However
successful James Otis may have been in his attempt to demonstrate – via the
medium of his 1764 treatise Asserted and
Proved – that the British Parliament had indeed erred by passing the Sugar
Act and laying a tax upon a people which it did not represent, there remained the
question of what to do next. It was one thing to prove that the Sugar Act was
invalid, that its existence threatened the constitutional integrity of the
British Empire, and that it was in need of repeal. Accomplishing all of these
things would still have left unaddressed a larger and more serious problem.
Having approved such legislation before, what structural elements existed
within the contemporary constitutional order to prevent Parliament from doing
so again? To put in another way, what reforms were needed for the British state
to successfully avert the looming catastrophe that the passage of the Sugar Act
had unwittingly revealed? These were big, consequential, and complicated
questions, the answers to which may well have held within them the salvation of
an empire at the height of its power and glory. Never the type to be easily
dissuaded when he knew he was right, James Otis naturally attempted to answer
them. Asserted and Proved therefore
contains both a systemic critique of the Sugar Act and a thoroughly-reasoned
proposal by which the flaws it had exposed in the contemporary constitutional
order might have been successfully repaired.
The
problem, Otis seemed keen to impart, was largely one of clarity. It was not
clear, to his thinking, precisely how the relationship between Parliament and
the various colonies of British American was supposed to function.
Specifically, it was nowhere spelled out which responsibilities fell within the
jurisdiction of Westminster and which were rightfully the remit of the various
colonial legislatures. Certainly the former were subservient to the latter – a
contention which Otis repeated again and again – but what did this mean in a
practical sense? To what degree did functional subservience give way to the
God-given liberties of a sovereign people? In seeking to answer these questions,
Otis formulated a rather subtle premise. “It is often very difficult,” he
asserted,
For great lovers of power and
great lovers of liberty, neither of whom may have been used to the study of
law, in any of its branches, to see the difference between subordination,
absolute slavery and subjection, on one side; and liberty, independence and licenciousness,
on the other. We should endeavor to find the middle road, and confine ourselves
to it.
The issue that Otis evidently hit
upon was that subservience was possessed of a specific legal significance that
did not necessarily conform to its casual usage within the contemporary public
discourse between Parliament and the colonies of British America. To claim that
the various colonial assemblies were subservient to Westminster should
therefore not have been misconstrued to mean that Parliament was free to pass
whatever legislation it pleased regarding America while the colonists were free
only to obey and abide. The relationship was more complex than that.
There
were things that Parliament could do in America and things that it could not. It
could make law for the colonies, for example, regulate their trade, establish
courts, and assign military forces. In the sense that the colonial legislatures
could not legitimately countermand actions that fell within these categories,
Westminster was superior. At the same time, however, Parliament could not levy
taxes upon the colonies in order specifically to generate revenue. That
responsibility rested solely with the colonial assemblies. This did not
necessarily make them superior to Parliament – in that they were not claiming a
prerogative which Westminster had traditionally possessed – but it certainly
placed a hard limit on what Parliament could achieve in America solely upon its
own authority. Thus was America subordinate to Britain without being enslaved. Otis
found evidence for this contention in the history of Britain itself, and
specifically within the corpus of law and legal commentary relating to an
integral component of the contemporary British Empire. “The laws, the
proceedings of parliament, and the decisions of the judges, relating to
Ireland,” he declared accordingly, “will reflect light on this subject,
rendered intricate only by art.” What followed was a characteristically
thorough analysis that favored a close reading of precedent over any broad
assumption of power.
Before delving into the specifics
thereof, however, a few points about the historic relationship between
England/Britain and Ireland would first seem worthy of comment. First, and in
all likelihood foremost, Ireland was indeed an independent political entity
from the Kingdom of Great Britain at the time of the publication of Asserted and Proved in 1764. Indeed,
there was no point in the history of England/Britain’s relationship with
Ireland up to that point when this wasn’t the case. The Lordship of Ireland,
created by Henry II (1133-1189) in 1171 with the nominal permission of the
Papacy, was from its inception a distinct legal entity from the contemporary
Kingdom of England. Henry and his heirs accordingly ruled as Lords of Ireland over
a territory possessed of its own laws, customs, nobility, and legislature and
were off-times forced to compete for practical influence over domestic affairs
with both indigenous Gaelic Irish lords and transplanted English baronial
families. Greater consolidation followed the proclamation of the Kingdom of
Ireland in 1542 and a failed rebellion against Elizabethan rule in the late
1590s – notably resulting in the establishment of a highly Anglo-centric
administration in Dublin – though the island continued to possess a distinct
legal identity well into the 18th
century. The Parliament of Ireland was perhaps the most potent symbol of this
state of affairs, unrepresentative of the Irish population and detached from
their will though it may have been.
