Six Innovations on the Road to the American Revolution: Innovation 5--Distinguishing between Representation and Virtual Representation.
By August Glen-James
Because they were not represented in Parliament, Americans denied the legality and constitutionality of British colonial taxation policies that emerged after the French and Indian War. Parliament had no right either to tax the colonies or to legislate for them generally. Great Britain’s government, however, formulated a concept known as virtual representation, which maintained that everyone was represented within their empire whether they actually voted for a member of Parliament or not. Because Parliament sought the good of the entire realm, so the theory goes, everyone had representation. This article will, first, follow the arguments of Daniel Dulany, who wrote against the concept of virtual representation as it relates to the colonies, and second, it will highlight the British answer to the argument from British writer, Soame Jenyns.
Daniel Dulany offered an American view of virtual representation in the following terms.[1]
“I shall undertake to disprove the supposed similarity of situation, whence the same kind of representation is deduced of the inhabitants of the colonies, and of the British nonelectors [i.e., those who do not participate in parliamentary elections in England]; and, if I succeed, the notion of a virtual representation of the colonies must fail, which, in truth, is a mere cobweb spread to catch the unwary and entangle the weak. I would be understood. I am upon a question of propriety, not of power; and though some may be inclined to think it is to little purpose to discuss the one when the other is irresistible, yet are they different considerations; and, at the same time that I invalidate the claim upon which it is founded, I may very consistently recommend a submission to the law, whilst it endures. . . .”
At this point, Dulany presents his argument: Essentially, nonelectors in England (a) may well become electors and (b) are part of professions or other general situations represented by the same type of people in Parliament; consequently, their interests are already being looked after, and (c) what befalls the nonelectors also befalls the electors, since they inhabit the same island. To this point, Dulany wrote, “The interests, therefore, of the nonelectors, the electors, and the representatives are individually the same; to say nothing of the connection among neighbors, friends, and relations. The security of the nonelectors against oppression is that their oppression will fall also upon the electors and the representatives. The one cannot be injured and the other indemnified.”
“Further,” wrote Dulany, “if the nonelectors should not be taxed by the British Parliament, they would not be taxed at all; and it would be iniquitous, as well as a solecism [i.e., an incongruity or absurdity] in the political system, that they should partake of all the benefits resulting from the imposition and application of taxes, and derive an immunity from the circumstance of not being qualified to vote. Under this constitution, then, a double or virtual representation may be reasonably supposed.
“The electors, who are inseparably connected in their interests with the noneclectors, may be justly deemed to be the representatives of the nonelectors, at the same time they exercise their personal privilege in their right of election, and the members chosen, therefore, the representatives of both. This is the only rational explanation of the expression ‘virtual representation.’
“The inhabitants of the colonies are, as such, incapable of being electors, the privilege of election being exercisable only in person, and, therefore, if every inhabitant of American had the requisite freehold, not one could vote but upon the supposition of his ceasing to be an inhabitant of America and becoming a resident in Great Britain, a supposition which would be impertinent because it shifts the question—Should the colonies not be taxed by parliamentary impositions; their respective legislatures have a regular, adequate, and constitutional authority to tax them; and therefore there would not necessarily be an iniquitous and absurd exemption from their not being represented by the House of Commons.
“There is not that intimate and inseparable relation between the electors of Great Britain and the inhabitants of the colonies, which must inevitably involve both in the same taxation. On the contrary, not a single actual elector in England might be immediately affected by a taxation in America, imposed by a statute which would have a general operation and effect upon the properties of the inhabitants of the colonies.”
Soame Jenyns, a member of Parliament, addressed the colonists’ claims with the virtual representation argument.[2]
“The right of the legislature of Great Britain to impose taxes on her American colonies, and the expediency of exerting that right in the present conjuncture, are propositions so indisputably clear that I should never have thought it necessary to have undertaken their defense had not many arguments been lately flung out, both in papers and conversation, which with insolence equal to their absurdity deny them both. As these are usually mixed up with several patriotic and favorite words, such as liberty, property, Englishmen, etc., which are apt to make strong impressions on that more numerous part of mankind who have ears but no understanding, it will not, I think, be improper to give them some answers. . . .
“The great capital argument . . . is this: that no Englishman is or can be taxed but by his own consent, by which must be meant one of these three propositions—either that no Englishman can be taxed without his own consent as an individual; or that no Englishman can be taxed without the consent of the persons he chooses to represent him; or that no Englishman can be taxed without the consent of the majority of all those who are elected by himself and others of his fellow subjects to represent them. Now let us impartially consider whether any of these propositions are in fact true.
“First, then, that no Englishman is or can be taxed but by his own consent as an individual: this is so far from being true, that it is the very reverse of truth, for no man that I know of is taxed by his own consent; and an Englishman, I believe, is as little likely to be so taxed as any man in the world.
“Second, that no Englishman is or can be taxed but by the consent of those persons whom he has chosen to represent him: for the truth of this I shall appeal only to the candid representatives of those unfortunate counties which produce cider and shall willingly acquiesce under their determination.
“Lastly, that no Englishman is or can be taxed without the consent of the majority of those who are elected by himself and others of his fellow subjects to represent them: this is certainly as false as the other two, for every Englishman is taxed, and not one in twenty represented: copyholders, leaseholders, and all men possessed of personal property only, choose no representatives. Manchester, Birmingham, and many more of our richest and most flourishing trading towns send no members to Parliament, consequently cannot consent by their representatives because they choose none to represent them. Yet are they not Englishmen? Or are they not taxed?
