ESSAY 27 – Guest Essayist: Gary Porter
House of Commons at Westminster, 1808, Parliament

“He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
– For Quartering large bodies of armed troops among us:
– For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
– For cutting off our Trade with all parts of the world:
– For imposing Taxes on us without our Consent:
– For depriving us in many cases, of the benefits of Trial by Jury:
– For transporting us beyond Seas to be tried for pretended offences
– For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
– For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
– For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.”

In an earlier essay in this examination of the Declaration of Independence, we encounter Mr. Thomas Jefferson beginning to lay out the “facts” he wishes a “candid world” to consider as the colonists make their case for independence. These facts begin by pointing to actions of the King alone (“He has refused his Assent to Laws…”). Now Jefferson turns his attention to actions for which the King required the assistance of Parliament: “Acts of pretended Legislation.”

“He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:”

This is one of the most overlooked sentences in Jefferson’s Declaration.  Readers quickly skip past this sentence to get to the “pretended legislation” they know Jefferson is about to highlight. And we’ll get to that legislation soon enough; yet, there is much to glean from this simple sentence. But first we will need to lay a foundation, beginning with identifying the main characters Jefferson mentions. “He” is obviously King George III; “others” refers to Parliament. Together, King and Parliament have subjected the colonies to “a jurisdiction foreign to our constitution.” Our constitution? In 1776, eleven years before the U.S. Constitution is drafted? What possibly could Jefferson mean?

One common answer is that Jefferson refers here to the British Constitution. He could be claiming that Parliament and the King have repeatedly ignored or violated the British Constitution, particularly the 1689 Bill of Rights which forms a major part of Britain’s “unwritten constitution.”[1] And this is certainly a fair reading of the sentence. But could Jefferson have intended a different meaning?

In his first draft of the Declaration, the sentence read: “He has combined with others to subject us to a jurisdiction foreign to our constitutions….”  Constitutions, in the plural, could only mean one thing: constitutions of the separate colonies, not the Constitution of Britain. But Jefferson is writing in June of 1776. At that time only three colonies had true constitutions; they had responded to a resolution of the Second Continental Congress, passed on May 10, 1775, which read:

Resolved, That it be recommended to the respective assemblies and conventions of the United Colonies, where no government sufficient to the exigencies of their affairs have been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general.”[i]

Adopting “such government” meant enacting a new constitution, and the colonies, at least some of them, soon began deliberating, and then writing. On January 5, 1776, New Hampshire became the first of the thirteen to approve its new constitution, thus separating itself from England a full six months before Congress would do so on behalf of all the colonies. Four days later, Thomas Paine’s Common Sense was published in America. On April 12, South Carolina did likewise. On May 4, Rhode Island, concluding that its colonial charter described an adequate governmental structure they did not wish to re-design, nevertheless unilaterally declared independence from the Mother Country. Finally, on June 29, a day after Jefferson presented his final draft of the Declaration to the Congress, the Virginia Assembly approved its colony’s new Constitution.

So, which document or documents was Jefferson complaining had been violated: the English Constitution or the “Constitution” or constitutions of the colonies? Before answering, let’s be sure we understand what comprises a Constitution. For that we turn to Black’s Law Dictionary:

“The organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers.”[ii] (Emphasis added)

If England was operating from an unwritten Constitution (and they were, and still are); could the colonies have been as well?

By 1776, many of the colonies had been self-governing for more than 150 years – Virginia since 1619. As Dr. Larry Arnn of Hillsdale College puts it: “They had built a society of self-government. They would live in no other kind.”[iii] Their charters comprised agreements between themselves and the King – there was no mention of Parliament in the Charters – and the colonial assemblies had seldom sought Parliament’s help in governing. Despite the occasional intrusion of the royal governor’s veto, for the most part, colonial self-government was working; the “character and conception of [their] government” was well established. Is it possible that the colonies had, by 1776, a well-established, but unwritten constitution? While we might expect recognizable differences in such a constitution from colony to colony, there must also have been a certain core of “basic principles to which [their] internal life [had been] conformed.” I believe it was this unwritten Constitution, rather than the English one, to which Jefferson referred. Dr. Arnn agrees.[iv]

Yes, the colonists were British subjects. Yes, they were subject to British law, but the King and his ministers and the Parliament had overlooked an important point: over the last 150 years the colonists had become a new people with a new taste for freedom enjoyed by few other people on earth, and they were not going to readily give it up to an emboldened bully called Parliament.

