Others arrived by other routes at this total rejection of Parliamentary authority in favor of what would become the modern notion of Commonwealth relations. James Iredell condemned the “beautiful theory” of sovereignty as “narrow and pedantic,” “calculated to sacrifice to a point of speculation the happiness of millions,” and developed the argument from the inapplicability of the idea of sovereignty — “the great solecism of an imperium in imperio” — “to the case of several distinct and independent legislatures each engaged within a separate scale and employed about different objects. The imperium in imperio argument is, therefore, not at all applicable to our case, though it has been so vainly and confidently relied on.” The most powerful presentations were based on legal precedents, especially Calvin’s Case (1608), which, it was claimed, proved on the authority of Coke and Bacon that subjects of the King are by no means necessarily subjects of Parliament. One of the most notable pamphlets that developed the details of this claim, James Wilson’s Considerations on the Nature and the Extent of the Legislative Authority of the British Parliament (1774), opened with a revealing confession. The maturing of his thought, Wilson wrote in his Preface, had been an unwilling progression. He had begun, only a few years earlier, with the
expectation of being able to trace some constitutional line between those cases in which we ought, and those in which we ought not, to acknowledge the power of Parliament over us. In the prosecution of [my] enquiries, [I] became fully convinced that such a line does not exist, and that there can be no medium between acknowledging and denying that power in all cases.
Under the pressure of insistent declarations that sovereignty was indivisible he had followed out the “principles of reason, of liberty, and of law,” to their natural conclusion, which was that “the only dependency which [the colonies] ought to acknowledge is a dependency on the crown.”64
But the position that Wilson and others had given up — that Parliament’s sovereignty did extend to America but was constitutionally limited by the powers reserved to the colonial legislatures — had not been forgotten. The movement of thought had been so rapid, however, that this argument, radical for the mid-1760’s, had by 1775 become a conservative bastion; it was defended not only in point of theory by authentic leaders of the American cause who, like John Dickinson, hesitated to proceed to the more extreme position, but also by outspoken Tories who, continuing to ridicule the theory of divided sovereignty, accepted it in practice as they sought to establish some measure of rapport with the new forces of American life. To “disavow the authority of Parliament” and still claim allegiance to the King, the New York Tory leader Samuel Seabury wrote in 1774, “is another piece of Whiggish nonsense”; and he cited Pitt’s speeches in Parliament and Dickinson’s Farmer’s Letters to defend the argument, now comfortably old-fashioned, that the line to be drawn — in fact if not in theory — between “the supremacy of Great Britain and the dependency of the colonies” should leave “all internal taxation … in our own legislatures, and the right of regulating trade … [and] enacting all general laws for the good of the colonies” in Parliament. So also, with minor variations, wrote the English traveler John Lind; so too wrote Daniel Leonard in Massachusetts; so too Joseph Galloway in Pennsylvania; so too Thomas Bradbury Chandler in New York; and so too, in the end — though still ambiguously and much too late — did the government of George III.65
Through all these years of crisis, when American thought had moved steadily from Otis’ archaisms and confusions to Wilson’s advanced speculations on imperial federalism, the British ministry, fortified by fresh, militant assertions such as Dr. Johnson’s that “in sovereignty there are no gradations,” had remained adamant in its refusal even to consider infringing the Declaratory Act. Its final, pre-Independence proposals for reconciliation did not compromise the point. Only in 1778 — after Independence had invoked the ultimate sovereignty of the people; after most of the states had organized their own governments, and the Articles of Confederation of the new nation had been drawn up and submitted to the states for ratification; and only under the pressure of the catastrophe at Saratoga and of France’s entrance into the war — only then, in the instructions to the ill-fated Carlisle Commission, did the North administration relent sufficiently to endorse, though still not in theory, the position that Dickinson had advanced so long ago in the Farmer’s Letters.
