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Essay 20 – Delayed Elections and Dissolved Legislatures: Threats To the Independence of Their Assemblies – Guest Essayist: Professor Joerg Knipprath

“He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.”

When Thomas Jefferson accused George III, in the Declaration of Independence, of having refused for a long time to permit elections for previously-dissolved colonial legislatures, he had several examples for reference. As early as 1768, Governor Sir Francis Bernard dissolved the Massachusetts assembly on the order of Lord Hillsborough, the Secretary of State for the Colonies, after the assembly had circulated a letter to the other colonial assemblies about the constitutional defects of the Townshend Revenue Acts. This effectively left Boston without a government for a year.

A year before, in 1767, the British government had ordered the New York assembly suspended when it refused to comply with the Quartering Act of 1765. As a result, New York was without a government for most of 1767 to 1769, until an election in the fall of 1769 produced a more pliant assembly.

In October, 1774, after Parliament had adopted the Massachusetts Government Act earlier that year, General Thomas Gage, the governor, dissolved the colony’s assembly. The Act had several parts that struck against the colony’s self-government. It repealed the Massachusetts Bay Charter of 1691, made the hitherto elected council appointive by the governor, and prohibited town meetings more than once per year unless the governor consented. The Act also made other provincial offices, including many judgeships, appointive rather than elective, and those officers could be removed at any time by the governor. To add insult to injury, the first governor selected, General Gage, was also the military commander. This move placed the military authorities in charge of civil government.

From the British perspective, the Act was necessary to curb the radical tendencies of this most radical province. Unfortunately for the British, their political tactics failed in Massachusetts and likely hurt their overall strategy of both pacifying the colonies and advancing their new model of imperial administration. Instead, the Americans simply circumvented the restrictions by electing an ultra vires provincial congress, which met at Concord, elected John Hancock president, organized an administration, voted taxes, collected arms, drilled a militia, and operated the courts. This assemblage governed Massachusetts until the state’s constitution of 1780 was approved. The colony effectively was independent, and the royal governor’s authority was restricted to the city of Boston.

Similar events transpired in other colonies. In Virginia, the royal governor dissolved the House of Burgesses in May, 1774. Led by Patrick Henry and Thomas Jefferson, a rump portion of that assembly called for elections to a provincial congress to meet in Williamsburg on August 1. By the end of 1774, all colonies except Georgia, Pennsylvania and New York had followed suit. Those three fell in line the following year. So, while Jefferson’s charge in the Declaration of Independence was historically correct, the dissolutions of colonial assemblies about which he complained also quickly became irrelevant as a matter of practical government. If anything, those actions by the king and Parliament did not impede self-government, they made it more profound.

The English king long had the power to prorogue (that is, “suspend”) or dissolve Parliament and rule by decree. Charles I had used it to prevent Parliament from meeting for years. As the constitutional position of Parliament strengthened against the king in the 17th and 18th centuries, that power had to be used judiciously, if at all. One of the political missteps by James II that led to the Glorious Revolution of 1688 was his dissolution of Parliament after that body had refused to repeal the pro-Protestant Test Acts.

For the Americans, this authority to prorogue or dissolve legislative bodies and to delay elections was a threat to the independence of their assemblies, the principal protectors of liberty, and distorted the emerging conception of a functional separation of powers. Thus, Article X of the Virginia constitution of 1776, prohibited the governor from proroguing or dissolving the legislature. The Massachusetts constitution of 1780 carefully limited these powers to specified circumstances. The New York constitution was similar. The U.S. Constitution of 1787 goes further and restricts the president to only a limited power to adjourn Congress, but no power to prorogue or dissolve that body.

Jefferson’s observation that “the Legislative powers, incapable of Annihilation, have returned to the people at large for their exercise …” makes two points. First, it postulates that lawmaking, that is, the power to make rules that govern human actions, always exists. That power might be in Parliament, in the assemblies, the king, or the people as a whole. When the king declared the colonies in rebellion on August 23, 1775; when Parliament enacted the Prohibitory Act on December 22, 1775, which declared the colonies outside British protection, blockaded colonial ports, and made all colonial vessels lawful prizes subject to capture; and when the local assemblies were dissolved by the British authorities, the existing constitutional system had been abandoned. The actions of the Continental Congress and of the several former colonies separately in declaring independence and taking control of their fate by setting up new constitutional arrangements, was the inevitable result. After all, this was no different, in the eyes of Americans, than Parliament’s own actions in 1688-89 during the Glorious Revolution. Then, James II had abandoned the throne, which allowed Parliament to assume basic constitutional powers and create a new political order.

