Forming a Constitutional Mindset

The crisis of the empire in the west, aka the American struggle for independence, triggered a great deal of constitutional soul-searching on both sides of the Atlantic. On the whole, we remember more of the American writings of the period than we do the British, the most notable exception being the great speeches of Edmund Burke on American Taxation (1774) and on Conciliation with America (1775). 

In the eleven years between the Stamp Act of 1765 and the Declaration of Independence, however, British parliamentary debate and British pamphlet literature were abuzz with rival interpretations not only of the prudence, but of the very constitutionality, of American resistance and of imperial policy designed to respond to it. 

The two anonymous pamphlets considered here bookend these debates both in time and in substance. The first, The Legislative Authority of the British Parliament with respect to North America, was printed in 1766 and is a short essay by “J.M.”, contending that there was nothing unconstitutional about the British parliament imposing taxes in North America. The second, The Evidence of the Common and Statute Laws of the Realm in Proof of the Rights of Britons throughout the Empire, dates from 1775. This is a much fuller counter-argument. 

The pamphlets touch on all the major themes of late eighteenth-century constitutionalism: the principle of consent, the right to rebellion, the emerging notion of popular sovereignty, and competing conceptions of representation. And both seek to apply these ideas to the particulars of taxation. How is taxation constitutionally different from other legislation, they ask. Understanding not only how but why it is different, is a key that unlocks a great number of the constitutional debates of the period, on both sides of the Atlantic. 

J.M.’s argument can be briefly summarised. He concedes that each of the American colonies has the power to regulate its own internal affairs but insists that their collective welfare is a matter only for what he calls the ‘mother-country’. Thus, the colonies’ external trade and commerce, their currency and payments, and their collective defence and security are matters for Great Britain to legislate on. Given that the Stamp Act was designed for the ‘general good’ of the colonies as a whole, rather than for the internal regulation of any one colony in particular, it was no incursion into the rights of the colonies for Parliament to impose it, he contends. J.M. sees no difference between the Stamp Act and earlier British legislation concerning exports or navigation, none of which had caused controversy matching that which attended the Stamp Act. 

We are told that J.M. is ‘of the Inner Temple’ but do not need to know this in order to see what a lawyer’s argument it is that he propounds, and how narrow that argument is. He is looking, as lawyers always do, for a precedent. Once he finds one (in earlier legislation imposing export duties) he simply applies that precedent to his client’s case, concluding that there is nothing novel about the Stamp Act at all. Americans, he insists, ‘have ever been sensible of, acknowledged, and submitted to this Power’ (to lay imposts and duties) and, as such, have no constitutional grounds for resisting the Stamp Act. 

J.M.’s argument may be narrowly legalistic, and we know of course that it was entirely unsuccessful. But, before dismissing it out of hand, we should note two facets in its favour. First, it is true that Great Britain was responsible for the colonies’ collective defence and security. It is also true that, in the aftermath of the Seven Years’ War, the cost of this was prohibitive. Security needs to be paid for. The Stamp Act might have been bad policy—J.M. concedes as much—but it was policy nonetheless which the administration considered to be necessary to pay for the spiralling security costs of keeping the empire safe. Second, the distinction between internal and external affairs, the former being for the colonies and the latter being for the British Parliament, was not some spasm of high-handed imperial self-justification. It was a distinction first suggested by none other than Benjamin Franklin. Franklin considered even as late as 1775 that, had the distinction been more sensitively applied, it was a recipe for keeping America within the empire. 

Even after praying in aid such a luminary as Franklin, however, J.M.’s argument is a weak one, and is easily defeated. Its Achilles heel is its elision of taxation and (ordinary) legislation. Far from being just another example of British regulation of trade in the empire, the Stamp Act, as Gordon Wood points out, was Parliament’s ‘first unmistakable tax’ on the colonies. And you did not have to be an American revolutionary to think that tax is fundamentally different from other legislation. You simply had to understand the basic principles of the British constitution: critically, that property may not be taken without consent. This is the crux of the argument in our second pamphlet. 

In Great Britain, law-making was a matter for all the constitutional actors: the king, the Lords, and the Commons. Legislation required all three to work together—no Bill could become an Act of Parliament unless and until it was passed by both Houses of Parliament and assented to by the king. Supply, in contrast, was a matter for the House of Commons alone. This had been constitutionally clear since at least the settlement of 1688, article 4 of the Bill of Rights providing that ‘Levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament … is illegal’. 

