Seventeenth- and eighteenth-century political theory provided three models for conceptualizing the relationship between the colonies and Great Britain.
British authorities and American loyalists maintained that the colonies were part of the British Empire. This position entailed that Parliament had the same absolute sovereignty over the colonies as Parliament had over every other foot of the British Empire. Parliament might choose to establish subordinate legislatures in the colonies, but whatever powers those legislatures exercised were at the sufferance of Parliament. Francis Bernard, a royal governor and champion of this view, declared that “All external Legislatures must be subject to, and dependent on, the Imperial Legislature: otherwise there would be an Empire in an Empire.”
Such prominent colonists as Richard Bland and James Wilson insisted that the colonies and Great Britain had formed a federal union. Samuel von Pufendorf in his influential Of the Law of Nature and Nations (1672) defined a federal union as one in which independent nations “submit only some certain parts of the sovereignty to mutual Direction.” Bland and Wilson adopted this model when maintaining that the first settlers in the Americas had founded independent nations and had subsequently formed a federal union with Great Britain. Bland thought the federal union between Great Britain and the colonies allocated to Parliament the power to manage trade, foreign affairs, and military matters, while colonial legislatures retained exclusive authority over all domestic matters. Wilson maintained that a federal union allocated to Parliament the power to made laws for Great Britain and to colonial legislatures the power to made laws for the colonies, but provided that both American and British subjects retain allegiance to the Crown, which managed common affairs. Wilson declared, “Allegiance to the king and obedience to the parliament are founded on very different principles. The former is founded on protection: the latter, on representation.”
(p. 233) A few commentators thought this dispute between Britain and the colonies could be mediated by the formation of an incorporating union in which Americans enjoyed representation in Parliament. During the 1760s and 1770s, Francis Bernard and others made occasional proposals to form a more incorporating union between Great Britain and the colonies. None received serious attention.
Francis Bernard, The Principles of Law and Polity, Applied to the American Colonies (1764)1
Sir Francis Bernard was the royal governor of New Jersey from 1758 to 1760 and then the royal governor of Massachusetts from 1760 to 1769. While in office, Bernard vigorously defended absolute parliamentary sovereignty over the colonies. Working from the conventional understanding that sovereignty is absolute and indivisible, he concluded that the colonists could not plausibly claim that Parliament enjoyed absolute sovereignty over some matters but not over others. Bernard nevertheless believed that, as a practical matter, Americans should enjoy representation in Parliament. He urged Parliament to establish an American nobility and rejigger colonial boundaries so as to better secure effective government in the colonies.
The Principles of Law and Polity, Applied to the American Colonies is Bernard’s most influential statement on absolute parliamentary sovereignty. The pamphlet influenced both parliamentary supporters of American taxation and the American revolutionaries. Many revolutionaries, most notably John Adams, couched their arguments against parliamentary sovereignty as criticisms of Bernard’s basic principles. Consider when reading the excerpt below whether Bernard’s proposals on a more incorporating union might have been acceptable to the colonies. There were clear theoretical differences between his views and those of John Adams, but perhaps the practical differences were less than meets the eye.
(p. 239) Samuel Von Pufendorf, Of the Different Forms of Government (1672)2
Baron Samuel von Pufendorf was a prominent German statesperson and political thinker during the mid-seventeenth century. His most important work Of the Law of Nature and Nations (1672) influenced enlightenment and colonial thinking on the nature of political regimes and the role of states in the international system. Pufendorf is often credited with developing the concept of a federal union. Of the Law of Nature defines such a union as rooted in an agreement between two or more states not to exercise part of their sovereignty independently. Parties to a federal union might fashion a constitutional order that vested each state with the exclusive authority over purely domestic matters, while creating a separate institution in which all confederation members were represented that was authorized to determine when the federal union as a whole would go to war.
Pufendorf distinguished federal unions from treaties on the basis of whether the member states agreed not to exercise part of their sovereignty. Nevertheless, he insisted that each nation retained the right to determine independently whether remaining in a federal union was in the national interest. The premise became crucial to compact theory in the United States during the nineteenth century.
Richard Bland, An Enquiry into the Rights of the British Colonies (1766)3
Richard Bland was a prominent Virginia statesperson, an influential pamphleteer and relative of Thomas Jefferson. His work played an important role in elaborating the distinction many colonists made between internal matters, on which colonial legislatures were sovereign, and external matters, on which Parliament was sovereign. Bland insisted that Americans had formed a distinctive political society when they emigrated from England. The society was united in a federal union with England, but that union was limited to such matters as trade and common defense. Parliament, on Bland’s theory, had no power to pass such measures as the Stamp Act, because that was an internal tax.
An Enquiry into the Rights of the British Colonies was Bland’s most influential statement on the distinction between internal and external matters of governance. Bland maintained that all persons had a fundamental right to form new societies, that the colonists had exercised this right when immigrating to “uninhabited” North America, and that, after doing so, these settlers were no longer bound by the parliamentary law, except to the extent that they had subsequently consented to forming a limited federal union with Great Britain. Unlike many American pamphleteers, Bland did not speak of Americans enjoying the rights of Englishpersons. Those were renounced when they emigrated. Instead, the argument in An Enquiry is based on natural law.
James Wilson, On the Legislative Authority of the British Parliament (1774)4
James Wilson was a very important legal and political thinker in the Americas during the late eighteenth century. Wilson signed the Declaration of Independence, participated actively in the convention that drafted the Constitution of the United States, led the ratification fight in Pennsylvania, and was an original member of the United States Supreme Court. Wilson’s writings developed the position American revolutionaries took on the eve of the American Revolution that the colonies were subject only to the English king and not at all to Parliament. Wilson’s analysis of the federal union between the colonies and Great Britain either replaced or refined the distinction between internal and external regulation that many colonists, most notably Richard Bland, elaborated during the 1760s in response to the Stamp Act.
On the Legislative Authority of the British Parliament sets out Wilson’s theory that the Crown was the only institution authorized to make policy for the North American colonies. Parliament had no authority over the colonies, in Wilson’s view, because parliamentary authority was based on representation and Americans were not represented in Parliament. The king retained authority over the colonies because the king promised to protect the colonies when they were first established. This premise soon provided the justification for independence. If the king withdrew protection, as the Declaration of Independence claimed, then Wilson’s analysis of the foundations of royal authority over the colonies provided legitimate grounds for Americans to withdraw their allegiance to the Crown and Great Britain.
