Observations on the Nature of Civil Liberty, Part XIV: Illogical, Unthinking, Hypocritical Britain, contd.

            Having explored, at length, the extent to which he believed that the campaign being then perpetrated by the government of Lord North upon the Thirteen Colonies accorded with the ideals of justice advocated by that same administration, Richard Price next turned his attention in the text of his Observations to a brief consideration of whether or not the British war on America could in any way be justified by the principles embedded in the British Constitution. The result, as noted, was comparatively quite concise, occupying no more than four paragraphs across the length of Part II, Section II. Whereas it seemed Price was willing to indulge a number of the arguments that had been offered as to why the recalcitrant colonies should have bowed to the wisdom and authority of Parliament and the Crown, the subject of the Constitution inspired in him far less patience. Perhaps it was simply that he understood discussions of population, wealth, and property ownership to be within the realm of acceptable discourse. Certainly he disagreed with the various positions he endeavored to highlight, but exploring the nuances thereof – whether wealth should be a source of sovereignty, for example, of whereof the rights of private ownership derived – perchance did not appear to him to threaten the basic principles of Anglo-American society. Calling into question the very meaning of the British Constitution, however, was likely bound to arouse a far less indulgent response, for no reason more significant than that debate over the first principles of a given society potentially threatened to undermine and unravel everything subsequently built upon them.

            The specific principle to which Price sought to address his efforts was that of the freedom promised by the British Constitution to every citizen of the resulting state. This necessarily included not only freedom from injuries like excessive bail, cruel and unusual punishment, and imprisonment without trial – all of which were explicitly protected against by the Bill of Rights (1689) – but also the freedom to exercise a portion of control over the government of the state in which the individual was considered a citizen. The latter, as Price described it – “The right of a people to give and grant their own money” – was of particular significance, being to his thinking, “The fundamental principle of our government [.]” “It is of no consequence, in this case,” he further explained,

Whether we enjoy this right in a proper manner or not. Most certainly we do not. It is, however, the principle on which our government, as a free government, is founded. The spirit of the constitution gives it us; and, however imperfectly enjoyed, we glory in it as our first and greatest blessing.

Of note here are Price’s dueling admissions that he and his countrymen did not necessarily enjoy this principle in its truest sense and that said principle remained true and valid all the same. On one hand, he appeared resigned as to the quality of Britain’s contemporary political establishment – being, to his thinking, corrupt, unrepresentative, obsessed with luxury, and lacking in discipline or virtue. And yet, on the other, his idealism as to the significance of certain basic legal, moral, and philosophical values had not wavered in the slightest. Whatever Britain had become, in his eyes – and however unlikely he believed that change for the better was possible – the principles upon which the contemporary British state had been founded could not be invalidated or altered without entirely transforming the greater whole. 

            What Price seemed to mean by all this, in practice, was that, regardless of how poorly the British government measured up to the basic values at the heart of relevant constitution, those values did not change, and furthermore should have continued to direct its actions in all matters whatsoever. Thus, while he personally believed that Parliament had by the late 18^th century become an unrepresentative institution desperately in need of reform, he also held and expected that, supposing, “The Colonies of France and Spain had, by compacts, enjoyed for near a century and a half, free governments open to all the world, and under which they had grown and flourished [,]” that his government alike with his fellow countrymen would think ill, “Of those kingdoms, were they to attempt to destroy [said] governments [,]” and would further, “Applaud any zeal [said colonists] discovered in repelling such an injury [.]” While it would be difficult to deny – and Price does not himself attempt to do so – that thus supporting a colonial revolt against the interests of one of its principle rivals would have represented sound strategic thinking on the part of the British government, he was also far from wrong to suppose that such tactical support would have been accompanied by much rhetoric – and much genuine popular sentiment – affirming the righteousness of such a revolt against such a species of tyranny and affirming the importance of individual sovereignty. Thus would Price surely have been pleased to note that, while the occasion was not unalloyed by some amount of calculation, the British government and the British people were nonetheless capable of staying consistent to the values to which they ostensibly ascribed the greatest significance.

            The response of the North Ministry to more or less the same scenario playing out in Britain’s own colonial possessions was, of course, anything but consistent. While the various American colonies then in a state of rebellion had indeed, “By compacts, enjoyed for near a century and a half, free governments open to all the world, and under which they had grown and flourished [,]” and were furthermore peopled overwhelmingly by British citizens in good standing, the administration of Lord North appeared in no way inclined to recognize colonial sovereignty, or to even acknowledge that the inhabitants thereof were entitled to the sympathy of the British people. Recalling that the promise of the British Constitution was fundamentally one of free government, and further adding that, “A free government loses its nature from the moment it become liable to be commanded or altered by any superior power [,]” Price accordingly affirmed that, “In the present instance […] we are not maintaining but violating our own constitution in America.” Arguments to the contrary notwithstanding, this was the essence of the North Ministry’s position. Having claimed to uphold a set of principles, the most important of which was the primacy of free, consensual, representative government, Lord North and his supporters were actively working to stamp out exactly that in their war upon the American colonies.

