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Historians do not think like lawyers. Colonial Whigs frequently did.The colonists resisting English governance of the colonies made the same arguments that their grandfathers had made in England before the English civil war, the English Glorious Revolution. Legal arguments were made that the English Constitution was a system of customary restraints on what the King and Parliament could do.The constitutional theory of the American Revolution has never been given the credit it deserves. (This is the thesis of John Reid in this excellent book In Defiance of the Law. I agree wholeheartedly and borrow heavily form this work.) This page comments on the constitutional arguments of the revolutionists, especially in regard to the use of military forces to enforce civil law. It is not known generally today by American academic historians that in 1770, the English Constitution@ did not mean what it does today. Today the English Constitution is whatever Parliament says it is. Not so in 1750, according to many lawyers on both sides of the Atlantic. Valid legal arguments could be made that the English Constitution then only was a unwritten system of customary restraints on what the King and the governing body could do.
Consider Lord Camden. In 1766, he was Chief Justice of one of the central common law courts and about to become Lord Chancellor. At that time he warned Parliament that there were steps, including taxing the American Colonies, that it could not take legally. Camden agreed with the theory of the Massachusetts lawyers: that the English Constitution was a system of customary restraints on what the King and the governing body could do. And that customary restraint made it legally improper to tax without the consent of the representatives of the English persons to be taxed. It is necessary for us to understand that the constitutional case of 18th Century American lawyers and Whigs was based on the same unwritten constitution that 17th Century English Whigs used to attack Charles I and James II. For example, Oliver Saint-John, Solicitor General of England, in 1641, before the English Civil War commenced, told the Lords that the law could not proceed in subversion of the unwritten constitution. After the glorious Revolution of England John Toland wrote, in 1701 AParliament neither has nor ought to have an arbitrary power over the lives, liberties, or fortunes of the subjects, and should they manifestly appear to aim at such an execrable design, the whole people may justly call them to account.@ When the British put a standing British army in the colonies, and defended the constitutionality of their standing army in America on the grounds that it was sanctioned by Parliament C American lawyers took the position that a standing army was unconstitutional. The Americans argued that Parliament alone could not give a standing army constitutional sanction. 18th Century Americans thought in terms of 17th Century English theory. The American colonists, in the 1700's, found their constitutional arguments in the arguments of Sir Edward Coke, John Hampden, and John Pym. The Imperial Army in America was a constitutional violation, according to the American lawyers. American lawyers were appealing not to a political theory of what should be; they appealed to what they regarded as a British customary constitution that ordained the legally permissible. Consider a speech of Lord Chancellor Hardwick, to the House of Lords in 1756 in which he stated AA standing army in time of peace, and execution of Martial Law in a time of peace, are against law.@ Lord Chancellor Hardwick was not only the Lord Chancellor at the time he spoke but he had been Chief Justice of the King=s Bench, privy counselor, Solicitor General of England and a Bencher of Lincoln=s Inn. He was there for one of the most prominent common law lawyers of the Century. In short, Chancellor York agreed with the Massachusetts lawyers= argument that the use of British troops in the American Colonies as a standing army available to the governor was an unconstitutional use of force. The English, before their own Glorious Revolution, took the position that the use of a standing army by the government in time of peace was a violation of the rights of Englishmen. The American Colonists used that argument to protest the stationing of English troops (and naval forces to enforce civil laws) in American colonies. Because the local magistrates in Rhode Island and Massachusetts were of a mind that the English troops were an unconstitutional use of force, they, as the civil officials, did not call for troops to keep order or prevent riots. For example, note the plight of Lieutenant Colonel William Dalrymple, commander of the British troops stationed in Boston. When the Boston Massacre occurred the grand jury had indicted and caused the imprisonment of English Army Captain Thomas Preston, to await trial on the charge of murdering unarmed civilians. A Tory Justice of the Peace named James Murray wrote to Dalrymple asking him for troops to escort the prisoner (Dalrymples own officer!) from the jail to the courtroom, because of the real fear for a mob attacking Preston on the way from jail to court. Dalrymple responded that he could not supply troops --- because he could supply troops only if the governor or some greater authority than a single magistrate asked for troops to maintain order. [Adams, letter from Lieutenant Colonel Dalrymple to General Thomas Gage 27 March 1770]. Lieutenant Colonel Dalrymple may well not have been acting (or rather not acting) simply because he knew what the law was, but rather more because he was worried that he himself might be sued in trespass if anyone was hurt by the use of troops. Furthermore, if anyone was hurt the Colonel might have found himself in the same predicament as Captain Preston, that is: indicted by a grand jury and put into jail. Gen Gage, the English General in charge of the English Army in the colonies, also felt that he could only use his troops to suppress riots or mobs if the civil government should call upon him to do so. Accordingly, he thought in the legal situation involved (where government and magistrates did not want the troops used to enforce law): "Troops served more to embroil and create Disturbances than to strengthen the hands of Government and preserve Tranquility" Letter from Gen. Thomas Gage to Lt. Col William Dalrymple, 28 Apr 1770 [Gage Papers] [It is an] absurdity [to keep soldiers in Boston] for the purpose of preserving tranquility & aiding the Civil Magistrate.", the person in charge of the forces agreed. Letter from Lt. Col Dalrymple to Gen. Gage 5 May 1770 [Gage Papers]
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