An external tax is a duty laid on commodities imported; that duty is added to the first cost and other charges on the commodity, and, when it is offered to sale, makes a part of the price. If the people do not like it at that price, they refuse it; they are not obliged to pay it. But an internal tax is forced from the people without their consent, if not laid by their own representatives.
But may not the colonists “by the same interpretation object to Parliament’s right of external taxation?” Franklin’s reply was shrewdly evasive:
Many arguments have been lately used here to show them that there is no difference, and that if you have no right to tax them internally, you have none to tax them externally, or make any other law to bind them. At present they do not reason so; but in time they may possibly be convinced by these arguments.56
Some, in the colonies, were in fact already approaching such conclusions. Dulany’s pamphlet, published only a few months before Franklin spoke, had done more than sophisticate the meaning of “internal” taxation. It had broadened the discussion, and led it to a higher plane of generality. For, Dulany had argued, if there were, as he believed, powers that inferior bodies might exercise “without control or compulsion” — if there were areas where “the authority of the superior can’t properly interpose” — does it not follow that the superior authority is actually limited in what it can do “by the powers vested in the inferior”?57 In the light of such a possibility, and in the light of the approaching Townshend Duties — aimed as obviously as the Stamp Act at raising a revenue yet “external” by the colonists’ own definition — the inadequacy of the much overstrained distinction between “internal” and “external” taxation for marking the limits of Parliament’s power over the colonies became obvious. John Dickinson, in his Farmer’s Letters (1767–68), flatly and formally repudiated it, and, examining the problem of Parliament’s power with greater acuity than any writer had shown before, went on to a new stage in the exploration of the idea of sovereignty.
All taxation, Dickinson wrote in his famous pamphlet, being an “imposition to raise money,” is essentially the same, and so there is no difference between “external” and “internal” taxation. Parliament has no right to levy taxes on Americans for any purpose whatsoever: that much was clear. What was not so clear, what needed discussion, and what he followed out in his thought boldly and imaginatively, was the proper role of a central government in a truly imperial constitution. The legislature of an empire, he said, was different from the legislature of a nation. Though the two might exist in the same body, they had different functions and powers as organs of government. Over the American colonies Parliament must have all the power, but only the power, necessary to maintain the essential connections of empire, and this meant the power to regulate commerce and other aspects of the economy “in such a manner as [England] thought most conducive to their mutual advantage and her own welfare.” The duties imposed in the course of such regulation, he made clear, would be legitimate, for such “external impositions” do not grant property away but only prevent its acquisition. England’s other imperial powers were quite specific, and inhered not in Parliament but in the crown: the power to repeal colonial legislation, to exercise “the executive authority of government,” and to sit in appeal “from all judgments in the administration of justice.”58
In admitting that Parliament had such regulatory authority but yet no taxing powers whatever over America, Dickinson was approaching a conception of sovereignty different in essence from what had been accepted hitherto. For in assuming an empire to be basically different from a unitary nation, he was saying now explicitly that its sovereign body need not be supreme everywhere and in all matters in the territory it controlled, but only on some issues and in some ways, and that other, lesser bodies might exercise absolute and arbitrary powers — sovereign powers in effect — within spheres specifically allotted to them.
Once the discussion had reached this level, a maturing of views took place rapidly. For the reiterated assertions that were soon heard to the effect that even “the boldest advocates for the power of Parliament cannot, at this day, without blushing, assert that it is sovereign and supreme in every respect whatsoever” — such assertions required a fuller rationalization and a more cogent explanation of principle than even Dickinson had given them if they were to be kept from degenerating into the more extreme claims, already being heard in 1768, that Parliament “cannot pass any laws to bind us.” Such a notion, the Reverend John Joachim Zubly stated in 1769, must contain “some fallacy couched under an otherwise specious appearance.” For it is not a matter of all or nothing. There are, he wrote in his fumbling yet original and penetrating Enquiry, significant gradations in the authority of Parliament derived from the variety of separate national entities it rules. The British “EMPIRE” is a more “extensive word” than the “kingdom” of Great Britain; it refers to “England, Scotland, Ireland, the Islands of Man, Jersey, Guernsey, Gibraltar, and Minorca, etc., in the Mediterranean; Senegal, etc., in Africa; Bombay, etc., in the East Indies; and the islands and colonies in North America, etc.” The peoples of these extensive domains are not to be equally affected by Parliament’s power. With regard to trade, yes: “the power of making it most beneficial to the head and every branch of the empire is vested in the British Parliament”; and with regard to rights, yes: Parliament must guarantee that “all the British subjects everywhere have a right to be ruled by the known principles of their common constitution.” But otherwise, the various peoples of the empire are ruled unequally by Parliament; the “nature and degree of [their] dependence” upon Parliament “is not exactly alike,” and Parliamentary laws affect them only in cases where they are specifically named, and to the extent of the specification.59
