More Than Mere Taxation
John Dickinson on Authority and Resistance
The memes were top-notch this Independence Day. Washington body slamming red coats WWE style, lighthearted mocking of British manners and grammar, firework mishaps, all of it. A common sentiment, often expressed in meme form, that crops up every Fourth of July—usually it’s the libertarian-leaning accounts—is that the revolution (if you’re American), or rebellion (if you’re British), or insurrection (if you’re a liberal) was all about taxation. Taxation as such, that is. As if war was sparked and separation from Britain initiated because something like the equivalent of George H. W. Bush’s promise, “No new taxes,” remained inchoate and Bostonians tarred IRS agents for it in response.
The Stamp Act and other of the intolerable levies might have provided the occasion for revolt but it was more fundamentally a constitutional crisis—a question of authority structure—that animated colonial frustration. For most, the crisis was merely felt, for others it was more fully theorized and explicated. Enter John Dickinson (1732-1808) for the latter camp and his 1774 Essay on the Constitutional Power of Great-Britain Over the Colonies in America, which has much overlap with arguments made years earlier in Dickinson’s pseudonymous Letters from a Farmer (1767-1768).
This time, Dickinson made them in his own name and on behalf of the Pennsylvania Provincial Committee, as part of the network of the so-called committees of correspondence, meeting in mid-July 1774. It was determined by the members of the Committee, composed of deputies from all seven counties of Pennsylvania, that Dickinson’s “sketch of all the grievances of the colonies, and of course of their constitutional rights,” should be attached to the Committee’s list of resolutions. (Dickinson authored the Declaration of Rights and Grievances (1774) in October of the same year.) Dickinson’s Essay was accepted as an explanatory companion to Pennsylvania’s complaints. Therein we find out what all the hullabaloo was about and, perhaps, a lens through which we can examine our own modern grievances relative to the constitutional order.
Dickinson begins with the basics. “The happiness of the people is the end, and, if the term is allowable, we would call it the body of the constitution. Freedom is the spirit or soul.” Just as the soul “has a right to prevent or relieve, if it can, any mischief to the body,” to care for its health, so too does the soul of the constitution have a prerogative to preserve or repair “mischief to the body of society.”
What is the “freedom” in view? Later in the Essay Dickinson equated freedom with the “rights of Englishmen,” which meant “being governed by laws, in which no alteration can be made, without their consent. Yet the wholesome force of these laws is confined to the limits of their own country.” Freedom for Dickinson is historically conditioned expectations of being governed in a certain way unto the “happiness” of the people. In other words, being governed well as Englishmen. The unit in view is not the individual, the scope of freedom not universal, and the meaning of happiness classical. And, obviously, the political conditions were not democratic.
Dickinson’s point in this kind of body-soul analogy becomes evident as he progresses through his case. He quotes Bishop Benjamin Hoadly (1676-1761) and his The Original and Institution of Civil Government (1710). Dickinson cites Hoadly twice and Richard Hooker’s Laws of Ecclesiastical Polity twice, Blackstone’s Commentaries more often; Locke’s Second Treatise is only mentioned in a lengthy footnote. Noteworthy is that Dickinson the Quaker appeals only to men of the established church in the body of the Essay. This choice may be purely rhetorical but it at least speaks to the source material and influences of the founding generation.
Hoadly, as quoted by Dickinson: “[T]he ends of government cannot be answered by a total dissolution of all happiness at present, and of all hopes for the future.” This preliminary point is not a formality. It is foundational for Dickinson’s case against Britain’s treatment of the colonies and the latter’s resultant protestations.
What is the limit of authority, even of royal prerogative and certainly parliamentary regulation? What is the “boundary” of all law? Without the end of government established, answers remain elusive or skewed—as James Otis instructed, the purpose and telos of government is more essential than its origin.
The constitutional controversy in brief, as Dickinson conceived it, was one over parliamentary authority. Both “general power of internal [i.e., domestic] legislation” as well as regulation of (external) trade of the colonies was claimed by parliament to colonial consternation. The latter was granted, said Dickinson, but the former was not. Internal policy was, as John Adams argued in the Novanglus Letters (1774-1775), reserved to the colonies via royal charter just as it would later be maintained by the states (i.e., police powers) under the American Constitution.
Domestic or internal policy included matters of religion, trials, and, yes, taxation. The provincial or colonial legislatures assumed an “exclusive right of internal legislation.” Parliament had subverted this assumption not only in the Stamp Act and the Sugar Act that preceded it, but the other Coercive or Intolerable Acts of 1774, including (perhaps especially) the Quebec Act, all of which sprang from the Declaratory Act of 1766 under which Parliament assumed the right to legislate in “all cases whatsoever.”
This assumption of absolute or “supreme” authority corrupted the constitutional arrangement which, in Dickinson’s view, had been slowly eroded over the prior century. No historical precedent supported Britain’s case, but even if it had, a higher principle would control.