Second, the observation reflects Jefferson’s reading of John Locke and other social contract theorists. The British government’s abandonment of its constitutional relationship with the colonies had breached the contract on which the political commonwealth was based. Thus, the people were placed in a new “pre-political” condition. In this stage, each individual was sovereign over his or her own affairs. The legislative power had not been annihilated, but rested within each individual for himself or herself. As anticipated by the social contract theorists and reflected in the Declaration of Independence itself, these individuals would establish new forms of government in order better to secure their God-given inalienable rights to life, liberty, and the pursuit of happiness. By the consent of the governed, the legislative power would then be exercised by the people collectively as in a democracy, or, more likely, by an assembly elected by the people as in a republic.

That the British actions, especially those of King George, amounted to a breach of contract was bolstered by the function of royal charters in the constitutional status and political operation of the colonies. Those charters gave certain powers of self-government to the Americans through their elected assemblies and established the constitutional rights and obligations of all parties, including the king. Moreover, the general neglect of colonial affairs by the government in London over more than a century had accreted various political powers to the local assemblies through repeated practice that reflected a gradual evolution of constitutional custom. By ignoring those arrangements or, more blatantly, revoking them, as had happened in 1774 to Massachusetts Bay’s Charter of 1691, the king and Parliament had breached those contracts. In turn, the Americans were relieved of further obligations to abide by those arrangements, although, curiously, Connecticut and Rhode Island continued to use their royal charters, with appropriate modifications, as their state constitutions into the 19th century.

Jefferson’s complaint that “the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within,” seems disingenuous, coming from the American side. After all, the “convulsions within” typically were the products of provocateurs such as the Sons of Liberty or of colonial mobs incited by the rhetoric and actions of those provocateurs. The Boston Tea Party, the Boston Massacre, the Gaspee affair, and assorted other riots and acts of sabotage and unadulterated insurrection were deliberate actions by the Americans. The British responses, often ham-handed, might inflame tensions further, but they were reactive.

Nevertheless, Jefferson had a point. The principal purpose of government is to provide security against external and internal threats to the peace of the community. Whatever merit there is in today’s common perception that government is an indulgent parent that provides food, shelter and health care for all, if a government fails to fulfill the classic obligation of providing security, it will fall. In the Lockean social contract formulation, government is formed to secure one’s rights in one’s person and estate better than would exist otherwise. In Thomas Hobbes’s more pessimistic view of the human condition, security by any means is the be-all and end-all of government. Under either conception, failure to carry out that obligation is a breach of the social contract.

That same understanding of the core purpose of government is found in the Constitution. As John Jay wrote in The Federalist No. 3,

“Among the many objects to which a wise and free people find it necessary to draw their attention, that of providing for their safety seems to be the first….At present I mean only to consider it as it respects security for the preservation of peace and tranquillity, as well against dangers, from foreign arms and influence, as against dangers arising from domestic causes.” [Emphasis in the original.]

Indeed, the adoption of the Constitution itself, in a manner contrary to the Articles of Confederation, was defended by James Madison in The Federalist No. 43 in language reminiscent of the Declaration of Independence,

“by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society, are the objects to which all political institutions aim, and to which all such institutions must be sacrificed.”

The Constitution itself grants broad war powers to the president and Congress, along with the power of Congress of “calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions.” The president, as commander in chief of the armed forces, as well as of the militia when called into service of the United States, is also authorized to protect the security of the people from foreign invasion and domestic causes. As needed, courts have interpreted those powers expansively. True, Americans pay at least lip service to the idea that even those governmental powers are limited in some way by the Constitution. Courts have held that there also does not exist a formally distinct “Emergency” or “War” Constitution. Reality, however, is harsher. Jefferson himself, as well as Abraham Lincoln, and any number of politicians and judges have consistently recognized the paramount principle of self-preservation and security of the society, to which, in the end, all other considerations will be subordinated. This calculation is pithily expressed in the aphorism, “The Constitution is not a suicide pact.”

The British government failed to carry out that fundamental obligation of assuring peace and domestic tranquillity, either by resolute military action or, preferably, by deft political maneuvering to adjust the constitutional order to accommodate the major American grievances and halt the drift towards full separation. It does not matter which side gets the credit or blame for specific events or particular political steps. The constituted government has legitimacy to govern only if it satisfies the reason for which it is formed. Failure to do so forfeits that government’s legitimacy, and the people will seek to establish another by any means available to them, even a replacement of the entire constitutional order by revolution.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/

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