Such a grudging concession was by then grotesquely irrelevant to the realities of the situation. The idea that Americans would at that late date be willing, as the instructions to the Carlisle Commission put it, “to return to their condition of 1763” and to do so in such a way that “the sovereignty of the mother country should not be infringed” was unthinkable.66 The course of intellectual, as well as of political and military, events had brought into question the entire concept of a unitary, concentrated, and absolute governmental sovereignty. It had been challenged, implicitly or explicitly, by all those who had sought constitutional grounds for limiting Parliament’s power in America. In its place had come the sense, premised on the assumption that the ultimate sovereignty — ultimate yet still real and effective — rested with the people, that it was not only conceivable but in certain circumstances salutary to divide and distribute the attributes of governmental sovereignty among different levels of institutions. The notion had proved unacceptable as a solution of the problem of Anglo-American relations, but it was acted upon immediately and instinctively in forming the new union of sovereign states. The problems, intellectual and political, inherent in such an arrangement would persist; some were scarcely glimpsed when the nation was formed. The belief that “imperium in imperio” was a solecism and the assumption that the “sovereignty of the people” and the sovereignty of an organ of government were of the same order of things would remain to haunt the efforts of those who would struggle to build a stable system of federal government. But the initial challenges to the traditional eighteenth-century notion of sovereignty had been made. Later analysts, starting where the colonists had left off before Independence and habituated to think in terms of “qualified sovereignty,” “lesser sovereignties,” “the divisibility of sovereignty,” would continue the effort to make federalism a logical as well as a practical system of government.67
They would not entirely succeed; the task would be a continuing one, never fully completed. Generations later there would still be those, states rightists and nationalists, who would repudiate this legacy of the Revolution and reinvoke in different contexts the theories of Hobbes and Blackstone, of Hutchinson and Knox. But the federalist tradition, born in the colonists’ efforts to state in constitutional language the qualification of Parliament’s authority they had known — to comprehend, systematize, and generalize the unplanned circumstance of colonial life — nevertheless survived, and remains, to justify the distribution of absolute power among governments no one of which can claim to be total, and so to keep the central government from amassing “a degree of energy, in order to sustain itself, dangerous to the liberties of the people.”68
1. Charles H. McIlwain, “The Historical Background of Federal Government,” Federalism as a Democratic Process (New Brunswick, N.J., 1942), p. 35.
2. Interim Report … on House of Commons Personnel … (London, 1932), quoted in George L. Haskins, The Growth of English Representative Government (Philadelphia, 1948), p. 130; also pp. 111, 76–77.
3. S. B. Chrimes, English Constitutional Ideas in the Fifteenth Century (Cambridge, England, 1936), p. 131. On the political functioning of this form of representation, see Samuel H. Beer, “The Representation of Interests in British Government: Historical Background,” American Political Science Review, 51 (1957), 614–628. Burke’s statement is from his speech to the electors of Bristol, 1774; for Speaker Onslow’s almost identical understanding that “Every Member, as soon as he is chosen, becomes a representative of the whole body of the Commons, without any distinction of the place from whence he is sent to Parliament,” see W. C. Costin and J.
Steven Watson, eds., The Law and Working of the Constitution: Documents, 1660–1914 (London, 1952), I, 392.
4. Kenneth Colegrove, “New England Town Mandates,” Publications of the Colonial Society of Massachusetts, XXI (Transactions, 1919), 411–436; William Smith, History of the Late Province of New-York, from Its Discovery to … 1762, I (Collections of the New-York Historical Society [vol. IV] for the Year 1829, New York, 1829), 309; see also, II, 14. Cf. William Douglass’s excoriation of the Massachusetts law requiring a representative to be “a resident in the township for which he is elected.” A gentleman, he argued, “of good natural interest, and resident in the province, a man of reading, observation, and daily conversant with affairs of policy and commerce, is certainly better qualified for a legislator than a retailer of rum and small beer called a tavern keeper in a poor obscure country town remote from all business.” Residence in the province, together with the ownership of property in the constituency, should be quite enough to qualify a representative, he wrote. A Summary, Historical and Political, of the … British Settlements in North-America (Boston, 1749–1751), I, 506–507. For the argument in Pennsylvania in 1728 that the representative was at best a “creature of the people … Here is no transessentiating or transubstantiating of being from people to representative, no more than there is an absolute transferring of a title in a letter of attorney,” see Roy N. Lokken, David Lloyd (Seattle, 1959), p. 232. See in general the material assembled in Hubert Phillips, The Development of a Residential Qualification for Representatives in Colonial Legislatures (Cincinnati, 1921); for an excellent account in detail, see Richard P. McCormick, The History of Voting in New Jersey (New Brunswick, 1953), chap. ii. The pamphlets published in Massachusetts in 1754 over the controversial excise bill of that year are particularly revealing of the tendency of thought on representation before the Revolution. See Evans listings 7176, 7186, 7227, 7296, 7303, 7304, 7312, 7319, 7332, 7418; the last of these, An Appendix to the Late Total Eclipse of Liberty … Thoughts on … the Inherent Power of the People … Not Given Up to Their Representatives … (Boston, 1756), by the harassed printer Daniel Fowle, was reprinted in 1775.
