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The British Constitution in Trouble

The colonists' chief legal problem was to determine the extent to which they were represented in and protected by the British constitution. The first major rumblings of constitutional discontent emerged near the end of the French and Indian War in 1763 when the English government abandoned its policy of "salutary neglect" in favor of a vigorous program of customs enforcement and taxation. The English wanted the colonists to help pay for the huge debts accumulated as a result of the war and to contribute directly to the defense provided them by British troops. The administrations of Lord Grenville and his successors had no constitutional qualms about imposing such demands and in invoking the doctrine of virtual representation to justify it. This concept held that all persons in the empire were represented in Parliament, regardless of whether they had actually voted for a member, so long as there were members whose interests were similar to theirs. The colonists, for their part, remained committed to the British constitution, but they became increasingly disillusioned with the way in which Parliament denied them what they believed to be the rights of all Englishmen: protection from arbitrary government and direct representation of their interests. Direct or actual representation meant that the people actually voted for their representatives. That is what the colonists had in mind when they repeatedly invoked the phrase, "no taxation without representation."

The nature of the British constitution contributed to the disjunction between authorities in London and the colonists. That constitution was different from what emerged in Philadelphia in 1787; it was neither a written nor a single document. Instead, the British constitution was a collection of documents--Magna Carta, the Bill of Rights, and the Act of Supremacy, for example--as well as customary practices that had historically limited the government's exercise of arbitrary power. Make no mistake: the British constitution was one of the great achievements of eighteenth-century Enlightenment political science. Yet the rise of an international commercial economy created pressures that ignited a sustained theoretical debate in England, the colonies, and the Continent about the proper character of public law generally and the British constitution specifically.

By the mid- eighteenth century the political opposition in England had formed into a coherent faction called the Whigs. The shortened term derived from Whiggamores, the seventeenth-century Scottish insurgents against the Crown. The Whigs felt estranged from the centers of power that (with the rise of empire) increasingly centered on government bureaucracy, the development of a money economy, and the growing power of the urban, merchant class. Prominent Whig leaders had a social and economic agenda as well. They wanted the English nation to return to the virtues of agriculture, simple government, honest labor on land and craftsmanship in the cities, and direct trade among individuals.



Pamphleteers broadcast the Whig opposition to the government, initially in England and eventually in the colonies. John Trenchard and Thomas Gordon were perhaps the most influential of the opposition pamphleteers. They argued in Cato's Letters ( 1713-1719) that Britain had sunk into corruption because of the activities of the Bank of England. Trenchard and Gordon charged that the bank had conspired with certain members of Parliament to foster economic monopolies that promised eventually to subvert the traditional constitutional protections accorded English citizens. These po

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lemical essays were important in America after 1750, because they provided patriot leaders with a ready-made rhetoric of opposition. 6

Whigs viewed the British constitution as an assembly of parts, with Parliament independent of the Crown and of political factions. They also stressed that while the Glorious Revolution had ended the divine-right rule of monarchs, sovereignty had not shifted to the Parliament, as government leaders insisted in the eighteenth century. Whigs rejected the idea that Parliament was absolutely sovereign. Instead, they insisted that Parliament's authority was limited by the same customs and practices that had historically restrained the monarchy from the arbitrary exercise of power. But those constitutional understandings were nowhere written down as part of the organic law. For all of its genius, the British constitution was impossible to find in all of its parts, a condition that handicapped the Whig opposition in England and the colonies.

Whig thought shaped American patriots' understanding of their place within the empire. As the Reverend Jonathan Mayhew explained in commenting on the impact of Whig ideology on the coming of the Revolution, "many things much to the present purpose . . . look almost like prophecy." 7

The Whigs directed their opposition against the so-called court party. Its leaders believed that Britain had given birth to a modern, dynamic, expanding imperial economy predicated on mercantilism, a system of political economy that developed in postfeudal Europe. Its primary interest was the establishment of overseas colonies from which to extract raw materials and to which to sell finished goods. The court party insisted that the British constitution was an engine of economic expansion, and that the Glorious Revolution, in making Parliament the source of sovereign authority, had established a framework to harness that power better than any other known to history. The court party's broad reading of parliamentary powers did not mean traditional liberties were at an end; rather, its leaders stressed that, if England wanted to enter the world of commerce, Parliament had to have sufficient discretion to pass laws that would enable it to reach that end.

Sir William Murray, Lord Mansfield, chief justice of King's Bench ( 1756-1788), and Sir William Blackstone provided the constitutional justification for that position. Mansfield was eighteenth-century England's greatest commercial lawyer and a proponent of parliamentary sovereignty. His support of an expanding commercial economy reinforced his belief in absolute parliamentary sovereignty.

Blackstone was equally preeminent, and no other legal figure equalled his impact on the colonies. His Commentaries on the Laws of England, published between 1765 and 1769, sold almost as many copies in America as England. Blackstone was to the eighteenth century what Sir Edward Coke, also chief justice of King's Bench ( 1613- 1616), had been to the seventeenth: the source of organizing authority of the English law.

He also supported the new constitutional monarchy, extracting from English law the proposition that Parliament was the source of sovereignty for the English nation and its increasingly extended empire. "If the parliament will positively enact a thing to be done which is unreasonable," Blackstone wrote, "I know of no power that can control it."8 He preached an inherently conservative message, and it was one that a great number of lawyers in the colonies adopted, either in outright loyalty or in patriotic insistence on conducting a legal revolution.

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Date: 2015-01-29; view: 912


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