The powers of the executive branch are under fierce scrutiny. President Obama’s use of an executive order to modify the enforcement of immigration laws has been opposed by twenty-four states challenging the legality of his actions, federal judge Arthur Schwab has unilaterally issued a judgment striking down the executive order, while in the blogosphere Obama is being adversely compared to the autocratic Stuart monarch Charles I.1
Over in Britain it has recently been revealed that the queen and Prince Charles, the heir to the throne, have been asked by ministers to approve or veto bills debated in the House of Commons, and that in 1999 the queen vetoed a bill concerning military actions against Iraq, a piece of legislation opposed by the government that would have removed her power to authorize military strikes and transferred it to the House of Commons.
These instances of executive interference with the processes and enforcement of legislation have had a long and contentious history in the politics of seventeenth- and eighteenth-century Britain and North America. The issue of the royal “prerogative,” the special powers of the monarch to take unilateral and unaccountable action in the public interest—the right to suspend, dispense with, or veto legislation, to appoint and dismiss ministers, to make war and treaties—was at the heart of the struggles between the Stuart monarchs and their parliaments; it unleashed rebellion, civil war, and revolution in the seventeenth century. The historical memory of these bitter conflicts ran deep in the Anglophone Atlantic world of the eighteenth century and colored the struggles between the British and the thirteen colonies. For more than forty years, scholarship on the American Revolution has emphasized the close connection between colonial ideas and the beliefs and attitudes of those—the parliamentarians and the Whigs—who had opposed the crown more than a century earlier.
Eric Nelson, a professor at Harvard, in his brilliant and provocative analysis of the American Revolution, The Royalist Revolution: Monarchy and the American Founding, is equally insistent that the Revolution can only be understood in the light of patriots’ passionate commitment to seventeenth-century political ideas. But he departs radically from his predecessors, arguing that it was admiration for royal prerogative power and belief in the virtues of a strong executive, both derived from seventeenth-century precedents, that fostered the rebellion against Britain and shaped the Constitution of the new American republic. His Revolution comes out of a royalist, not a parliamentarian, tradition.
The Royalist Revolution is a book of great intellectual power: it is not just challenging but erudite (many of its abundant footnotes are brilliant short essays in their own right), and, though densely argued, is written with admirable clarity and fairness. Yet Nelson’s oxymoronic and attention-grabbing title speaks to some fundamental problems in his version of the American Revolution and the debate about the new nation’s state and federal constitutions. The problem lies less in the particular details of his account than it does in an issue of which the Founding Fathers were well aware, namely that of how a central issue was “framed.” How good a general description is the idea of a “royalist revolution”?
Nelson argues that first in the 1760s and 1770s, when the patriots were developing arguments against the British government’s determination to uphold its right to tax and regulate the thirteen colonies, then during the debates about state constitutions after independence, and again in the debates around the new federal constitution, a group of Americans—notably Edward Bancroft, Alexander Hamilton, James Wilson, John Adams, James Iredell, and Benjamin Rush—consistently argued in favor of prerogative (exclusive right or privilege) and executive power. Though they had their differences, the political identity of these “royalist revolutionaries” was defined by what Nelson calls “patriot royalism,” a “cluster of commitments” intended in all circumstances to ensure the place of a powerful executive as part of good governance.
But why were these revolutionaries “royalist”? Because, Nelson maintains, their enthusiasm for executive power was fueled by seventeenth- century arguments in favor of Stuart royal powers and prerogatives that had been intended to rebut Whig and republican parliamentarianism, which maintained that sovereignty lay with a legislative body representing the people. “It was for the sake of this constitutional theory that a great many British Americans rebelled.” While patriot royalists, as Nelson concedes, were only “a subset of those who led the patriot cause,” their importance lies in the way they transformed their royalist thinking prior to American independence into a vigorous case for the sort of powerful chief executive that Nelson believes was written into the American Constitution of 1787. As he concludes, “the president of the United States does in reality what the king of Great Britain does only in theory. This was the great victory of the Royalist Revolution.”
