Inquiry, Indecision, and Independence

The controversy between Britain and her colonies that began in the 1760s trapped many Englishmen in a dilemma of law and logic—one they eventually found could only be solved by separation. On one side of this dilemma was the central dogma of British constitutional theory: that Parliament was the kingdom’s supreme sovereign, and that its power could not be limited in either nature or degree. On the other was the broader perspective of the English common law, which held not only that a person’s property could not be taken through taxes without his consent or that of his representative, but also that individual rights and government power could be acquired through long precedent and tradition, and that these would limit Parliament’s authority. Reconciling these conflicting principles—which the legal historian John Phillip Reid called “Parliamentary Supremacy” and “Prescriptive Right”—would strain the imagination of even a great lawyer.

The anonymous author of the 1769 pamphlet An Inquiry into the Nature and Causes of the Present Disputes Between the British Colonies in America was not a great lawyer. Although apparently sincere and well-meaning, his writing is a confusing and self-contradictory mush, wavering between the belief that it is “absurd to hold that the British Parliament, as it now stands, hath an undeniable right to make laws for North America,” and the conviction that it is “impracticab[le]” for America’s colonial legislatures to exercise “authority in all respects equal to that of the mother country.” He was convinced that “heavy taxes are heavy oppressions,” but at the same time—and in the same sentence—that taxes, “however burdensome, … scarcely deserve [that] appellation.” More importantly for the events that were to follow, he thought that “the nature of our constitution is evidently such as absolutely requires a general and impartial representation”—that is, that Americans must be represented in Parliament if it was to legitimately tax the colonies—but also that Americans “could not possibly enjoy all the privileges and advantages” of subjects in England, and must therefore reconcile themselves to paying taxes without meaningful representation.

These schizophrenic sentiments are unsurprising, when one reflects on the real issues at stake in 1769. Far from being a petty dispute over taxes on tea, the showdown between Britain and America, which had started five years earlier with the adoption of the Sugar Act and the Stamp Act, reflected a deeper dispute about how the colonies fit into the (unwritten) British constitution. 

On one side, advocates of Parliamentary Supremacy—including George III himself—held that Parliament was not just a legislative body, but the basic seat of imperial legitimacy. Parliament had overthrown King James II and replaced him with King William in 1689, and if it could do that, its power must be limitless. As legal scholar William Blackstone wrote in his Commentaries on the Laws of England (which appeared at almost the same time as the Inquiry), Parliament’s power “is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds…. [It] can change and create afresh even the constitution of the kingdom…. It can, in short, do every thing that is not naturally impossible.” And if that was true, there could be no room for other legislative bodies—such as the colonial legislatures—to exercise any lawmaking power not subordinate to Westminster. 

Colonists responded to this by pointing out that they had been granted royal charters that promised them autonomy and guaranteed their right to choose their own officials, their own taxes, and their own laws. But Parliamentary Supremacists scoffed at the idea that these charters or anything else could restrict Parliament’s absolute power. Not even the ancient principle of taxation without representation could stand in its way. In fact, wrote philosopher William Paley, “an act of Parliament can never be unconstitutional in the strict and proper acceptation of the term.” If the Lords and Commons chose to tax the colonies, Americans had no grounds for complaint.

On the opposite end of the spectrum was the older conception of the constitution, the theory of Prescriptive Right. It held that Parliament was not absolute, but subordinate to English law, which was an amalgam of philosophical principles and traditional practices that evolved over the centuries. Under this theory, rights could be either natural—held by the individual just because of his humanity—or acquired, either by a grant from the government or by longstanding tradition. American revolutionaries embraced this theory, arguing that natural law, colonial charters, and century-old tradition, combined to entitle them to legislate for themselves. The Westminster Parliament was therefore—as the Americans would phrase it in 1776—“foreign to our constitution, and unacknowledged by our laws.”

But if that was true, how were the colonies connected to the empire at all? As the Inquiry’s author put it, “our colonies [cannot] make laws for themselves in their own assemblies without thereby actually declaring themselves independent.” To make law required sovereignty—or so it seemed to Parliamentary Supremacists—and sovereignty could never be divided; somebody had to have the final say. Yet by the 1760s, Americans had been making laws for themselves for more than a century and a half. Before the Sugar and Stamp Acts, Parliament had never tried to tax Americans directly, but had instead used a system called “requisitioning”: requesting a certain amount from colonial legislatures and letting them pay it as they chose, or as near to that amount as they were able. This might seem like a legal fiction, but it manifested respect for American institutions and gave real effect to the principle of “no taxation without representation.” Yet with the Sugar and Stamp Acts, Parliament began asserting power to impose taxes directly on the colonies, brushing aside colonial assemblies as merely ceremonial. And if it could do that, it could also pass other kinds of laws for the Americans, treating them not as fellow members of the empire, but as a subject populace whose role was to work, pay taxes, and shut up.

