In lieu of an abstract, here is a brief excerpt of the content:

CHAPTER FIVE LIMITS OF SUPREMACY There is a tendency among students of the American Revolution to isolate American political thought from British political thought. Whatever validity that practice has it would be wrong to extend it to constitutional thought. American constitutional thought was British constitutional thought because both were the direct, legitimate progeny of English constitutional thought. It is easy to forget this historical fact and to assume that American opposition to parliamentary supremacy was concocted to meet the political crisis of the 1760s. Recognizing the many "uncertainties about the nature of the constitution" then rife, Robert Middlekauff has noted that "a half-articulated constitutionalism made its appearance by 1766. It held that there were limits, outside of and independent of Parliament. Their essence might not be altogether clear and their sources might be a matter of dispute, but they existed nonetheless ."l Middlekauff, of course, was wrong that this constitutionalism was new,2 but correct about the basic tenet of that constitutionalism: that it imposed "limits" on power. That is the topic of this chapter, the legal theory of limitations constraining parliamentary authority. Indeed, it is not unrealistic to call it the theme of this book and even the core constitutional contention of American whigs in their controversy with Great 79 80 LIMITS OF SUPREMACY Britain: that no matter how one defined the supremacy of Parliament there were limits to that supremacy. It is not enough to know what colonial whigs argued. We must also know why they argued as they did. It is important, therefore, to guard against certain notions that have crept into the historical literature of the American Revolution. One of these is the idea that "the major task confronting the leaders of the American cause before the actual outbreak of the Revolution," was "how to qualify, undermine, or reinterpret" the doctrine of legislative sovereignty.3 That was the task, of course, but the implication is wrong if the impression is that colonial whigs were required to formulate new constitutional arguments or that prior to the revolutionary controversy Americans would not have been familiar with those arguments. Colonial whigs would have been familiar with up to half a dozen theories why parliamentary sovereignty had limits. These theories would have been familiar because they came directly out of British constitutional doctrine and English common-law practice. William Hicks was expressing a British constitutional-law thought when he wrote in the Pennsylvania Journal that "[t]he boldest advocates for the power of parliament , cannot, at this day, without blushing, assert that it is sovereign and supreme in every respect whatsoever."4 By 1768, when Hicks wrote, the legal theory he expressed was more prevalent in the colonies than in the mother country. After reading all the New England election sermons for the eighteenth century, Alice M. Baldwin found only two clergymen, both from Connecticut, one in 1738 and the other in 1746, who attributed absolute sovereignty to the legislature.5 More in the mainstream of colonial constitutional theory was the warning in 1768 by Daniel Shute, pastor of the third church of Hingham, who told Massachusetts legislators that they had to "assent" to "the special end of the electors in chusing " them, that is, "to secure their natural rights and privileges, and to promote their happiness." The limits of the legislators' power were inherent in their elections. Elected representatives were "vested with no authority " independent of election, "for the being chosen to a particular purpose by those in whom the right of choice is, can give no rightful power to act beside or counter to this purpose." No matter how the theory was explained, as an original contract, as vested rights, as mixed government, as natural law, as an implied trust, as temporary authority delegated by election, as constitutional custom, the underlying premise was that there was no "unlimited Power" in the legislature. "We revere the English Parliament, because by the Constitution it has no such Power ," FREEMAN told the New York Gazette, "and those who pretend it has, are Enemies to that Constitution."6 LIMITS OF SUPREMACY 81 That constitution, of course, belonged to the eighteenth century and it is wrong for us to say that those who grappled with it were not coherent or were inconsistent because they were capable of doing what we can no longer do, postulate a supreme legislature that was not supreme. The working constitutional concept was "limited," for unlimited power was not constitutional. The emphasis on "supremacy" belonged to the future...

Share