Wednesday, March 6, 2013 – Essay #13 – A Summary View of the Rights of British America by Thomas Jefferson – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

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On July 4, 1776, the Continental Congress, after months of preparation and weeks of political wrangling, announced that it had adopted an independence declaration. That document was written by Thomas Jefferson and substantially revised (“mangled,” according to Jefferson) by the Congress. Due to his other obligations, Jefferson had little time to spend on this task. Fortunately, he had composed his Summary View of the Rights of British America just two years earlier, from which he could draw much of the substance of the new document.

The Summary View resonates quite differently from the petitions, remonstrances, and declarations of a decade earlier. Gone are the beseeching tone and the professions of submission to royal and Parliamentary authority so common in earlier appeals for relief. Instead, one finds truculence “penned in the language of truth, and divested of those expressions of servility which would persuade his majesty that we are asking favors and not rights,” barely softened by the stray modifier “humbly.” Gone is James Otis’s encomium to King George’s good will, justice, and desire to achieve the people’s welfare. Instead, one finds a stream, or indeed a river, of sarcasm, hectoring, and thinly-veiled threats. Gone, finally, is Otis’s attempt at harmonizing the Parliament and its powers as the “supreme” legislature with the “inferior” or “subordinate” legislatures of the colonies. Instead, Jefferson sets forth the evolved American position that the only tolerable constitutional arrangement within an imperial system was one of local self-government uncontrolled by Parliament, lest “[o]ne free and independent legislature…takes upon itself to suspend the powers of another, free and independent as itself.” American representation in Parliament would no longer suffice to allow that body to legislate for the colonies. A broader constitutional settlement was required to avert independence.

While the main object of derision and protest is the Parliament, the King does not, and cannot, escape blame. It was incumbent on the pro-independence forces to overcome the popular inertia in favor of existing political arrangements and the residual affection that broad swaths of the populace typically have towards their chief of state and that the colonists had toward George III. That required an incremental increase in the vitriol directed at the king, as each petition to redress grievances presented by the colonists suffered the fate of the previous ones “to none of which was ever even an answer condescended.” The break with Great Britain was achieved only when the king himself, not just his ministers or the Parliament, could be indicted as a monstrous usurper in the Declaration of Independence.

Jefferson wrote in response to the Parliament’s adoption of the Coercive (or Intolerable) Acts, a series of laws intended to demonstrate Parliamentary sovereignty. His recitation of the evils in the Summary View was in direct reference to the particular laws that composed the Coercive Acts. The Boston Port Act had closed the shipping in that town until the British East India Company was reimbursed for the tea dumped into the harbor by the Sons of Liberty in the “Boston Tea Party.”

The Administration of Justice Act gave the royal governor jurisdiction to move trials of royal officials and soldiers to other colonies or to the British Isles if he believed that they could not get a fair trial. Based on prior legislation, Jefferson interpreted this law also to provide for the trial of Americans away from their local communities, should the governor so order. Jefferson’s objections against trying a defendant “stripped of his privilege of trial by peers, of his vicinage [locality], removed from the place where alone full evidence could be obtained, without money, without counsel, without friends, without exculpatory proof…tried before judges predetermined to condemn” are a preview of various protections later contained in the Bill of Rights’ Sixth Amendment and in the general understanding of “due process” in the Fifth Amendment.

The Massachusetts Government Act took significant control from the colonial assembly and the town meetings and placed far more extensive political power over those assemblies in the hands of the royal governor. Jefferson decried those powers and the actions of the British government under them. Curiously, there is no direct criticism of the Quartering Act, which supposedly allowed the housing of troops in private homes during peacetime, a practice addressed later by the Third Amendment to the Constitution.

Perhaps needless to say, the exasperated British saw the matter quite differently. Prime Minister Lord North complained in a speech before Parliament, “The Americans have tarred and feathered your subjects, plundered your merchants, burnt your ships, denied all obedience to your laws and authority; yet so clement and so long forbearing has our conduct been that it is incumbent on us now to take a different course.”

As suggested earlier, some of the concrete accusations against King George in the Declaration of Independence have their germ in the Summary View. “Single acts of tyranny may be ascribed to the accidental opinion of a day; but a series of oppressions…pursued unalterably thro’ every change of ministers, too plainly prove[s] a deliberate, systematical plan of reducing us to slavery,” becomes in the Declaration, “when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism.”

Even a cursory review of the Declaration’s bill of particulars against the king shows the direct connection to the Summary View. The first seven of the Declaration’s accusations are wholly or significantly discussed in the earlier document. So are the tenth through the thirteenth, including most of the subsections of the last.

One section of the Summary View found its way into Jefferson’s draft of the Declaration, but was deleted by the Continental Congress. Jefferson, as was his wont from personal conviction, sense of guilt, hypocrisy, or a combination of all of them, lamented the practice of slavery in the colonies. He sought to lay the blame for the continued importation of slaves and, indeed, the continued existence of the “peculiar institution” itself at the feet of the British and to make it seem that this was yet another oppression visited on the virtuous Americans. When he similarly inserted such an accusation in the Declaration, the Congress thought it a political distraction and omitted it.

One final, yet very important, portion of Jefferson’s proposal was his discussion of the origins of property rights. The colonists talked much about the “ancient rights of Englishmen” supposedly assaulted by the British. That was a satisfying rhetorical device, but inevitably led to a discussion of what, precisely, it meant.

Due to reasons grounded in the legal and constitutional structure of Norman-English feudalism and the medieval scholastic view of rights defined by duties, it was discovered with some discomfort that the standard English conception of the origin of rights was in grants from the king. This fit the English theory of land tenures and the Americans’ experience with their colonial charters. Even the various versions of Magna Charta were phrased in that language.

Jefferson sought to establish an “allodial” (owned free and without accompanying duties to a superior) basis of holding property in America, in contrast to the “feudal” British system. Aside from connecting Americans to the (idealized) freedom of the ancient Saxons, this distinction was a useful jurisprudential distinction. By positing that rights to property were not created by the Crown within a system of duty and obedience but were inherent in every free man (a natural and God-given right), it was easy to claim that other rights were similarly not merely the creation of an earthly ruler.

By tying the British system to “William the Norman,” Jefferson also subtly tainted its legitimacy. William, after all, was seen by many at the time of the Norman Conquest as a foreign usurper to the throne who had taken it by force. The parallels were not coincidental. George III, though born in England, was descended from Hanoverian (German) princes, a point Jefferson raised indirectly. According to the Americans, the king was now trying to undo the existing constitutional arrangements, and to do so by force. Jefferson warned, “[B]ut let him remember that force cannot give right.”

This distinction allowed Jefferson to challenge the very practical concern about perceived British policy to limit immigration and growth in America. It also provided a philosophic basis for sovereign self-government because Americans had formed—and had the right to form—their own communities without the need for and the restrictions of the royal charters. Ultimately, it led to the Declaration’s assertion that Americans were not subjects of the Crown, but free men “endowed by their Creator with certain unalienable Rights.”

Read A Summary View of the Rights of British America by Thomas Jefferson here: http://constitutingamerica.org/?p=3456

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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