Contract and Consent: Representation and the Jury in Anglo-American Legal History

4. American Independence and the Crisis of Sovereignty

106 I. The issue of sovereignty links with other essays in this study because sovereignty is the legitimate use of superior power, and legitimacy, according to Anglo-American traditions, is conferred by some form of contract. When the British Empire split, it was along the seam which identified sovereignty as power joined to legitimacy. British sovereignty over the empire appeared from a parliamentary point of view to be a self-evident condition, almost a tautology, which reached its apogee in 1766 with the passage of the Declaratory Act, asserting that Parliament had the right to bind the colonies “in all cases whatsoever.”1 Was it not, after all, the British Empire? The problem was more than one of nomenclature. Certain American provinces of the empire had for some years been ceasing to identify themselves as exclusively British. There developed a creeping doubt as to how long national identity could be determined by the character of the governing institutions; and although they were reluctant to name it, or to address the problem of sovereignty directly, this fatal possibility began to emerge in the rhetoric of colonial pamphleteers such as, notably, James Otis and John Adams in Boston, and Patrick Henry in Virginia; in the subtle questionings of John Dickinson, the pseudonymous “Pennsylvania Farmer”; and in pamphlets or speeches by William Hicks and James Wilson in Pennsylvania—all except Hicks being lawyers, and it was of no small significance that Adams and Henry gained both inspiration and opportunity in law courts. The young John Adams claimed that American independence was inspired by James Otis’s speech against writs of assistance in the Boston courthouse; the young Patrick Henry seized the opportunity to Americanize the local issue of the Parsons’ Cause in Virginia. 4 American Independence and the Crisis of Sovereignty American Independence and the Crisis of Sovereignty 107 In the same period, English common law, which colonists were proud to share with their English fellow subjects, was subtly morphing into an American common law or, more exactly, into regional varieties of American common law. There could hardly have been a more convincing demonstration of the power of the periphery in the governance of empire.2 Yet the sovereignty of Parliament was confidently a∞rmed in this same period by William Blackstone, the first Vinerian Professor of Law at Oxford University , in whose Commentaries on the Laws of England, which exerted enormous influence on American legal thought, law was defined as the command of a superior to an inferior.3 And Parliament knew no constitutional superior. The di≠erence was logically irreconcilable. In the colonies, a hard and fast definition proved more elusive; political power was never absolute, and its underlying principles were in a continual state of challenge and negotiation .4 Although only a few colonists showed much interest in theory, new assertions of parliamentary authority to act in areas which colonists habitually regarded as their own made it increasingly necessary to establish the primary conditions of legitimacy—how it was verified, where it came from. During the 1760s, as controversy began to focus on a variety of particular issues, all of which involved the location of authority, colonial representatives recognized that the colonies were parts of a larger whole, which must be subject to some central power, at least where regulation served the interests of the colonies equally with the British at home.5 But until they were unavoidably tangled in its toils, American spokesmen generally avoided the language of sovereignty, with its feudal undertones and absolutist resonance . John Dickinson, whose exposition of colonial interests was the most influential of its time, only allowed the colonies to be “as dependent on Great Britain as a perfectly free people can be.”6 This was audacious language fraught with quiet, understated menace; for on close examination, Dickinson’s reasons for colonial submission to central direction were based on grounds of utility, not loyalty or obligation. If separation from the empire were perceived as serving the interests of the colonies, a shift toward some form of home rule, by implication, would follow. Sovereignty stood on shaky ground. II. The modern concept of sovereignty had emerged in sixteenthcentury Europe as the defining characteristic of the nation-state. In this Contract & Consent 108 form, the doctrine had first been expounded at length in 1576, when Jean Bodin, who had narrowly survived the massacre of French...