            The North Ministry would not have bowed to this characterization, of course. To the thinking of its members and supporters, nothing in the Bill of Rights – and very little in the Constitution itself – protected the individual British citizen from being acted upon at will by Parliament or its agents. Whatever actions they had taken, therefore, and would yet take in their campaign to restore order to the rebellious colonies, were entirely consistent with the laws, traditions, and norms of the late 18^th century British state. In fairness, this was not a position wholly at odds with reality. The Bill of Rights, ratified by the so-called “Convention Parliament” on December 16^th, 1689, was intended to set strict limits on the prerogatives of the Crown and establish specific, inalienable liberties on the part of the assembled delegates at Westminster. While, to that end, certain individual liberties were necessarily delineated – the right of Protestant citizens to bear arms, for example, or the right of every citizen to petition the Crown for redress – it was not the individual that said document was explicitly intended to protect. Parliament, rather, was the envisioned object of the bulk of the Bill of Rights’ safeguards, and the Crown the object of almost all of its restrictions. Consider: the sitting monarch was forbidden from suspending or annulling a given statute without the consent of Parliament, forbidden from levy taxes without the consent of Parliament, and barred from interfering in the elections of Parliament, the frequency of sessions of Parliament, or the freedom of speech that operated within Parliament. The prohibition of cruel and unusual punishment and excessive fines likewise operated against the Crown, the British executive being the ultimate authority in matters of justice in the kingdom.

            Parliament itself, meanwhile, was forbidden by the Bill of Rights from doing very little. The reason for this was simple enough. Parliament was considered by definition to be the representative embodiment of the British people. Every borough and county of England, Wales, and Scotland was therein accounted for, and the interests of every resident thereof (theoretically) embodied. There would accordingly have been no more need to protect the people from Parliament than there would have been to protect the people from themselves. The two, it was held, were one and the same. For Parliament to act against the people would thus have entailed Parliament acting against itself. As this was considered to be essentially impossible, no restrictions upon the relevant authority had ever been put in place. Thus could the assembled delegates at Westminster levy any tax they deemed necessary, approve any law they believed desirable, and establish whatever military force they believed was called for, so long as they abided by the rule of the majority and respected certain ancient rites like habeas corpus and trial by jury. Not only did this grant of authority apply to the whole of Great Britain itself, but by the accepted theory of virtual representation – whereby the various members of Parliament were taken to collectively embody, not only the sum total of their various associated ridings, but the entirety of the Britain’s global empire – it was taken to affect every jurisdiction in which the sovereignty of the Crown was recognized.

            It ought to be taken as a given by now that Price fundamentally disagreed with this description of Parliamentary authority. Being, as aforementioned, highly sensitive to the unrepresentative nature of the contemporary House of Commons, he would surely have been among the first and loudest to affirm that Parliament and the British people were in fact not one and the same. Long-term demographic shifts, alongside the rising influence of banking and mercantile interests, had since the late 17^th century served to separate the interests of the average British citizen from those of the average MP. Safeguards, in consequence, were most certainly necessary – in practice if not necessarily in law – until such reforms could be undertaken as might restore the legitimacy of Parliament’s claim to truly speak for every one of its supposed constituents. On the subject of Parliamentary authority over the various British American colonies, this same conviction was perhaps doubly relevant, owing to the even greater physical and material distances which separated the MPs claiming responsibility for making law and laying taxes in America and the citizens intended to acquiesce to the same. If Parliament, as Price vehemently asserted, could not even reasonably represent the inhabitants of the country in which it was itself located, there was no way it could possibly claim to know or to take account of the needs of a population spread across thirteen jurisdictions several thousand miles away.

            Just so, being a devotee of the Lockean characterization of government – and thus holding that institutions inherently served to aid and protect the people directly affected by their authority – Price also doubtless shuddered at the invocation of such a spurious theory as virtual representation. Whereas, in the sense expounded by Locke, government served the needs of its constituents while always paying heed to and respecting their sovereignty, virtual representation essentially held it as acceptable that a government could act upon certain populations – could indeed claim to be acting with their interests at heart – without in any way permitting them to exercise even the slightest degree of influence. By the terms of such an arrangement, it followed, whether a person’s sovereignty was recognized depended entirely upon where in the physical jurisdiction of the relevant government said person lived. While, as with the notion of Parliament acting against the interests of the people, the text of the contemporary British Constitution had almost nothing to say on the matter, Price – and Locke – rightly affirmed that such a practice was wholly abhorrent to the values upon which said Constitution was based.

