The Ideological Origins of the American Revolution

by Bernard Bailyn

  Does he know us? Or we him? No. Have we any restriction over his conduct? No. Is he bound in duty and interest to preserve our liberty and property? No. Is he acquainted with our circumstances, situation, wants, &c.? No. What then are we to expect from him? Nothing but taxes without end.8

  But it was not merely the American situation that called into question the idea of virtual representation. Logically one could lead the argument further and say that the whole conception, wherever or however it might be applied, was defective. If it was wrong in America it was wrong in England too, and should be rooted out no less thoroughly in the one place than in the other. “To what purpose,” James Otis asked in a celebrated passage, “is it to ring everlasting changes to the colonists on the cases of Manchester, Birmingham, and Sheffield, who return no members? If those now so considerable places are not represented, they ought to be.” For, as John Joachim Zubly, the Swiss-born pastor of Savannah, Georgia, wrote in an almost verbatim denial of what Burke five years later would describe as the proper function of representatives,

  every representative in Parliament is not a representative for the whole nation, but only for the particular place for which he hath been chosen. If any are chosen for a plurality of places, they can make their election only for one of them … no member can represent any but those by whom he hath been elected; if not elected, he cannot represent them, and of course not consent to anything in their behalf … representation arises entirely from the free election of the people.

  So widely believed, indeed, — such a simple matter of fact — was it that “‘virtual representation’” anywhere, under any conditions, was “too ridiculous to be regarded,” that the American Tories gladly used it as a basis of protest against the assumed representativeness of the makeshift Provincial and Continental Congresses. For it was not much of an exaggeration of Otis’ earlier arguments to claim in New York in 1775 that by the patriots’ reasoning “every man, woman, boy, girl, child, infant, cow, horse, hog, dog, and cat who now live, or ever did live, or ever shall live in this province are fully, freely, and sufficiently represented in this present glorious and august Provincial Congress.”9

  But the colonists’ discussion of representation did not stop with the refutation of the claims made for virtual representation. The debate broadened into a general consideration of the nature and function of representation — in situations where interests of electors and elected, franchised and disfranchised, coincided as well as where they did not. The virtues of binding representatives by instructions were now explicitly explored. Some approached the question cautiously, arguing that, though the idea “that the constituent can bind his representative by instructions” may in recent years have become “an unfashionable doctrine,” nevertheless, “in most cases” the “persuasive influence” if not the “obligatory force” of instructions should be insisted upon: “a representative who should act against the explicit recommendation of his constituents would most deservedly forfeit their regard and all pretension to their future confidence.” But the dominant voices were direct and decisive. The right to instruct representatives, Arthur Lee declared in the fourth of his “Monitor” papers, has been denied only “since the system of corruption which is now arrived to so dangerous a heighth began first to predominate in our constitution. Then it was that arbitrary ministers and their prostituted dependents began to maintain this doctrine dangerous to our liberty, that the representatives were independent of the people. This was necessary to serve their own tyrannical and selfish purposes.” Elected representatives, he stated, “are trustees for their constituents to transact for them the business of government … and for this service they, like all other agents, were paid by their constituents, till they found it more advantageous to sell their voices in Parliament, and then … wished to become independent of the people.” Defended, he wrote, by all the great authorities from Demosthenes to Coke, its denial condemned by Sir William Wyndham as “the most monstrous, the most slavish doctrine that was ever heard,” the right of freemen not merely to choose representatives but to bind them with instructions “must have begun with the constitution,” and was “an ancient and unalienable right in the people.” The fact that “Mr. Blackstone, in his commentary on the law of England, has asserted the contrary” carried no weight with him. It was enough to point out that Blackstone “founds his opinion on that fiction of a person’s being, after he is elected, the representative of the whole kingdom, and not of a particular part. The sophistry of this argument is sufficiently manifest, and has been fully exploded. The British constitution is not to be new modelled by every court lawyer. [footnote:] Mr. Blackstone is solicitor to the Queen.” Constituents, it was agreed, had nothing less than “an inherent right to give instructions to their representatives.” For representatives, James Wilson concluded, were properly to be considered the “creatures” of their constituents, and they were to be held strictly “accountable for the use of that power which is delegated unto them.”10

  But what did that mean? There were far-reaching implications, some of which, first drawn out during this decade of debate, would remain persistent problems until finally resolved in the realization of American democracy in the nineteenth and twentieth centuries. It was seen, even in the 1760’s and 1770’s, that if a representative were kept to strict accountability, he would in effect be acting “in every respect as the persons who appointed him … would do were they present themselves.” With the result, it was concluded, that a representative assembly “should be in miniature an exact portrait of the people at large. It should think, feel, reason, and act like them.” If the population shifted in composition, so too should the character of the assembly, for “equal interest among the people should have equal interest in it.” There might well be, in fact, “some permanent ratio by which the representatives should … increase or decrease with the number of inhabitants.”11

