The Age of the Federalists

Abstract

In 1766, parliament passed the Declaratory Act, proclaiming that Westminster had full power to make law binding the colonies “in all cases whatsoever.” The notion of parliamentary sovereignty which it reflected was one generally accepted by eighteenth century English lawyers. The triumph of parliament in the revolution of 1688 was supposed to have secured liberty from despotism; and the language of English politics was henceforth much less legalistic than it had been in the seventeenth century. The structure of the balanced constitution was widely lauded, receiving Montesquieu’s seal of approval. Anxiety about arbitrary government now centred not on the structure of government, but on its operation. Opposition politicians feared that patronage and electoral corruption would increase the influence of the crown and its ministers, and thereby upset the balance. In this context, the rhetoric of civic virtue became more prominent, as “country party” ideologists drawing on the works of Machiavelli and James Harrington urged active political participation to prevent corruption (see Pocock 2003; Robbins 1959; Dickinson 1979). Politicians who argued that parliament was bound by the constitution understood it more in terms of its political spirit than in strictly legal terms. For Radical agitators, meanwhile, the prime remedy to political ills was not to declare limitations on the power of parliament, but to ensure greater representation of the people in the institutions. From the other side of the Atlantic, however, things looked altogether different. To Americans, parliament in the mid-eighteenth century came to look like an institutional equivalent of the Stuart kings, willing to interfere arbitrarily with their property rights. The Declaratory Act brought to a head a clash between two distinct visions of the common law, derived from the same tradition: an English positivist view centred on parliamentary sovereignty, and an American conception, which invoked fundamental, customary rights, which could not be removed by the legislature (Greene 1986a; Greene 1994; Reid 1986; Reid 1987; Reid 1991; Reid 1993).