A 

     CONSTITUTIONAL HISTORY OF THE UNITED STATES



                BY ANDREW C. MCLAUGHLIN



             PROFESSOR EMERITUS OF HISTORY 

                  UNIVERSITY OF CHICAGO







             D. APPLETON-CENTURY COMPANY 

                      INCORPORATED 

                 NEW YORK LONDON 1936 

 COPYRIGHT, 1935, BY D. APPLETON-CENTURY COMPANY, INC.



All rights reserved. This book, or parts thereof, must not be reproduced in

             any form without permission of the publisher



        PRINTED IN THE UNITED STATES OF AMERICA



"For who are a free people? Not those, over whom government is reasonably

and equitably exercised, but those, who live under a government so

constitutionally checked and controuled, that proper provision is made against

its being otherwise exercised." — John Dickinson, Letters From a Farmer

in Pennsylvania (1768).



                         PREFACE



The purpose of this volume is to present briefly and clearly the constitutional

history of the United States during nearly two centuries. I have no special

ambition to write a long and learned work — so long as to deter a

prospective reader from the task of scanning its pages, and so technical that

only the learned expert, to whom I can give no valuable information, will

occasionally turn its pages. I have attempted, therefore, to include essentials

and those alone, to discuss those matters which in my own judgment the

American citizen, not highly trained in the law, should know familiarly.



But the writing of a short history of a long and complex period furnishes its

special difficulties. The author is under continuous obligation to practice

self-restraint. He must exercise unremitting care in selecting the materials that

he wishes to include in his story. This process of choice makes unrelenting

demand and requires the use of discriminating judgment; the results may not

satisfy the wisely critical reader. Conclusions, though they may be based on

extensive exploration, must often be summed up in a sentence or two, without

cautious modification or elaborate exposition. But one can only do his best,

and choose the things he believes to be the most significant and useful.



This volume does not pretend to be in the main a history of constitutional law

as announced by the courts. I have sought above all to make it concrete and

not abstract, to associate constitutional principles with actual political and

social conditions and with actual controversies reaching far beyond the

court-room. But in many cases this association had to be presented briefly or

to be plainly indicated only by inference. The great controversies, however,

needed to be treated with sufficient detail. After all, the most important

question, during the first three-fourths of a century under the Constitution, was

the question whether the nation would survive, continue to live as an

undivided whole. The most significant and conclusive constitutional decision

was not rendered by a court of law but delivered at the famous meeting of

General Grant and General Lee at Appomattox. This is only an illustration of

the fact that, not judicial pronouncements, but great controversies, discussed

and rediscussed by statesmen and the common people, are, or may be, the

crucial matters.



It may seem that I have given disproportionally brief attention to the first third

of the present century. If that be a just criticism, it may, nevertheless, be

pointed out that, when we view the occurrences within our own memories,

we are in danger of forcing unduly our own prejudices upon the reader. Only

the greatest historians have ever succeeded in writing objectively of their own

times. Furthermore, in discussing recent events it is difficult or impossible to

get perspective; and perspective is for the historian his one necessity. And yet

the apparent brevity of treatment of the later years is partly not real.

Constitutional decisions, rendered in the early decades of this century, are

often cited or briefly discussed in connection with problems arising in the

more distant past. Frequently — and I hope with due caution — problems of

early years are appraised by the principles laid down at a later time. Among

the 342 cases referred to in the course of the book, 112 were decided in the

twentieth century. Perhaps I ought to add that I have not attempted to trace

constitutional developments after 1932.



I wish to acknowledge the suggestions furnished by some of my colleagues

and others: Professor Arthur H. Kent; Professor Edward W. Hinton;

Professor Avery O. Craven; Professor Quincy Wright; Professor Rodney L.

Mott; Professor Edward S. Corwin; Professor James G. Randall; Dr.

Howard K. Beale. I wish also to give full recognition to the patient and

intelligent labors of my assistant, Miss Marjorie L. Daniel.



                                 ANDREW C. MCLAUGHLIN. 

                                              Chicago, Illinois.