By then the departure from the traditional understanding of sovereignty had gone far enough to make a sharp recall to orthodoxy advisable on the part of spokesmen for England. The most notable statement of this sort was written in 1769 by William Knox, a Grenvillite, who the following year would be appointed undersecretary of state for the colonies. Knox, setting a pattern for subsequent opponents of American claims, began by ridiculing what he understood to have been the shifting American positions on what Parliament could and could not do in regard to the colonies. First, he said, the colonists had attempted to distinguish “internal” taxation from “external”; then, when Parliament “seemed to adopt the distinction” and introduced just such “external” taxing, they changed their minds and decided to distinguish taxation for the purpose of regulating trade from taxation for the purpose of creating a revenue — a distinction, Knox wrote, “of all absurdities the most ridiculous that ever was contended for.” Finally, they had rejected taxation altogether and admitted only commercial regulation. There was no logic or law behind such gyrations. What Americans were really objecting to had nothing to do with constitutional principles. Their objection was not to Parliament’s constitutional right to levy certain kinds of taxes as opposed to certain others, but to its effort to collect any. Their theoretical position was worthless:
For if the authority of the legislative be not in one instance equally supreme over the colonies as it is over the people of England, then are not the colonies of the same community with the people of England. All distinctions destroy this union; and if it can be shown in any particular to be dissolved, it must be so in all instances whatever. There is no alternative: either the colonies are a part of the community of Great Britain or they are in a state of nature with respect to her, and in no case can be subject to the jurisdiction of that legislative power which represents her community, which is the British Parliament.60
It was a rebuttal not so much of the pragmatic efforts that had been made in America to limit the power of Parliament as of attempts like that of Zubly to devise a theoretical justification for dividing sovereign power in any way at all. This abstract problem was at the heart of the controversy between England and the colonies, and once directly confro
nted, it could not be evaded. As a consequence the major constitutional issue in debate shifted permanently after 1769 from the specific questions of taxes and the administration of government to the correct definition of a concept of political science. While defenders of England’s policies followed Knox in insisting on the indivisibility of Parliament’s sovereignty, American leaders, gingerly choosing among the alternatives open to them, felt their way toward new conclusions.
The structure of this critical problem of theory is perhaps best revealed in the remarkable series of exchanges between Lieutenant Governor Thomas Hutchinson of Massachusetts and the two Houses of Assembly of that colony in 1773. Smarting under the publication late in 1772 of the belligerent Votes and Proceedings of the Boston Town Meeting, Hutchinson on January 6, 1773, launched a formal debate with the legislature on the central question involved.61 His opening speech was characteristically temperate and lucid. Assuming that “from the nature of government there must be one supreme authority” and that for Britons everywhere it was lodged in Parliament, “of which the King is a constituent part,” he explained that the Boston Votes were subversive in that some of them deny “the supreme authority of Parliament” and others “speak of this supreme authority … in such terms as have a direct tendency to alienate the affections of the people from their sovereign.” Methodically, he took up the arguments of the Town Meeting, arguments based in turn on reason, on the charter, on the rights of Englishmen, and on natural rights. He concluded that there was “no line that can be drawn between the supreme authority of Parliament and the total independence of the colonies: it is impossible there should be two independent legislatures in one and the same state for … two legislative bodies will make two governments as distinct as the kingdoms of England and Scotland before the Union.” He ended in the same spirit of reason in which he had begun, requesting the two Houses, since “independence I may not allow myself to think that you can possibly have in contemplation,” to communicate their sentiments to him “with the same freedom and unreservedness as I have communicated mine to you” so that he might be convinced of his error “if I am wrong in my principles of government or in the inference which I have drawn from them.”
The two Houses lost no time in replying. The Council, confessing certain doubts about some of the Boston Resolves but vehemently defending the town’s right to issue such declarations, pointed out that if in insisting that Parliament’s indivisible authority was “supreme” Hutchinson had meant to imply that it was “unlimited,” he should realize that he was in effect offering the colonies only the choice between slavery (except for the liberties that might be granted them by “the mere grace and favor of their governors”) and “a declaration of total independence.” The councilors denied that the choice was properly so narrow. There is no such thing, they wrote, as total, absolute authority: “supreme or unlimited authority can with fitness belong only to the sovereign of the universe”; the supreme authority in all human governments, including that of Parliament, is by its very nature limited. The real question is how to state those limitations and thus to define other alternatives than those Hutchinson had offered. To fix “with precision” the limits of Parliament’s authority, “to determine the exact lines of right and wrong,” was, they admitted, a most difficult task which ordinarily they would not attempt; but the governor’s speech having “made it absolutely necessary” for them to do so, they proceeded to review the essential parts of the constitution that demonstrated the illegality of Parliament’s taxing the people of Massachusetts.
