Constitutional History of the American Revolution

1. The Authority of the Constitution

CHAPTER ONE THE AUTHORITY OF THE CONSTITUTION Unlike the American state and federal constitutions, the British constitution was never written; it was not a set of directives adopted by the people granting government its prerogatives and limiting its powers. The British constitution, rather, was an idea, a way ofthinking and arguing about authority , an outline of governmental goals and principles derived from existing institutions, laws, and customs, and drawn by deduction from the patterns by which they functioned. More to the point, the unwritten British constitution was an apparatus oflimitation, a restraint on command, both the source of definition of individual civil rights and the chief protector of those rights. English-speaking people in the eighteenth century judged the legitimacy of the British constitution by how well it secured the person of the individual citizen and that citizen's civil rights. "[A] Constitution in its Proper Idea," the freeholders of Concord, Massachusetts, voted in 1776, "intends a System of Principles Established to Secure the Subject[s] in the Possession and enjoyment of their Rights and Priviliges [sic], against any Encroachments of the Governing part." ''A good constitution," the Reverend Ebenezer Bridge had told Massachusetts lawmakers nine years earlier, is one "that secures the mutual dependence ofthe sovereign or ruling powers, and the people on each other, and which secures the rights ofeach, and the good of the whole society."l 3 4 THE AUTHORITY OF THE CONSTITUTION Two concepts pervaded eighteenth-century British constitutionalism. One was limitation. Constitutional government was limited government. The second was security. In fact, some legal theorists defined "constitution" as security of rights. "The British constitution is made to secure liberty and property," Derrwplwon told London's Political Register, "whatever takes away these, takes away the constitution itself, and cannot be constitutional." That statement by Derrwplwon reveals yet another eighteenth-century definition of "constitutionalism." An act of power jeopardizing security was not "constitutional." David Hartley, who was negotiator for Great Britain of the treaty ending the American Revolution, referred to that meaning of constitutionalism when observing that a "limited excise" (that is, one affecting only vendors of the product being taxed) "may be called a constitutional excise," but a "general excise" (one permitting revenue agents to enter the private houses of users of the product being taxed) "is unconstitutional." The first was "consistent with the liberty ofthe subject," the second "totally repugnant to the freedom of our constitution."2 Eighteenth-century constitutionalism was as positive as it was negative. By the very process of limiting government it created rights. ''A constitution is the organization ofthe contributed rights in society," PennsylVania'S John Dickinson theorized. "GOVERNMENT is the EXERCISE of them. It is intended for the benefit of the governed; of course [it] can have no just powers but what conduce to that end." Indeed, there were even writers who used the word "constitution" as if its meaning was limited to the security of citizens and their rights, implying either that the constitution was nothing less than a collection of individual rights, or that its chief function was to protect rights.3 This is not the place to enumerate the rights protected by the eighteenthcentury British constitution.4 Here we are concerned with constitutional doctrine , and to pursue that topic attention must be given to the most striking peculiarity of that constitution-the dichotomy of the two constitutions. We should not be surprised that many scholars have missed the two constitutions when we realize contemporaries paid the dichotomy slight heed. Lawyers and members of Parliament, London imperialists, and American whigs argued constitutional principles as if dealing with a Single, familiar, fixed constitutional theory. In truth, however, the British constitution throughout the eighteenth century was in a remarkable state of contrariety-not a state of transition , it is always in such a state, but a state ofpolarity. Constitutional theory in Great Britain was tom between competing constitutional doctrines which, without tearing the nation into governmental impotency, existed side by side, each supported by tenable, familiar, aggressive legal theories. Indeed, the eighteenth century can be termed the epoch of two constitutions in both Great Britain and the American colonies,5 with the mother country eventually THE AUTHORITY OF THE CONSTITUTION 5 succumbing to the obvious convenience of one constitution and the independent American states consciously selecting the other. If one wishes to summarize the dichotomy in two sentences, it could be said that British imperialists had moved...