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CHAPTER NINE CONSTITUTIONAL AUTHORITY The customary, static constitution of eighteenth-century legal and political theory was on the mind of an anonymous London pamphleteer in 1774. He was searching for ways to resolve the imperial controversy that seemed headed toward civil war, and asked what "ground" held the "medium between the absolute obedience in the colonies to be taxed by parliament, and their total independence." He found the answer in constitutional rights. "This ground is the English constitution," he decided, "out of this did the colonies spring, and those that would wish to form a true judgment of the nature of their rights, will not be satisfied in a matter of so much importance, to take their leading principles upon trust and by hearsay, but will for themselves examine the evidence on which they depend."l The theory, that the constitution was a source of rights, not merely an apparatus for protecting rights, was a familiar eighteenth-century truism. It was a concept that would not survive the early nineteenth century when parliamentary supremacy came to be equated with sovereignty over law. Then it would be understood, as A. V. Dicey explained, that "the right to individual liberty is part of the constitution, because it is secured by the decisions of the Courts." That is, he went on, "with us the law of the constitution ... [is] not the source but the consequence 74 CONSTITUTIONAL AUTHORITY 75 of the rights of individuals, as defined and enforced by the Courts." During the era of the American Revolution perceptions were somewhat different . Rights were not seen so much as deriving from the Constitution as being, as Arthur Lee put it, "coequal with the Constitution." Governor Thomas Pownall thought that "the liberty of the subject" meant the same as "the liberty of the constitution," and Jonathan Mayhew said that "constitutional principles ... are those of liberty." Quite frequently, rights were said to possess an independent existence, a condition implied by John Reeves when he argued that "nothing is intitled to be called a Constitution , but a system springing out of an act declaratory of abstract principles , as of the Rights of Man."2 RIGHTS AT LAW When claiming the constitution as a source for rights, American assemblies were apt to express the concept in terms of privileges guaranteed by Magna Carta, the Petition of Right, and other great landmarks of English constitutional history.3 That was not the general eighteenthcentury practice, however. Political commentators then were so accustomed to thinking of rights as immemorial, encased in timeless custom existing independently of any creative agency, that they usually did not refer to documents for their authority, and quite often did not even mention the constitution. Rather, they referred to law in general, or the "law of the land." When, for example, the Pennsylvania legislature asserted that the colonists were entitled to "the noble principles of English liberty ," William Knox ridiculed so lofty a source. "[W]here to find these noble principles of English liberty, except it be in the laws of the land, I confess I am ignorant."4 Knox thought he was attacking a nonsensical appeal to natural law, and expected his readers to know what he meant by "laws of the land." Perhaps they did, but we must not assume that we do. English-speaking people in the eighteenth century had an intuition for legalism we no longer share. When they said a right was vested by law they might mean a mutable right such as a freeholder's right to vote, conferred by custom, not statute, yet subject to legislative alteration. Usually, however, they meant a higher source, either common law when that concept was equated with constitutional law, constitutional law which the sovereign should not but legally could change, or fundamental law beyond the reach of legislative will.s It is important to keep distinct concepts separate. During the eighteenth century when British lawyers and American whigs used the term CONSTITUTIONAL AUTHORITY "constitutional law" they had in mind a definition similar to that in Canada during the twentieth century. To say that a statute or a governmental action was unconstitutional was to say that it was contrary to the constitution; it was not to say that it was illegal. When eighteenth-century people wished to describe an immutable constitutional law, as the term is now understood in the United States, they did not speak of constitutional law, but of fundamental law. The term "fundamental law" had several usages two centuries ago. One...

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