The Glorious Cause: The American Revolution, 1763-1789 (28 page)

counted for a great deal. Land provided much of the wealth, of course, but money in commerce was not to be minimized. At any rate, one acquired status with material property -- family, breeding, and education counted much less. Property also conferred political rights. In every colony ownership of real property was required of voters, and political leadership, by a common if tacit agreement, was vested in those who owned.

The history that educated groups imbibed until it became almost their own experience recounted the development of representative institutions to serve in effect as extensions of the rights of property. The Saxon myth found believers in America from New England to Virginia and was repeated by such worthies as Jonathan Mayhew and Thomas Jefferson. According to this beguiling story, the old Saxon Witan, the. ancestor of the modern Parliament, took its rise as representative of the landholders of England. The Normans under William the Conqueror disbanded it, but in a century or two it made its appearance once more as the Parliament of England, the agency of property owners. In its modern form it served as the model for the colonial assemblies.
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When we see the political rights and obligations of the individual, and the institutions and purposes of the state, tied to property, indeed expressed in a sense by property, colonial disquiet at the stamp tax becomes understandable. This unease was transformed into a constitutional position during 1765-66, a position maintained intact until just before the Continental Congress declared independence.

At the time of upheavals over the Stamp Act, American leaders had not thought systematically or coherently about the constitutional order that presumably included the colonies. They had long acknowledged Parliamentary supremacy and colonial subordination without troubling to ask exactly what these grand phrases involved. They continued in 1765 and 1766 to profess to believe in Parliament's absolute sovereignty and in their own subordinate place. At its most extreme, this constitutional position came down to James Otis's sonorous sentence: "The power of Parliament is uncontrollable but by themselves, and we must obey." This proposition appeared in
The Rights of the British Colonies Asserted and Proved
,
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a tract which purported to demonstrate that Parlia-

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ment had no right to tax the colonists because they were unrepresented in it and therefore unable to give -- or to withhold -- their consent to levies on their property. By itself Otis's assertion that Parliament's power could be controlled only by itself stated Parliament's attitude perfectly, but not that of most colonists. And Otis himself did not intend that his statement be understood as a standard of equity, but only of power. Parliament, he argued, had the power to do what it wished but not the right, and when it erred the executive courts of England would in time recall it to the right, as they had in the seventeenth century in Bonham's case, a celebrated proceeding Otis had read of in Coke
Reports
. Otis seems to have misinterpreted Coke and based his argument for colonial compliance on his misunderstanding. He also assumed that Parliament as a benign body would wish to correct its mistakes once they were pointed out to it by the executive courts. The entire procedure had a slightly mechanical cast, with a benevolent Parliament acting to rectify its errors when the executive courts kindly discovered them. But as naïve as the scheme appears, it solved, in Otis's mind at least, the requirements of equity within a system in which an undivided sovereignty resided in the Parliament.
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It was a curious line to take about the British constitution and not altogether satisfying even to Otis. Its inadequacies were obvious: uncontrollable power cannot be reconciled with a claim that men possess political and civil liberty in organized society. And, of course, all English and American theorists agreed on this claim to liberty. Otis met the difficulty as well as he could by arguing that despite Parliament's uncontrollable power there were limits it could not transgress; the colonists, after all, retained their natural rights and their rights as British subjects. Nature clearly served as the source of the first of these rights, but what was the source of subjects' rights? The answer was awkward: Parliament itself and the common law. What, aside from its own good intentions, would prevent an uncontrolled Parliament from trespassing on rules it set for the protection of the subject was a question Otis did not answer.

As convoluted and vulnerable as Otis's views were, they did help establish an important colonial contention about the British constitution. That constitution did not simply consist of what Parliament legislated, but of some fundamental law derived from nature and ultimately from God which protected the political and civil freedom of all subjects wher-

