Parliament and the American Revolution: The British Perspective

Critical Thinking

July 2, 2024
by David Otersen Also by this Author

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James III of England, although born as the rightful and lawful heir to the English throne, never became King of England. In early 1689, while he was still an infant, Parliament, after having declared that his father, James II, had abdicated the throne, proceeded to inaugurate William of Orange and his wife Mary as the King and Queen of England. Parliament, exercising its immense and illimitable sovereign authority, had altered the line of succession for the British Crown. History records these events as the “Glorious Revolution,” and one of its primary effects was to cement the doctrine of parliamentary sovereignty as the first principle of the British Constitution.

During the British Imperial Crisis, however, American colonists would, remarkably, entirely disavow the doctrine of parliamentary sovereignty, and they did so by introducing and adhering to a series of radical innovations and interpretations that had no basis in British constitutional law. As Lord Mansfield, Chief Justice of the King’s Bench, trenchantly remarked in 1766, “It is now settled that there is no Restriction to the Legislative Authority of Great Britain. The Americans have adopted on this fatal occasion a new principle that they are not subject to the Legislative Authority of Great Britain. They have refused the law.”[1]

Indeed, during the Revolution, American colonists responded to the various legislative initiatives of Parliament with a deluge of hyperbolic complaints and logorrheic protests, countering that they had established a confederated union among themselves with interests separate and distinct from the British Empire and demanding the right to be treated accordingly. Hans Stanley, a Member of the House of Commons since 1743, was genuinely stunned by the blatant illegality of these acts and, on the floor of Parliament, exclaimed, “They have exceeded what this House has ever done, meeting in a federal Union not to be dissolved by the Crown . . . All their petitions are insults on your authority.”[2] In fact, when the colonists rejected the doctrine of parliamentary sovereignty and then declared themselves a de facto state within a state (as early as 1765), they flagrantly violated two fundamental maxims of their historic Constitution: parliamentary sovereignty itself and the unitary nature of the British Empire.

The High Court of Parliament: Sovereignty

Parliamentary sovereignty was an incontrovertible, bedrock principle of eighteenth-century British constitutionalism. Accordingly, Parliament was irrefutably the supreme legal authority of the British Empire, and its legislative acts were, by definition, inherently lawful and necessarily constitutional. No court, or any other legal or political institution other than Parliament itself, could abrogate or reverse an Act of Parliament. William Blackstone, a peerless British jurist and Member of Parliament, in his illustrious work Commentaries on the Laws of England, gave the quintessential statement describing and defining parliamentary sovereignty under the British Constitution. Regarding Parliament and its constitutional preeminence, Blackstone wrote:

It has sovereign and uncontrollable authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal: this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms. All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate or new model the succession to the crown; as was done in the reign of Henry VIII. and William III. It can alter the established religion of the land; as was done in a variety of instances, in the reigns of king Henry VIII. and his three children. It can change and create afresh even the constitution of the kingdom and of parliaments themselves; as was done by the act of union, and the several statutes for triennial and septennial elections. It can, in short, do everything that is not naturally impossible; and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of parliament. True it is, that what they do, no authority upon earth can undo.[3]

Parliamentary sovereignty did not originate with Blackstone, of course, and he was far from the only distinguished British jurist and constitutional scholar to observe and acknowledge the unique and extraordinary constitutional authority of Parliament. In 1644, Sir Edward Coke wrote of the supremacy of parliament: “it is so transcendent and absolute, as it cannot be confined either for causes or persons, within any bounds.”[4] And Sir Matthew Hale, still another esteemed British jurist and scholar, proclaimed, “The Parliament, being the highest and greatest court, over which none other can have Jurisdiction in the Kingdom. If by any means a Misgovernment should any ways fall upon it, the Subjects of this Kingdom are left without all manner of Remedy.”[5] Later, in 1766, a distinguished Member of Parliament, Alexander Wedderburn, emphasized the point during a debate in the House of Commons on the Declaratory Act: “The Sovereignty of this Nation resides in the King, Lords, and Commons who represent the whole State of the Kingdom and must be Sovereign in taxes as well as others.”[6]

Therefore, if Parliament, acting in the best interest of the British Commonwealth, imposed a tax on either Virginia, Antigua, Barbados, Massachusetts, or any other British polity, then the tax was fundamentally and intrinsically lawful. And whether those subject to the tax disapproved and regarded the measure as an innovation, a departure from customary practice, or a violation of certain claimed rights was utterly irrelevant, because it was well within the authority of Parliament to initiate constitutional innovations, alter existing customs, and both judge and deny the claimed rights in question. The renowned literary genius and autodidactic constitutionalist Samuel Johnson remarked upon this indispensable characteristic of sovereignty in his pamphlet Taxation, no Tyranny: “But an English individual may by the supreme authority be deprived of liberty, and a Colony divested of its powers, for reasons of which that authority is the only judge.”[7]

