Constitutional History of the American Revolution

Historiographical Preface

HISTORIOGRAPHICAL PREFACE "The dispute between Great-Britain and her colonies is now reduced to a single point," a "Citizen of Philadelphia" told his fellow American colonists in 1774. That question was, "Whether the Parliament shall give laws to America."l He was speaking to future generations of Americans as well, telling them that the civil war that would soon begin on the green at Lexington , Massachusetts, would be precipitated by a constitutional dispute over customary restraints on power, the meaning of those restraints, and how they were defined. The overriding constitutional concern of the English -speaking people of the eighteenth century was with the exercise of power. Power was feared in the first British Empire: the power of"factions," power that was arbitrary, corrupt, unchecked, and unconstitutional. Above all, political theorists, constitutionalists, and just plain citizens were apprehensive of the arbitrariness of "will and pleasure," whether it was the caprice of a single ruler, an oligarchy, or that of the fickle, unpredictable democratic majority, sometimes called the "mob." Fear of arbitrary power was one side of the constitutional debate that preceded the American Revolution. The other side was American adherence to English constitutional principles. Colonial whigs would fight the Revolution not only against the British Parliament but on behalf of the British constitution. That constitution, as they interpreted it, defended cusix x HISTORIOGRAPHICAL PREFACE tommy, prescriptive, contractarian rights against the onslaught of government 's assertions of arbitrary power. The constitution to which Americans appealed did not only restrain power on behalf ofthe rights of the "people." More significantly, it restrained parliamentary command by enforcing the rule oflaw. That was the principle that would divide the Americans from the British. For American whigs, constitutional law meant that legislative command was subject to the rule of law. For the British, command of the legislature was law. By 1776, the American revolutionary dispute had come to center on whether those conflicting definitions of law could be reconciled. The theoretical framework erected by historians to explain the American Revolution has always been fluid. Just when the contours of hypothesis settle on a model of general consensus, new historiographical concepts introduce radical shifts of emphasis leaving past patterns ofinterpretation to atrophy, while the mainstream of historical writing bursts its old banks to wind a totally new course or return to an abandoned river-bed. As a general rule, one school of thought usually dominates the field. Writers of the generations that took part in the Revolution or personally knew its participants largely described it as a struggle about constitutional government.2 Later, through much of the nineteenth century, the "whig" or "nationalist" school reigned supreme. The nationalists overSimplified the Revolution by emplOying the standard stereotype of a patriotic struggle between liberty and tyranny as a common denominator explaining all the complex issues and events of those gravid times.3 As historical scholarship became more SCientifically critical, the complaint arose that nationalist writers had made the Revolution as much a conservative as a popular movement.4 Adapting techniques and perspectives of the emerging disCiplines of economics and social science, two new schools of revolutionary history came to the front. One was the institutional historians, led by Charles M. Andrews, Herbert L. Osgood, Robert Livingston Schuyler , and Lawrence H. Gipson. These scholars emphaSized the role ofinstitutions rather than the values of individuals. A school within this school were the imperialists. The dominant institution of the late eighteenth century, they taught, was the British Empire. The Empire was controlled by the British ministry in Whitehall. What Whitehall decreed was the law, and that fact settled all disputes about constitutionality. The one exception to this approach among the institutional imperialists was Charles Howard McIlwain . His great work on the constitutional interpretation of the American Revolution, however, needs revision as he relied too much on an argument based on the analogy between Ireland and the colonies which was not legally accurate, and on a theory of legal positivism that belonged more to the twentieth than to the eighteenth century.5 The progressive socio-economic historians rivaled the institutionalists. HISTORIOGRAPHICAL PREFACE xi Also utilizing the new tools of economics and social science, they created a radically different approach, one as cynical as it was objective. Postulating at least two related historical theories-the theory of twin revolutions (one revolution against Great Britain to obtain home rule and the second between Americans to determine who should rule at home)6...