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CHAPTER ONE THE CONSTITUTIONAL IMPERATIVE There is a preliminary consideration so often overlooked that it must be noted here: to write the constitutional history of the American Revolution is to write the history of more than one constitution. The point is so elementary that once stated it becomes obvious, yet it has generally been misunderstood, ignored, or left unmentioned. Close attention should be paid to words, keeping in mind, however, that scrutiny is something eighteenth-century words often cannot sustain. The term "constitutional" was one of several words used in what are today unfamiliar ways and unexpected purposes. Another was "liberty" and a third, which did not appear as frequently, was "independence." "The words Liberty, Constitution and Independence," a member of Parliament remarked in 1770, "are indeed words that convey ideas of the utmost importance; but I am sorry to say, that it is of late become a custom to use them, not as conveying ideas, but as forming a spell."l There was perhaps no orator of the revolutionary era more talented at casting spells with words than Edmund Burke, yet he was one of a very few to keep a relatively tight rein on the meaning of "constitutional." From beginning to end of the revolutionary era, Burke concentrated attention on the constitutional nature of the controversy between Great Britain and its colonies. It was possibly Burke, writing the Annual Reg9 10 THE CONSTITUTIONAL IMPERATIVE ister for the last time in 1766, who summed up the first public parliamentary debate on colonial taxation by pointing out that "arguments of natural lawyers, as Locke, Selden, Pufendorf, and others, are little to the purpose in a question of constitutional law." A decade after the Revolutionary War had ended and American independence was established, Burke still was saying that the conflict between Great Britain and its colonies had something to do with constitutional law. "He believed," Burke wrote of himself in the third person, "that they [the colonists] had taken up arms from one motive only: that is, our attempting to tax them without their consent,- to tax them for the purposes of maintaining civil and military establishments." Recently, a writer commenting on this argument said that Burke was reiterating "his original belief that the Americans 'were purely on the defensive in that rebellion; and that their original aim was not to secure independence from Britain, but to secure the legal rights of subjects under the English constitution." It is possible that Burke would have made this argument, but not likely; in contrast to many twentieth-century American historians, he knew that, although in most contexts the term "English constitution" could be interchanged with "British constitution," the colonies sought to secure rights under the British, not under the English constitution. Indeed, Burke appreciated the fact that the constitutional debate swirled around more constitutions than a mere two. "[T]he Constitution of the British Empire," he once reminded the House of Commons, had to be "distinguished from the Constitution of Britain." He might have added that both should be distinguished from what no less a lawyer than Alexander Wedderburn, destined to be England 's solicitor general, attorney general, lord chief justice of the Court of Common Pleas, and lord chancellor, referred to as "the British American constitution."2 And even beyond that, on the other side of the Atlantic , lay "the Constitutions of the colonies."3 The general assumption of British parliamentarians like Burke was that the revolutionary controversy turned on various interpretations of either the British or the English constitution. In fact, the colonial constitutions were as much involved, as many British and American lawyers well understood . Consider, for example, Richard Jackson, who was a barrister of Lincoln's Inn, future bencher of the Inner Temple, and who served as secretary to George Grenville at the time the Stamp Act was being planned. '~ Revenue to be raised in America for the Support of British Troops is not now to [be] argued against," he wrote Benjamin Franklin the year before any of the new taxes were enacted. "I only contend that it should be built on a foundation consistent with the Constitutions of the Colonies." Six days before the Stamp Act became a reality, the freeholders of Marblehead, Massachusetts, applyingJackson's test, concluded THE CONSTITUTIONAL IMPERATIVE 11 that the tax was not "consistent" with their colony's constitution, and in~ structed their delegate to the House of Representatives not to vote for any bill "that will imply the Willingness of your Constituents, to...

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