The formula seemed incontrovertible — “its truth is intuitive,” Thomas Pownall declared, “and need not be demonstrated” — and it quickly became the foundation of the English claim against America. For there were few who would deny that “a power to tax is a necessary part of every supreme legislative authority.” Therefore if Parliament “have not that power over America they have none, and then America is at once a kingdom of itself.” The logic of the Declaratory Act, consequently, was impeccable: Parliament “had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and vitality to bind the colonies and people of America … in all cases whatsoever.”45
How to qualify, undermine, or reinterpret this tenet of English political theory was the central intellectual problem that confronted the leaders of the American cause; and there is no more fascinating spectacle in the history of American political thought than the efforts that were made — starting in the struggle with England over the extent of Parliament’s power and continuing into the debates on the ratification of the Federal Constitution — to come to terms with this problem. It is a classic instance of the creative adjustment of ideas to reality. For if in England the concept of sovereignty was not only logical but realistic, it was far from that in the colonies. From the beginning of settlement, circumstances in America had run directly counter to the exercise of unlimited and undivided sovereignty. Despite the efforts that had been made by the English government in the late seventeenth century to reduce the areas of local jurisdiction in the colonies, local provincial autonomy continued to characterize American life. Never had Parliament or the crown, or both together, operated in actuality as theory indicated sovereign powers should. They had exercised authority, of course. The crown had retained the final power of legalizing or annulling actions of the colonial legislatures and of the colonial courts; it had made appointments to high office; it had laid down rules and policies for its colonial officials to follow; it had held in its own hand major decisions, civil and military, affecting relations with other nations; and it had continued to claim control of, if not actually to control, vast areas of wild land in the west as well as certain settled territories in the east. Similarly, Parliament had created the colonial postal system, regulated naturalization, and laid down rules for certain economic activities in the colonies, of which the laws of trade and navigation were the most important. But these were far from total powers; together they did not constitute governance in depth, nor did they exclude the exercise of real power by lesser bodies or organs of government. They touched only the outer fringes of colonial life; they dealt with matters obviously beyond the competence of any lesser authority; they concerned the final review of actions initiated and sustained by colonial authorities. All other powers were enjoyed, in fact if not in constitutional theory, by local, colonial organs of government. This area of residual authority, constituting the “internal police” of the community, included most of the substance of everyday life.
It had in fact been local American agencies that effectively created and maintained law and order, for there had been no imperial constabulary, and such elements of England’s military power as had appeared in America from time to time had acted for purposes that only incidentally involved the daily lives of the colonists. It had in fact been local, common law courts that administered justice in the colonies; the courts associated with the home government had been condemned as “prerogative,” their jurisdiction repeatedly challenged and closely restricted. And it had in fact been local bodies — towns and counties in the first instance, ultimately the provincial Assemblies — that laid down the rules for daily life; rules concerning the production and distribution of wealth, personal conduct, the worship of God — most of the ways in which people deal with the world, animate and inanimate, about them. And these same bodies had been the ones accustomed to tax. Moneys had of course been collected by the home authorities; but they had been fees, dues, and rents — charges, for the most part, incidental to the regulation of overseas trade — not taxes. The power of taxing, from the earliest years of settlement, had been exercised by the representative Assemblies of the various colonies, and exercised without competition — indeed with encouragement — from England.
The condition of British America by the end of the Seven Years’ War was therefore anomalous: extreme decentralization of authority within an empire presumably ruled by a single, absolute, undivided sovereign. And anomalous it had been known to be at the time. For decades before 1763 the situation had been remarked on, and reforms proposed by officers of the crown in the colonies as well as by administrators and theorists in England. But since, in the age of Walpole and Newcastle, no sustained effort had been made to alter the situation, the colonists found themselves in 1763 faced not merely with new policies but with a challenge to their settled way of life — a way of life that had been familiar in some places for a century or more. The arguments the colonists put forward against Parliament’s claims to the right to exercise sovereign power in America were efforts to express in logical form, to state in the language of constitutional theory, the truth of the world they knew. They were at first, necessarily, fumbling and unsure efforts, for there were no arguments — there was no vocabulary — to resort to: the ideas, the terminology, had to be invented.
