FUNDAMENTALLY, the American Revolution was the unforeseen consequence of the inability of the disputants to agree upon the nature of the constitution of the British Empire . As the controversy over this question became more intense during the thirteen years between 1763 and 1776, many other issues came to the surface. But the constitutional question always remained at the core of the controversy. So significant was it that, if it could have been resolved, no revolution would have occurred in the mid-1770s. The debate over this question proceeded in three sequential phases in association with three distinct crises: the Stamp Act crisis in 1764-65, the long controversy initiated by the Townshend measures in 1767-72, and the final crisis of imperial authority and independence in 1773-76. How this debate unfolded and the divergent conceptions of the imperial constitution it produced are the primary subject of this chapter. *** When the Seven Years' War ended in I763, the only certainty about constitutional arrangements within the large extended polity that comprised the early modern British Empire was their ambiguity. There simply was no explict definition of the balance of authority between the metropolis at the center and the colonies in the peripheries of the empire. Recurrent disputes over the extent of the crown's colonial authority throughout the previous century and a half had left that issue unresolved, while the nature of Parliament's relation to the colonies had never been explicitly examined. Parliament's efforts to impose revenue taxes on the colonies in the mid-1760s precipitated the first intensive and systematic exploration of this problem on either side of the Atlantic. Ostensibly, the issue raised by these efforts, especially by the Stamp Act of 1765, was no more than whether, in the succinct words of Massachusetts governor Francis Bernard, " America shall or shall not be Subject to the Legislature of Great Britain." But the controversy rapidly moved on to a more general level. In the process, it provoked a broad-ranging consideration of fundamental issues involving the nature of the constitutional relationship between Britain and the colonies and the distribution of power within the empire. Far from producing either a theoretical or a practical resolution of these issues, however, the Stamp Act crisis of 1764-66 revealed a deep rift in understanding between metropolis and colonies, a rift that would never be bridged within the structure of the empire. Some metropolitan supporters later admitted that the Stamp Act was an innovation. For at least three decades, however, metropolitan officials had casually assumed that Parliament's colonial authority was unlimited. For over a century, moreover, Parliament had routinely laid duties upon colonial exports and imports for the purposes of regulating trade. But parliamentary legislation for the colonies had been confined almost entirely to commercial and other economic regulations of general scope. The only precedent for any other sort of tax was the Post Office Act of 1710, and revenue was not its primary objective. If, before the Stamp Act, there were no precedents for Parliament's taxing the colonies for revenue, neither had anyone explicitly articulated a theoretical justification for the exertion of parliamentary authority in that area. The traditional link between taxation and representation in British constitutional thought and practice made this problem potentially troublesome-for metropolitans and colonials. Indeed, metropolitan disquiet over the problem was clearly revealed during the Stamp Act crisis by proposals from several writers for colonial representation in Parliament. More important, the Grenville administration itself implicitly acknowledged its importance in the months just before final passage of the Stamp Act, when, to justify taxing the colonists, it invented the doctrine that, like the many residents of Britain who had no voice in elections, they were virtually represented in Parliament. As soon as it was raised, the specter of parliamentary taxation produced enormous unease in the colonies. Arguing that it was unprecedented, colonial spokesmen insisted that no community of Englishmen and their descendants could be taxed without their consent, an exemption they claimed "as their Right" and not "as a Privilege.î They dismissed the idea of virtual representation out of hand and argued that no legislature had any right to legislate for any people with whom it did not have a common interest and a direct connection. For people in the peripheries of an extended polity like that of the early modern British Empire , this emphasis upon the local foundations of legislative authority made sense. Whatever Parliament might declare, few colonists had any doubt that their rights as Englishmen demanded both that they be exempt from taxes levied in a distant metropolis without their consent and that their own local assemblies have an exclusive power to tax them. In analyzing the colonial response to the Stamp Act crisis, most scholars have tended to treat the colonists' claims as demands for their individual rights as Englishmen, as indeed they were. But this emphasis has tended to obscure the very important extent to which, especially during the Stamp Act crisis, the colonists seem to have believed that security of individual rights depended upon security of corporate rights, which they thought of as virtually synonymous with the rights of the provincial assemblies. Throughout the colonial period, the status and authority of the assemblies had been a prime subject of dispute between metropolitans and colonials. Whereas earlier the conflict had been between the assemblies and the crown, after 1765 it was between the assemblies and Parliament. During the Stamp Act crisis, colonial spokesmen put enormous stress upon the traditional conception of their assemblies as the primary guardians of both the individual liberties of their constituents and the corporate rights of the colonies. Noting that it was precisely because their great distance from the metropolis had prevented them from being either fully incorporated into the British nation or represented in the metropolitan Parliament that their assemblies had been initally established, they insisted that each of their own local legislatures enjoyed full legislative authority and exclusive power to tax within its respective jurisdiction. This identification of individual rights with the corporate rights of the assemblies ran through the entire colonial argument. The colonists based their claims for exclusive taxing authority and exemption from parliamentary taxation on their rights as Englishmen, their royal charters, and, especially, long-standing custom. For over a century, they argued, they had "uniformly exercised and enjoyed the privileges of imposing and raising their own taxes in their provincial assemblies," and such "constant and uninterrupted usage and custom," it seemed to them, was, in the best traditions of English constitutional development, "sufficient of itself to make a constitution.