                        CONTENTS



CHAPTER



                                                      PAGE



PREFACE .............. vii



I. INTRODUCTION ............ 3



II. THE OLD EMPIRE ........... 7



III. THE PROBLEM OF IMPERIAL ORGANIZATION. THE ALBANY

PLAN .......... 17



IV. THE WRITS OF ASSISTANCE AND THE REVENUE ACT . 25



V. THE STAMP ACT ........... 35



VI. AFTER THE STAMP ACT ......... 52



VII. AN OBDURATE PARLIAMENT AND OBSTINATE COLONIES,

1769-1773. THE GREAT CONTROVERSY BETWEEN GOVERNOR

AND LEGISLATURE IN MASSACHUSETTS ........... 64



VIII. THE INTOLERABLE ACTS. THE ARGUMENTS IN DENIAL OF

PARLIAMENTARY AUTHORITY ..... 75



IX. THE CONGRESSES OF 1774-1775 ........ 83



X. THE PHILOSOPHY OF THE REVOLUTION AND THE

DECLARATION OF INDEPENDENCE ...... 91



XI. EARLY STATE CONSTITUTIONS ....... 106



XII. THE ARTICLES OF CONFEDERATION ...... 118



XIII. THE TRIBULATIONS OF THE CONFEDERATE PERIOD. THE

CHIEF PROBLEM OF THE TIME ..... 137



XIV. THE FEDERAL CONVENTION ........ 148



I. DETERMINATION TO FOUND A NATIONAL GOVERNMENT

.......... 148



II. CONTROVERSY AND COMPROMISE; THE ESSENTIALS OF

FEDERALISM; COERCION OF LAW AND NOT OF ARMS ....... 163



III. SECTIONAL DIVERSITY; SLAVERY; THE PRESIDENCY; THE

PHILOSOPHY OF THE FATHERS 185



XV. THE ADOPTION OF THE CONSTITUTION ..... 198



XVI. ORGANIZATION OF THE GOVERNMENT. HAMILTON'S

FINANCIAL POLICY. IMPLIED POWERS. THE JUDICIAL SYSTEM

.......... 224



XVII. THE ESTABLISHMENT OF THE EXECUTIVE DEPARTMENTS

AND THE DEVELOPMENT OF THE CABINET 238



XVIII. THE ESTABLISHMENT OF THE AUTHORITY OF THE

EXECUTIVE IN FOREIGN AFFAIRS ...... 248



XIX. THE ALIEN AND SEDITION ACTS ....... 264



XX. THE VIRGINIA AND KENTUCKY RESOLUTIONS ... 272



XXI. THE ELECTION OF 1800. THE REPEAL OF THE JUDICIARY

ACT OF 1801 ......... 282



XXII. THE ANNEXATION OF LOUISIANA ...... 294



XXIII. JOHN MARSHALL, CHIEF JUSTICE. THE EARLY HISTORY

OF THE SUPREME COURT. MARBURY v. MADISON 299



XXIV. THE IMPEACHMENT OF PICKERING AND CHASE. THE

BURR CONSPIRACY ......... 320



XXV. FEDERAL AND STATE DIFFERENCES. FEDERALIST

OPPOSITION. THE EMBARGO. THE OLMSTEAD CASE . 331



XXVI. THE WAR OF 1812 ........... 348



XXVII. CONDITIONS AFTER 1815. THE RISE OF THE NEW WEST.

INTERNAL IMPROVEMENTS ...... 356



XXVIII. THE DEVELOPMENT OF STATE CONSTITUTIONS ... 366



XXIX. THE MISSOURI COMPROMISE ........ 372



XXX. CONSTITUTIONAL LAW UNDER CHIEF JUSTICE

MARSHALL ............ 383 



XXXI. THE PARTY SYSTEM AND PARTY MACHINERY. THE

DEATH OF KING CAUCUS ....... 401



XXXII. JACKSON AND THE BANK. THE EMERGENCE OF THE

MODERN PRESIDENCY ........ 410



XXXIII. GEORGIA AND STATES' RIGHTS. SOUTH CAROLINA

RESORTS TO NULLIFICATION. THE THEORIES OF JOHN C.