The House leaders too confessed that “it is difficult to draw a line of distinction between the universal authority of Parliament over the colonies and no authority at all,” but they declared that if they were forced to make a choice between all or nothing they would certainly choose the latter, for “there is more reason to dread the consequences of absolute uncontrolled supreme power, whether of a nation or a monarch, than those of total independence.” But why this choice? What if, as Hutchinson said, two independent legislatures did make two separate governments? If they were “united in one head and common sovereign” and did not interfere with each other, could they not “live happily in that connection and mutually support and protect each other”?
Hutchinson retorted sharply to the Council, informing them that their efforts to separate out permissible from forbidden powers in a sovereign body “rather tend to evince the impracticability of drawing such a line.” Logically, what they were saying was that two supreme authorities could act simultaneously over the same people; but this, he insisted, was simply impossible. The claims of the House he could not so easily dismiss, for he understood the importance of the legal arguments that could be mobilized to defend the idea that two absolute legislatures might coexist within an empire if they came into contact only in the person of the King. It took this accomplished lawyer, scholar, and politician twenty-two pages of closely wrought and learned prose to state his reasons for believing that the chartered authority of the Massachusetts government derived and depended not from the King but from “the crown of England” and was “consequently subject to the supreme authority of England,” that is, to Parliament.
The debate went on in exchanges of messages for two months, until it exhausted the knowledge, ingenuity, and patience of all involved. The final statement was Hutchinson’s, and it was prophetic. You believe, he said in his recapitulation, that “a subordinate power in government…, whilst it keeps within its limits, is not subject to the control of the supreme power.” This is illogical, for how can there be “a subordinate power without a power superior to it? Must it not, so far as it is without control, be itself supreme?”
It is essential to the being of government that a power should always exist which no other power within such government can have right to withstand and control. Therefore, when the word power relates to the supreme authority of government it must be understood absolute and unlimited.
The future looked dark, he said, for “no sensible writer upon government has before denied” the principles he was restating, and if the members of the Massachusetts General Court
are still of opinion that two jurisdictions, each of them having a share in the supreme power, are compatible in the same state, it can be to no purpose to reason or argue … It’s enough to observe that this disagreement in our principles will have its influence upon all the deductions which are made from them.
And so it did. The powerful influence of “this disagreement in our principles” was felt generally in the two years that followed. Leading Americans like John Dickinson continued to insist — though now with increasing desperation — that “the sovereignty over the colonies must be limited,” that “a line there must be,” in principle as well as in fact, setting off Parliament’s powers from those of the colonial legislatures, and that this line gave to the English government control of the commerce and foreign affairs of the colonies and to the colonial Assemblies “exclusive right of internal legislation,” including taxing. But the response was as adamant, as rigidly secured to the traditional conception of sovereignty as Hutchinson’s had been. By the middle of October 1774, when Dickinson’s view was adopted as the official American position by the first Continental Congress, its ineffectiveness was widely conceded. Spokesmen for England repeated, with what appears to have been an almost obsessive and ritualistic regularity, that if the colonial legislatures were not in principle “subordinate to the supreme sovereign authority of the nation … there is imperium in imperio: two sovereign authorities in the same state; which is a contradiction.” Arguments to the contrary, Joseph Galloway wrote, were nothing but “unintelligible jargon and horrid nonsense”; an independent unit of government within the territory of the principal state, he explained, “is a monster, a thing out of nature”; what the Revolutionaries had taken into their “learned heads, philosophers-like,” to do was to “conceive that the supreme legislative authority, which is indivisible in its nature, was, like matter,
divisible ad infinitum; and under this profound mistake, you began with splitting and dividing it, until by one slice after another, you have hacked and pared it away to less than an atom.”62
There was little point, in the face of such inflexibility, in continuing to press for a formal classification and division of Parliament’s powers. Defenders of American claims were forced to move on to the politically more extreme position that the Massachusetts House had maintained. Acknowledging the impossibility of convincing the authorities in England that Parliament’s sovereignty might be divisible, they pursued, with careful logic and a wealth of legal learning, the idea of an imperial federation of sovereign states sharing and establishing unity in a single monarch. If, Moses Mather argued, two supreme powers within a single state are really “the height of political absurdity” then let Parliament’s power be totally excluded from the colonies. But the exclusion of Parliament’s authority would not necessarily mean the total elimination of all links to England. For, he explained, a “state” was, after all, only “a country or body of people that are connected and united under one and the same constitution of civil government,” and there was therefore no contradiction in conceiving of two such entities sharing the same king. George III derived his authority as “King of the American colonies” from a source different from that which empowers his rule as King of Great Britain. And since, “when several rights or capacities meet and are vested in one and the same person they remain entire and as distinct as though they were vested in different persons,” the King’s role as the first of the three estates in Parliament in no way means that the authority of that body extends to America.63
The Ideological Origins of the American Revolution Page 27