î With these arguments, colonial spokesmen merely turned against Parliament defenses that they and their ancestors had developed over the previous century to protect colonial rights against abuses of prerogative. Whatever the sources of the legislative authority of the assemblies, the most significant questions posed by the new intrusion of Parliament into the domestic affairs of the colonies, the most vital issues raised by the Stamp Act crisis vis-a-vis the constitutional organization of the early modern British Empire, were how extensive that authority was and how it related to the authority of the British Parliament. Linking authority to consent, few colonists could accept the metropolitan position that there were no limits to Parliament's colonial authority. Although some argued that Parliament's authority was purely local and did not extend beyond the bounds of Britain, most colonists in 1764-66 took a far more cautious approach, admitting, as the Virginia lawyer Richard Bland put it, that the colonies were "subordinate to the Authority of Parliament" but denying that they were "absolutely so." But what was the nature of that subordination? Where should the line be drawn between the authority of Parliament at the center and that of the colonial legislatures in the peripheries? The traditional view has been that during the Stamp Act crisis the colonists drew that line between taxation and legislation, that they denied Parliament's authority to tax the colonies for revenue but not its authority to legislate for the colonies. This argument is based on the fact that neither the Stamp Act Congress nor many of the assemblies explicitly commented on Partiament's authority outside the realm of taxation. But the failure of most of these bodies to challenge Parliament's legislative authority outside the area of taxation by no means constituted an admission of that authority, especially in view of the fact that there were several official bodies which explicitly denied that authority. Indeed, considerable evidence suggests that the colonists' strong initial impulse was to exclude Parliament from all jurisdiction over the domestic affairs of the colonies. Denying Parliament's right to pass laws respecting either taxation or their internal polities, early protests from the Connecticut and Virginia legislatures and later declarations from the Virginia, Rhode Island, Maryland, Connecticut, and Massachusetts assemblies claimed for their constituents a right not merely to no taxation without representation but to no legislation without representation, and several writers, including Bland, Governor Stephen Hopkins of Rhode Island, and Samuel Adams, wrote elaborate statements in defense of this position. An analysis of the works of these writers suggests that, as Bernard Ballyn has emphasized, the supposed colonial distinction between taxation and legislation was less important to the colonial attempt to demarcate the jurisdictional boundaries between Parliament and the colonial assemblies than a distinction between "'internal' and 'external' spheres of government."' Richard Bland provided the most extensive and systematic exploration of this distinction. Claiming for the colonists the authority "of directing their internal government by Laws made with their Consent , he argued that each colony was "a distinct State, independent, as to their internal Government, of the original Kingdom, but united with her, as to their external Polity, in the closest and most intimate LEAGUE AND AMITY, under the same Allegiance, and enjoying the Benefits of a reciprocal Intercourse." Though Bland did not specify precisely what matters were subsumed under the respective categories internal and external, he implied that Parliament's authority-to legislate as well as to tax-stopped short of the Atlantic coast of the colonies and did not extend over any affairs relating exclusively to the domestic life of the colonies. Such matters, according to Bland's formulation, were the exclusive preserve of the several colonial assemblies. This distinction between external and internal spheres effectively described the pragmatic and customary distribution of authority within the empire as it had developed over the past century and a half. Notwithstanding metropolitan efforts to limit the extent of local selfgovernment in the peripheries of the empire, the colonists had continued to enjoy considerable local authority. In the exercise of metropolitan authority, crown and Parliament had, in fact, as Bailyn has noted, usually ìtouched only the outer fringes of colonial life" and dealt only "with matters obviously beyond the competence of any lesser authority" and with ìthe final review of actions initiated and sustained by colonial authorities." All other powers-the vast area of "residual authority" that both constituted "the 'Internal police' of the community" and "included most of the substance of everyday life"-"were enjoyed . . . by local . . . organs of government." In view of this situation, it was only natural for the colonists to conclude that, insofar as their respective internal affairs were concerned, no part of the empire could be constitutionally subordinated to any other part. If, at the beginning of the Stamp Act crisis, the questions, in Franklin's words, of "how far, and in what particulars" the colonies were "subordinate and subject to the British parliament" were "points newly agitated [and] never yet . . . thoroughly considered,î that was no longer the case by the time of the repeal of the Stamp Act in the late winter of 1766. Over the preceding two years, the colonists had slowly begun to construct what John Adams called "a formal, logical, and technical definition" of the imperial constitution under which they lived. As a result of this "great inquiry," they had learned that, as Richard Bland put it, it was "in vain to search into the civil Constitution of England for Directions in fixing the proper Connexion between the Colonies and the Mother Kingdom ." The main underlying principles of that constitution were certainly relevant to