  And what if such were the case? The result would be, if not a wholly original contribution to advanced thought, at least a reversion to a radical concept that had long since disappeared from the mainstream of English political theory. For such arguments led to a recovery and elaboration of conceptions of government by the active and continuous consent of the governed that had flourished briefly a century earlier, during the Commonwealth period, and had then faded during the Restoration, persisting subsequently only as arguments of the most extreme radicals and of the most vociferous and intransigent leaders of the Parliamentary opposition.12 The view of representation developing in America implied if it did not state that direct consent of the people in government was not restricted, as Locke would have had it, to those climactic moments when government was overthrown by the people in a last final effort to defend their rights, nor even to those repeated, benign moments when a government was peaceably dissolved and another chosen in its place.13 Where government was such an accurate mirror of the people, sensitively reflecting their desires and feelings, consent was a continuous, everyday process. In effect the people were present through their representatives, and were themselves, step by step and point by point, acting in the conduct of public affairs. No longer merely an ultimate check on government, they were in some sense the government. Government had no separate existence apart from them; it was by the people as well as for the people; it gained its authority from their continuous consent. The very nature and meaning of law was involved. The traditional sense, proclaimed by Blackstone no less than by Hobbes, that law was a command “prescribed by source superior and which the inferior is bound to obey” — such a sense of law as the declaration of a person or body existing independently above the subjects of law and imposing its will upon them, was brought into question by the developing notion of representation. Already in these years there were adumbrations of the sweeping repudiation James Wilson and others would make of Blackstone’s definition of law, and of the view they would put in its place: the view that the binding power of law flowed from the continuous assent of the subjects of law; t
he view “that the only reason why a free and independent man was bound by human laws was this — that he bound himself.”14

  These were deep-lying implications of making representation — systematically, in principle as well as in fact — “a substitute for legislation by direct action of the people.” They were radical possibilities, glimpsed but not wholly grasped, thrown up in the creative clash of ideas that preceded the Revolution, and drawn into the discussion of the first state constitutions even before Independence was declared. They were perhaps, in these early years, understood most clearly by the more perceptive of the Tories, who stood outside and viewed with apprehension the tendency of events and the drift of theory. “The position,” the Anglican minister Samuel Seabury wrote in 1774, “that we are bound by no laws to which we have not consented either by ourselves or our representatives is a novel position unsupported by any authoritative record of the British constitution, ancient or modern. It is republican in its very nature, and tends to the utter subversion of the English monarchy.”15

  2. CONSTITUTIONS AND RIGHTS

  Certain of the Tories understood also with special clarity the meaning of changes that were taking place in other areas of thought. They grasped, and exclaimed against in protest, the transformation of the notion of what a constitution was and of the nature of the rights that constitutions existed to protect. “What is the constitution,” Charles Inglis demanded in his anguished reply to Common Sense — what is “that word so often used — so little understood — so much perverted? It is, as I conceive — that assemblage of laws, customs, and institutions which form the general system according to which the several powers of the state are distributed and their respective rights are secured to the different members of the community.” It was still for him, as it had been traditionally, what John Adams had described a decade earlier as “a frame, a scheme, a system, a combination of powers”: the existing arrangement of governmental institutions, laws, and customs together with the animating principles, the stamina vitae, that gave them purpose and direction. But so far toward a different conception of constitutionalism had American thought shifted after 1765 that by 1776 Inglis’ quite traditional definition could only be uttered as the cri de coeur of one bypassed by history.16

  The first suggestions of change came early in the period, the full conclusion only at the very end. At the start what would emerge as the central feature of American constitutionalism was only an emphasis and a peculiarity of tone within an otherwise familiar discourse. While some writers, like Richard Bland, continued to refer to “a legal constitution, that is, a legislature,” and others spoke of “the English constitution … a nice piece of machinery which has undergone many changes and alterations,” most of the writers saw the necessity of emphasizing principles above institutions, and began to grasp the consequences of doing so.17 The confusions and difficulties inherent in this process are dramatically illustrated in the troubled career of James Otis.18