How was this to be done? What arguments, what words, could be used to elevate to the status of constitutional principle the division of authority that had for so long existed and which the colonists associated with the freedom they had enjoyed? Here again Otis’ pronouncements were among the first and most famous (they are inextricably involved with his statements on rights and the constitution), and they are also among his most confused. In this instance as in others, the curiously anachronistic quality of his thought led him into difficulties he could not resolve and toward conclusions he could not accept. He assumed the validity of the current concept of sovereignty — “a supreme legislative and a supreme executive power must be placed somewhere in every commonwealth. Where there is no other positive provision or compact to the contrary, those powers remain in the whole body of the people.” And he agreed also that in England this power resided in Parliament. “The power of Parliament is uncontrollable but by themselves, and we must obey. They only can repeal their own acts. There would be an end of all government if one or a number of subjects or subordinate provinces should take upon them so far to judge of the justice of an act of Parliament as to refuse obedience to it.” But to say that a sovereign Parliament is absolute, he added, is not to say that it is arbitrary. “The Parliament cannot make 2 and 2, 5,” he wrote in a silent paraphrase of Grotius that encapsulates the whole pre-Hobbesian view of sovereignty; “omnipotency cannot do it.” The pillars of Parliament “are fixed in judgment, righteousness, and truth.”46
This position, which reverted to a conception of sovereignty that had been realistic at a time when Parliament’s legislative authority had not in fact been supreme, could not in the 1760’s be maintained as an effective political argument. It could easily be shown to be self-contradictory. Seeking to maintain it — asserting, that is, the absolute power of what was, by definition, a benign authority — Otis found himself weaving back and forth, fending off attacks from both political extremes. Judged by what he had said about constitutional limitations on legislative power in the writs of assistance case in 1761, his assertion in 1765 that — such is the nature of sovereignty — “it is our duty to submit,” appeared to leading patriots to constitute an astonishing reversal, and they could only conclude that he had been “corrupted and bought off” by the ministry. Otis reacted more keenly, however, to the opposite charge, leveled at him both in England and America, that his view of the self-defining restrictions of Parliament’s power amounted to claiming for the colonies “an independent, uncontrollable, provincial legislative.” Never, he replied, had he intended to make such a claim. Everyone knows, he wrote in his Vindication, repeating one of the most commonplace
phrases of eighteenth-century political theory, that “imperium in imperio [is] the greatest of all political solecisms,”47 and that there is, consequently, no limit to Parliament’s power of legislation or taxation. England “justly asserts the right and authority to bind her colonies where she really thinks the good of the whole requires it; and of this she remains the supreme judge, from whose final determination there is no appeal” — though, of course, he added, from this it does not follow “that ’tis always expedient and in all circumstances equitable for the supreme and sovereign legislative” to use its power.
By 1776 Otis’ argument, grossly distended by the pressures placed upon it, was blatantly self-contradictory. By then he was beseeching his readers to believe that he had never intended so much as to hint at limitations on the “unlimited authority of Parliament over the colonies,” apologizing to them if he had inadvertently given a different impression, and proclaiming himself in basic agreement with the Grenville ministry. But simultaneously he lashed out at that “contaminated knot of thieves, beggars and transports” in Newport responsible for such “evil work” as Judge Howard’s Halifax Letter, which stated essentially the same position he was defending.48
It was a bewildering performance, and it is little wonder that he was denounced as a “double-faced Jacobite-Whig.”49 His political judgment, on this occasion as on others, was obviously erratic. But his troubles mainly stemmed, here as in his arguments on other constitutional issues, from his peculiar application of early seventeenth-century ideas and assumptions to eighteenth-century problems. Failing to recognize that the idea of sovereignty had long since acquired as an essential characteristic arbitrariness as well as absolutism, he saw no danger in allowing Parliament to exercise sovereign authority, and to exercise it not only over the nation proper but over distant colonies as well. Parliament might make occasional mistakes, he admitted, but in the end — such was the wonder of the British constitution — it would necessarily act justly and wisely. If the Stamp Act was in fact wrong, Parliament would repeal it.
The repeal, when it came, was too late to vindicate Otis’ position. By then, leading colonial writers were attacking the problem of sovereignty in a different way — a more realistic and pragmatic way. Tacitly acknowledging that by accepted definition sovereignty was both absolute and arbitrary, but convinced nevertheless that there were things that Parliament could not rightly do, they set out, silent on the metaphysics of the problem, to locate pragmatically a line of separation between powers of Parliament that were valid when exercised in America and those that were not. It was only later and gradually, when challenged by informed and articulate opponents, that they faced up to the implications of what they had been doing, and acknowledged that they were in effect calling “sovereignty itself into question” and attempting to reconceive the basic principles of state authority.50
The path the colonists took away from the accepted eighteenth-century notions of sovereignty appears now, in retrospect, to have been so clear that it is surprising that it was not seen sooner than it was by the colonists themselves. For, as Otis made abundantly evident, any effort to restrict Parliament’s power assumed that sovereignty was in some sense divisible; and to search deliberately for the actual seams along which the fabric of power might be divided was to grope toward a political order in which “powers of government are separated and distinguished and in which these powers are distributed among governments, each government having its quota of authority and each its distinct sphere of activity.”51 But the awareness of this fact was slow in developing: the discussion began at the level of specific distinctions in the powers of Parliament, and it progressed to more general grounds only after it was shown that these distinctions could not be maintained.
The first distinction advanced in the effort to express in constitutional language the limitations on Parliament’s power familiar to the colonists, was extemporized casually by the simple expedient of applying to this constitutional problem one of the most common pairs of antonyms in the English language. No distinction could be more obvious or more fundamental than that between things “internal” and things “external.” Not only did it appear to separate out conveniently the powers that had been exercised for so long by the colonists’ own Assemblies and those that had been exercised by Parliament, but it did so echoing the words of some of the most respected authorities on questions of government.52 An ordinary distinction already drawn into theoretical discussions, used in all sorts of ways in everyday speech, it quickly drifted into the discussion of Anglo-American relations. It was used loosely throughout the pre-Revolutionary years, applied generally to spheres of government, and it was specified by some to the problem of taxation.
