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In June, 1765, through the work of Patrick Henry, the Virginia House of Burgesses resolved:
…That the Taxation of the People by themselves, or by Persons chosen by themselves to represent them…is the only Security against a burthensome Taxation, and the distinguishing Characteristick of British Freedom, without which the ancient Constitution cannot exist.
…That his Majesty’s liege People…have without Interruption enjoyed the inestimable Right of being governed by such Laws, respecting their internal Policy and Taxation, as are derived from their own Consent ….
Several months later, the Stamp Act Congress echoed those principles, which reflect several connected components of colonial constitutional theory, among them that government rests on consent of the governed and that taxes must come from those who pay them or through their representatives (“no taxation without representation”).
The struggle over revenue had long occupied the king and Parliament. Matters came to a head in the 17th century, an era that began with sovereignty in the former and ended with it in the latter. Parliamentary theory rested on the idea that, while the king has certain “prerogatives,” outside those he is subject to the law. A fundamental principle of law is that one cannot take from another what is the latter’s. Thus, the king cannot take the property of the people in the form of taxes. However, the people are free to make a gift to the king who is in need of funds to act for the common good. They might do so directly, but, as such a system would be difficult to administer, their political representatives might consent on their behalf. Less clear, however, was how those political representatives could give that consent on behalf of those who might object.
The same contentions arose in the colonies, long before the Stamp Act controversy. For effective governance, every political system seeks obedience to its edicts by convincing the people of their obligation to do so, i.e. not that they “must” obey or suffer the consequences, but that they “ought” to do so because it is ethically right. One way to establish the ethical basis of government is that it is essential to human society due to our nature as social beings. Another is to justify government as ordained by God for human flourishing. A third way, common in modernity, is to use voluntary human choice to institute government through a “social contract.”
Colonies in British North America were established through three mechanisms, each of which is grounded in some manner in social contract theory. First came the private, for-profit colony, represented by the Virginia Company of London, which founded Jamestown, Virginia, in 1607. Investors bought shares in a joint-stock company, a concept of pooling capital somewhat akin to a modern business corporation. Under its charter, the Company was managed by a council in London. Its operations in the New World were directed by a governor and council appointed by the Company. Until 1609, there was also a Royal Council appointed by the king to look after the crown’s interests in its domain.
After a period of military rule as the colony struggled to survive, the Company in 1619 ordered the creation of a representative body to attract more settlers. When the Company’s charter was revoked in 1624, Virginia became a royal colony. The king appointed the governor and council, but the locals (“burgesses”) chose the assembly. Though its status initially was somewhat precarious, by 1639, the king recognized the right of this House of Burgesses to meet permanently. Though there were local variations, this model of governor and council plus local assembly became the pattern for all English colonies, and the House of Burgesses (with its heir, the Virginia House of Delegates), became the longest-constituted legislative body in North America. The early history of the government of Massachusetts Bay was nearly identical, except that there the “General Court” was divided into two chambers in 1644, setting a precedent for bicameralism to represent different constituencies.
A second type of government, the compact colony, arose in New England, initially in the Pilgrim settlement at Plymouth, Massachusetts. Having obtained a patent to settle on Virginia Company land, they landed too far north and lacked political authority for their settlement. As a result, the adult males formally chose “solemnly and mutually in the Presence of God and one another, [to] covenant and combine ourselves together into a civil Body Politick …” This Mayflower Compact, augmented by customary practice, served as the form of government for the colony for its seventy-one years of existence.
Similar approaches were used in Puritan colonies founded thereafter at New Haven, in Rhode Island, and–through the Fundamental Orders of Connecticut–among several Connecticut River Valley towns. All were new settlements created out of primeval wilderness. These “compact colonies” most purely embodied the principle of voluntary consent as the basis of legitimate government. The idea of a social contract neatly meshed with Calvinist religious doctrine based on a covenant with God and on a congregational theory of members who came together to form their spiritual assembly based on each person’s free agency in his relationship with God. From there, it was but a small leap to argue that civil society and the political commonwealth, too, were created by individual consent. John Locke, writing a couple of generations later, could look to them as examples of his theory about the social contract made when man left the state of nature.
The third type was the proprietary colony, such as Pennsylvania, Maryland, New Jersey, the Carolinas, and Georgia. The king would grant a Lord Proprietor a patent to a large tract of land with the expectation that the proprietor would govern the area as it became settled. This semi-feudal arrangement usually repaid the proprietor for some favor, such as the grant of the Carolinas by Charles II to eight nobles who had helped him secure his return to the throne in the restoration following the Cromwell Directorate. The patent defined the political relationship between king and proprietor, while a further instrument drafted by the proprietor, such as the Charter of Liberties and Frame of Government of the Province of Pennsylvania (1682), delineated the relationship between the proprietor and the settlers.
While many of the early patents gave virtual independence to the proprietor, there were still some restrictions that protected the king’s political interest. For example, the grant to William Penn required him to submit all laws to the Privy Council (a body of advisors to the king) for approval and to recognize the king’s right to levy taxes. The proprietor made himself governor or appointed his agent to the office and was advised by a council. Under some patents, the proprietor need not call an assembly, but, due to the political pressures that the settlers inevitably exerted, proprietors of all colonies soon consented to elected legislative bodies.
