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CHAPTER EIGHT CONSTRAINTS OF CONTRACT Direct representation was the coming manifestation of constitutional consent in the 1770s. It would be the constitutional norm in the nineteenth century. In the age of the American Revolution the dominant manifestation of constitutional consent was still not expressed but implied , not personal but vicarious, not by elective choice but by social acquiescence . It was not by direct representation but by original contract. When supposing government to be founded by consent of the people, as David Hume pointed out, the eighteenth century was supposing that there was an original contract. The sometime barrister, Richard Hey, in 1776 looked at the contract from the opposite perspective, saying that its primary utility was to explain how people, not members of the legislature , constitutionally consent to government and laws. As "all men are by nature equal," none "can claim authority over the rest," the Reverend Myles Cooper was told in an open letter the next year. "On what then can government be founded, but on the consent of the governed; that is, in other words, on compact?" Thomas Rutherforth in his law lectures at St. John's College, Cambridge, also linked consent to the contract when he asked why people who were equal to one another could be bound by law. The reason, as seen in the last chapter, "must be an act of joynt consent. Sometimes we consider this act of joynt consent as a law, and call it the III 112 CONSTRAINTS OF CONTRACT law of the civil constitution. Sometimes we consider it as a compact, and say, that a king in monarchies, or the nobles in aristocracies, or the representatives of the people in democracies, which are administered by representatives , derive their power from compact."l In seventeenth-century England and eighteenth-century Great Britain , many political theories and almost all constitutional theory were shaped by contractarian thought. It was adaptable to every issue and was a standard that could be used to judge every problem. When Governor Francis Bernard first arrived in Massachusetts he reported to London that much was well in the Bay colony. "This people," he wrote, "are better disposed to observe their contract with the Crown than other on the continent I have known." Sixteen years later and a month before the Declaration of Independence, New York's loyalist William Smith complained that "the present Animosities are imputable to the Pride & Avarice of Great Britain, in assuming an Authority, inconsistent with the Compact by which the Empire have been so long prosperously united." Agreeing with Smith, but on the opposite side of the constitutional controversy , the freeholders of North Carolina's Chowan County voted that the Massachusetts Government Act, one of the intolerable acts of 1774, was "an attempt to dissolve a Contract most solemnly entered into by the present Ancestors of the Massachusetts Bay with their Sovereign; a contract w[hi]ch ought to be held inviolable, without the mutual consent of King and People."2 During the revolutionary controversy both sides appealed to contractarian theory, making similar constitutional arguments for similar constitutional reasons. It is, of course, well known that colonial whigs argued the contract, but less well appreciated is the extent to which the other side, the parliamentary imperialists, utilized contractarian jurisprudence . Consider four imperialist claims that the contract-or that special version of the contract that can be called the second original contract or the migration contract-contained specific stipulations establishing Parliament's supreme authority over the colonies. Lord Lyttelton stated the least complicated of the four, finding the stipulation in the constitution and laws of the mother country from whence the first settlers migrated. "They went out subjects of Great Britain," he told the House of Lords, "and unless they can shew a new compact made between them and the parliament of Great Britain (for the king alone could not make a new compact with them) they still are subjects to all intents and purposes whatsoever. If they are subjects, they are liable to the laws of the country."3 The second argument implied the contractual stipulation of parliamentary supremacy from the circumstances ofthe migration. "When the CONSTRAINTS OF CONTRACT first emigration took place," a parliamentary letter writer contended, quoting Vattel, "there was a tacit and implied condition on the part of the Emigrants, 'that they would continue to act, as they would have done, had they remained inhabitants within the realm of Britain;' for it must be the very summit of error and ignorance in...

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