The constitutional conflicts between Crown and Parliament in the seventeenth century had been about religion first and foremost. But they had also been about taxation. One of the major controversies of the period was whether the king had the authority to levy novel taxes on his subjects without the consent of the Commons—the Ship-money affair of the mid-1630s was but the best-known of many examples. The matter was not fully resolved on the battlefields of the Civil War in the 1640s: that had to wait until the settlement of 1688, when Parliament effectively removed the Crown from James II’s head and placed it instead on William III’s, setting out authoritatively in the Bill of Rights of that year the terms upon which the Crown’s subjects (and their representatives) would continue to show allegiance to the Crown. One of those terms was that there could be no taxation without the consent of the Commons. 

The author of The Evidence of the Common and Statute Laws of the Realm in Proof of the Rights of Britons throughout the Empire makes short work of demonstrating that what goes for Englishmen in England must go also for what he refers to as ‘Britons throughout the empire’ (i.e., for Americans). ‘Englishmen emigrating to foreign parts’, he claims, ‘are intitled to all the rights and privileges of their brethren residing within the realm’. An ‘essential right of these, is an absolute dominion over their own property’, which can be disposed of only ‘by themselves in person, or by representatives of their own choosing’. Hence it follows that what our author calls ‘the pretended right’ of the British Parliament ‘to grant away the earnings and possessions’ of Britons in the colonies is ‘unconstitutional, arbitrary, and in direct violation of one of the most fundamental and important rights of Englishmen’. 

Unlike J.M., however, the author of this pamphlet is not content to rest on legal precedent alone. Rather, he wants to root that precedent in fundamental principle, and he does this by relying principally upon Locke (although Hooker’s Ecclesiastical Polity also gets a mention). Citing the Second Treatise of Government, our author insists that laws receive their ‘binding force’ from consent ‘and none otherwise’. The legislature, he says, acts for the people ‘as their representative, for their wealth, or benefit’. As such, it acts ‘under a trust for the good of the whole state of the realm’. Power that is held on trust is power that can be taken away if the trust is abused, or turns out to have been misplaced. This is Locke’s theory of resistance, as set out in §149 of the Second Treatise. 

It follows, says our author, that it isn’t Parliament who are ‘absolute and without control’ (i.e., sovereign): it is the people and the people alone. All other powers, including all the powers of Parliament, are ‘but dependencies upon this supreme power’. Thus, out of the notion of consent and the theory of resistance arrives the idea of popular sovereignty: 

the supreme power ever was, and still is, in the people at large; and that our present form of government, or legislature, is but a form and creature of the people, made or suffered for their conveniency, and existing at their discretion, to carry on their good. 

This idea of popular sovereignty may be a revolutionary one but, even if it is, our author sees it as a revolutionary idea internal to and accommodated by the British constitution, not hostile or alien to it. This is, then, a radical Whig interpretation of the constitution. Samuel Johnson would not have accepted it. Neither would Sir William Blackstone. And neither would Burke. 

To our author, American rebellion against ‘unconstitutional, arbitrary’ taxation was resistance not to the fundamentals of British constitutionalism, but to the means by which those fundamentals had, of late, been corrupted:

our English spirit has been oppressed, and buried under an accumulation of the rankest, and foulest debaucheries, whose filthy vortex has devoured up everything that was honourable, and everything that was praiseworthy amongst Englishmen. 

To our author, the American revolution was exactly that: a revolving of the constitution back to the fundamentals it should never have evolved away from, the fundamentals of representation and consent, the fundamental of popular sovereignty, and the fundamental principle that there shall be no levying of money—no taxation—without the grant of the people’s representatives. On this view, it wasn’t American resistance that usurped the constitution: it was the king’s administration in London that had corrupted it. They had forgotten their Locke, forgotten the Bill of Rights, and forgotten all ‘the evidence of the common and statute laws of the realm’. Thus, the struggle for independence in America was less a battle to free the colonies from imperial rule and more a campaign to return imperial rule to the basic precepts of constitutional good governance from which it should never have been permitted to depart in the first place.