Nelson’s starting point is the idea, first mooted by colonists in the 1760s and 1770s, of what historians have long called the “dominion theory” of empire—the notion that Britain’s colonies owed allegiance to the British crown by virtue of their royal charters, but not to the English Parliament, which therefore had no right to tax or regulate them.
George III, in this view, was a monarch over many distinct jurisdictions, many of which had their own assemblies for making their own laws and regulations. The prerogative of the crown, not parliamentary statute, governed relations between the colonies and the Mother Country. (This view involved a strong statement of colonial legislative power and not just an assertion of royal prerogative.) Having begun by conceding parliamentary jurisdiction over them, the colonists had been pushed into this position after the British legislature had gradually closed all the loopholes and exceptions—no taxation without representation, no internal regulation—claimed by the American patriots, and asserted its categorical right to regulate the colonies in the Declaratory Act of 1766, whose heading made its purpose abundantly clear: “An Act for the better securing the dependency of his Majesty’s dominions in America upon the crown and parliament of Great Britain.”
Nelson points out that “dominion theory” was not just a politically expedient way to deny parliamentary authority, but was strongly backed by historical accounts—published just before this period—of the parliamentary debates of the 1620s. During that time the Stuart monarchs had asserted their just prerogative rights, their “superintending power,” over the colonies, and explicitly denied parliamentary jurisdiction.
How then had this royal power been eroded over the succeeding 150 years? As Edward Bancroft, the physician and future British spy, whom Nelson sees as a founding father of royalist patriotism, explained in his Remarks on the Review of the Controversy between Great Britain and Her Colonies, published in 1769, Parliament had usurped royal authority after the execution of Charles I by passing a succession of Navigation Acts that regulated imperial commerce through parliamentary statute.2 And after the Glorious Revolution of 1688 had more generally curbed and depleted the powers of the monarch, the royal veto of legislation fell into abeyance, while the crown’s control of Parliament and the military had been curbed by its dependence on Parliament for annual supply and for the passage of martial law. The revolutionary cause was therefore also a royal cause. As one correspondent put it in the Pennsylvania Gazette of May 1774:
Remember, my dear Countrymen, we are contending for the Crown and the Prerogative of our King, as well as for Liberty—Property and Life.—The British Parliament has violated the Constitution, in usurping his supreme Jurisdiction over us.
Hence the repeated calls of the Patriots on George III to exert his prerogative powers, and join with his loyal American subjects in opposing the excessive claims of Parliament.
The royalist case, Nelson argues, was sustained by a particular theory of representation that legitimized and encouraged royal power by claiming that the monarch, rather than the House of Commons, was the true representative of the people. This theory, Nelson argues, “denied that being a good ‘representation,’ or image, of the people was either necessary or sufficient to establish the legitimacy of a representative.” Instead it insisted that any person or body “authorized by the people to exercise political power over them could be said to be their representative, whether a single person or an assembly (or some combination of the two).” Patriot royalism denied that any colony had ever authorized Parliament to act on its behalf and, in its clearest statement, claimed that therefore only the monarch was able to act on the colonies’ behalf, through powers derived from the colonial charters that, as Nelson puts it, “divided political authority between a monarch invested with sweeping prerogative powers and the elected legislatures of each American dominion.”
Once again, this view harked back to the seventeenth-century struggles between crown and Parliament, when the apologists for royal power tried to rebut the republican enemies of Charles I, like Henry Parker, who maintained that the only legitimate representative for the people was a representative of the people, a sort of miniature likeness or resemblance of the whole political nation.
From this point of view, the American crisis could have been resolved if George III, as his loyal American subjects urged him to, had taken up his legitimate prerogative powers to overturn parliamentary intervention in America. In fact King George’s only act of prerogative toward America was to issue a proclamation in August 1775 condemning the “treasons and traitorous Conspiracies” against the crown, and calling on all his subjects “to suppress such Rebellion, and to bring the Traitors to Justice.”