“I am well aware that I shall hear Locke, Sidney, Selden, and many other great names quoted to prove that every Englishman, whether he has a right to vote for a representative or not, is still represented in the British Parliament; in which opinion they all agree. . . . Why does not this imaginary representation extend to America as well as over the whole island of Great Britain? If it can travel 300 miles, why not 3,000? If it can jump over rivers and mountains, why cannot it sail over the ocean? If the towns of Manchester and Birmingham, sending no representatives to Parliament, are notwithstanding there represented, why are not the cities of Albany and Boston equally represented in that assembly? Are they not alike British subjects? Are they not Englishman? Or are they only Englishmen when they solicit for protection, but not Englishmen when taxes are required to enable this country to protect them?”
Soame Jenyns addressed two other issues. In interests of space and time, they are summarized, with insightful quotes below.
1. The colonials, according to Jenyns, invoked their charters as having placed them under distinct governments with sole legislative power to tax them. Jenyns characterized the colonial conclusion under this premise thusly: “that if this privilege is once given up, that liberty which every Englishman has a right to is torn from them, they are all slaves, and all is lost.”
Jenyns dismissed the invocation of the liberty of an Englishman as “a phrase of so various a signification, having within these few years been used as a synonymous term for blasphemy, bawdy, treason, libels, strong beer, and cider, that I shall not here presume to define its meaning; but I shall venture to assert what it cannot mean; that is, an exemption from taxes imposed by the authority of the Parliament of Great Britain.”
Returning to the claim that the several charters preclude Parliamentary taxation, Jenyns wrote, “no charter from the Crown can possibly supersede the right of the whole legislature. Their charters are undoubtedly no more than those of all corporations, which empower them to may bylaws and raise duties for the purposes of their own police, forever subject to the superior authority of Parliament.” He also observed that some of the charters dictated that the manner of exercising said powers was specified in the express words, “according to the course of other corporations in Great Britain.” This provision, consequently, prescribed that, “they can have no more pretense to plead an exemption from this parliamentary authority than any other corporation in England.”
2. Jenyns addressed the further allegation that even if Parliament had the power to impose taxes on the colonies, it would be an unjust tax and that “no supreme or legislative power can have a right to enact any law in its nature unjust.”
“To this,” he wrote, “I shall only make this short reply: that if Parliament can impose no taxes but what are equitable, and the persons taxed are to be the judges of that equity, they will in effect have no power to lay any tax at all. No tax can be imposed exactly equal on all, and if it is not equal, it cannot be just; and if it is not just, no power whatever can impose it; by which short syllogism, all taxation is at an end. But why it should not be used by Englishmen on this side the Atlantic as well as by those on the other I do not comprehend.”
Whether Dulany or Jenyns had the better abstract argument, readers may determine. It must be noted, however, that the issue was settled on the battlefield, not a court of law: In that sense, it was a de facto win for the Americans. Nevertheless, within the historical context of the time, the debate draws attention to the innovative principle of the American Revolution: taxation only with representation.[3] British taxation after the French and Indian War, particularly on tea, was quite small but, for the first time, it was a direct tax (as opposed to indirect taxation via duties, etc.) and the “power to tax involves the power to destroy.” [4] Consequently, the colonists were rightly concerned about representation and their rights. The only safety, according to colonial thought, was to keep the purse strings in their own hands by electing their own representatives who would tax and govern for their own internal affairs and be responsible to their constituents’ own interests and needs. As such, virtual representation was completely rejected by the American colonies. Consequently, it was not the amount of tax, it was the principle of who gets to tax and by what authority: the only legitimate authority being the consent of the governed through their own deputed, local representatives.
[1] Daniel Dulany, “On the Propriety of Imposing Taxes in the British Colonies.” (Found in The Annals of America, Vol. 2, Resistance and Revolution. Encyclopedia Britannica, Inc. Chicago, pp. 156-157.) Original source: Considerations on the Propriety of Imposing Taxes in the British Colonies, for the Purpose of Raising a Revenue, by Act of Parliament, London, 1766.
[2] Soame Jenyns: “The Objections to the Taxation of Our American Colonies Considered.” (Found in The Annals of America, op. cit. pp. 160-161.)
[3] Addressing the taxing policy of the era is beyond the scope of this limited essay. Suffice it to say that the American colonists believed they should completely control their internal affairs and directly tax themselves for their internal needs and exigencies. Even though American colonists took every opportunity to avoid paying British duties on trade demanded by the Navigation Acts, they accepted the role of the Crown as an entity that governed their external affairs, trade, and foreign relations. They were even ok with the duties, which were indirect taxes, as long as the money went to paying the expenses of regulating and protecting their trade; however, when they became convinced that minimal regulation had transformed into direct revenue for the Crown and Parliament, the representation issue arose and, as they say, the rest is history.
[4] National Archives and Records Administration. (n.d.). McCulloch v. Maryland (1819). National Archives and Records Administration. Retrieved January 20, 2023, from https://www.archives.gov/milestone-documents/mcculloch-v-maryland#:~:text=The%20court%20decided%20that%20the,involves%20the%20power%20to%20destroy.%22