To the same end, in 1765, Soame Jenyns, an author and Member of Parliament since 1742, also considered the American arguments denying the right of Parliament to tax the colonies in a brief twenty-page pamphlet entitled The Objections to the Taxation of Our American Colonies by the Legislature of Great Britain. Jenyns opened his paper with a simple, matter-of-fact statement:

The right of the Legislature of Great-Britain to impose taxes on her American Colonies, and the expediency of exerting that right in the present conjuncture, are propositions so indisputably clear, that I should never have thought it necessary to have undertaken their defence had not many arguments been lately flung out, both in papers and conversation, which with insolence equal to their absurdity deny them both.[8]

As a Member of Parliament, Jenyns, like Mansfield, Wedderburn, and the overwhelming majority of Parliament, understood perfectly well that when it convened in 1765 and passed the Stamp Act, constituted as it was by the King, Lords Spiritual and Temporal, and Commons, it was the highest power in the British Empire, and it acknowledged no superior authority on earth. And certainly, no subordinate component of that empire, whether it was the colony of Virginia, Maryland, Massachusetts, or Jamaica, had the legal authority to resist or defy it.

The High Court of Parliament: Commonwealth and Representation

Under the British Constitution, there was no legal or constitutional relationship between the American colonies other than the fact that they were all citizens of the British Empire and that they all owed allegiance and obedience to the same King and, of course, Parliament. Other than those commonalities, which they shared with every other British colony, whether in North America or the West Indies, the American colonies were no more connected to each other than they were to Antigua or Newfoundland, and they were certainly not, in any way, a lawful, independent, confederated political body.

Indeed, within the British Empire, the only political interest to be represented was that of the empire, and members of Parliament faithfully represented the whole of the Commonwealth and not an individual county, city, town, borough, province, colony, district, or any other geographic entity. To that end, Sir William Blackstone carefully explained the solemn obligations of individual members of Parliament in the Commentaries: “And every member, though chosen by one district, when elected and returned serves for the whole realm. For the end of his coming thither is not particular, but general; not barely to advantage his constituents, but the commonwealth.”[9]

Consequently, it was repugnant to the Constitution for the American colonists to assert that they were a separate and distinct people entitled to legislative independence and representation in the Empire on such a basis (i.e., imperium in imperio). Legislative representation, as the colonists advocated, was inexpugnably unconstitutional precisely because they were demanding a scheme of representation that was based on their falsely claimed right to advance and protect their own interests independent of the interests of the whole of the Commonwealth. In 1774, Whig statesman Edmund Burke, a Member of Parliament since 1765, emphasized the point in a speech to the citizens of Bristol:

Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation, with one interest, that of the whole; where, not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole. You choose a member indeed; but when you have chosen him, he is not a member of Bristol, but he is a member of parliament. If the local constituent should have an interest, or should form an hasty opinion, evidently opposite to the real good of the rest of the community, the member for that place ought to be as far, as any other, from any endeavour to give it effect.[10]

In 1776, Thomas Hutchinson, a loyalist and former Governor of Massachusetts, also emphasized the unitary nature of the British Empire in his published response to the Declaration of Independence. In a lengthy essay entitled Strictures upon the Declaration of the Congress at Philadelphia, Hutchinson meticulously and exhaustively refuted the Declaration, and when he considered Jefferson’s claim that it had become “necessary for one people to dissolve the political bands which have connected them with another,” Hutchinson answered:

They begin my Lord, with a false hypothesis, that the colonies are one distinct people, and the kingdom another, connected by political bands. The Colonies, politically considered, never were a distinct people from the kingdom. There never has been but one political band, and that was just the same before the first Colonists emigrated as it has been ever since, the Supreme Legislative Authority[11]

Because representation is general and extends to the entire Commonwealth, it is important to understand and stress that under the British Constitution, it is the orders, or estates, of civil society that are represented in Parliament and not, again, any geographic entity. Specifically, the constituent elements of Parliament are the King “sitting in his royal and political capacity,” the Lords Spiritual and Temporal, and the Commons. While the King’s constitutional role in Parliament was perhaps more complex, the Lords Spiritual and Temporal represented the nobility (those identified and distinguished by title, rank, and honor, i.e., dukes, marquises, earls, viscounts, or barons), and the Commons represented the democratic order, or the whole body of the people (principally the property and commercial order).

It is also crucial to reiterate that general representation did not apply to the American colonies in an aggregate capacity because, under the British Constitution, there was no confederation or union of American colonies. The constitutional question pertaining to colonial representation, therefore, was not whether 2.5 million American colonists in thirteen unified colonies were represented in Parliament, but whether the citizens in each individual colony, as constituent members of the Commonwealth, were represented.