Catholics, along with Protestant
dissenters like Presbyterians, Baptists, and Methodists, were notably excluded
from standing for election in the Kingdom of Ireland, and between 1728 and 1793
from voting for those who could stand. And while its members did possess sole
formal authority over the levying of taxes upon the Irish people, numerous legal prohibitions were placed upon the autonomy of the
Irish Parliament by both its own members and various English and British
governments. Poynings' Law, for example, was approved by the former in 1494, to
the effect of declaring that the Parliament of Ireland could not convene until
its proposed legislation was approved by both the Privy Council and Lord Deputy
of Ireland and the Privy Council and monarch of England. Granting that this
restriction did not remove the singular right of the Irish Parliament to raise
taxes, it most certainly limited the ability of the contemporary Irish
government to practice the autonomy it legally possessed. The passage of the
Dependency of Ireland on Great Britain Act (1719) by the Parliament of Great
Britain carried this state of affairs further still by affirming in plain and
unambiguous language that Westminster in fact possessed, “Full power and
authority to make laws and statutes of sufficient validity to bind the Kingdom
and people of Ireland [.]” While this statute also formally excluded any claims
to an unlimited right of taxation, it nonetheless made it abundantly clear to
all concerned in Britain and in Ireland that the latter was most certainly
subservient to the former. That the Parliament of Ireland did not contest this
fact doubtless lent it still further credence.
As to Otis’ aforementioned desire
to compare contemporary Ireland to America, therefore, the resemblance between
the two was indeed substantial. As of the early 1760s, both of them formally acknowledged
the British monarch as their sole and rightful Sovereign while maintaining
separate domestic institutions from that of Britain proper. Both entities – or
rather each of them, for British America of course contained over a dozen
separate colonies – also granted the superiority of Parliament over their own
local legislatures. Ireland could not and did not claim to countermand the
edicts of Westminster, Otis affirmed, and neither did America. Indeed, their
principle difference was more philosophical and moral than it was material or
functional. Whereas Ireland had been conquered, America had been settled. This
may now seem like something of a semantic distinction, but Otis argued at
length in Asserted and Proved – via
reference to numerous court decisions and legal commentaries – that it was
anything but.
Having been brought into the
orbit of the British Empire by force of arms, Otis believed that it was
permissible by the commonly-understood rules of war for successive English and
British governments to treat Ireland as though it were essentially the property
of the reigning monarch. While this did not mean that Parliament was free to
treat the Irish people in whatever way its members saw fit – “A conquered
country has, upon submission and good behaviour, the same right to be free,
under a conqueror, as the rest of his subjects [,]” Otis maintained – it was
unquestionably the prerogative of said monarch to alter the government and/or
laws of that island as they believed were necessary or desirable. The end
result was something of a compromise. Ireland possessed a government, a
parliament, justices, nobles, and laws of its own. Any of these could be
altered or affected by the edicts of Westminster – in which this Irish people
were not represented – but that body was at the same time incapable of levying
taxes upon the citizens of Ireland directly. Thus, in practice, the Kingdom of
Ireland existed as a subsidiary but legally distinct entity from Britain proper
within a larger global empire. America, Otis maintained, was also both
subsidiary to and legally distinct from Britain itself, and having been settled
peacefully and independently would seem to have been entitled to at least the
same degree of autonomy and justice as conquered Ireland. That this did not appear
to be the case was accordingly the crux of Otis’ investigation. Indeed, it
appeared to him, in spite of the authorities he cited from within British
history and law in support of his claim, that America was increasingly
worse-off than Ireland, particularly in light of the passage of the Sugar Act
and the implications that it portended.