Dickinson’s Essay has much in common with Jefferson’s Summary View of the Rights of British America (1774) insofar as both adopt a version of the “dominion theory” of the English monarch as a “common sovereign” over the entire British empire but outside the realm of England proper. Under this model, the American colonies were similarly situated to, for example, Ireland which also had a distinct, native internal legislature. This move, of course, was designed to limit the legislative authority of parliament. To this end, Jefferson introduced a sort of monarchical preemption doctrine wherein the king should veto any legislation passed by one constituent of the realm “which might bear injuriously on the rights and interests of another.” This was a call, as Eric Nelson puts it, to “wrest the independent powers of the monarchy away from his parliamentarian ministers in order to rescue the imperial constitution.” Part of Jefferson’s complaint was that the king, on the advice of his parliamentarian ministers no doubt, had regularly exercised his veto against sensible colonial legislation but not the other way around.
Dickinson, though less friendly to monarchy than some of his compatriots, agreed that the colonies sat outside the realm of England—it had never been annexed—and, therefore, were only subject to laws of parliament (i.e., the king-in-parliament) directed at or purposed for trade throughout the empire, a power predicated on the king’s headship and necessitated by uniformity and cooperation at that level. Domestic legislation was another matter entirely.
All of this might strike the modern reader as rather academic, but the distinction was central to the patriot cause and, in a way, remains central to American federalism. For Dickinson’s Essay, the point is intricate to justify protest (if not yet then outright resistance). Dickinson admitted that the “connexion of the colonies with England” was a “delicate” matter, one that, as a legal question, had to comprehend particular circumstances. As a principle of common law, drawn from Blackstone, Dickinson proposed that while the colonies were undoubtedly under common law jurisdiction, they were so only to the extent that common law precedent could be conformed to their peculiar context.
On the one hand, this was practical. But Dickinson was much concerned with such mundane adjustments. More interesting was the extent to which colonial political circumstances and experience required their own legislatures to intervene. An overarching principle of law (and of resistance) was required, for “practice must likewise be agreeable to the principles of the law, in order to be good.”
By sheer reason of proximity and familiarity, a foreign legislature could not adequately care for “the peace and welfare of the community.” If such a legislature insisted on passing laws for a distant people, submission of the recipients might be prudent, for sometimes it was “a less evil than opposition.” On that basis, submission was not truly to the “assumed authority” but to “divine authority” as a matter of conscience for care of the community.
“But when submission becomes inconsistent with and destructive of the public good, the same veneration for and duty to the divine authority, commands us to oppose. The all wise Creator of man imprest certain laws on his nature. A desire of happiness, and of society, are two of those laws. They were not intended to destroy, but to support each other, Man has therefore a right to promote the best union of both, in order to enjoy both in the highest degree.”
Dickinson refers to Richard Hooker for the right of society, “upon experience of universal evil,” to “try by another form to answer effectually the ends of government.” No law and no lawgiver can serve to destroy the object of law, viz., society itself. Society is wrapped up in man’s very nature; he is sociable and desirous of true happiness (i.e., good life) with others. Dickinson does not reduce the life of society to mere material survival of its members, but rather the extension of society in congruence with its norms, customs, traditions, and history which spawned it and are, in a sense, synonymous with it.
Thus far we have three arguments: 1) parliament could not well regulate the domestic life of the colonies because of its distance and historic practice; and 2) given that the colonies were positioned outside the realm, and possessed domestic legislatures, only the king properly had jurisdiction over them and, by extension, parliament could therefore regulate external matters (e.g., war and trade) that pertained to “the whole nation”; and 3) a higher law rooted in human anthropology invalidates laws that threaten to destroy society itself. Loud protestation at least was defensible on these grounds.
Parliament could not be a “supreme legislature” over the colonies because it did not represent them, virtually or otherwise. The rights of Englishmen included the right of representation to facilitate consent to laws that would govern them (domestically or internally). This was being denied. More dire was that the acts of parliament under review by Dickinson presented such disruption and angst in the colonies; they threatened the way of life to which they were accustomed. Further, the acts subverted the constitutional order, the legislative distribution of labor and competency, and the established hierarchy of authority, to the detriment of the people.
It was not an increased tax rate or new duties that exercised Dickinson, but these fundamental constitutional conundrums that threatened domestic tranquility and national cooperation, and ultimately the socio-political longevity of the colonies. In this way, Dickinson provides texture to the colonial protestations celebrated on July 4th. More pressingly, Dickinson’s recitation of the grievances of Pennsylvania and her sister colonies provides a rubric by which present political upheavals can be measured and understood. Query whether contemporary Americans are experiencing anything analogous to the constitutional crisis of authority Dickinson outlines: increasingly out of touch or foreign legislatures assuming supreme power to subject distant, ill-understood constituencies to laws inconsiderate of historic ways of life and unconducive to the common good of the same, contrary to the ends of government.
Image Credit: John Dickinson Portrait by Charles Wilson Peale, 1782. In Independence National Historic Park, Philadelphia