their inquiry, but the British constitution was not, in and of itself, suitable as the constitution for an "extended and diversified" empire. Instead, in their efforts to understand the nature of the relationship between Britain and the colonies, the colonists turned for guidance to the traditional rights of Englishmen and to their own experience with the actual pattern of customary relations within the empire as they had developed over the previous century and a half. One of the central conclusions of their inquiry-and one of the arguments they pressed most vigorously in their claims against the intrusion of parliamentary authority in the colonies-was that, like Britain itself, both the individual colonies and the empire as a whole had long-standing constitutional traditions that, at least from the point of view of the colonies, seemed to supply legitimacy to their determined efforts to resist what Bland referred to as this "new System of Placing Great Britain as the Centre of Attraction to the Colonies." In 1764-66, only the most advanced thinkers among the colonists were willing to argue that Parliament had no role in either the imperial or the several colonial constitutions or to suggest that there was "no dependence or relation" between Britain and the colonies except "only that we are all the common subjects of the same King." What all colonial protests did have in common, however, was a clear concern to fix the boundaries between the authority of the metropolis and that of the colonies, between the power of Parliament and that of the colonial assemblies. If Parliament had a constitutional role in the empire, they were persuaded, that role had to be a limited one. They were virtually unanimous in agreeing that that role did not include authority to tax the colonies for revenue, and a substantial body of sentiment also held that it did not include authority to legislate for the internal affairs of the colonies. The colonial case against the Stamp Act got a generally hostile reception in Britain . Few seemed to understand that the colonists' challenge to parliamentary authority went beyond the realm of taxation, and even with regard to this more restricted conception of the colonial position, only a few men in Parliament agreed with the colonists that there were limits upon Parliament's colonial authority. Most both rejected the colonists' contention that they were not represented in Parliament and dismissed the argument that inheritance, charters, and custom exempted the colonies from parliamentary taxation. Lord Mansfield sounded the predominant argument when he flatly declared that, "as to the power of making laws," Parliament represented "the whole British empire " and had "authority to bind every part and every subject without the least distinction." From this point of view, colonial claims for exemption from parliamentary taxation seemed, as Grenville had defined them when he first proposed to levy stamp duties on the colonies, to be nothing less than a challenge to British sovereignty. As it had gradually developed over the previous century and a half, the conventional conception of sovereignty was that in all polities, including "an Empire, extended and diversified, like that of Great-Britain,î there had to be, as Blackstone wrote, "a supreme, irresistible, absolute uncontrolled authority, in which the jura summi imperii, or the rights of sovereignty reside[dl." Because, most contemporaries seem to have believed, the king-in-Parliament was sovereign in the British polity, it could accept no restrictions upon its authority without relinquishing the sovereignty of the nation over the colonies. By definition, there could be no limitation upon a supreme authority. It was either complete or nonexistent. For that reason, it seemed obvious that the king-in-Parliament had full authority over all matters relating to all Britons everywhere. For the same reason, it also seemed evident that no clear line could be drawn between Parliament's power to legislate for the colonies and its power to tax them. In the metropolitan view, there was thus no distribution but a concentration of authority within the empire: "as the sovereign of the whole," the king-in-Parliament had "control over the whole British empire ." To most metropolitans, in fact, the colonial position appeared incomprehensible because it seemed to imply the existence of more than one sovereign authority within a single state, and sovereignty, according to conventional theory, could not be divided. An imperium in imperio-a sovereign authority within a sovereign authority-was a contradiction in terms. As Lord Lyttelton put it, the colonies were either "part of the dominions of the Crown of Great Britain" and therefore "proper objects of our legislature,î or they were "small independent communities," each operating under its own sovereign authority. There was, according to metropolitan theory, no middle ground between these two extremes. The intensity of colonial opposition to the Stamp Act forced Parliament to repeal that measure, but it accompanied repeal with passaage of the Declaratory Act, modeled on the Irish Declaratory Act Of 1720 and asserting Parliament's authority "to bind the colonies and people of America . . . in all cases whatsoever." But this fiat from the center by no means resolved the question of the distribution of authority within the empire. As Colonel Isaac Barre announced in the House of Commons early in 1766, the Stamp Act crisis had provoked "the people of America to reason . . . closely upon the relative rights of this country and thatî and the undefined and "loose texture" of Britain's "extended and diversified" empire had fostered the development of two widely divergent interpretations of how authority was distributed between metropolis and colonies. Whereas most people in the metropolis thought the empire a unitary state, most people in the colonies thought of it as a federal polity in which the authority of the center was limited by the authority exercised by the peripheries. *** If the Stamp Act crisis "first led the colonists into [systematic] Enquiries concerning the nature of their political situation," its resolution in early 1766 by no means put an end to those inquiries. Indeed, Parliamentís renewed efforts early in 1767 to tax the colonies through the Townshend Acts quickly reopened the question. For the next six years, people on both sides of the Atlantic further explored the difficult problem of the constitutional organization of the empire. The vast majority of people in the metropolitan establishment, in