Adhering to the core conceit of
the English Common Law tradition, Otis proceeded in Asserted and Proved to first seek out the precedents he believed
could speak to the nature of the formal, legal relationship between
England/Britain and Ireland. He cited several sources to that end, one of the
most prominent being the aforementioned legal scholar Edward Coke’s seminal
treatises, Institutes of the Lawes of
England, printed in four parts between 1628 and 1644. As a practical digest
of the major principles, cases, and statutes of contemporary English law, Institutes functioned as one of the
primary authorities upon Common Law jurisprudence well into the 18th
century. Quoting from the fourth part of this series, page three hundred and
forty-nine, Otis – via Coke – declared that, “Ireland being of itself a
distinct dominion, and no part of the kingdom of England [...] was to have
Parliaments holden there as in England.” Here, it appeared, in the words of one
of the foremost legal authorities in English history, was a clear affirmation
of the fundamental separateness of Ireland from England, to the point that the
former was to possess a legislature of its own. Building upon the implications
thereof, Otis next cited the third part of Institutes,
page three hundred and fifty. “Sometimes,” Otis quoted Coke as writing, “the
King of England called his Nobles of Ireland, to come to his parliament of
England, &c. and by special words, the parliament of England may bind the
subjects of Ireland [.]” Thus, Otis affirmed, yet further evidence of the
distinctiveness of Ireland from England. Parliament could not simply pass laws
for the Irish people – presumably including the laying of taxes – upon its own
authority, but rather required the monarch in his capacity as King of Ireland
to summon his lords there and proceed via their cooperation. This, of course,
stood to reason. Westminster seated no Irish members prior to the Act of Union
(1800). That the Crown and Parliament collectively acknowledged a need for the
presence of the same upon the passage of certain measures thus appeared to
confirm the validity of existing constitutional restrictions against governing
unrepresented peoples.
This was not necessarily the end
of the matter, Otis next admitted, though it was neither a wholly invalid point
of fact. Since the publication of Coke’s Institutes
in the middle of the 17th century, certain events had indeed
transpired to alter the nature of the relationship between the parliaments of
England/Britain and Ireland. The aforementioned Dependency
of Ireland on Great Britain Act – also known as the Declaratory Act, 1719 – was
most certainly foremost among them, having clarified and asserted the ability
of Westminster to make laws to bind the people of Ireland without the need to
consult the government of that selfsame kingdom. In spite of how definitive this
might sound, however, the circumstances of its passage seem to denote an
aspiration after pride rather than power. Flowing out of a 1709 lawsuit between
two cousins over the disposition of some property in County Kildare, the
Declaratory Act was essentially intended to punish the Irish House of Lords for
attempting to defy the authority of its British counterpart. When one of the
plaintiffs in the relevant land suit appealed to the British Lords in their
judicial capacity after the Irish Lords decided against them, the British Lords
found in his favor and nullified the earlier judgment. The Irish Lords
subsequently refused to acknowledge the invalidation of their finding and
ordered the officers responsible for fulfilling the results of the suit imprisoned
when they attempted to comply with the British ruling. In response to the
controversy that resulted, the House of Commons at length determined to strip
the Irish House of Lords of its judicial authority and affirm the right of the
British Parliament to make law for the Kingdom of Ireland.
In light of these
facts, it would indeed seem improper to characterize the Declaratory Act as
anything other than a power grab. In response to what observers even then
described as a trifling lawsuit, Parliament substantially increased the
authority of both the House of Commons and the House of Lords over the government
and people of Ireland. The assumption, however, was not absolute. Parliament
did not take complete control of the government of the Kingdom of Ireland, a
fact made plain by the continued existence of even a subsidiary Irish
parliament. This accordingly begs the question of whether or not Westminster
was in fact capable of doing reducing Ireland to an entirely unrepresented
domain of the Crown. For his part, and based on the facts at hand, Otis
concluded in Asserted and Proved that
the Declaratory Act – in spite of its rather authoritative language – showed
the limits of Westminster’s authority over a subsidiary government by failing
to do exactly that. “This parliamentary power must have some bounds,” he wrote,
referring to the statute in question,
Even as to
Ireland, as well as the colonies who are admitted to be subordinate ab initio to Great Britain; not as conquered, but as emigrant subjects. If this act should be said to be a declaration
not only of the general, but of the universal power of parliament, and that
they may tax Ireland, I ask, Why it has never been done?
The point Otis
raised was undeniably a cogent one. It would have been so much easier if Parliament
had simply abolished its Irish counterpart and proceeded to levy whatever taxes
it deemed expedient directly upon the Irish people. Indeed, it would have been
easier still if an Irish Parliament had never been erected in the first place,
thus alleviating any question as to whether Westminster’s authority was in any
way limited upon that island. The fact that this did not take place – that
conquered Ireland was granted a parliament whose authority Westminster was
thereafter forced to contend with – was further more proof to Otis that, even
in cases of subsidiary governments, the link between taxation and
representation was well-attested in Britain’s Common Law tradition.
