The Legal and Constitutional Origins of the American Revolution

In the 1960s, Bernard Bailyn investigated the pamphlets produced by nascent rebels to study the ideology that fueled the American Revolution. In The Ideological Origins of the American Revolution (1967), Bailyn found that rebellious pamphleteers rarely created their ideas and rhetoric anew. Instead, they drew on literature produced during events such as the English Civil War, the Exclusion Crisis, and the Glorious Revolution. Sometimes, those influences could be seen explicitly; at other times, they were implied. Either way, according to Bailyn, rebellious colonists were only expressing what was a pervasively understood ideological perspective that had evolved over the course of the colonial period to inspire an uprising aimed at preserving long-held political liberties.

As Bailyn did for the political philosophy of colonial insurgents, Craig Yirush describes the evolution of the constitutional and legal thinking that informed rebels in the 1760s and 1770s. Such a perspective, Yirush argues in Settlers, Liberty, and Empire, corrects “recent scholarship that studies the social and cultural history of the colonies in the Atlantic world” by studying the legal debates of the pre-1763 period to show the “continuity between the politics of the colonial and revolutionary eras” (p. 267). For Yirush, as for Bailyn, the full expression of the legal and constitutional rationale for colonial rebellion in the 1760s and 1770s was a long time in the making.

Yirush traces the history of those ideas along a roughly chronological path. He starts by explicating Edward Coke’s view that English law recognized both subjects and aliens. That issue became important as Coke and others addressed the status of people who lived in lands that English colonists conquered and appropriated from indigenous people. But Coke, like Yirush, was less concerned with how Indians defined their legality and authority in their own terms. He was more interested in the status of non-Christian people under English law. He reasoned that Indians’ relationship to the land shaped colonists’ claims to property ownership and the political autonomy that went with it. While not all English colonial elites shared Coke’s reasoning or conclusions, they focused on similar issues as they carved out a legal and constitutional place for colonists within the emerging empire. But these legal and political elites fundamentally disagreed over the extent to which imperial officials should intervene in colonial politics. More than that, they disagreed over how Parliament and the Crown legitimated their colonial intervention.

For Yirush, the extent to which the Crown and Parliament intervened in local colonial affairs defined the legal and constitutional debates that characterized the remainder of the pre-1763 colonial period in British North America. That said, identifying and explaining that problem reveals that the rights and power of colonists in relationship to Parliament and Crown were hardly clear to anyone. Those issues emerged during the revolts against the Dominion of New England in the 1690s, where Yirush picks up his study. When Parliament tried to reorganize colonial authority under the Dominion, colonists refuted these attempts to rule with a stronger hand. Simply put, colonists refused to abide by legislation unless they had a voice in its passage. In response, officials organized the Board of Trade, designed to weaken colonial authority by imposing order in the shape of a centralized authority. When the Board failed to gain control of the colonies, Parliament resorted to legislation, but attempts to enact power over colonists failed too, albeit in a different way.

Each time royal officials tried to corral colonists, they more forcefully asserted their sovereignty. In 1696, for example, Parliament enacted a new Navigation Act, which both restricted colonists’ market activities and expanded Parliament’s power over colonists. Jeremiah Dummer opposed what he saw as the political and economic restrictions the Act embodied. He argued that Parliament was abridging the colonists’ right to self-rule. First, Dummer insisted that colonists had turned uninhabited wilderness into productive, European-style farmland...