CALHOUN ......... 426



XXXIV. CHIEF JUSTICE TANEY AND THE SUPREME COURT .. 454



XXXV. EARLY CONTROVERSIES OVER THE SLAVERY PROBLEM

(1833-1842) .......... 473



XXXVI. THE ANNEXATION OF TEXAS ........ 496



XXXVII. WAR WITH MEXICO. THE WILMOT PROVISO. SLAVERY

IN THE TERRITORIES ........ 506



XXXVIII. THE COMPROMISE OF 1850 ........ 523



XXXIX. THE REPEAL OF THE MISSOURI COMPROMISE ... 542



XL. THE DRED SCOTT CASE ......... 552



XLI. THE STRUGGLE FOR KANSAS ........ 565



XLII. THE LINCOLN-DOUGLAS DEBATES ...... 578



XLIII. THE EVE OF THE CIVIL WAR ........ 589



XLIV. CONSTITUTIONAL PROBLEMS OF THE CIVIL WAR .. 615



XLV. RECONSTRUCTION: I. EARLY PROBLEMS; RADICAL

VICTORY ............. 642



XLVI. RECONSTRUCTION: II. CONGRESS HAS ITS WAY;

IMPEACHMENT ........... 660



XLVII. RECONSTRUCTION: III. THE UNION RESTORED.;

CARPETBAGGERS AND FEDERAL TROOPS ...... 676



XLVIII. THE ELECTION OF 1876 ........ 696



XLIX. THE FOURTEENTH AMENDMENT ...... 720



L. THE LATER YEARS OF THE NINETEENTH CENTURY.

DEVELOPMENT OF NATIONAL AUTHORITY. THE PROBLEM OF

IMPERIALISM ...... 760



LI. INTERSTATE COMMERCE. RAILROADS. TRUSTS.

AMENDMENTS. THE PRESIDENCY. CONCLUSION ... 771



CONSTITUTION OF THE UNITED STATES ..... 795



TABLE OF CASES ........... 811



INDEX .............. 819







                        CHAPTER I



                     INTRODUCTION



To find a beginning of American constitutional history is a difficult or

impossible task. Certain important principles of constitutional government

were in existence long before the United States was founded; some of these

principles are commonly, though rather loosely, said to have had their origin in

Magna Charta. This means only that, to know fully the forces and ideas which

are embodied in our constitutional system, it is necessary to know the main

course of English constitutional history. There are — to choose a simple

example — in the Constitution of the United States terms and provisions

which disclose their full meaning only when studied as a part of English

constitutional history — habeas corpus, bill of attainder, common law, trial by

jury, and other phrases. Moreover, the institutions and the elementary, though

all-important, constitutional principles were not suddenly begotten in the

America of the eighteenth century. Even in recent years the courts of this

country have found it necessary to examine the laws and constitutional

principles of England which were very old when the Federal Convention met

in Philadelphia in 1787.



Furthermore, institutional forms as distinguished from principles were the

product of long growth; to some extent their developments can be traced in

English history. They are, however, more distinctly seen in the American

colonies. When these colonies became states, their institutions were patterned

in very large measure on the actual institutions of the colonies as they had

developed in preceding decades. The framers of the federal Constitution were

in their turn guided by the state constitutions; they did not enter upon their

great task by ignoring the past; they did not seek in any large degree to invent

what was new and untried. A complete constitutional history of the United

States would include, therefore, at least a full outline of colonial development.

Indeed, the states as they stand to-day are a part of our system of

government, and an exhaustive treatment of our history would necessarily deal

with the origin and development of state institutional forms; it would, for

instance, deal with the bicameral system and the position and authority of the

governor. But if one is to compress his work within manageable and readable

limits, he must begin somewhere and curb his anxiety to seek origins and to

portray the forces which worked through the earlier centuries. The purpose of

this work is to trace the main lines of constitutional development for more than

a hundred and fifty years, beginning with the middle of the eighteenth century.

State history must be largely neglected, but not totally lost to view.



Constitutional history, moreover, when viewed in its entirety, is of almost

limitless extent, because to comprehend it fully one must have in mind social

and industrial change and movement. Institutions and principles do not

develop or move in a vacuum; they bear the impress of actual social need and

of imperative adjustment, even though the waves of time often seem to dash in

vain against the walls of habit and of established practice. But here again,

there is so much to be taken into account that one must exercise continuous

restraint. He must be satisfied by only occasional references to the pulsations

of the social and economic life which cause constitutional controversies and

account for important determinations by voters, legislatures, and courts.



In discussing the earlier period covered by this work, the purpose of the

writer is to dwell upon the emergence of the constitutional system as

embodied in the Constitution of the United States. Some attention must be

paid to the transformation of colonies into self-governing commonwealths,

and to the principles on which state constitutions were founded, for that was

the heart of the Revolution. But I do not expect to enter upon more than

incidental study of the growing irritation between the colonies and the home

country. There is no need of prolonged examination of the dispute as a mere

prelude to war. The causes of the conflict by arms which broke the empire in

twain have been often told by competent scholars. Our main purpose must be

to look for ideas, the announcements of doctrines, the unfolding of principles,

which are of significance because they entered into the American

constitutional system, when that system came into tangible existence.