  The heart of the problem Otis faced in the early 1760’s was the extent to which, indeed the sense in which, the “constitution” could be conceived of as a limitation on the power of lawmaking bodies. In the writs of assistance case in 1761 he had struck a bold and confident note — so bold, indeed, that John Adams later wrote, rather romantically, that “then and there the child Independence was born.” On that famous occasion Otis had said not only that an act of Parliament “against the constitution is void” but that it was the duty of the courts to “pass such acts into disuse,” for the “reason of the common law [could] control an act of Parliament.” But what was the “constitution” which an act of Parliament could not infringe? Was it a set of fixed principles and rules distinguishable from, antecedent to, more fundamental than, and controlling the operating institutions of government? And was there consequently a “constitutional” limitation on Parliament’s actions? Otis’ answers were ambiguous, and proved to be politically disastrous. The main authority for his statement in the writs case that an act of Parliament against the constitution was void was Coke, reinforced by later judges expounding the great chief justice’s dictum in Bonham’s Case. But in that pronouncement Coke had not meant, as Professor Thorne has made clear, “that there were superior principles of right and justice which Acts of Parliament might not contravene.” Thinking in terms of private law, not constitutional construction, Coke had meant only that the courts would interpret statutes “in such a way as not to conflict with those same accepted principles of reason and justice which … were presumed to underlie all law”; and by saying that the courts might “void” a legislative provision that violated the constitution he had meant only that the courts were to construe statutes so as to bring them into conformity with recognized legal principles.19

  Otis, drawing the language of seventeenth-century law into the constitutional struggle of the eighteenth century, found himself veering toward positions he was neither intellectually nor politically prepared to accept. “If the reasons that can be given against an act are such,” he wrote in his Rights of the British Colonies in 1764, “as plainly demonstrate that it is against natural equity, the executive courts will adjudge such act void.” And again, in an Appendix to the same pamphlet, originally written as a memorial to the Massachusetts agent in London, commenting on the statement that “judges will strain hard rather than interpret an act void, ab initio,” he wrote: “This is granted, but still [Parliament’s] authority is not boundless if subject to the control of judges in any case.” Was this not to limit the power of Parliament by the provisions of a fixed constitution distinct from and superior to the legislature, a constitution interpreted and applied by the courts? Others, in time, would say it was. Indeed, a contemporary authority whom Otis quoted at length in the Appendix to his pamphlet could hardly have said this more clearly. Does the power of legislators extend to fundamental law, and if so may they “change the constitution of the state?” Otis asked in the words of the Swiss theorist Emmerich de Vattel. No, was the answer: “they ought to consider the fundamental laws as sacred if the nation has not in very express terms given them the power to change them. For the constitution of the state ought to be fixed; and since that was first established by the nation, which afterwards trusted certain persons with the legislative power, the fundamental laws are excepted from their commission.”

  But though Otis quoted this passage from Vattel he did not draw its implications. He ignored them, in fact, in working out his own view of the constitution and of the limits of Parliament’s powers. If an act of Parliament violated natural laws, “which are immutably true,” he wrote, it would thereby violate “eternal truth, equity, and justice,” and would be “consequently void.”

  … and so it would be adjudged by the Parliament itself when convinced of their mistake. Upon this great principle Parliaments repeal such acts as soon as they find they have been mistaken … When such mistake is evident and palpable … the judges of the executive courts have declared the act “of a whole Parliament void.” See here the grandeur of the British constitution! See the wisdom of our ancestors! … If the supreme legislative errs, it is informed by the supreme executive in the King’s court of law … This is government! This is a constitution! to preserve which … has cost oceans of blood and treasure in every age; and the blood and the treasure have upon the whole been well spent.

  Parliament was thus itself part of the constitution, not a creature of it, and its power was “uncontrollable but by themselves, and we must obey. They only can repeal their own acts … let the Parliament lay what burdens they please on us, we must, it is our duty to submit and patiently bear them, till they will be pleased to relieve us.” Yet Parliament’s enactments against the constitution — against, that is, the whole system of laws, principles, and institutions based on reason and justice of which it was a part — were void, Otis argued; the courts will adjudge them so, and Parliament itself, by the necessity of the system, will repeal them.20

  It was a strange argument, comprehensib
le only as an effort to apply seventeenth-century assumptions to eighteenth-century problems. For Otis continued to assume, with Coke, that Parliament was effectively a supreme judicial as well as a supreme legislative body and hence by definition involved in judicial processes. He continued to believe, too, that moral rights and obligations were not “differentiated as they would be today from legal rights and obligations,” and that they naturally radiated from, rather than restricted, enacted law.21 And he expected fundamental, or higher, law to “control” positive acts of government not in the sense of furnishing judges with grounds for declaring them nonexistent because they conflicted with the “constitution” but only in the sense of providing judges with principles of interpretation by which to modify gross inequities and to interpret “unreasonableness” and self-contradiction in ways that would allow traditional qualities of justice to prevail.

  But these assumptions were no longer applicable, in the same way, in the eighteenth century. Parliament was in reality no longer a court but an all powerful sovereign body, and the problem at hand concerned the structure and authority of government, not private law. Otis’ theory of the constitution that included a self-correcting Parliament sensitive to the principles of justice and responsive to the admonitions of the courts was, insofar as it was realistic at all, an anachronism, and it came under attack by both the administration, which charged him with attempting to restrict the power of Parliament, and by the colonial radicals, who accused him of preaching passive obedience and nonresistance.