both Britain and the colonies, adhered strictly to the position articulated by Grenville and his supporters during the Stamp Act crisis. Interpreting all suggestions for any limitations upon Parliament's colonial authority as a challenge to the British constitution of parliamentary supremacy and to metropolitan sovereignty over the colonies, they continued to insist, as they had throughout the Stamp Act crisis, that sovereignty was indivisible and to view the maintenance of "the supremacy and legislative authority of Parliament" in its fullest extent over the colonies as "essential to the existence of the empire. Notwithstanding the tenacity with which they held to this point of view, metropolitan authorities resisted the impulse to take sweeping coercive measures against the colonies during the late 1760s. Sensing the expediency of Thomas Pownall's declaration that "You may exert power over, but you can never govern an unwilling people," they instead wound up in 1770 taking what they regarded as a conciliatory approach. At the same time that they indicated that they would seek no new parliamentary taxes and guided through Parliament a repeal of most of the Townshend duties, they retained the tax on tea to stand as a symbol of Parliament's colonial authority. If anything, the urge toward conciliation during the crisis over the Townshend Acts was even more powerful in the colonies. On both sides of the Atlantic , John Dickinson's Lettersfrom a Farmer in Pennsylvania , published in 1767, was certainly the most widely circulated expression of colonial opinion. Obviously intending to confine the controversy within the narrowest possible bounds, Dickinson addressed his pamphlet exclusively to the issue of the moment-Parliament's right to tax the colonies for revenue-and did not consider the wider problems of the relationship between metropolis and colonies, the extent and nature of metropolitan sovereignty over the colonies, or the distribution of authority within the empire. By focusing debate so closely upon the narrow question of taxation, Dickinson helped to de-escalate the controversy. The widespread acceptance of his definition of the situation seems both to have inhibited the sort of wide-ranging discussion of the nature of the metropolitan-colonial relationship that had occurred during the Stamp Act crisis and to have been in no small part responsible for the fact that all but a few official colonial challenges to parliamentary authority during the late 1760s and very early 1770S were confined to the single issue of taxation for revenue. If, during the crisis over the Townshend Acts, most colonial assembiles, as the Massachusetts legislator Thomas Cushing later observed, "Acquiesced in the distinction between Taxation and Legislation and were disposed to Confine the dispute to that of Taxation only and entirely to waive the other as a subject of too delicate a Nature," a number of thinkers in both the colonies and Britain took a much deeper look at the controversy. As Benjamin Franklin wrote his son in March 1768, they concluded that, while "Something might be made of either of the extremes; that Parliament has a power to make all laws for us, or that it has a power to make no laws for us;' "no middle doctrine" of the kind proposed by Dickinson could successfully be maintained. Although these thinkers regarded their conclusions as no more than an articulation and rationalization of long-standing constitutional practice within the empire, they in fact represented a radical challenge to the metropolitan belief in Parliament's supremacy over the whole empire. This radical interpetation proceeded from three underlying assumptions. The first was that Parliament's claims to colonial jurisdiction had to be proved and could "not [simply be] take[n] . . . for granted" or permitted to rest on "the monstrous idea of a Virtual Representation." The second was that the "civil constitution" of Britain "by no means" determined "the connection which ought to be established between the parent country and her colonies, nor the duties reciprocally incumbent on each other." The third was that the history of the colonies and of their relationship to the metropolis was the most authoritative guide to the exact nature of that connection. They put particular emphasis upon the history of the colonies, which seemed to them to make clear that the colonies had never been "incorporated with Great Britain in a legislative capacity." This being the case, it seemed equally obvious that Great Britain and the British Empire were distinct political entities. As the Georgia minister Johan Joachim Zubly explained, the British Empire was a far "more extensive word, and should not be confounded with the kingdom of Great Britain.î Rather, it was a "confederal" polity that consisted of both the home islands and a number of "extrinsic Dominions,î including "several islands and other distant countries, asunder in different parts of the globe." As the "head of this great body," England was "called the mother country" and "all the settled inhabitants of this vast empire" were "called Englishmen." But those phrases by no means implied that the empire was ìa single state." On the contrary, each of its many separate entities had a "legislative power . . . within itself,î and "the several legislative bodies of Great Britain , Ireland and the British Colonies" were "perfectly distinct, and entirely independent upon each other." In the view of its proponents, the real virtue of this emerging conception lay not in its foundations in past practice but in its appropriateness for the governance of an extended polity. The "Excellency of the Invention of Colony Government, by separate independent Legislatures;î Franklin wrote in 1769, was that it permitted "the remotest Parts of a great Empire" to be "as well governed as the Center." By guaranteeing maximum autonomy to peripheral states and thereby helping to prevent wholesale "Misrule, Oppressions of Proconsuls, and Discontents and Rebellions" in those areas, the authority of the British monarch seemed to be infinitely expandable, capable, in Franklin 's words, of being "extended without Inconvenience over Territories of any Dimensions how great soever." This conception of the British Empire as consisting, in Benjamin Prescott's words, "of a great and glorious King, with a Number of distinct Governments, alike subjected to his royal Scepter, and each governed by its own Laws" also seemed to its proponents to offer a solution to the problem of the indivisibility of sovereignty. Posed by metropolitan protagonists