There are two main thoroughfares which may be traced in traversing the three

decades before 1788: (1) one of these marks the course of developing

principles of limited government which was supposed to guard individual

liberty. Legally limited governments were the impressive products of the

generation which formed state constitutions and brought the United States as

a body politic into being. (2) The other main thoroughfare is that which led on

to the particular form which the United States assumed; with the adoption of

the federal Constitution, a federal state was founded. This was a state almost,

if not quite, new to the world, though to-day states of similar structure dot the

earth. As a system of political order, federalism is characterized by a

distribution of essential powers of sovereign authority among governments;

each government has its distinct share of powers; and as long as the system

remains unchanged by some constitutional process, each has its inviolable

hold upon its field of activity. To put the case concretely — the United States

is a federal state, because it is a composite or complex system of political

organization; it has the quality of diversification, not of concentration or

complete consolidation.[1] The central government on the one hand and each

state on the other have their respective spheres of legal authority. The United

States differs from a mere league of totally sovereign states and from a totally

unitary state.



If we look upon the Revolutionary period as a period in which constitutional

principles developed and found expression, and in which institutions were

produced, if we are not content with the war and the cleavage of the old

empire, if we examine the years to discover their creative character, we find

the two main achievements which have already been mentioned — the

establishment of limited government and the founding of the federal state.

These were the products of discussion and aspiration. Every period in history

must be evaluated by its results; only thus can its actual life be comprehended.

The Revolutionary period, which lasted for a generation and ended with the

adoption of the federal Constitution, was peculiarly prolific in ideas,

principles, and political philosophy of a practical character; it ended in the

successful building of a political structure which has survived.



Much of what is important to us as evidence of the creative forces of the

Revolutionary period comes to light in an examination of the arguments used

in the years before the war. Probably we can see better than did the

statesmen of the time the full significance of the contest, because we know the

results; we realize the implications of what was said and done as history

brings them into the light. Our interest in those discussions is not due to any

desire to discover whether, on the basis of the constitutional system of the old

empire, the position taken by the colonists was legally sound or not. We must

bear in mind the historical processes of preceding decades and also the

immediate character of the controversy; but we must select those things which

we find leading up to the end — the establishment of institutions and the

crystallization of principles in the American constitutional system.



As one examines the speeches and pamphlets and resolutions which were put

forth to support the colonial position, he discovers, quite naturally, that the

lines which led on the one hand to limited government and were designed to

protect individual liberty, and the lines which, on the other hand, led to the

final foundation of the federal state — that is to say, the two lines of progress

selected for special attention in this work — were interlaced; the arguments

and pronouncements were mutually supporting. The declarations against

parliamentary taxation included a demand for protection of the individual from

arbitrary taxation and also the right of the colonies as constituent parts of the

empire to tax themselves; they included, therefore, the striving for personal

rights and for the recognition of colonial competence. The rights of the

individual and the rights of each colony appeared, though logically

distinguishable, to rest in some respects on a common foundation.



If chronological order is to be followed, rather than purely logical order, we

may expect to find this interweaving; and in general it may be necessary to

leave to the reader the comparatively easy task of determining whether the

facts and arguments as presented point to the coming of limited governments

guarded by written constitutions or give evidence of the principle of

diversification which is embodied in the federal state. In the minds of the men

of the time, the inevitable and fully-developed results of their own words were

not of course perfectly plain. They were participants in a great movement, the

full products of which could not be entirely appreciated.







[1] It would be easier to describe the United States as a body in which

sovereignty is divided between state and nation. And that would probably be

the definition of the men of the late eighteenth century. But that brings up the

question whether sovereignty can be divided; and the vaguer definition given

above seems therefore preferable here. If sovereignty is complete political

authority, then there seems to be only one possessor of sovereignty in our

system, viz., the power that can amend the Constitution of the United States.







                       CHAPTER II



                    THE OLD EMPIRE



In the middle of the eighteenth century Britain had a wide-reaching empire. It

was beset with difficulties, for there were enemies of long standing who were

not content. The empire was powerful and prosperous. Studious efforts had

been made on the basis of mercantilism to build up a self-sustaining empire.

Rigorous enactments were passed to ward off invasion by commercial rivals

and to hold the profits of the empire within its own hands. There had been

some attempts to simplify the colonial system, which was, however, still very

complex; for things had moved along under no well-defined and consistent

plan. There were two types of colonies: corporate colonies and the provinces.