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ever they lived. Otis never fully explained what the fundamental law consisted of, nor did anyone else in America in these years of crisis over the Stamp Act. Yet we can sense in the fragmentary references in newspaper essays, learned tracts, and "political" sermons that American theorists-Otis, Mayhew, Bland, Moore, Carter, Dulany, and others-believed that some basic constitutional order existed which limited in equity if not in actuality the powers of all political agencies, including the sovereign body in the empire, the British Parliament. These halfformulated comments were of two kinds: one explicitly insisted that there were limits beyond which even Parliament could not go, because the Americans as British subjects retained certain fundamental rights and privileges from that ancient and mysterious day when they left the state of nature for civil society; the other implicitly assumed that, because a free man was distinguished from a slave only by his independence of the arbitrary will of another, limits existed curbing the power of all men, whatever their station and authority.
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The relation between the fundamental law and actual institutional protections -- Otis's executive courts and the common law, to cite two examples frequently adduced by Americans -- did not appear clearly in these years. Presumably the common law followed the subject wherever he went, but though it included seemingly permanent protections, it was subject to revision in courts and in Parliament. The charters issued to the colonies by the Crown appeared to be made of more solid stuff, but despite a number of flat statements that they incorporated fundamental rights, including the right to be taxed only by one's representatives, there was an uneasy recognition in these assertions that the Crown had vacated them in the past and might do so again.
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Yet even with all these uncertainties about the nature of the constitution, a half-articulated constitutionalism made its appearance by 1766. It held that there were limits, outside of and independent of Parliament. Their essence might not be altogether clear and their sources might be a matter of dispute, but they existed nonetheless.

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The fact remained, however, that the American colonies were a part of the empire, and an argument that Parliament, like all political bodies, was limited did not establish where its legal lines of jurisdiction began and ended. Drawing these lines proved extraordinarily difficult, and the initial attempt made by the colonial assemblies in 1764 soon after they heard of the possibility of a stamp tax, though clear on at least one essential, was not altogether satisfactory to them and simply confusing to the English government. The essential on which these legislative bodies agreed was that Parliament could not levy internal taxes in the colonies, a proposition clear on its face but full of unsuspected implications.

Not all the assemblies issued statements -- petitions, resolutions, memorials, and remonstrances -- in 1764 when the stamp bill was being drafted. The five which did were probably even more concerned about the recently enacted Sugar Act. Yet all showed an unease about the proposed stamp taxes and all declared their opposition. The New York Assembly decried Parliament's right to tax the colonies in three forthright petitions to the king, the Lords, and the Commons. Declaring its "Surprize" that Parliament would even consider taxing the colonies, an "Innovation" which will "reduce the Colony to absolute Ruin," the Assembly insisted that the colonies should be exempt "from the Burthen of all Taxes not granted by themselves."
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The New Yorkers protested at the same time that they had no desire for independence, and as evidence of their loyalty and reasonableness conceded the authority of Parliament to regulate colonial commerce "so as to subserve the Interests of her own."

With the exception of Virginia's House of Burgesses and its Council, which claimed a right to be taxed only by their own consent, the other legislatures which produced resolutions in 1764 were less emphatic -and less clear. Rhode Island ducked the issue of Parliament's right to raise a revenue by taxing colonial trade while arguing that the proposed stamp taxes would violate long-established rights. Massachusetts made a similar though cautiously worded claim to an exemption from internal taxes but left the issue of external taxes unexplored. Unexplored, that is, in the official address of the House and Council; behind that prudent document lay a bitter dispute between the two bodies, a dispute the Council under the leadership of Thomas Hutchinson won. The House had originally prepared a protest against any tax to be levied on the colonists without their consent.
When the Council refused its approval,

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the House gave in and endorsed the weaker document in the belief that a mild protest was better than none.
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Only the Connecticut legislature in some of the fastest footwork displayed in any of these official statements conceded Parliament's authority to raise a revenue in America. Connecticut's statement, drafted by a committee which included Governor Thomas Fitch and Jared Ingersoll, was published as a pamphlet,
Reasons Why the British Colonies Should Not Be Charged with Internal Taxes
.
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In it the Connecticut legislature formulated one of the early versions of distinct but connected jurisdictions which it saw operating in the empire. These jurisdictions were "internal" and "external" as they bore on the colonies. In the internal affairs of the colonies only their legislatures had authority to legislate and tax. On this ground the Connecticut legislature stood fast -- Parliament had no authority to levy internal taxes. In external affairs, the legislation of trade and foreign relations, on the other hand, the jurisdiction of Parliament was undoubted. Indeed, the Connecticut legislature was so impressed by the "capacious and transcendent" character of this jurisdiction that it could not bring itself to deny Parliament's right to raise a revenue by duties on trade and even went so far as to suggest two taxable commodities, Negroes and furs, both items which rarely appeared in local ports. If Parliament ever decided to levy such taxes, the Connecticut legislature piously insisted that it should manage the job without impinging upon the rights of the colonists, rights which guaranteed that "No Law," including statutes levying taxes, "CAN BE MADE OR ABROGATED WITHOUT THE CONSENT OF THE PEOPLE BY THEIR REPRESENTATIVES."
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