplifies how it can lead to essential structural change.

Although colonial America valued liberty, the dominant class failed to extend this natural right to all people. Otis expresses his frustration with this double standard in reference to victims of the Transatlantic Slave Trade where an estimated twelve million people and their descendants were robbed of their liberty. Otis explained that individuals of any ethnic origin are entitled to life, liberty, and property rights. He believed that slavery was inherently unjust because it unfairly deprived groups of their bodily autonomy and basic civil privileges. He criticized America’s use of slavery while they simultaneously fought for their own liberation. Slavery compromises settler colonies into extractive patterns. He maintained that rights are universal and should be applied equally to all people. Unfortunately, the general public of the Americas would take an additional two centuries to mandate the protection of many basic rights for ethnic minorities, women, disabled individuals, and the LGBTQ+ community. Despite the historical perennial adoption of inclusive rights protections, Otis shows that some professional scholars advocated for an inclusive system that believed in the values of liberty and equality.

The rights Otis argued for are the discovered laws of nature that the British constitution protects. The United States Constitution, that was informed by the British constitution, shares the belief in unwritten laws of nature that are merely discovered and protected by the constitution. This fundamental view of the constitution sets expectations of certain natural rights, such as the peaceful transfer of power, that must be respected to protect the individual liberties of the people.

A strong constitution protects the natural rights of the people by instilling a series of checks and balances that prevent any branch from overreaching. Otis cites Montesquieu to justify why it is essential branches fulfill their duties and maintain authority over allotted powers. He explains, “Were the legislative body to be a considerable time without meeting, this would likewise put an end to liberty. For of two things, one would naturally follow, either that there would be no longer any legislative resolutions, and then the state would fall into anarchy; or that these resolutions would be taken by the executive power, which would render it absolute’” (Otis 3).

Britain supported the establishment and maintenance of the colonies specifically for the benefit they could provide for the motherland, and expected the colonists to maintain a strong affection for that country. But the colonists had their own goals, interests different than Britain’s, creating a conflict that led to their separation.

Extractive colonization leads to long term deficiencies in the development of good institutions that some regions suffer from to this day (Acemoglu, Johnson, and Robinson 2001). Settler colonies fared much better, primarily because they had opportunity to develop their own institutions for governance. The North American colonies shoved off the efforts of Great Britain to impede their development of institutions and to treat the colonies as mere sources of wealth for the empire. By upholding principles of liberty, the North American colonies improved upon the British constitution, and became, despite their own shortcomings, a source of flourishing for the world.