The patriot idea that George III was somehow going to rescue the colonies from the thrall of Parliament through the use of his prerogative power seems either ill-informed, dim-witted, or disingenuous. What exactly was the course of events that the Americans envisioned? That the king would invoke his prerogative power to suspend or dispense parliamentary legislation—something that was made explicitly illegal by the Bill of Rights of 1689? That the king would remove his current ministers and appoint those who were in favor of the view that parliamentary jurisdiction did not extend to the New World? George could have legally done this, but which members of the political class did “the royalists” have in mind as sympathizers with the colonists?
The only group of British politicians who were advocates of a more active personal rule by the king—the group of courtiers that Edmund Burke identified as “the King’s Friends” and whose politics were often described as “Stuart”—were also the most hostile to American claims to relative autonomy. Sympathizers with America, like the followers of John Wilkes or William Pitt, Earl of Chatham, saw the problem as a matter of overweening monarchical power. No political group within Britain (including those most hostile to the monarch) thought for a moment that he would use his prerogative powers on behalf of the colonists.
The oft-repeated patriot argument that the monarch was entitled to use his prerogative powers to redress the colonists’ grievances was matched—at least from the material that Nelson cites—by a remarkable absence of concrete and specific suggestions about what King George should do. Talk of the royal veto was all very well, but most of the legislation the colonists wished vetoed had already been enacted.3 If the colonists had been real royalists—of the sort that had repeatedly affirmed the royal prerogative up to and even after it had been curbed during the Glorious Revolution of 1688—they would have urged the legitimacy of the king’s suspending or dispensing powers, encouraging George to abrogate parliamentary legislation. But they did not. If they espoused royalism, it was of the milquetoast variety.
It is this, as much as a natural skepticism or unwillingness to abandon a “Whig” narrative of the Revolution, that explains, I think, the conventional wisdom that the patriots were developing arguments about empire as a dominion rather than a parliamentary jurisdiction chiefly in order to legitimize their case. Calls for the king to take the colonists’ part and to escape the thrall of his ministers merely repeated a well-worn cliché of patriot opposition.
Yet Nelson is surely correct in seeing that some patriots, temporarily drowned out by the backlash against the king in person and by the powerful effect of Thomas Paine’s Common Sense, with its denunciation of kingship derived from scripture, continued to adhere to a view that saw executive authority as vital to a legitimate and orderly regime. But as Nelson concedes, figures such as John Adams were in retreat during the early years of state constitution-making. Only South Carolina had given its governor a veto; everyone else, including the unicameral Pennsylvania, entrusted their governors only with the power to execute laws passed by the legislature.4 Only gradually, and in the 1780s, did the arguments of the patriot royalists again begin to carry weight.
It is at this point in Nelson’s narrative that we become increasingly aware that patriot royalism was not the only patriot game in town. “It would be highly misleading,” writes Nelson,
to talk about the principles of the American Revolution…. The patriots who led the opposition to Britain and waged the Revolutionary War had agreed on a small number of central claims—that the British constitution had become hopelessly corrupt, that the colonists were not represented in Parliament, and so on—but they had disagreed sharply, and fatefully, among themselves as to precisely why or in what sense these claims were correct.
“Conventional whigs,” both in Britain and the Americas, blamed an excess of royal power, the spread of influence and corruption, and stood by a view of the legislature as the representative of the people; patriot royalists blamed overweening legislative power for the crisis and stood by a designated view of representation, one that allowed that the head of the executive could also represent the people. These two versions of politics, which Nelson insists “do not straightforwardly map” onto the categories “Federalist” and “Antifederalist,” were at the heart of the debates about the Constitution, discussions that Nelson claims focused overwhelmingly on the powers of the president.
In the struggle, patriot royalism eventually triumphed over republicanism, ensuring a powerful executive branch in the form of a president with a veto. No wonder that Mercy Otis Warren concluded that what the Constitution had created was “a Republican form of government, founded on the principles of monarchy,” or, as Edmund Randolph put it more graphically, “the foetus of monarchy.”
Nelson’s account of the unfolding events of the revolutionary crisis and the arguments it generated is written in two rather different registers that nicely illustrate J.H. Hexter’s famous distinction between historians who are either “splitters” or “lumpers.” The splitter in Nelson is concerned with the niceties of political argument, with the subtle adjudication of the many differences among the different factions, and with gradual and fine-grained shifts of opinion. It is here that he is at his best, deftly elucidating the similarities and differences between Wilson, John Adams, Hamilton, and Jefferson. His discussion reminds us once again of the astonishing fecundity and variety of political thinking in the lead-up to and aftermath of independence, when all sorts of schemes were mooted.