Thus in 1764 Richard Bland, searching for a principle by which to assign exclusive powers to colonial governments and yet retain the colonies’ dependency on England, found the distinction between things internal and things external to be essential to his purpose. If Virginians are freemen, he argued, they must have a representative assembly capable of enacting “laws for the INTERNAL government of the colony” — “internal” being defined so as to exclude “all power derogatory to their dependence upon the mother kingdom … In every instance, therefore, of our EXTERNAL government we are and must be subject to the authority of the British Parliament, but in no others; for if the Parliament should impose laws upon us merely relative to our INTERNAL government, it deprives us, as far as those laws extend, of the most valuable part of our birthright as Englishmen…” And if Parliament is limited in its legislative power over the colonies to external matters, “then any tax respecting our INTERNAL polity which may hereafter be imposed on us by act of Parliament is arbitrary, as depriving us of our rights, and may be opposed.”
When the Stamp Act controversy exploded, the distinction naturally became part of the discussion of the rights involved. Stephen Hopkins, writing for the colony of Rhode Island, began by defining stamp duties as internal taxes and hence properly within the jurisdiction of the separate colonial legislatures, which had responsibility for the “internal government” of the colonies. The colonial jurisdiction of Parliament, he wrote, was quite different. Its proper power was over
things of a more general nature, quite out of the reach of these particular legislatures … One of this kind is the commerce of the whole British empire, taken collectively, and that of each kingdom and colony in it as it makes a part of that whole. Indeed, everything that concerns the proper interest and fit government of the whole commonwealth, of keeping the peace, and subordination of all the parts towards the whole and one among another, must be considered in this light.
For all such “matters of general nature” there must be some “supreme and overruling authority” to make laws and “compel their execution,” and such a supreme power, everyone knows, Hopkins wrote, lies in “that grand and august legislative body,” Parliament. He did not at this point develop the idea that if “internal” taxes were denied Parliament, “external” taxes might not be; he was not attempting to distinguish among types of taxes but to deal with the broader issue of spheres of authority within which taxation fell.53
Others, however, would make this distinction — casually, almost inadvertently, and not with the sense that it was exclusive, comprehensive, or rigorously logical. Thus Connecticut’s protest, published under the title Reasons Why the British Colonies in America Should Not Be Charged with Internal Taxes, in effect defined all taxation as “internal” taxation, and though it denied Parliament all right to tax the colonies, conceded to it the right to raise revenue through duties on trade, since such commercial fees, as distinct from taxes, fell properly within the sphere of “external” government. Others agreed, especially when it was understood, as Dulany explained, that the essential difference between internal taxes and trade duties was that the former were levied “for the single purpose of revenue” and the latter only “for the regulation of trade.”54
But discriminating among the intentio
ns of lawmakers was both difficult and dangerous; trade duties — whether called “external taxes” or not — could be as onerous as excise taxes. “They may find duties on trade enough,” Thomas Hutchinson warned, “to drain us so thoroughly that it will not be possible to pay internal taxes as a revenue to them or even to support government within ourselves.” It was obviously to the benefit of the administration to consolidate the advantage this presumed concession appeared to bestow, no matter how “nonsensical” informed people believed distinctions in revenue-raising powers to be. By 1765 English opponents of American claims were imputing to the distinction between “internal” and “external” taxation, said to be commonly drawn in the colonies (it was the opinion “of most people” in Boston, according to Hutchinson), an importance and a rigor that had never been intended for it and that made it vulnerable to attacks no one had expected it to have to withstand. That the usage took on this importance and became the subject of powerful attacks was to a considerable extent the result of the stress placed on it by Benjamin Franklin in the course of his famous three-hour testimony before the House of Commons in February 1766.55
No one could have been better informed on the state of American thinking and on the armory of weapons the colonists had devised to attack Parliamentary taxation than Franklin. Having left America well after the discussion of the Stamp Act had begun, and having kept in continuous communication with the colonists and with the other agents in London since his arrival there, he knew the official and unofficial literature of opposition thoroughly. In his blandly confident, adroit, and hardheaded testimony covering the whole range of issues in the controversy, the “internal”–“external” distinction became crucial. Since it allowed him to evade the question of whether or not his countrymen were in principle denying Parliament’s right to tax them, he referred to it frequently and was forced to defend it. The colonists were not, he said, denying Parliament’s right to collect moneys from them. They had long acknowledged Parliament’s right “of laying duties to regulate commerce.” What they were objecting to as “unconstitutional and unjust” was Parliament’s effort “to lay internal taxes,” for such a right “was never supposed to be in Parliament, as we are not represented there.” His interrogators pressed him: Did he really believe that such a distinction was valid? Yes, Franklin assured them, he did; the difference between “external” and “internal” taxing was “very great.”
The Ideological Origins of the American Revolution Page 26