This issue – as is so often the case – was essentially one of focus. The North Ministry and its supporters appeared determined to adhere to a strictly textual interpretation of the Constitution. As there existed nothing explicit in any part of said charter restricting the ability of Parliament to levy taxes upon or make laws for people it could only claim to represent – or even from abrogating certain of the liberties of the same – Lord North and his cabinet were prepared to take it as a given that there was almost no policy they could adopt that might formally be considered to be unconstitutional. Price naturally objected to this approach, and in doing so pointed instead to the spirit with which documents like the Bill of Rights and the Magna Carta had been drafted and ratified. The various documentary components of the British Constitution had not been enacted for their own sake, after all. Nor were they handed down to the British people from some celestial authority whose knowledge of what was best for humanity did not bear second guessing. On the contrary, the various guarantees, statutes, charters, and rulings which collectively formed the supreme governing charter of the British state represented nothing more or less than the paramount social and political values of the individuals they were intended to affect. To put it another way, documents like the Bill of Rights were as much descriptive as they were proscriptive, in that they reflected the highest principles of a particular community. The restrictions and protections therein were accordingly only a means whereby a desired end might be secured, rather than a desirable end in themselves.

For that matter, said components collectively represented a far from comprehensive mechanism by which justice and liberty could effectively be guaranteed. Without calling into question either the abilities or the intentions of the framers of the Bill of Rights, there was only so much they could have conceivably predicted. Having resolved to address the most pressing issues facing the contemporary British state – i.e. the absolutist tendencies of the monarchs of the House of Stuart – while also endeavoring to put in place such measures as would prevent a resurgence of the same, there was little more they could reasonably accomplish without delving into increasingly abstract conjecture. In consequence, while the resulting Bill of Rights ought fairly to be heralded as a landmark accomplishment in the history of British constitutional law, it must also be distinctly understood as a document necessarily limited by the context of its creation. Consider, to that end, the following. Though the British American colonies upon which the North Ministry effectively declared war in the 1770s were – for the most part – well-established by 1689, the Bill of Rights nevertheless failed to make any explicit mention of Parliament’s authority over the same. Thereby concluding that said document was not constructed with the Anglo-American relationship in mind, it would also seem reasonable to assume that a strict adherence to the Bill of Rights by Parliament could not alone constitute a just course of action vis-à-vis the American colonies.

The events of 1688-89 did not particularly involve the colonies. The events of 1688-89 were about other things. It would therefore have been fundamentally wrongheaded to imagine that the chief constitutional product of 1688-89 should reasonably structure Parliament’s relationship with the same. On the contrary, it was the values upon which the events of 1688-89 pivoted that bore reflecting upon in the context of the Anglo-American crisis. Price seemed to indicate just that conviction, in his characteristically subtle fashion, in the final paragraph of Part II, Section II. “This is a war [,]” he affirmed, “Undertaken not only against the principles of our own constitution; but on purpose to destroy other similar constitutions in America [.]” Noteworthy here was the use of the word “principle” rather than “text.” The author of Observations was not endeavoring to establish that the North Ministry and its supporters were acting in violation of the actual words laid down in the various component documents of the British Constitution. Rather, he was attempting to assert that they had violated the fundamental principles from which those words sprang.

Faced, for example, with the provision of the Bill of Rights stating, “That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal [,]” the North Ministry should have concluded that the authors of said clause intended taxes to be levied by the consent of the taxed rather than at the behest of some alien and arbitrary authority. Just so, the provision of that same document which mandated, “That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law” should also have indicated to the relevant government that the framers of 1689 believed permanent military forces could only be raised via the acquiescence of the communities whom they were likeliest to affect by their presence. By Price’s thinking, the fact that the text of the Bill of Rights did not make it explicit that these principles were to apply in all situations whatsoever should not have been taken to indicate that they categorically did not apply to all situations not expressly delineated therein. The inarguable reality that Parliament was more representative than the Crown did nothing to weaken this argument, much though the North Ministry would have argued to the contrary. “What difference does it make,” Price thus countered, “That in the time of Charles the First the attempt to take away this right was made by one man; but that, in the case of America, it is made by a body of men?” In point of fact, the assembled Members of Parliament seated in 1776 could no better claim to represent the interests of the inhabitants of British America than could George III (1738-1820) himself. The North Ministry’s campaign against the rebellious inhabitants thereof, while perhaps in keeping with the text of the Constitution, therefore almost wholly flew in the face of the principles embedded in the same.