No matter the type of colony, political instability in England caused changes in the formal constitutional relationship between various colonies and the mother country. Charters were revoked and re-granted. Eventually, all colonies formally became crown colonies and part of the king’s domain. By the end of the 17th century, a common pattern had emerged that lasted until the Revolutionary War. The colony had a governor, who, except in Connecticut and Rhode Island, was appointed by the crown. As the 18th century progressed, the governor often was a local leader. There was also a council of prominent locals, appointed by the crown, which advised the governor. Finally, there was a legislative body, elected by the local residents and acting with their consent. That body was typically unicameral, although Massachusetts Bay had a bicameral General Court. Qualifications of voters and representatives generally were tied to property ownership, most commonly land, and, sometimes, to religious affiliation.
On the surface, these arrangements reflected the British system of king, council (later to become the Cabinet), and Parliament. There was, however, nothing like the House of Lords, as the colonies lacked a hereditary nobility and the higher order of Anglican churchmen who composed that chamber. As well, colonial assemblies, such as the House of Burgesses, soon wrested from the governors, councils, and even the proprietors, the power to levy taxes, just as Parliament did from the king over the course of the 17th century.
Crucial for the colonial constitutional order was a significant characteristic. Both mother country and colonies had representative legislative bodies. However, the systems operated differently, which eventually produced incompatible theoretical principles of representation through the catalyst of the events leading up to American independence. The British system was one of careful balance of interests between different important social estates in society (king, nobility, and commons dominated by merchants and gentry). It stressed stability. Loyalty was class-based, but, as in many republican systems, the lower classes were effectively denied participation. Members of the House of Commons were to protect the interest of the commons against the other estates and were expected to vote according to their own good faith perception of what best served the interests of the commons as a whole. They held their vote in trust for the whole commons–the “trustee theory” of representation.
In the colonies, distances were greater and settlements often more isolated. The approach was to allocate representation by geography, to towns and physical estates. Local communities elected representatives from their own residents. Moreover, the colonies lacked the more defined class structure of Britain. Finally, despite limitations on the electoral franchise in the colonies, a much higher proportion of adult (usually white) males could vote than in Britain. The loyalty of those elected was foremost to their geographical constituencies, and they were expected to look to those constituents’ interest, not to class affiliation, when voting. Many towns conducted their own affairs by periodic meeting of all residents, and they often carefully instructed “their” representatives how to vote on important issues–the “delegate theory” of representation.
Out of these practices developed rival theories, the British “virtual” representation and the American “direct” representation. During the controversies of the 1760s and 1770s over taxation and other internal legislation, the two sides talked past each other even as efforts were made to avoid a complete break. The British claimed that all were subjects of the king, and that the interests of the colonists were fully represented by the “commoners” in the House of Commons, even if Americans had not voted for them or had someone from their community as a representative. The Americans demurred. If they could not exercise their vote directly out of practical considerations, their franchise could be transferred only to those whom they had directly authorized to vote and over whose performance of this fiduciary duty they had actual control. Only their colonial assemblies, those closest to them in community, were authorized to legislate on their behalf, especially in the dangerous area of taxation. They had not consented to taxation by persons thousands of miles away whom they did not know and for whom they had not directly voted. To Americans, consent had lost all meaning, if the British were correct.
This much-fought-over distinction in representation was not, by itself, the catalyst for revolution. But it does portray the dissatisfaction of the Americans with laws that affected them in their personal lives and livelihoods being enacted by a body thousands of miles away and over which they had no effective control. Many currents were driving the societies apart: the large geographic size of the American possessions; the near-parity in population that was likely soon to favor the Americans; the comparative lack of class consciousness among the free population in the colonies; their greater ethnic and religious diversity; and the sense of self-identity and self-government that, while not yet complete or clearly expressed, had resulted from more than a century of benign neglect by the Crown between the 1630s and 1750s. Virtual representation works if there is a clear community of interest, and it must affect the interest of a clear “community.” In a preview of later federalism, Americans could accept Parliament’s sovereignty in matters that touched all, such as foreign relations and international trade, but not in primarily local matters.
The U.S. Supreme Court in U.S. Term Limits v. Thornton (1995) found that members of Congress do not represent the voters of their districts or states, but, instead, the people of the United States as a whole. Thus, a state cannot place term limits on “its” representatives. This sounds remarkably like virtual representation, especially since a state also cannot require the representative to be a resident of any particular district. If Congress concerned itself only with matters necessarily national or international in scope, this view need not raise concerns. But as Congress busies itself with more and greater intrusions into personal decisions, such as health insurance, one might ponder if the same alienation felt by Americans of the 1770s towards the far-away British government is not felt 250 years later by Americans towards their own. Do such laws still meaningfully reflect the consent of the governed so emphatically proclaimed by the House of Burgesses against the Stamp Act?
An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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, and serves as a Constituting America Fellow. Read more from Professor Knipprath at:http://www.tokenconservative.
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