5. The colonial agents in England were in fact, though never in theory, closely bound representatives in England of colonial constituencies. The Members of Parliament among them shared keenly at times the feeling of Charles Garth that he was “equally representative of this province of South Carolina and of Devizes in Parliament” (L. B. Namier, “Charles Garth, Agent for South Carolina” English Historical Review, 54 [1939], 645). But as the crisis developed it became obvious that conceiving of the agents as in some constitutional sense actual representatives of the colonies in England conceded major principles of the colonial arguments, and the notion was explicitly repudiated.
6. [Thomas Whately], The Regulations Lately Made Concerning the Colonies and the Taxes Imposed upon Them, Considered (London, 1765), p. 109. For a discussion of Whately’s pamphlet and others arguing the same point, together with Dulany’s reply to them, see Introduction to [Daniel Dulany], Considerations on the Propriety of Imposing Taxes (Annapolis, 1765: JHL Pamphlet 13), in Bailyn, Pamphlets, I.
7. William Seal Carpenter, The Development of American Political Thought (Princeton, 1930), p. 47n; Dulany, Considerations (JHL 13), pp. 7, 10. Thus also, e.g., [Ebenezer Devotion], The Examiner Examined … (New London, 1766): “There is nothing, say the colonists, that can give a proper representation but the actual choice of a representative, or in failure of this, an obvious sameness of interest in him that represents and the party represented, or at least an interwoven, inseparable interest between the nonelector and him that elects” (p. 16). And see, among the many other refutations of virtual representation, Maurice Moore, The Justice and Policy of Taxing the American Colonies … (Wilmington, N. C., 1765: JHL Pamphlet 16); Richard Bland, An Inquiry into the Rights of the British Colonies, Intended as an Answer to [“]The Regulations Lately Made[”] … (Williamsburg, 1766: JHL Pamphlet 17); Some Observations of Consequences in Three Parts … ([Philadelphia], 1768), pp. 23 ff.
8. [James Otis], Considerations on Behalf of the Colonists … (London, 1765), p. 9; Benjamin Church, An Oration Delivered March Fifth 1773 … (Boston, 1773), p. 15; [Arthur Lee], “Monitor III,” Virginia Gazette (R), March 10, 1768.
9. Otis, Considerations, p. 6; [John Joachim Zubly], An Humble Enquiry into the Nature of the Dependency of the American Colonies … ([Charleston], 1769: JHL Pamphlet 28), p. 17 (see also pp. 11, 16, 22); [John Dickinson], An Essay on the Constitutional Power of Great-Britain over the Colonies in America … (Philadelphia, 1774), in Pennsylvania Archives, 2d ser., III, 594; The Triumph of the Whigs; or, T’Other Congress Convened (New York, 1775: JHL Pamphlet 62), p. 8.
10. Dulany, Considerations (JHL 13), p. [3]; Virginia Gazette (R), March 17, 1768; [Stephen Johnson], Some Important Observations … (Newport, 1766: JHL Pamphlet 19), p. 32; [James Wilson], Considerations on the … Authority of the British Parliament (Philadelphia, 1774: JHL Pamphlet 44), p. 9.
11. Moore, Justice and Policy (JHL 16), p. 7; [John Adams], Thoughts on Government … (Philadelphia, 1776: JHL Pamphlet 65), pp. 9, 10; Four Letters on Interesting Subjects (Philadelphia, 1776: JHL Pamphlets 69), pp. 21–22. See also the importance attached by Jefferson to the crown’s denial of an increase of representation in the colonial assemblies to reflect the growth and spread of the population. [Jefferson], A Summary View of the Rights of British America … (Williamsburg, [1774]: JHL Pamphlet 43), pp. 17, 18. So too Adams felt that a truly representative imperial Parliament would reflect in its size and complexity the variety of peoples represented in it: Adams (“Novanglus”), in Works, IV, 101–102.
12. On the continuity of radical theories of representation, see Alfred De Grazia, Public and Republic (New York, 1951), pp. 21 ff., 45 ff.; Caroline Robbins, The Eighteenth-Century Commonwealthman (Cambridge, 1959), pp. 30, 193, 268, 338–339, 364–366, 370–374; Ian R. Christie, Wilkes, Wyvill and Reform (London, 1962), passim, esp. pp. 36, 43, 48–49, 63, 146–147, 179–184; Gipson, British Empire, XI, 194–195, 220–221.