Others in this year’s 90-Day Study have no doubt highlighted the connection between the Declaration of Independence and the U.S. Constitution, a connection recognized even by the Supreme Court.[v] As we now review the “Acts of pretended Legislation,” we will encounter several examples of improper or otherwise “bad” government that were fixed, preempted if you will, in the drafting of the 1787 Constitution. Finally, I call your attention to a little-known document entitled: “An Answer to the Declaration of Congress” by British barrister John Lind. Neither the King nor Parliament answered Jefferson’s Declaration directly; they could not. To do so would, in their eyes, have given unwarranted credence to it;[2] instead they commissioned Mr. Lind to answer.[vi] As you might expect, Mr. Lind dismisses Jefferson’s allegation with a figurative wave of the hand.

Acts of pretended Legislation” points, as you might expect, to actual legislation recommended by the King and passed by the Parliament. I will refer to these acts where they can be identified.

  • “For Quartering large bodies of armed troops among us.” Not only “among us” but IN OUR VERY HOMES! After the French and Indian War concluded in 1763, the British left troops behind in America as a prudent measure in case the Indians (or the French) decided ignore the 1763 Treaty of Paris, quartering them in barracks built for that purpose or in public buildings. The 1765 Quartering Act required colonial legislatures to raise the necessary tax revenue to support the soldiers lodging. But, after the violent Stamp Act protests of 1765, the next year the Quartering Act was amended to allow lodging troops in public buildings such as pubs and ale houses, with compensation to the homeowners of course. As protests continued and expanded, Parliament began to see that even more troops were needed to keep the peace. The 1774 Quartering Act[vii] enabled troops to take over private homes without the owner’s permission. In early 1775, Parliament sent another 10,000 soldiers to the colonies, to be placed in Boston, New York, Philadelphia, Charleston, and other seaports. Lind’s reply to the Quartering complaint was the equivalent of “What did you expect during a revolt?” The Founders abhorrence of the quartering system led to the Third Amendment to the U.S. Constitution: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
  • For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States. Soldiers with time off seemed to get into trouble without much effort, even to the point of murder. In 1768, British soldiers in Annapolis, Maryland, killed several citizens. The soldiers were tried but acquitted, a result which did not sit well with locals. Three years later, North Carolina Governor Tryon ordered troops to fire upon an angry assembly of citizens who had brought complaints to the court house, killing several of them. These soldiers were also arraigned for murder, and also acquitted. Need we mention the Boston Massacre of March 5, 1770? The Administration of Justice Act of 1774,[viii] which Lind thinks Jefferson was referring to here, was commonly called the “Murder Act” by the colonists.
  • For cutting off our Trade with all parts of the world. Various Navigation Acts since the late 17th Century had attempted to funnel trade to and from the colonies through British ports to enable taxes to be levied and revenue to be raised. In 1733, the Molasses Act applied heavy duties to the trade of sugar from the (cheaper) French West Indies while leaving sugar purchased from the British West Indies duty free, producing a new enterprise in America: smuggling. Finally, in December 1775, the King issued a proclamation (the Prohibitory Act) closing the American colonies to all commerce and trade, to begin the following March. Under international law, this was an act of war.
  • For imposing Taxes on us without our Consent: The French and Indian War raised British national debt 70% over 7 short years. Even though the “Seven Years War” (as it was called in Europe) saw skirmishes also on the European continent and the oceans, Parliament saw the effort as basically bailing out the colonies; thus, the colonies would need to pay for their “salvation.” The Stamp Act of 1765 was one such effort. But, the issue of taxation without representation had been brewing for a long, long time.
  • For depriving us in many cases, of the benefits of Trial by Jury. In 1674, during the reign of Charles II, the British formed a Court of Admiralty in America, bypassing the long-established colonial legal system. In 1764, a Revenue Act created a so-called ‘super’ vice-admiralty court in Halifax, Nova Scotia, presided over by a Crown-appointed judge. Instead of being tried by a jury of their peers, colonists were sent for trial by a single judge paid directly by the Crown. Lind claims the Admiralty Courts were merely a response to ubiquitous piracy in American waters.
  • For transporting us beyond Seas to be tried for pretended offences. On April, 1774, Parliament passed “A bill for the impartial administration of justice in the cases of persons questioned for any acts done by them in the execution of the laws, or for the suppression of riots and tumults in the province of Massachusetts Bay, in New England.” (Don’t you just love these simple law titles?) The Governor or the Lieutenant Governor could now order colonists to be transported to another colony or even to Great Britain for trial. If you wanted witnesses to testify in your favor, guess who paid their transport and lodging? Sound fair? It should come as no surprise, then, to find our own U.S. Constitution read: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed. (Article 3, Section 2)
  • For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies. This “neighbouring Province,” you might guess, was Canada. In 1774, Parliament passed a bill giving support to French Catholics in Quebec and expanding Canada’s border to encompass land desired by other colonies. Parliament’s plan was to create a safe place to mass British troops in case of open rebellion.[ix]
  • For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments. Attempts to confiscate colonial charters go back to at least 1686[x]. The Boston Port Bill of March, 1774 altered the Charter of Massachusetts and gave the King the right to choose the members of the Massachusetts Council. The King would now have complete control over the selection of judges and have the ability to appoint sheriffs. Popular town meetings were eliminated, and the election of jurors denied. Even some members of Parliament described the Act as “exorbitant usurpation.”
  • For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.”[xi] Colonial legislatures had been repeatedly suspended. When New York’s Assembly failed to comply with the 1766 Quartering Act, Parliament suspended the colony’s Governor and legislature in 1767 and 1769. The order was never carried out since the Assembly backed down and agreed to contribute the necessary funds to cover the quartering in that colony. “[I]n all cases whatsoever” could only refer to one thing: the Declaratory Act of 1766, passed as the Stamp Act was being repealed. Here, Jefferson uses the Act’s own words in ridicule.

