Friday, 23 May 2014

A Summary View of the Rights of British North America, Part IV: Law and Precedent

I’d like to wrap up my reflection on Thomas Jefferson’s A Summary View by taking a moment to discuss what it was that Jefferson believed the British government was guilty of in its dealings with the Thirteen Colonies. While it’s true that the Declaration of Independence provides a lengthy list of grievances against Parliament and the Crown, there is little room left for the kind of detailed philosophical exposition that Jefferson frequently resorted to in his writings. Considering the nature of the document, more a press release than a treatise, this is understandable. A Summary View, however, represents Jefferson in a more contemplative and radical mode, and it’s worth examining which offences he chooses to draw attention to, and how he frames them within the broader relationship between the colonies and the Crown.

Thinking back once again to the Declaration of Independence, it’s clear that much of what Jefferson complains of in A Summary View made it into the final draft of that famous document. Among these are condemnations of George III’s callous use of his veto power, the frequent dissolution of the various colonial legislatures, a common and destructive interference in the day-to-day administration of the colonies themselves, and the repeated stationing of British troops within borders of the colonies without prior approval of the legislatures of the same. These are abuses which, as I explained in a previous post, violated what many colonists had come to perceive as their rights as citizens of the British crown. To that end I pointed to the Bill of Rights of 1689 as a formal expression of these rights, and something which I believe was on the minds of Jefferson and his fellow revolutionaries in 1776. But it bears remembering that the Declaration does not mention the Bill of Rights explicitly, and speaks of the colonists rights in rather abstract terms. A Summary View, however, contains much more direct references to what Jefferson believed these rights to be, which were at once legal and moral, natural and prescribed.

As stated in the two previous posts, Jefferson believed that the relationship between the colonies of British North America and the British Crown was one of a shared monarchy, and shared legal and political traditions. He did not, therefore, consider the legislature of (for example) Virginia to be inherently inferior in authority to Parliament, but rather saw the two as equals under the executive authority of George III. This executive authority, however, was circumscribed by a body of laws, and by traditions of government that had their basis in the commonly understood concepts of justice and common sense. By the late 18th-century, the people of Britain had shown time and again that they were not inclined to tolerate a monarchy that claimed to wield absolute legal power. Accordingly, the British government had evolved in such a way as to hem in the power of the Crown and make it beholden to the rule of law. This form of constitutional monarchy became a much-celebrated aspect of the British political tradition, and Jefferson asserted at numerous points in in A Summary View that it applied to the colonies as much as it did Britain itself, and that it was George III’s frequent violations of this tradition that were at the root of the looming crisis in British America.

In paragraph fifteen, Jefferson states that it was an agreed-upon convention of the British constitution and those of many of the colonies (which he refers to here as “American states”) that the Crown possessed the power to refuse its assent to any law which had been approved by both branches of the legislature. He further adds that while for the better part of its history this veto power had been used sparingly by monarchs who were justly sensitive to the “impropriety of opposing their single opinion to the united wisdom of the two houses of parliament,” relatively recent events had given it a new purpose. As the British empire increased in size and complexity (as it had done over the course of the 17th and 18th centuries), Jefferson believed that the judicious use of the veto had become necessary in order to prevent the legislative acts of any one constituent state within the empire from infringing on the “rights and interest” of others. That being said, the frequent use of the veto power that had been employed against the acts of the colonial legislatures by the British monarch in the decades and years leading up to 1774 were accomplished for what Jefferson characterized as “the most trifling reasons, and sometimes for no conceivable reason at all.” It was not the veto itself, which Jefferson acknowledged was a legal right possessed by the monarchy and which served an important administrative purpose, but rather the method of its employment and the justification behind its use. Thus it could be said that what Jefferson demanded was not a break with precedent but a greater respect for it, and for established legal forms.