Accordingly, it was spurious for any British colony to complain that its citizens were unrepresented in Parliament. As citizens of the British Empire, whether in Nova Scotia, Bermuda, or New York, they were as well represented, pursuant to their respective class or order, in the House of Commons as the citizens of London were. In his pamphlet, Objections to the Taxation, Soame Jenyns, while contemplating the doctrine of general representation, carefully explained that several populous commercial cities in England had no direct representation in Parliament but were nevertheless constitutionally represented. Jenyns wrote, “If the Towns of Manchester and Birmingham sending no Representatives to Parliament are notwithstanding there represented, why are not the Cities of Albany and Boston equally represented in that Assembly?”[12]

Under the British Constitution, the colonists, whether in Canada, America, or the Caribbean, were all constitutionally represented as a function of their civil order; accordingly, the American complaint of “taxation without representation” was unfounded.

The High Court of Parliament: Taxation

An Act of Parliament, said Blackstone:

Is the exercise of the highest authority that this kingdom acknowledges upon earth. It has power to bind every subject in the land, and the dominions thereunto belonging; nay, even the king himself, if particularly named therein. And it cannot be altered, amended, dispensed with, suspended, or repealed, but in the same forms and by the same authority of parliament[13]

Accordingly, the Stamp Act of 1765, lawfully passed by the King, Lords, and Commons in Parliament, was the supreme law of the land. It was also an eminently fair and reasonable parliamentary initiative, and the American colonists had neither cause for complaint nor the authority to refuse it. The taxes, in fact, were intended to reduce and defray the costs of maintaining a necessary postwar military presence in North America. It is also an ineluctable truth that, by the revolutionary logic of the American colonists, the French and Indian war was fought for their benefit and funded, ironically, largely by the English Stamp Act.

As of 1765, Stamp Act taxes, as applied in England, had been a feature of British fiscal policy for over seventy years. The taxes were originally implemented in 1694 to fund the war effort against France in the Nine Years War and then remained a source of the king’s perpetual revenue thereafter. Consequently, during the French and Indian War, the English Stamp Act taxes, imposed on the English citizenry and from which the American colonists were exempt, were a critical source of wartime funding. Such facts prompted the esteemed literary genius and autodidactic constitutionalist Samuel Johnson to remark in his pamphlet Taxation, No Tyranny, “I should gladly see America return half of what England has expended in her defence.”[14]

In his pamphlet Objections to the Taxation, MP Soame Jenyns made a similar observation, noting that the American colonists did not protest or complain on constitutional grounds when Parliament legislated money for their defense, and he said of the colonists, “Are they not Englishmen, or are they only Englishmen when they solicit for protection but not Englishmen when taxes are required to enable this country to protect them?”[15]

More persuasive still on the topic was the speech of Prime Minister George Grenville in the House of Commons in January of 1766. Grenville, like Johnson and Jenyns, directly referenced the political, moral, and ethical responsibilities of the colonists to contribute to the defense of themselves and their country, while also restating the legal obligations necessarily following from the sovereign authority of Parliament. He remarked:

That this kingdom has the sovereign, the supreme legislative power over America, is granted. It cannot be denied; and taxation is a part of that sovereign power . . . Protection and obedience are reciprocal . . . When they want the protection of this kingdom, they are always very ready to ask it. That protection has always been afforded them in the most full and ample manner. The nation has run itself into an immense debt to give them this protection; and now they are called upon to contribute a small share towards the public expense.”[16]

Given the historical context of the Stamp Act, the relevant question would seem to be not why Parliament taxed the American colonies for the purpose of revenue in 1765, but why they waited so long to do it.

Conclusion

By 1776, American colonists had been indefatigably arguing for over a decade that they were unrepresented in Parliament and, accordingly, were being subjected to the tyranny of taxation without representation. The claims, of course, were untrue. The colonists were not being tyrannized; they were only being asked to pay the necessary and proper taxes to generate revenue and fund the expenses of the Commonwealth. And the American colonists were indeed represented in Parliament; they simply disapproved of the system of representation. Additionally, their grievances had been fairly heard, extensively considered, and thoroughly debated in Parliament. But, in the final analysis, their arguments were also decisively rejected by Parliament.

In part, this was because the arguments advanced by American colonists were not new to the English, and the theoretical limits of Parliament’s imperial authority had been challenged well before Americans rose in opposition to it. In 1698, esteemed Irish scientist and philosopher William Molyneux published a historical and political treatise entitled The Case of Ireland being bound by Acts of Parliament in England, Stated, in which he disputed, at length and with great specificity and scholarship, the right of the British Parliament to exercise legislative hegemony over Ireland. Molyneux’s Case of Ireland was explicitly addressed to Parliament, and, predictably, it was received by that august body with intense enmity and acrimony.