One by one, Jefferson ticked off the acts of “pretended legislation,” exposing Parliament’s obnoxious meddling in colonial affairs. But, in so doing, he continued his exposition of the principles of good government begun earlier in the document. For example: if “transporting us beyond Seas to be tried for pretended offences” is an example of bad government, Jefferson simultaneously points us to an example of good government: hold trials, if at all possible, in the locale where the crime was committed. And, what do we find in Article 3, Section 2 of our Constitution? “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed…” (Emphasis added)

Studying the Declaration of Independence is a worthy goal, if nothing more, simply as an example of good writing. But, it can be so much more. Thoughtful study of Mr. Jefferson’s Declaration introduces us, if inadvertently, to a treatise on good government. Thank you, Mr. Jefferson.

After skewering the Parliament for their obnoxious legislation, Jefferson returns (in our next essay) to the King, with more charges.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).


Podcast By Maureen Quinn

 

[1] The British Constitution, to this day, is described as an “unwritten” Constitution. Unlike that of the United States, which encapsulates its constitution in a single document, thus making it a “written” constitution, Britain’s constitution is comprised of the Bill of Rights of 1689, Acts of Parliament, and Common law, law developed by the courts and judges through cases.

[2] Lind writes: “Ill would it become the dignity of an insulted Sovereign to descend to altercation with revolted subjects. This would be to recognise that equality and independence, to which subjects, persisting in revolt, cannot fail to pretend.”

[i] http://founding.com/founders-library/government-documents/federal-government-documents/resolutions-and-recommendations-of-the-continental-congress-1776/

[ii] Blacks Law Dictionary, 4th edition

[iii] Larry Arnn, The Founders’ Key (Nashville: Thomas Nelson Inc., 2012), 31.

[iv] Ibid, 25.

[v] Gulf, C. & S. F. R. Co. v. Ellis ,  165 U.S. 150 (1897)

[vi] https://archive.org/details/cihm_20519/page/n5/mode/2up

[vii] 14 Geo III c.54 according to Lind

[viii] 14 Geo III c.39 aka The Administration of Justice Act, the colonists called this “The Murder Act”

[ix] 14 George III, c. 83 aka The Quebec Act, 1774

[x] See: https://en.wikipedia.org/wiki/Charter_Oak

[xi] 6 Geo III c 12), aka the Declaratory Act

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