The corporate colonies chose their own officials and had charge, without

substantial interference from Westminster, of their own internal affairs. There

were two kinds of provinces: proprietary, with a charter granting to the

proprietor considerable authority, which, however, in the course of time

proved to be not easily or independently exercised; and royal provinces (only

one, Massachusetts, having a charter), in which the royal governor as the

Crown's agent was supposed to carry out the royal behests. It is quite

apparent that the royal colonies were most directly, effectively, and

immediately controlled from Westminster.



Each colony had an assembly, in which at least one chamber was elective.

And these assemblies were not lacking in self-respect or in activity. Royal

governors complained of headstrong legislatures desirous of having their own

way and ready to ignore the orders sent from across the ocean. In large

degree, the colonies managed their own internal affairs, occasionally

hampered by royal instructions and disallowance of colonial acts. Their

external affairs were in the hands of the Crown. Acts of Parliament, especially

sundry measures directing the course of external commerce, had been passed

and were more or less obeyed. Nothing like complete analysis of the situation

can be presented here and none is here attempted. The salient fact is the

reality of diversity, complexity, and the existence of an imperial system in

which there was a large measure of colonial self-government. The colonies

were daily growing in self-assurance, in economic well-being, and in political

competence; and the time was near when they were prepared to announce

their rights or to demand assurance as to what their rights were.



Not that there was a spirit of disloyalty or intentional independence; but the

colonies had been living their own lives, not without restraint, but with

considerable freedom. Virginia, for instance, had managed her internal affairs

for over a century; her political capacity was high; any attempt to change the

political system by encroaching upon the colonial field, especially in matters of

taxation, was sure to awaken opposition. Connecticut, a corporate colony,

complacent in her possession of self-government, serves as another example.

Resentment was certain to be aroused by the intrusion of the hand of the

British government, if it should roughly disturb the habits and the rights of the

colony; The essential matter is this colonial competence which had been

strengthened by decades of experience. The right or the propriety of

interference with an established regime was not decided and cannot be

decided on the basis of mere logic or abstract governmental theory.



In a general view of imperial administration and control, certain elements

stand forth with some distinctness. Great officers of state were the agencies

through which royal management was actually exercised. Among these

ministers the Secretary of State for the Southern Department had chief charge

of American affairs. The Privy Council had wide and in some respects

effective authority. The Board of Trade was a body engaged in gathering

information, in consultation, advice, and recommendation rather than in issuing

direct and authoritative orders; but its influence was of importance and its

views upon questions of colonial policy and management were often

determinative. The royal authority was chiefly and most conspicuously

exercised by (1) appointment and commissioning of the royal governor; (2)

instructions which the governor was directed to carry out, and which were

likely to include orders for the use of the gubernatorial veto or directions to

see that certain policies were followed in the colony; (3) disallowance by the

king in council of colonial statutes, probably the most effective and

far-reaching method of control;[1] (4) review of the decisions of colonial

courts by the Privy Council acting in its judicial capacity.



As a general rule, the royal control was not exercised heedlessly. The

investigations of the Board of Trade were commonly painstaking and were

conducted fairly and intelligently. There was little ill-considered and hasty

interference with colonial affairs; and this appears to be especially true of the

exercise of disallowance and judicial review. Power was used, on the whole,

not for the purpose of rude intrusion, but for essentially non-local purposes,

or for ends which appeared to be of imperial scope and interest.[2] But

disallowance, though the most effective means of retaining imperial authority

and building up a homogeneous empire, was often a source of annoyance to

the colonies, more, it seems, because of delay and uncertainty before actual

use of the power than because of its objects or effects. While the colonies

legislated and colonial courts sat and issued decisions, the Board of Trade

and the Privy Council strove, not altogether without result, to maintain and

build up a common system of law — or at least a colonial recognition of

certain principles. The colonies did not absorb in all respects the forms and

procedure of the common law; but especially in those matters which dealt

with civil rights and liberties, the history of English constitutionalism was by no