The author of the Inquiry was conscientious enough to be disgusted by that idea. It was “mistaken,” he wrote, to view the colonies as “factories, who are only to contribute to our wealth and aggrandizement.” Indeed, asking whether the Americans were to be governed by a Parliament in which they had no meaningful representation was effectively asking “whether we have a general right of making slaves [of them]?” A person who must labor for the enrichment of another, and whose property can be taken away at any time without permission, is enslaved, whatever euphemism one might use, and Americans were indeed beginning to use the word “slavery” to describe their situation after 1766, when Parliament adopted the Declaratory Act, proclaiming that the Lords and Commons had power to make laws for the colonies “in all cases whatsoever.”

Yet while the Inquiry’s author sympathized with the Americans’ desire to legislate for themselves, he could not reconcile himself to that outcome, because it would mean abandoning Parliamentary Supremacy. One obvious solution would have been to give the colonists representation in Parliament—but that was impracticable, given the thousands of miles separating Britain and America. This consideration reduced the writer to intellectual paralysis, as demonstrated by his almost incessant use of the word “but” or its synonyms—sixteen times between pages 42 and 46 alone—and his concluding admission that he was “not be able rightly to solve … this difficulty.”

Americans thought they did have a solution. Benjamin Franklin, who owned a copy of the Inquiry and wrote comments about it in the margin, was blunt: “leave it as it is,” he replied. “It was very well till you attempted alterations and novelties.” What he meant was that Americans had been governing themselves through their own legislatures since the 1600s, passing laws without Parliamentary interference and sending funds to London through the “requisition” system. Believing in the theory of Prescriptive Right instead of Parliamentary Supremacy, Franklin argued that the colonies had never been subject to Parliament’s control in the first place, only to that of the king—meaning that American legislatures were the constitutional equivalents of the Westminster Parliament, and that colonial governments were linked to the British empire exclusively through the king (just as British Commonwealth nations are united today). This was an early version of the system that would later be called federalism, but federalism’s basic premise is the division of sovereignty—as under the 1787 Constitution, which separates sovereign authority between the federal and state governments—and dividing sovereignty struck advocates of Parliamentary Supremacy as an oxymoron.

Franklin and other Americans pointed out that beginning with the settlement of Jamestown in 1607, the colonies had been founded pursuant to charters granted by the king, not Parliament. In the years that followed, kings had frequently asserted authority (or “dominion”) over Americans. Parliament, on the other hand, had rarely if ever interfered with that arrangement, and when it did, it typically respected the Americans’ autonomy, requiring only that their laws not be inconsistent with those passed in London. Indeed, even during the English Commonwealth period, when Parliament governed without a king, the Lords and Commons signed a treaty promising Virginians the freedom to make their own laws.

The colonists concluded from this that they fell within the king’s “dominion”—subject to his administration—but not within the “realm” that was subject to Parliament’s legislation. “America,” wrote Franklin in the margin of the Inquiry, “is not part of the dominions of England, but of the king’s dominion. England is a dominion itself, and has no dominions.” 

That explains why, in commenting on the Inquiry, Franklin characterized the Stamp Act and other 1760s legislation as “alterations and novelties”: changes in the constitutional scheme that had governed the British-American relationship since their original founding. 

Disgusted by The Inquiry’s assertion that America’s first settlers “knew…[that] they were still to continue subjects of the same government,” Franklin replied that this was nonsense. “They well knew the contrary. They would never have gone if that had been the case. They fled from your government which oppressed them.” They had moved “out of the realm,” and expected “to depend on the king only.” 

From the perspective of Parliamentary Supremacy, this idea was a menace to the British constitution. The whole point of the 1689 Revolution had been that kings could have no power except what Parliament gave them. There could be no such thing as “depending on the king only.” If there were, the king might raise money, and armies, which Parliament could not limit, setting the stage for another violent clash between the two powers of the realm. After a miserable century of oppression and civil war between kings and Parliament, which began with the first conflicts between James I and Parliament in 1603 and ended only with James II’s overthrow in 1689, that was an intolerable notion. For Americans to insist—as Franklin wrote in his copy of the Inquiry—that “[our] only bond of union is [the] king,” was to repudiate the victory of 1689. On that, Parliament could never yield.

This impasse led the ministry in London to refuse even to receive petitions of protest from the colonists. At the same time that it began taxing the colonies, Parliament adopted a rule forbidding even the reading of petitions challenging its power to tax. Consequently, the Americans would spend a dozen years writing futilely to London to seek what they viewed as respect for their ancient rights. When the Inquiry’s author claimed that under British rule, the Americans’ “complaints are heard, and grievances redressed,” Franklin could not help but laugh. “Tis a joke to talk thus to us,” he wrote in the margin, “when we know that Parliament so far from solemnly canvassing our petitions, have refused to receive or read them.”

The reality was that the constitutional conflict at the heart of the Anglo-American dispute was irreconcilable. As long as Parliament insisted on absolutism, it dared not condescend to acknowledge American grievances without undermining its basic theory of legitimacy. And the Americans could not negotiate that issue without taking steps that amounted to surrender. The natural consequence of that stalemate was suggested by another of Franklin’s marginal comments. Americans could not “make laws for themselves in their own assemblies,” wrote the author of the Inquiry, “without thereby actually declaring themselves independent.” Beside this, Franklin wrote: “They are such.”