during the earliest days of the Stamp Act controversy, the logical dilemma of "an imperium in imperioî had remained at the heart of metropolitan resistance to colonial claims for exemption from parliamentary authority. According to the emerging conception of empire among the most advanced defenders of the colonies, however, sovereignty within the extended polity of the British Empire resided not in Britain and not in the king-in-Parliament but in the institution of the monarchy alone. In the imperial realm, according to these writers, the theory of coordination, of the legal sovereignty of the king-in-Parliament, did not apply. To its proponents, this view of the empire as "many states under one Sovereign" seemed thoroughly defensible on the basis of both the terms of the colonial charters and the customary constitutional arrangements that had grown up since the establishment of the colonies. For over a century and a half the colonists, without interruption, had "been trusted in a good measure with the entire management of their affairs." Of course, as they recognized, the doctrine of usage on which their developing conception of the empire rested so heavily cut two ways. If Parliament had had no role whatever in their early history, and if, subsequently, Parliament had not customarily interfered in their internal affairs, they could not deny that, from the mid-seventeenth century on, Parliament had "exercised its Authority in the Colonies, for regulating their Trade, and afterwards for directing their exterior Policy." Furthermore, they had to admit that, even though Parliament's authority had ìin some Instances been executed with great Partiality to Britain and Prejudice to the Colonies," they had "nevertheless always submitted to it" and thereby "consented to consider themselves as united to Great Britain in a commercial capacity, and to have their trade governed by its parliament." Deriving out of a century and a half of experience, custom thus seemed to prescribe a clear allocation of authority within the broad extended polity of the early modern British Empire , an allocation precisely along the lines identified by Bland and other colonial writers during the Stamp Act crisis. The many provincial governmentsIreland in the near-periphery and the several colonies in the distant American periphery-had full jurisdiction over their own particular local and internal affairs, while the metropolitan government at the center had authority over all general matters, including the external relations of the several provincial governments. In the absence of any impartial tribunal to settle constitutional disputes between the center and the peripheries, there was, as Pownall lamented in 1768, "no means of deciding the controversy" by law. Unwilling to give in, metropolitan leaders were, as yet, also unwilling to resort to force. They still understood that, in the words of Edmund Burke, there was "no such thing as governing the whole body of the people contrary to their inclinations," and such considerations were behind Parliament's decision in the spring of 1770 to repeal all of the Townshend duties except the tax on tea. This essentially political resolution of the crisis in effect went back to the settlement adopted in 1766; that is, it left the issue of the extent of Parliament's colonial authority to rest on the Declaratory Act and token taxes on sugar products and tea, with an implicit understanding that, as in the case of Ireland, Parliament would not thenceforth levy any further taxes on the colonies. Like the Stamp Act crisis, the controversy over the Townshend Acts had helped to illuminate still further the ancient question of how, within the extended polity of the British Empire , authority was distributed between metropolis and colonies. To be sure, it produced little change in the metropolitan position as it had been articulated in 1764-66, while the conciliatory thrust of both Dickinson 's Lettersfrom a Pennsylvania Farmer and most of the official colonial protests helped to obscure the radical drift of sentiment among spokesmen for the colonial side in both America and Britain . For, pursuing the logic of the customary constitutional arrangements that had obtained in the empire over the previous century, a great many writers between 1767 and 1770 had worked out detailed arguments to prove what a few colonial thinkers had already implied in 1764-66: that the British Empire was a loose association of distinct political entities under a common king, each of which had its own legislature with exclusive jurisdiction over its own internal affairs. As in 1764-66, a major constitutional crisis had thus functioned to intensify, rather than to resolve, differences in interpretations of the constitutional organization of the empire. Nevertheless, repeal of the Townshend Acts brought a temporary respite from the turmoil that had beset metropolitan-colonial relations over the previous six years. For the next three and a half years, debate over the respective jurisdictions of Parliament and the several peripheral legislatures in Ireland and the American colonies fell into temporary abeyance. Yet throughout the early 1770s, constitutional relations within the empire remained troubled. Coincident with the repeal of most of the Townshend duties there was a new series of quarrels over the scope of the crown's colonial authority, quarrels in several colonies that punctuated the so-called period of quiet during the early 1770s and revealed that the debate over the extent of the crown's prerogative in the colonies was still hotly contested. From the perspective of the crises over the Stamp and Townshend Acts and the debate over Parliament's new pretensions to authority over the internal affairs of the colonies, however, these old questions about the crown's relationship acquired a heightened urgency in the colonies. If, as an impressive number of colonial spokesmen had begun to argue during the late 1760s, sovereignty within the empire rested not in the crown-in-Parliament but in the crown alone, then it became especially important for the colonists to establish the boundaries not just of parliamentary but also of royal authority in the colonies. For that reason, colonial defenders in all of the battles of the early 1770s revealed a pronounced tendency to build upon their own particular local constitutional heritages to argue, as their predecessors in earlier generations had often done, that, no less than in Britain itself, the crown's authority-the freedom of its "will"-in the colonies had been effectively limited over the