13. E.g., Locke, Second Treatise of Government, xiii, 149. Cf. Otis’ discussion of the Glorious Revolution in his Rights of the British Colonies Asserted and Proved (Boston, 1764: JHL Pamphlet 7), 15 ff., quoting Locke on the dissolution of government (p. 23). For a forceful invocation of the Lockean notion of active consent at the moment of rebellion, see the argument for the constitutionality of the Continental Congress on the grounds of analogy to “the assembly of the barons at RUNNINGMEDE, when MAGNA CHARTA was signed, the Convention Parliament that recalled Charles II, and the Convention of Lords and Commons that placed King William on the throne,” in James Wilson and John Dickinson’s “Address to the Inhabitants of the Colonies” (1776), Journals of the Continental Congress, 1774–1789 (W. C. Ford, et al., eds., Washington, D. C., 1904–1937), IV, 137.
14. Wilson on Blackstone, in Andrew C. McLaughlin, The Foundations of American Constitutionalism (New York, 1932), pp. 83–84; cf. [Moses Mather], America’s Appeal to the Impartial World … (Hartford, 1775: JHL Pamphlet 59), p. 39. See, in general, on the points involved, Carpenter, Development of American Political Thought, pp. 91 ff.; J. W. Gough, Fundamental Law in English Constitutional History (Oxford, 1955), pp. 175–176, 120; Charles H. McIlwain, Constitutionalism and the Changing World (New York, 1939), pp. 64–65.
15. Carpenter, Development of American Political Thought, pp. 43, 91; [Samuel Seabury], A View of the Controversy … (New York, 1774), in Clarence H. Vance, ed., Letters of a Westchester Farmer (1774–1775) (Publications of the Westchester County Historical Society, VIII, White Plains, 1930), p. 111.
16. [Charles Inglis], The True Interest of America … Strictures on a Pamphlet Intitled Common Sense … (Philadelphia, 1776), p. 18. Cf. above, Chap. III, note 12. On the seventeenth-century background in England of the later American developments, see Corinne C. Weston, English Constitutional Theory and the House of Lords, 1556–1832 (London, 1965), pp. 99�
�100; Gough, Fundamental Law, pp. 51, 59, 67.
17. [Richard Bland], The Colonel Dismounted: Or the Rector Vindicated … (Williamsburg, 1764: JHL Pamphlet 4), p. 22; [William Hicks], Considerations upon the Rights of the Colonists to the Privileges of British Subjects … (New York, 1766: JHL Pamphlet 18), p. 1.
18. Otis’ constitutional thought is discussed in detail in the Introductions to his Rights of the British Colonies (JHL 7) and his Vindication of the British Colonies … (Boston, 1765: JHL Pamphlet 11) in Bailyn, Pamphlets, I. The reader is referred to these essays for full elaboration and documentation of the interpretation that follows.
19. Adams, Works, X, 248; Josiah Quincy, Jr., Reports of Cases … in the Superior Court of Judicature … Between 1761 and 1772 … (Samuel M. Quincy, ed., Boston, 1865), p. 474; Samuel E. Thorne, “Dr. Bonham’s Case,” Law Quarterly Review, 54 (1938), 545, 549, 551, and the same author’s edition of A Discourse upon the … Statutes … (San Marino, 1942), pp. 85–92. Equally suggestive of the complicated anachronism of Otis’ thought is his silent, perhaps unconscious, paraphrasing of Grotius, discussed below, p. 205, n. 46. The complete recovery of what Coke and the other early English jurists had meant by “voidance,” and hence their easy ability to reconcile absolute Parliamentary supremacy and constitutionalism, seems to have become possible only when the American redefinition of the concept of “constitution” had reached its fulfillment in the early nineteenth century. Thus Chancellor Kent, after quoting Blackstone on the absolute supremacy of Parliament, wrote in his famous Commentaries: “When it is said in the [English law] books that a statute contrary to natural equity and reason, or repugnant or impossible to be performed, is void, the cases are understood to mean that the courts are to give the statute a reasonable construction. They will not readily presume, out of respect and duty to the lawgiver, that any very unjust or absurd consequence was within the contemplation of the law. But if it should happen to be too palpable in its direction to admit of but one construction, there is no doubt in the English law as to the binding efficacy of the statute. The will of the legislature is the supreme law of the land, and demands perfect obedience.” James Kent, Commentaries on American Law (New York, 1826), I, 419–420; cf. pp. 420–421, 425 on the American concept of “voidance.”
The Ideological Origins of the American Revolution Page 28