Declaration of Rights of the Stamp Act Congress

Explanation and Analysis of the Document

The immediate result of the Stamp Act Congress lay in the petitions and resolves sent to the king, the House of Commons, and the House of Lords. The congress was seeking relief from the Stamp Act duties through nonenforcement of its provisions and, ideally, through its appeal. The resolutions reflect the colonists' deeply held views of their rights and the limits of parliamentary authority. The act itself provoked, for many, the first serious and sustained consideration of constitutional principles, an intellectual and political undertaking that would continue through the American Revolution and beyond. The first eight resolutions reflect the emphatic, unqualified view of the congress that Parliament has no constitutional authority to tax the colonies. The next four resolutions complain about the financial impact of the taxes. The final two resolutions assert the right of the colonists to petition the king, the Commons, and the Lords and the duty to seek repeal of the act and other legislative measures that have encroached upon American commerce.

Resolutions I and II speak of the duties of the colonists as subjects of the Crown. The first resolution provides that the colonists owe “due subordination” to Parliament. That obligation implies a recognition of Parliament's authority to make laws governing the entire empire, but that sweeping authority is limited, according to the colonists, who contend that the power to legislate does not include the power to tax, a point emphasized in the sixth resolution.

The assertion in the second resolution that the colonists are “entitled” to the rights and liberties enjoyed by “natural born subjects” aims at reminding English readers that their rights are not less substantial than those of their peers in the kingdom. Implicit in this reminder is the concept that taxes may be imposed only by a body that represents the taxpayer. Since the colonists are not represented in Parliament, that body may not levy taxes upon them. In addition, all of the other rights possessed by English subjects, including trial by jury, are enjoyed by the colonists.

In the third resolution, the Stamp Act Congress provides that “it is inseparably essential to the freedom of a people” and the “undoubted right of Englishmen” that taxes may not be levied without their consent. This resolution emphasizes two key points. First, taxes are a gift, founded on the willingness and approval of the people. The term consent is critical. If the people are not represented in Parliament, which the colonists contend they are not, then they cannot give their consent to be taxed. Rather, the tax imposed by Parliament represents a confiscation of their property. Second, the right to grant one's consent is not merely the “undoubted right of Englishmen” but also essential to a free people. Here the congress is drawing upon the rights of men, often characterized as natural rights. The third resolution, then, broadens the argument about Parliament's taxing power and denies it in terms that are universal. The appeal to natural rights became a powerful weapon and motivating argument for the colonists, a commonplace in their battles with Great Britain over the next decade.

The themes of representation and consent color the fourth and fifth resolutions. The congress emphasizes in the fourth resolution that the colonists “are not” and “cannot be” represented in Parliament. It should be clear to all, Americans and English alike, that the colonists do not enjoy any actual representation; they did not vote for candidates who stood for election. The dispute between the two sides centered on the issue of whether the colonies enjoyed virtual representation. Great Britain maintained that even though the colonists did not elect their own representatives, they were nonetheless virtually represented, since Parliament represents everyone within the empire. Accordingly, the colonists were represented and could be taxed.

The colonists rejected the concept of virtual representation. Those living in England did not share the colonists' interests. The colonists emphasized actual representation, which could occur only if they had the opportunity to elect their representatives. For a time, some leading thinkers, including James Otis, considered the idea of pushing for actual representation in Parliament, but this pursuit was wisely discouraged by others. It was observed that even if the colonists sent delegates to London, they would be outnumbered, outmaneuvered, and unable to assert any real influence. They also would be at the mercy of Parliament's taxing power because they would be unable to argue that they were being taxed without representation or their consent. It was more effective, the members of the congress believed, to be in a position to argue that the Stamp Act was unconstitutional because the colonists were not represented.

Having established in the fourth resolution that the colonists are not represented in Parliament, the congress asserts in the fifth resolution that “no taxes” may be “constitutionally imposed on them, but by their respective legislatures.” The concept of consent, the sheet anchor of the Declaration of Independence and republicanism itself, is repeatedly brandished by the congress. Without the consent of the governed, taxation is illegitimate and unconstitutional.

The Stamp Act Congress draws a distinction between legislation and taxation. In the sixth resolution, the congress complains that Parliament may not tax the colonists, since taxes are a gift that may be granted by the representatives of the people who offer the gift. Since Parliament does not represent the colonists, it would be “unreasonable” and in violation of the British Constitution for Parliament to assume it may give the property of the colonists to the king.

England's decision to extend the jurisdiction of the vice admiralty courts to prosecutions of acts that violated the revenue laws, including the Stamp Act, generated great anxiety and anger among the colonists. In the seventh and eighth resolutions, the Stamp Act Congress reiterates the right to trial by jury and the threat that the admiralty courts pose to that right. The right to trial by jury was regarded as an ancient liberty. The right to be tried by one's peers plumbed the depths of English legal history. In the admiralty courts, there was no jury. As a consequence, the congress asserts that trial in the admiralty courts deprives colonists of an “inherent and invaluable right” guaranteed to every British subject.

To make matters worse, the Stamp Act duties were enforceable by the vice admiralty courts, which were originally established to handle disputes between merchants and seamen. In these courts, there was no trial by jury, so a refusal to abide by the Stamp Act provisions could result in a prosecution in which a colonist would not be tried by his peers. This feature, the colonists maintained, would violate their right under the British Constitution to a jury trial. As the colonists surveyed these programs and policies, it became increasingly clear to them that their liberty was being threatened.

The remaining resolutions reflect the assertions of the Stamp Act Congress that the stamp duties, like other revenue laws, threaten the livelihood, the financial well-being, and the liberty, security, and happiness of the colonists. The congress was clever and correct in observing that the Stamp Act would hurt British merchants as well, since, as explained in the eleventh resolution, the restrictions would hinder the ability of the colonists to purchase goods manufactured in England. The implied threat, backed by nonimport agreements in various colonies, was aided by British merchants' appeals to the House of Commons to repeal the Stamp Act for the reasons asserted by the congress.

The Stamp Act Congress's combination of legal and constitutional arguments, supported by eminently practical concerns that reflected the impact of the stamp duties on the colonies, created a powerful and persuasive case for repeal. The innovative thinking that colors the resolutions invited further exploration among the colonists and paved the way for additional claims of violations of constitutional rights, which resounded throughout the colonies in the run-up to the Revolutionary War.