previous century by specific idiosyncratic constitutional developments in each of the colonies. Again, just as in Britain , these developments had led, colonial leaders believed, irreversibly in the direction of increasing authority in the hands of the local legislatures and greater restrictions on the prerogatives of the crown. By this process, they argued, the rights of the inhabitants in the peripheries had gradually been secured against the power of the center. As refined and elaborated during the contests of the early 1770s, this view of colonial constitutional history powerfully reinforced traditional views of the colonial legislatures as both the primary guardians of the local rights of the corporate entities over which they presided and, like Parliament itself in Britain, as the dynamic forces in shaping the colonial constitutions. Insofar as the constitution of the empire was concerned, this emphasis upon the peculiarity and integrity of the several colonial constitutions certainly constituted, as Peter S. Onuf has noted, a vigorous "defense of constitutional multiplicity" that had profound implications for the ongoing debate over the nature of sovereignty within the empire. For, together with the emerging conviction that Parliament had no authority over the colonies, the renewed contention that the crown's authority in the peripheries was also limited by local constitutions as they had emerged out of not just the colonists' inherited rights as Englishmen and their charters but also local usage and custom pushed the colonists still further in the direction of a wholly new conception of sovereignty in an extended polity like the early modern British Empire. That conception implied that ultimate constitutional authority-sovereignty-lay not in any institution or collection of institutions at the center of the empire but in the separate constitutions of each of the many separate political entities of which the empire was composed. *** When Parliament's passage of the Tea Act in May 1773 revived the dispute over its colonial authority, colonial resistance to that measure provoked the crisis that would, in a mere two and a half years, lead to the dismemberment of the early modern British Empire . At no time during this crisis did either side show much disposition to compromise. As each quickly took a determined stance upon the position marked out by its most extreme proponents during the previous crises, the spirit of conciliation that had marked the crisis over the Townshend Acts rapidly gave way to complete intransigence. In both Britain and the colonies, supporters of Parliament's right to legislate for the colonies insisted, as they had ever since the beginning of the controversy during the Stamp Act crisis, that the British Empire, consisting of Great Britain and all ts territories was a single state cornposed Of "ONE people, ruled by ONE constitution, and governed by ONE King." Reiterating the same central contentions that had underlain their argument from the beginning, they continued to interpret the controversy as a dispute over sovereignty. They dismissed the doctrine of no legislation without representation as "an obsolete maxim" that had no applicability to the distant parts of an extended polity like the British Empire and persisted in asserting that "No maxim of policy" was "more universally admitted, than that a supreme and uncontroulable power must exist somewhere in every state." In the British Empire, they insisted, that power was vested "in King, Lords, and Commons, under the collective appellation of the Legislature," which as James Macpherson phrased it, was merely "another name for the Constitution of State," was, in fact, the State itself." Thus, if the colonists refused obedience to Parliament, they were "no longer Subjects, but rebelsî who, by arrogating "to themselves all the functions of Sovereignty," were obviously endeavoring to put themselves "on the footing of a Sovereign State ." "The question between them and Great Britain ," then, as Macpherson gravely noted in summarizing the dominant position within the metropolitan political nation, was nothing less than "dependence or independence, connection or no connection." With "no common Principle to rest upon, no common Medium to appeal to," wrote Josiah Tucker, the dispute seemed to have no middle ground. To admit any qualification in "the controuling right of the British legislature over the colonies its proponents devoutly believed, would mean nothing less than the abandonment of "the whole of our authority over the Americans." While the metropolitan political nation refused to back down from its insistence that the king-in-Parliament was the supreme sovereign of the empire, the colonial assemblies and the First and Second Continental Congresses, composed of delegates from the thirteen colonies from New Hampshire south to Georgia, gave official sanction to radical views that had previously been held only by private individuals, views that had been developed by Franklin and others during the late 1760s and early 1770s and that called for complete colonial autonomy over the internal affairs of the colonies. The colonial position, as it was enunciated in mid-1774 and elaborated over the next two years, was founded on a complete rejection of the prevailing metropolitan theory of an omnipotent Parliament. By ignoring the vital and traditional British constitutional principle of consent, of no legislation without representation, this "dreadful novelt " supporters of the colonial position declared, was at total variance with both "the ancient rights of the people" and "the settled, notorious, invariable practice of" imperial governance within the empire over the previous century and a half. No less importantly, when applied to distant and unrepresented colonies, this "modern doctrine," it seemed to the colonists, obviously also represented "a total contradiction to every principle laid down at the time of the [Glorious] Revolution, as the rules by which the rights and privileges of every branch of our legislature were to be governed for ever." Indeed, by its insistence upon exerting a ìsupreme jurisdictionî over the colonies, Parliament seemed not merely to be violating the most essential principles of the Revolution but actually to have assumed and to be acting upon precisely the same "high prerogative doctrine[s]" against which that Revolution had been undertaken. Thus, the colonists believed, if by resisting Parliament they had become rebels, they were "rebels in the same way, and for the same reasons that the people of Britain