But Nelson’s second, lumping register is more emphatic. This is one in which the frequent reiteration of the term “patriot royalism” almost seems to elevate it into a transhistorical ideal into which Nelson wishes to squeeze his arguments. We are presented with two great historical moments, one in the seventeenth century, one toward the end of the eighteenth, in which a great Manichaean struggle is fought between, on the one hand, constitutional or “patriot royalism” and, on the other, “parliamentary republicanism.” This account of a clear struggle makes me uneasy, perhaps because as a political historian I prefer the messiness of political history to the clarity of the history of political thought, but also because I find Nelson’s account parsimonious, inadequate to the complex range of positions that the two conflicts contained.
In connecting American eighteenth-century patriot royalism to its precursors, Nelson sets great store by what he calls seventeenth-century royalist constitutionalism. As he indicates, the urtext here is the so-called Answer to the XIX Propositions of Both Houses of Parliament (1642), a response to Parliament’s challenge to Charles I’s powers of appointment and right to veto legislation.5 While the king’s apologists vigorously defended his prerogatives, they also built their case around a theory of mixed government, in which law was made by the combined body of king, Lords, and Commons. These bodies represented the three estates of “absolute monarchy,” “aristocracy,” and “democracy.” Each in its pure form had its “particular conveniences and inconveniences,” but when combined together they acted to check one another, making the English constitutional arrangements the best available sort of government. According to the royal Answer, the Commons and Lords seemed to be setting themselves up as the final source of authority, pushing the king out of mixed government. “You must admit Us [i.e., the monarch],” the king and his followers claimed, “to be a part of the Parliament.”
It is critically important to understand that this view of mixed government or royal constitutionalism had a complex and checkered history between its formulation in 1642 and the outbreak of the American Revolution. The Answer to the XIX Propositions of Both Houses of Parliament accidentally conceded that king, Lords, and Commons were coordinate law-making powers—that the king in Parliament was the nation’s sovereign body—and almost from the day it was first published, many royalists condemned this statement for ceding or sharing supreme power with the Lords and Commons.
For much of the rest of the seventeenth century, royalists grappled to undo what they thought of as the harm this concession had done to their cause. As one of them, Thomas Turner, described it in the 1670s, it was “that poisonous tenet of the co-ordination of the two houses with the kings of England in the power legislative.”6 Perhaps this does not matter for Nelson’s argument—his royalists are constitutional royalists—though it does remind us that “royalism” came in many stripes, and that the term had political associations with the idea of the unconstrained power of the king, which reemerged strongly in the revolutionary debate.
More germane, however, is the way that in the debates over the Constitution mixed government was loosened from its royalist moorings, and used as an argument against both royal absolutism (which is why many royalists saw Charles’s Answer as an error) and against republican claims for the absolute sovereignty of the representative of the people. This version of republicanism—that the British constitution was a system of laws in which all shared—became in the eighteenth century not a royalist view but the foundation stone of mainstream Whiggery. Mixed government was seen as a mechanism to prevent overweening power whatever its source, whether exerted by the monarch or the House of Commons.
Such mixed government was never a royalist monopoly—indeed it was often invoked by parliamentary moderates, including those who fought against the king in the seventeenth century. By the mid-eighteenth century it had become a political cliché, what the Earl of Chatham called this “common schoolboy position.” You did not need to be a royalist to criticize excessive parliamentary power in the 1760s and 1770s, because you already had at hand a thoroughly familiar set of arguments, admittedly with a royalist genealogy, but now usually thought of as species of Whiggery.7 Using Nelson’s criteria it would be easy to show that a good many British politicians and commentators were constitutional royalists, a description that they would have regarded as absurd.
