British vs. American Constitutionalism: The Discourse of Pre-Revolutionary America

name: The British constitution can be traced back more than a millennium to the original settlers of England.  The rights inherent in the constitution developed from many years of custom as manifest in British common law and the Petition of the Rights of Man.  As America was settled, the colonists inherited the British constitution as part of their heritage, and it developed with the colonies, along a somewhat different path than in Britain.  It could be more properly stated that a British-American constitution existed in the colonies that differed from BritainΟs in language, and how that language was interpreted.  As conflict between Britain and the colonies mounted, it became increasingly unclear to each side what the other was saying.  On the advent of the American Revolution, claims to customary rights permeated American colonial discourse, while the British responded with claims to parliamentary sovereignty; the legal conflict was so dichotomous that the ultimate impas!
se forced the colonists to abandon constitutional arguments in favor of a new, more fundamental source for their rights claims in the laws of nature.
 In their early petitions and grievances to the King and Parliament, the colonists referred to customary rights in articulating their arguments.  Many colonists believed that the British were infringing upon their rights by imposing an internal tax on the colonies in the form of a stamp that was required for all legal documents.  The recurring theme of the colonistsΟ dissatisfaction was that the British were taxing them without their having representation in Parliament.  In response to the Stamp Act, delegates from several colonies met in New York to prepare a Declaration of Rights to be sent to the King and Parliament.  In this declaration the delegates firmly asserted that their rights were derived from the custom as it existed in England.  They stated Τthat his MajestyΟs liege subjects in these colonies are entitled to all the inherent rights and privileges of his natural born subjects within the kingdom of great Britain.Σ The representatives also declared that Parlia!
ment, Τby extending the jurisdiction of the courts of admiralty beyond its ancient limits, [had] a manifest tendency to subvert the rights and liberties of the colonists.Σ   James Otis, also in reply to the Stamp Act, published a pamphlet entitled The Rights of the British Colonies Asserted and Proved in which he said, ΤBut Πtis from and under this parliament and its acts, and from the common law, that the political and civil rights of the colonists are derived . . . Σ  In both instances, colonial proponents argued for their customary rights as English subjects under the crown; they believed that any right inherently granted to an Englishman by tradition should be theirs as well.  Though the colonists vehemently supported their claims, the British ignored them, instead proclaiming parliamentary sovereignty.  
 In response to American appeals concerning customary rights, the British maintained their claim to parliamentary supremacy.  They saw American claims of non-representation in Parliament as absurd, believing that Americans as British subjects automatically had Τvirtual representationΣ in Parliament.  To most of the members of Parliament, the Stamp Act did not concern the customary rights of the colonists, as the Parliament was beyond concern for ancient customs.  The British were instead moving toward a legislature that would have ultimate power in the empire.  As stated by Sir William Blackstone in his Commentaries on the Laws of England, 
Τ[Parliament] hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, revising, and expounding of laws....  It can, in short, do everything that is not naturally impossible; and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of Parliament.Σ  
For this reason many of the petitions of the colonists were directed to the king and not to Parliament.  The statement made by Soame Jenyns reflects the attitude of the majority of Parliament: Τ. . . .no charter from the crown can possibly supersede the right of the whole legislature.Σ  Ultimately, Parliament repealed the Stamp Act only to pass the Declaratory Act, further incensing the colonists.  Edmund Burke wrote of Parliament, Τher powers must be boundless.Σ  The Declaratory Act was a decisive step in the direction Parliament had been taking in its treatment of the colonies.  This act declared in writing the intent of Britain to subordinate the colonies and stated that any law passed in defiance of Parliament was to be considered Τutterly null and void.Σ  This action signified to the colonists ParliamentΟs unresponsiveness to their petitions concerning customary rights and demonstrated the necessity of moving in a different direction for their rights claims. 
 After numerous attempts to redress their grievances by arguing customary rights in appeals to King George III and Parliament,, the colonists shifted their attention from customary rights, moving instead toward a position where their rights claims were based on natural rights.   The first colonial activist to discuss natural rights in reference to American and British relations was James Otis.  Establishing his arguments on a more solid footing than merely mentioning customary rights, he based them on the laws of nature. ΤGovernment is therefore most evidently founded on the necessities of our nature. It is by no means an arbitrary thing, depending merely on compact or human will for its existence.Σ  Written in 1764, his comments on natural laws were somewhat ahead of their time, though he did base his writings on John LockeΟs tenets.  James OtisΟs introduction of natural rights into the colonial discussion was the precursor to the later use of them as a basis for argume!
nts concerning the rights of colonists.  In 1774 Thomas Jefferson wrote a pamphlet entitled A Summary View of the Rights of British America in which he said, Τ. . . the exercise of free trade with all parts of the world, possessed by the American colonists, as of natural right, and which no law of their own had taken away or abridged, was the next object of unjust encroachment.Σ  Being founded on a Τnatural right,Σ Thomas JeffersonΟs argument for free trade is much stronger than a similar one would be if it were based upon customary rights, as it was not the custom to allow free trade.  Samuel Adams also wrote concerning the natural rights of colonists in 1772.  
 On the eve of the American Revolution, the American colonistsΟ rights claims consisted primarily of claims to customary rights, but, as the British responded with claims to parliamentary sovereignty, the colonists were forced to find a more basic source for their rights claims in the laws of nature.  It was this set of natural laws upon which the Declaration of Independence was later based.  In Britain Parliament continued in the same direction it had been taking with respect to parliamentary supremacy.  As John Phillip Reid states in his thesis, the American government became Τa creature of law,Σ whereas Parliament became Τthe creator of law.Σ  These two ideals stood in such stark contrast to each other that the parties on either side of the debate sometimes found it difficult to understand the otherΟs point of view.  Since the British and American modes of thinking were so completely opposite to each other, they could not coexist for long, ultimately resulting in th!
e American War for Independence, more popularly known as the American Revolution.