were rebels, for supporting the Revolution. By 1774, few people in America any longer had any doubt that, over the previous decade, it had "been clearly and fully proved that the Assemblies or Parliaments of the British Colonies in America " had ìan exclusive right, not only of taxation, but of legislation also; and that the British Parliament, so far from having a right to make laws binding upon those Colonies in all cases whatsover," had "really no just right to make any laws at all binding upon the Colonies." Far from being subject to the ìsupreme" authority of Parliament, most American leaders now believed, the colonies had "always enjoyed a supreme Legislature of their own, and . . . always claimed an exemption from the jurisdiction of a British Parliament." Not the king-in-Parliament, wrote the Virginian Thomson Mason, but the "King, at the head of his respective American Assemblies,î constituted "the Supreme Legislature of the Colonies." Whether Parliament had any authority even over the external affairs of the colonies now became a point of contention. Already during the Townshend Act crisis, some colonial supporters were beginning to suggest that Parliament had no authority whatever over the colonies. By 1774, many of the most influential tracts, including those written by James Wilson of Pennsylvania and Thomas Jefferson of Virginia, took this unequivocable position. The legislative authority of each of the many independent legislatures within the empire, including Parliament, wrote Wilson, was necessarily "confined within . . . local bounds" and could not be imposed upon any of the other areas of the empire without their consent. During the early stages of the crisis of independence, however, most American leaders seemed still to believe that Parliament did have authority over external affairs. As both Alexander Hamilton and John Adams pointed out, they thought that that authority derived from the "long usage and uninterrupted acquiescence" by which the colonists, since the middle of the seventeenth century, had given their "implied consent" to the Navigation Acts and other trade regulations. But if few of their protagonists yet claimed for the colonists "external as well as internal sovereign jurisdiction" as "independent nations," virtually everyone now agreed with those people who had begun to argue during the late 1760s that "all the different members of the British Empire were "distinct states, independent of each other, but connected together under the same sovereign." Upon close examination, they had discovered that, as an entity "composed of extensive and dispersed Dominions,î the empire was "in some degree a new case" in political history that had to "be governed . . . more by its own circumstances, and by the genius of our peculiar Constitution, than by abstract notions of government." Separated by vast distances, "inhabited by different people, [living] under distinct constitutions of government, with different customs, laws and interests," its several constituent elements could not possibly comprise a single civil state. Rather, each part had to be consi dered as a [distinct] people, not a set of individuals." Presided over by its own legislature, each of these corporate entities was a separate realm that was entirely independent of all the others. According to this line of thought, no part of the empire was subordinate to any other part. As Franklin ad remarked in 1770, there was no dependence among the several parts of the empire, "only a Connection, of which the King is the common Link. In view of the economic success of the empire, both Americans and their supporters in Britain regarded it as absurd for the metropolis to risk so many palpable advantages in pursuit of what increasingly appeared to them to be nothing more than an academic and irrelevant political abstraction. Sovereignty might appear to be the grand question in dispute to the vast majority in the metropolitan political nation. Throughout the pre-Revolutionary debates, however, most colonial leaders had resisted such reductionism and had endeavored, unsuccessfully, to focus debate upon the seemingly more tractable and certainly less abstract problem of how power was or should be allocated in a polity composed of several related but nonetheless distinct corporate entities. For the colonists, resolution of their dispute with the metropolis had never seemed to require much more than the rationalization of existing political arrangements within the empire. For them, the "great solecism of an imperium in imperioî seemed, as James Iredell declared, to be little more than "a narrow and pedantic . . . point of speculation," a "scholastic and trifling refinement" that had no relevance to the situation at hand. "Custom and continual usage" seemed to be "of a much more unequivocal nature than speculation and refined principles." Notwithstanding the fact that it had been "so vainly and confidently relied on" by their antagonists, that "beautiful theory in political discourses-the necessity of an absolute power residing somewhere in every state"-seemed, as Iredell wrote, to be wholly inapplicable to a situation involving "several distinct and independent legislatures, each engaged in a separate scale, and employed about different objects." Colonial protagonists thus called upon the metropolitan government to abandon its pursuit of the "vain phantom of unlimited sovereignty, which was not made for man and content itself with "the solid advantages of a moderate, useful and intelligible authority." As long as all members of the empire adhered to the customary arrangements that had developed over the previous century and a half, as long as the king was the "supreme head of every legislature in the British dominions," he would always have it in his power to "guide the vast and complicated machine of government, to the reciprocal advantage of all his dominions" and, by his authority to veto laws, would on any occasion be able to "prevent the actual injury to the whole of any positive law in any part of the empire." In their efforts to explain-and to rationalize-existing constitutional relationships within the empire, colonial protagonists, between 1764 and 1776, had discovered that the locus of authority necessarily had to reside in each of the separate corporate entities that composed the empire. Contrary to metropolitan theory as it had developed following the Glorious Revolution and more especially after 1740, authority, they now clearly understood, had never been concentrated in a sovereign institution at the center. Rather, it