Tuesday, March 5, 2013 – Essay #12 – Rights of the British Colonies Asserted and Proved by James Otis – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

Rights of the British Colonies Asserted and Proved-James Otis

The Declaration of Rights of the Stamp Act Congress of 1765 set forth the fundamental principle that no taxes could be imposed on them, “but with their own consent, given personally, or by their representatives.” This principle was reduced to the aphorism “taxation without representation is tyranny” and, eventually, “no taxation without representation.” One cannot assign this idea to any individual or movement, as it reflects a long historical struggle between King and Parliament that culminated in the Glorious Revolution and the English Bill of Rights of 1689. For the events immediately leading up to the American Revolution, this aphorism is a key component of the writings of James Otis, a leader of the Stamp Act Congress.

Otis was a leading Boston lawyer when he gained prominence throughout the English colonies in 1761 by arguing the Writs of Assistance Case on behalf of Boston merchants who were challenging the legitimacy of the general search warrants issued by the courts to enforce the Navigation Acts. His nearly-five-hours-long oration asserted in a crucial part that an act of Parliament against natural equity was void, and so was one against the constitution. It should be noted that “constitution” here refers not to a particular charter (the Constitution), as the modern usage typically has it, but in the sense of a fixed, broadly-accepted and inherited collection of premises regarding the manner in which government must operate.

His Rights of the British Colonies Asserted and Proved raised all three themes, taxation, representation, and the problem of “unconstitutional” laws. Taxation, in the classic English constitutional view, is a taking of a person’s property. Such an act is contrary to the law of nature, and does not change its character simply by being done by a political actor. Nor does it matter whether that actor is the one (king), the few (aristocracy), or the many (democracy). Taxation is so dangerous because it has the potential to turn a man into a slave and threatens all other rights. In words that should sound a warning against our own governments’ (federal, state, local) incessant demands for more taxes at high levels unimaginable to the colonists, Otis wrote, “For what one civil right is worth a rush, after a man’s property is subject to be taken from him at pleasure, without his consent?”

 As the last phrase indicates, the solution was consent. Unlike certain other revenues received from his own properties or by ancient prerogative, the king could only “ask” for taxes. Just as any individual could consent to “make a contribution,” so could the people as a whole through the agreement by their representatives in the House of Commons. Taxes were a gift from the people to their king, and the mechanism of consent was representation in the Parliament.

The problem for the two sides as they lurched towards open hostilities and American independence was their conflicting assumptions about representation. Several generations of benign neglect of colonial affairs by the British government had got Americans used to only local assemblies voting funds to support only local government. The new post-French and Indian War realities of the British Empire and the attempt in the 1760s of the energetic young king, George III, to streamline (and pay for) imperial administration, clashed with those American habits.

Americans saw representation as actual and direct. Government was based on the consent of the governed: God was supreme; on Earth there was the power of the whole over the whole; from there, the whole gave the actual power to govern in trust to their governors who must exercise it for the benefit of the whole people. While Americans (or at least some of them) could vote for colonial assemblies, they could not vote for members of Parliament. Hence, they were represented in the former, but not in the latter. Therefore, Parliament no more than the king could demand taxes from them.

The British relied on virtual representation. The system was based on classes. The commons as a class, not as a collection of individuals, made a gift of taxes to the king. Therefore, the House of Commons represented all of them collectively. No member of Parliament represented any particular individual or group of discrete individuals, especially since only about 3% of Englishmen were eligible to vote.

Although various proposals were made by British politicians to accommodate American demands about representation, those efforts eventually failed. Some of those proposals focused on providing the colonists with representation in Parliament. Others looked to a revised constitutional relationship between Parliament (Otis’s “supreme legislative” body) and the colonial assemblies (Otis’s “subordinate legislative” bodies), which the colonists would elect and which would tax them. British policy-makers increasingly saw the Americans as intransigent against any taxes and bent on separation from Britain. One piece of evidence the British pointed to was the Stamp Act Congress’ declarations that the problem was not just that Americans were not represented in Parliament, but that they could not be. Instead, those declarations asserted that no taxes could ever be levied on Americans except through their own legislatures. This was far more radical than Otis’s plea for representation in Parliament on the same basis as the residents of the British realm.

Otis also raised the question of what to do in regards to laws that violate the “constitution.” He argued that only omnipotent, omniscient, and perfect God can “make the law” (jus dare); the state sovereign can only “declare the law” that already exists (jus dicere). This is an interesting twist on the usual view that the legislature makes the law, while the courts only declare the law as it exists. Otis was saying that God makes the higher law, the natural law that is eternal and immutable, to which all human law must conform. Parliament cannot act contrary to God’s natural law (such as by passing a tax on unrepresented persons), and any such “law” would be void. In a preview of our system of constitutional judicial review, he (mistakenly) asserted that the British courts would declare such a law void.

In the meantime, he avowed that there was no right to disobey a bad law. Parliament was uncontrollable by anyone but itself. For both philosophical and pragmatic reasons, individuals and inferior legislatures could not refuse obedience. Instead, British subjects (including Americans) had the right to petition Parliament and the king and to persuade them of the unconstitutionality of governmental policies. This was the cautious approach of the 1760s, to be replaced in the 1770s by more pugnacious claims about the right to revolt against unconstitutional acts. Just contrast Otis’s benign view of King George as looking out for the good of his people and possessed of perfect intentions of justice, goodness, and truth, with Jefferson’s indictment of that same monarch in the Declaration of Independence little more than a decade later as a monstrous usurper straining to oppress the long-suffering Americans.

Historians have accused Otis of inconsistent reasoning and a failure of conviction in his refusal to take his claim that Parliament’s laws are tyrannical and contrary to natural law (and, hence, void) to its conclusion of a right to disobey. But Otis was simply following centuries of similar writers who were repulsed by the dangers of anarchy and the bloodshed of revolutions and saw discretion and delicate maneuvering in such matters as preferable to loud calls for disobedience. Political theory had been incrementally moving towards a right of revolution, but Americans in 1765 did not yet find that acceptable, either ideologically or emotionally. Within a few years, the temper would change and the benefits of revolutionary change and the dangers that had concerned thoughtful writers would manifest themselves, in the American and French experiments, respectively.

Read Rights of the British Colonies Asserted and Proved by James Otis here: http://www.constitutingamerica.org/blog/?p=3432

 An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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