Indeed, Parliament eventually responded to Molyneux and the Irish controversies twenty years later, authoritatively, with the Irish Declaratory Act of 1720, which would later serve as the legislative model for the Declaratory Act of 1766. And with the Declaratory Act of 1766, Parliament reaffirmed its constitutional sovereignty and legislative authority over the British colonies and subjects in America “in all cases whatsoever.”[17]

Ultimately, of course, the American colonists would reject the Declaratory Act and default to the natural rights philosophy of the Declaration as the intellectual and moral foundation of the Revolution, specifically because their constitutional arguments were unpersuasive. The legal and constitutional arguments were, in fact, firmly in favor of Parliament and the British majoritarian position.

 

[1] Debates on the Declaratory Act and Repeal of the Stamp Act (London, 1766; Forgotten Books, 2016), 584.

[2] Ibid., 566.

[3] Sir William Blackstone, Commentaries on the Laws of England, Wilfrid Prest ed. (New York: Oxford University Press, 2016), 1:107.

[4] Sir Edward Coke, The Fourth Part of the Institutes of the Laws of England (London, 1644), 36, lawlibrary.wm.edu/wythepedia/library/CokeFourthPartOfTheInstitutesOfTheLawsOfEngland1644.pdf.

[5] Sir Matthew Hale, The Original Institution, Power and Jurisdiction of Parliaments (London, 1707), 49.

[6] Debates on the Declaratory Act, 570.

[7] Samuel Johnson, Taxation no Tyranny; an Answer to the Resolutions and Addresses of the American Congress (London, 1775), 24.

[8] Soame Jenyns, The Objections to the Taxation of our American Colonies by the Legislature of Great Britain Briefly Considered (London, 1765), 3-4.

[9] Blackstone, Commentaries, 106.

[10] Edmund Burke, “Speech to the Electors of Bristol, November 3, 1774,” press-pubs.uchicago.edu/founders/documents/v1ch13s7.html.

[11] Thomas Hutchinson, Strictures Upon The Declaration Of The Congress At Philadelphia (London, 1776).

[12] Jenyns, The Objections to the Taxation, 9.

[13] Blackstone, Commentaries, 121.

[14] Johnson, Taxation no Tyranny, 64.

[15] Jenyns, The Objections to the Taxation, 9.

[16] John L. Bullion, A Great and Necessary Measure: George Grenville and the Genesis of the Stamp Act, 1763-1765 (Columbia: University of Missouri Press, 1982).

[17] “Great Britain : Parliament – The Declaratory Act; March 18, 1766,” avalon.law.yale.edu/18th_century/declaratory_act_1766.asp.

4 Comments

  • This article began with the replacement of the odious James II by his daughter Mary and her husband William. Often overlooked was the single most important piece of legislation around that event: the drafting and passage of the English Bill of Rights (1689). The English Bill of Rights, many of whose clauses were carried over to the United States Bill of Rights 102 years later with no change in wording (example: the Second Amendment), served as an inspiration to American leaders. For example, Rhode Island Chief Justice Stephen Hopkins cited it in 1773 when objecting to the supposed powers of the British commission to investigate the burning of the Gaspee.

  • Thoroughly enjoyed this article. Well presented. Excellent insights from the British perspective to consider before we blast off fireworks in a few days.

  • Nicely done article. It has been quite some time since I pondered the very foundation of the colonial argument against parliamentary control. Thank you for the refreshing exercise.

    I would make one comment: my mind always goes off on a bit of a tangent any time I see references to the British constitution written with a capital “C.” With our modern American prejudices, doing so gives the impression of the existence of a physical document such as the United States Constitution. In Great Britain’s case, however, no such document exists. Rather, it is a mix of written regulations and traditional practices.

    To me, “constitution” in the case of Great Britain has a definition based more on natural than on clerical processes. I view the word in a manner such as that found in 1768’s “A New and Complete Dictionary of Arts and Sciences:” “CONSTITUTION, in a physical sense, is that particular disposition of the human body, which results from the properties and mutual actions of the solids and fluids, and which renders them capable of exercising the functions proper and conformable to nature.” In this case, the “human body” is the British realm, the “solids” are the written elements and the “fluids” are the unwritten practices, and the “functions” are the operations of government and society.

  • Just wanted to acknowledge all the comments and I certainly appreciate the kind words. As to John Millar’s remark, I undoubtedly agree that the English Bill of Rights is an integral part of the British Constitution and had a significant influence on our own BoR. As to Mike Barbieri’s point regarding modern American prejudices, once again I agree, and I also think it’s especially problematic when considering and assessing the basis of representation under the British Constitution. In fact, it’s a point I discussed with Brady Crytzer during the Dispatches segment.

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