had always been dispersed among the several parliaments that routinely had been established to preside over and express the collective will of each new polity within the empire. Indeed, this proliferation of legislatures was the only way that those traditional English rights that had been confirmed to the inhabitants of the metropolis by the Revolutionary Settlement-especially that most fundamental right of no legislation without representation-could be extended to people in the peripheries of a large extended polity like the early modern British Empire. For the inhabitants of those-by then quite ancient corporate entities, English liberty and their specific local corporate rights were identical. Just as it had been throughout the colonial era, the integrity of those rights and of the constitutions and assemblies that embodied and protected them was thus, not surprisingly, the central theme of colonial constitutional protest during the 1760s and 1770s. If, as Onuf has pointed out, this insistence upon the "autonomy and integrity" of the several colonial constitutions was indeed a "defense of constitutional multiplicity" within the empire, the ancient and continuing association of its several separate polities clearly implied the existence of a larger imperial constitution, a constitution of the empire. Though this constitution was obviously based upon and expressed the same fundamental constitutional principles, it was emphatically not identical to the British constitution. If by the 1760s the British constitution had become the constitution of parliamentary supremacy, the emerging imperial constitution, like the separate constitutions of Britain's many overseas dominions, remained a customary constitution in which, according to the colonial point of view, sovereignty resided not in an all-powerful Parliament but in the crown, the power of which had been considerably reduced over the previous century by the specific gains made over the years in the direction of self-determination" by each representative body within the empire. Regarding any diminution of parliamentary sovereignty as a prelude to the eventual loss of control of the colonies that seemed to be so intimately associated with Britain's rise to world power, the vast majority of the metropolitan political nation found it impossible to accept such arguments. Besides, from the perspective of Britain's own internal constitutional development during the previous century, colonial theories about the organization of the empire seemed dangerously retrograde. By placing the resources of Ireland and the colonies directly in the hands of the crown and beyond the reach of Parliament, those theories appeared to strike directly at the root of the legislative supremacy that, for them, was the primary legacy of the Glorious Revolution. By 1776, what had begun as yet another crisis over Parliament's right to tax the colonies had become a crisis over whether the colonies would become independent. The empire foundered over the inability of the center and the peripheries to agree on a formula for governance that would give the peripheries of that extended polity the same rights and control over their domestic affairs that the center enjoyed. Whether independence would be the first step toward the establishment of a viable union that would enable them to resolve the problem that had brought the British Empire to grief, the problem of how in an extended polity authority should be distributed between center and peripheries, was still an open question when they opted for independence in July 1776. *** Driven by the specter of parliamentary taxation to investigate the constitutional organization of the empire, American colonials quickly decided in the 1760s that they were governed by a customary imperial constitution based upon the ideas of principled limitation and government by consent. As several legal historians have recently emphasized, the fact that metropolitan officials would not take the colonial case seriously does not mean that they were "right about the law." Constitutional arrangements within the British Empire were far from precise, and in the debates of the 1760s and 1770s each side could marshall effective legal arguments in behalf of its position. In this unsettled situation, constitutional questions were by no means so clear as they were said to be in London and has been assumed by so many later historians. The early modern British Empire was by no means yet a modern unitary state. Imperial institutions in the colonies had little coercive power and depended for their effectiveness upon the consent of local populations. Authority within the empire had long been dispersed into the hands of authoritative, powerful, and "largely autonomous local institutions." Not dependent for their effectiveness "on the support or the acquiescence of a central authority" and highly "resistant to centralized control," these institutions were regarded, both by those who composed them and those whom they served, as largely "independent recipients of constitutional power and authority." In this "diffuse and decentralized" political entity, local institutions invariably determined the nature of the constitution as much as did authorities at the center. The argument of this chapter has been that with regard to extended polities in the era before the development of the modern consolidated state in the wake of the French Revolution, it should not automatically be assumed that the perspective of the center is the correct or even the dominant one. In any polity like the early modern British Empire in whose peripheries the authority and ideology of the center were weak while local power and traditions were strong, local institutions and customs were at least as important as those of the center in determining existing constitutional arrangements. In such an entity, the center perspective will almost automatically be a partisan one. In the particular case of the British Empire at the time of the American Revolution, the antiquity of the notion of a customary imperial constitution of principled limitation and the strength of local institutions combined with the comparative recentness of the doctrine of parliamentary supremacy and the weakness of metropolitan authority in the colonies to make the perspective of the center a "Tory perspective." Perhaps even more importantly, the failure of the center to establish the legitimacy of its perspective in the peripheries rendered it an anachronistic perspective when applied to legal and constitutional arrangements within the empire as a whole.
|