And as Gordon Wood has emphasized in an earlier exchange with Nelson over his royalist thesis, the real problem for the colonists was the marriage of the idea of mixed government with the idea of parliamentary sovereignty.8 Though Charles and his followers were probably not advancing such a theory in 1642, from the mid-seventeenth century onward a steady stream of commentators, like the famous Sir William Blackstone, embraced both mixed government and the idea that the king-in-parliament was an absolute sovereign body. The omniscience of this belief, in Wood’s view, pushed the colonists toward a view of imperial dominion. The issue was the scope of jurisdiction, not the nature of governance.
In short, Nelson’s account of the heroic struggle between royalist constitutionalism and parliamentary republicanism occludes a middle ground that was less likely to disagree over the fundamentals of power than to debate how they were fairly distributed. Of course in the battle over the constitution of the new nation there were republicans who saw legitimate sovereign power in a representative body, and others whose desire for a strong executive was derived from their reading of British history as the story of the decline of monarchical executive power.
Some, like Alexander Hamilton, were loyalist in the way that Nelson describes, but others, like John Adams, were simply expressing a commitment to a mixed constitution of balanced powers in a remarkably orthodox fashion. Adams, indeed, was quite explicit about the requirement for a limited prerogative, and that such powers as the monarch had derived from the people.
Nelson places great store in the idea that for patriot royalists even a hereditary ruler can be a representative—or part of a representative—of the people but, again, this is not an especially radical notion (except in the eyes of a unicameral republican), provided that the hereditary ruler is part of a system of mixed government. The crucial issue is not what kind of executive he is, but how he fits into a system of powers. It is not prerogative as such that is the issue, but rather what sort of configuration of powers best ensures that the parts of the legislature interact in a way that most effectively prevents the abuse of power and the pursuit of particular interests, thereby helping secure the public good.
Of course that discussion was polarized, especially around the writing of the new republic’s constitution, but a more satisfying account of the debates that Nelson analyzes would set out a more nuanced picture of the range of views and opinions forged during the almost thirty years of political crisis. He certainly uncovers the material for such an analysis, and does so brilliantly, but too often forces too much of his material onto the procrustean bed of patriot royalism. What emerges as he describes the efforts of his “patriot royalists” to formulate a new political order is the exceptional difficulty they had in freeing themselves from the forms of a British political system that many of them admired and saw as ideal, what Adams called “the most stupendous fabrick of human invention” and what Hamilton described as “the best in the world.”
One could hardly think of a better example of the anxiety of influence, a feeling that enhanced their awareness of the difficulty, enormity, and uncertainty of their forbidding task. Such patriots had, no doubt, their different ideas of this ideal political order, but what they were all committed to was a notion of mixed government, a system that constrained power (whoever and however it was exercised), established the rule of law, and worked toward a common good.
See, for instance, “Executive Powers, Barack Obama v. Charles I of England,” www.freerepublic.com, August 4, 2014. ↩
Ironically, some of the few times when the royal prerogative was used uncontroversially to suspend parliamentary statutes was in the 1660s, when Charles II suspended some of the clauses of the Navigation Acts because of the emergency provoked by the Dutch wars. ↩
Nelson quotes Jefferson in 1774: “It is now…the great office of his majesty, to resume the exercise of his negative power, and to prevent the passage of laws by any one legislature of the empire, which might bear injuriously on the rights and interests of another.” ↩
Although the New York constitution of 1777 included a popularly elected governor who held a veto with the Council of Revision. ↩
The full text of the Nineteen Propositions and the king’s reply can be found at www.constitution.org/eng/nineteen_propositions_1642.html. ↩
Cited in Corinne Comstock Weston and Janelle Renfrow Greenberg, Subjects and Sovereigns: The Grand Controversy Over Legal Sovereignty in Stuart England (Cambridge University Press, 1981), p. 90. ↩
Pauline Maier makes a somewhat similar point in her essay, “Whigs Against Whigs Against Whigs: The Imperial Debates of 1765–76 Reconsidered,” William and Mary Quarterly, Vol. 68, No. 4 (October 2011), especially p. 580. ↩
Gordon S. Wood, “The Problem of Sovereignty,” William and Mary Quarterly, Vol. 68, No. 4 (October 2011). ↩