Otis posited yet more proof of this
principle in the text of Asserted and
Proved by also drawing attention to the historical relationship between
England and Wales. Like Ireland, he reminded his audience, Wales had been
conquered through force of arms – specifically by Edward I (1239-1307) between
1277 and 1283 – and thereafter incorporated into England’s burgeoning feudal
domain. Initially, through the promulgation of a document known as the Statute
of Rhuddlan (1284), Wales was made a separate but subsidiary realm of the
English monarch within whose jurisdiction a mixture of English Common Law and
indigenous Welsh law was recognized and dispensed by a court situated at
Caernarvon. This state of affairs remained in place until the reign of Henry
VIII (1491-1547), under whose authority the Laws in Wales Acts (1535, 1542)
were passed. Under these statutes – sought by Henry as a means of disarming
certain local landowners – Wales was formally annexed by the Kingdom of
England, divided into counties, and assigned representation in the English
Parliament. In consequence, while the validity of Welsh law was no longer
recognized and Wales could no longer consider itself even a subordinate realm
of the English Crown, the Welsh people thereafter enjoyed equal status under
English law and equal representation in the legislative process.
As to how such a recounting of the
legal and political status of Wales within the British Empire related to the
equivalent status of either Ireland or America, Otis helpfully summed up the
relevant implications. “A very strong argument arises from this authority, in
favor of the unconquered
plantations,” he wrote.
If since
Wales was annexed to England, they have had a representation in parliament, as
they have to this day; and if the parliament of England does not tax Ireland,
can it be right that they should tax us,
who have never been conquered, but
came from England to colonize, and
have always remained good subjects to
this day?
Thus was Otis able
to draw from English law and legal commentary a fairly definitive rejection of
the recent passage of the Sugar Act. As the evidence he had compiled made
clear, political subordination, representative government, and taxation were
concepts that the Common Law and the British Constitution had come to define
very narrowly. There were certainly such things as subordinate governments to
Westminster within the framework of the British Empire. Ireland was undoubtedly
one. Wales before its formal annexation had been another. America, Otis argued
at length, was a third, though it was far less centralized than the others.
Each of these realms was a subject of the Crown and bound by the laws of
Parliament, yet all were nonetheless entitled to certain basic guarantees.
The supremacy of
Parliament notwithstanding – a principle with which Otis did not argue – the
people of Wales, Ireland, and America alike were, by the dictates and
precedents of the British Constitution, possessed of the right to be taxed only
by the acquiescence of themselves or their chosen delegates. The Welsh had been
secured in this essential liberty by their incorporation into England proper
and their subsequent election of representatives in Parliament. The Irish
enjoyed much the same protection – albeit within a more contentious social and
legal framework – through their possession of an indigenous parliament in
Dublin. The Americans, however, were not so fortunate. They might have been,
Otis argued, and most certainly should have been. The various colonies each
possessed a legislature of its own, within which the responsibility for levying
taxes upon the represented peoples was rightfully lodged. That Parliament
failed to recognize this was most certainly an error on the part of its
members, their affirmations to the contrary having no bearing upon the case at
hand. “It may be said that these authorities will not serve the colonists,”
Otis thus wrote,
Because the
duties laid on them are by parliament. I acknowledge the difference of fact;
but cannot see the great difference in equity, while the colonists are not
represented in the house of commons: And therefore with all humble deference I
apprehend, that ‘till the colonists are so represented, the spirit of all these
authorities will argue strongly in their favor.
In attempting to
adhere to a principle explicitly codified by the Bill of Rights – “That levying
money for or to the use of the Crown by pretense of prerogative, without grant
of Parliament […] is illegal” – the government responsible for the passage of
the Sugar Act had evidently lost sight of its intended purpose.
The precept in question – proposed and approved in Parliament in 1689 – was not meant to grant
authority for the passage of all taxes applicable across the width and breadth
of the British Empire solely to Westminster. Rather, it was intended to protect
the right of the British people to be taxed only by an authority over which
they could reasonably exercise some degree of control. While previous
government had evidently – and rightly – chosen to observe this principle in
their dealing with both Wales and Ireland, the contemporary administration of
George Grenville had not done so in its actions towards America. Beyond laying
duties on certain goods as a means of regulating the economy of the larger
British Empire – a responsibility Otis affirmed was the, “Just and equitable
right of parliament […] when they think the good of the whole requires it” –
Grenville and his ministers had sought to invade the traditional prerogative of
the colonial assemblies by an edict of direct taxation. They had, in effect,
reduced the people of America – the offspring of peaceable settlers – to
something less than the progeny of conquered enemies. The British Constitution
made no allowance for such actions, and the Common Law provided no examples of
how it might be properly done. Otis therefore concluded that it should not be
done, and if done should be corrected forthwith.
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