He makes a similar argument in paragraphs eighteen and nineteen, this time in respect to the British monarch’s power to dissolve the legislature of his realm(s) at will. Though this power, he argues, had been utilized relatively frequently by British monarchs in the past, since the Glorious Revolution of 1688 and the passage of the Bill of Rights of 1689 it had fallen into disuse. Indeed, Jefferson points to a recent occasion when George III was called on to dissolve Parliament at the behest of the people, only to have his ministers openly declare that “his majesty possessed no such power by the constitution.” Jefferson meets this claim with skepticism, and argues that on occasions when a legislature has lost the confidence of its constituents, made itself the tool of foreign conspirators, and assumed powers not assigned it by law, dissolution is most definitely required. Accordingly he implies that the British Parliament had been guilty of all these sins in the recent past and resisted being dissolved, while the various colonial legislatures had not committed similar abuses and been dissolved on numerous occasions, concluding that George III and his ministers “have carried this power beyond every limit known, or provided for, by the laws.” Again, Jefferson seems to argue not for a radical restructuring of the relationship between the Crown and the colonies, but rather for greater legal consistency between the two in regard to the powers of Parliament and the monarchy.

Jefferson effectively concludes A Summary View with another argument that appears to call on the British monarchy for stricter adherence to the laws and precedents of the empire. Specifically, he claims that in order to enforce many of the measures which had resulted from the colonists’ resistance to Parliament’s assumption of authority over them, a large body of armed forces had been sent across the ocean and quartered among George III’s American subjects. These soldiers, Jefferson points out, were foreign to the colonies, were not called to service by any legal authority that the colonial governments possessed. And because George III had no legal right to inflict them upon British America, they were either liable to the laws of the colonies in which they found themselves (particularly those relating to riots or unlawful assemblies), or constituted an invading force. By comparison, Jefferson elaborates, the German mercenary troops called into service in Britain during the Seven Years War were not authorized by the sole authority of George II (grandfather of George III), but were called into service by an act of Parliament which also limited the terms and circumstances of their assignment. This, Jefferson stresses, is how a constitutional monarch should act: in accordance with the legal authority which he/she possesses within each of their various realms. The laws that limit Crown authority in Britain should have their equivalent in British America, as the rights of British citizens are equal to those of his majesty’s American subjects.

As to my purpose in bringing attention to these arguments in A Summary View, I reiterate a theme I pointed to in an earlier post: complexity. However much the American Revolution, its causes and significance have been retold, repackaged and regurgitated over these last few centuries, to the point that a politician or pundit can claim that the Revolution was simply a tax revolt and receive a chorus of appreciative nods in response, it was never so simple, particularly not to the revolutionaries themselves. In the entirety of A Summary View, Jefferson mentions taxes, taxation, or taxing only twice: once in paragraph thirteen when discussing the unjust legal fees associated with the Administration of Justice Act, and again in paragraph twenty-three when he states as a matter of course that the colonists’ property should only be taxed by their own authorities. Clearly he believed that there was more to discuss; more abuses, more responsibilities, more principles involved than the supposed burden of taxation.

It’s because of this aversion to simplicity that A Summary View, and its author, continues to be of interest. Jefferson was a complicated and often contradictory man, and accordingly many of his more radical arguments in A Summary View are balanced by a rather conciliatory and conservative conclusion. However it is that he came to advocate complete independence by 1776, in 1774 he was of the opinion that the relationship between the colonies and the Crown was worth preserving. Indeed, he claimed that it was the “fervent prayer of all British America” to “establish fraternal love and harmony through the whole empire.” In light of the grievances that stood in the way, his view seemed to be that British laws and British precedents were sound and that the fault lay with the monarch and his ministers’ inability to properly adhere to them. For someone considered among the most radical thinkers of his generation this might seem like a rather odd place to start. How did he arrive at that opinion? How did he make his case? How did he come to eventually promote independence? These are important questions, and their answers are not easily found.
Because the American Revolution was a complicated event and the revolutionaries were complicated people. And while I don’t mean to sound like an after-school special, I do earnestly believe that trying to understand them in all their complexity can be extremely helpful in coming to grips with the intricacies of our own time, the people in it, and the events we face every single day.

But don’t take my word for it:

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