means ignored. It is not easy to distinguish those elements in the common law

which can safely be placed within the realm of constitutional principles and

those elements which have to do only with relationships and responsibilities of

individuals. But it is plain that those elements of constitutional right, not

commonly catalogued as belonging within the field of common law, were

common, in large measure, to the empire, if we use the term to include

England and the continental colonies. During the century ending in 1780, 265

cases were carried from colonial courts to the Privy Council.[3] It is, of

course, difficult to say how much emphasis should be laid on the exercise of

judicial control and how much it affected later events and the establishment of

American institutions. There is no very tangible evidence indicating that the

American system of appeals from state to federal courts was a direct

inheritance from the old imperial system; but one would not dare to deny its

influence; institutional principles and practices do not spring out of

nothingness; they are not self-creative. Though there appears to have been

only a few cases in which the scope of the legislative authority of a colony

was passed upon by the Privy Council in a manner to suggest plainly a

complete parallel between the power of the Privy Council and the power of

our courts in declaring an act void, the practice of judicial review, we are

justified in assuming, was not without its influence upon later times.



The decisions of the Council in exercising the power of disallowance often

involved constitutional principles in a very broad sense; there was an attempt

to maintain the general principles of the common law and of the law of Britain,

which thus became, if we use general terms, in a sort of way the law of the

empire. Disallowance of colonial acts, though technically to be distinguished

from judicial decisions, often in reality was exercised in such a manner as to

keep the colonies within their own sphere and to preserve parliamentary acts,

notably the navigation acts, from violation or impairment.[4] In other words, if

a colonial law were disallowed because it exceeded the power of the

legislature under a charter, or because it disregarded the principle that the

colony should not pass an act contrary to the law of Britain, the disallowance

really involved the question of the extent of legislative authority. There is

therefore a certain resemblance between such disallowance and a decision,

which, under our constitutional system, may be rendered by an American

court passing upon the validity of state legislation which is asserted to be in

violation of laws, treaties, or the Constitution of the United States.



The role of Parliament, beyond the passage of navigation acts and acts of

trade, had not been conspicuous. If a thoughtful colonist had been asked

concerning the extent of parliamentary power, his answer presumably would

have been that Parliament was the supreme legislative authority in the empire;

but the admission would have been qualified, as Jeremiah Dummer had at one

time qualified it, by saying, "And shall not the supreme Judicature of all the

Nation do right?" [5] Here again it is impossible to speak with complete

accuracy in a few words, or to show with absolute certainty the extent to

which parliamentary statutes had invaded or affected internal colonial

concerns. But the main fact is the absence rather than the plenitude of

parliamentary legislation. The colonists had lived for years in most respects

unaffected by such legislation, and must have thought of the legislature at

Westminster as far away from their own immediate interests.



There were a few enactments which more or less directly affected the internal

legislation and freedom of action of the colonies. The conspicuous ones are

the following: the Piracy Act (1700) may perhaps be thus classified though in

general it appears plainly an imperial matter; but more important are the acts

fixing the rates at which foreign coins should circulate (1708), establishing the

post office (1710), making colonial real estate and slaves chargeable with

debts (1732), providing for naturalization (1740), extending the Bubble Act

to the colonies (1741), and forbidding the issue of paper money in New

England (1751). But these acts were not of a purely local character;

considerations of the general welfare entered into them; and at all events the

very fact that such acts were passed and thus brought within the purview of

actual imperial control is a matter of some consequence. This field of

parliamentary legislation was occupied because of the teachings of experience

or because of apparent need. And it is from the real, rather than the formal or

theoretical scope of imperial power, that the empire was taking shape — a

matter of importance to anyone seeking the historical foundations of the

American constitutional system.



It ought to be said that, in addition to the acts referred to above which appear

to have the essential quality of acts passed for general imperial interests — at

all events, not to be intrusions on colonial management of internal affairs —

there were certain other acts which were passed to check American

manufacturing and thus to protect British interests. These measures, such as

those restricting the making of woolens and, at a later time, hats and iron,

rested on the assumption that the insular interests of Britain should receive

particular support. But, we should notice, there were other acts or provisions

of acts which were not peculiarly for British advantage.[6] Most of these

matters which Parliament had actually dealt with do not appear, in the light of

our own system, to be suitable subjects for local legislatures alone in a

well-articulated system in which powers are distributed between the central

government and the states.[7] 



For a hundred years, parliamentary acts had with greater or less earnestness

and success regulated the external commerce of the empire. Against the

barriers set up, the colonists had at times complained. The extent to which the

acts were broken is not for us a subject of extreme importance. The fact is

that such acts were passed, the colonists were accustomed to the regulations.

One act, the West India Act or Molasses Act of 1733, was systematically

avoided; it was designed by high duties to force the colonies to purchase the

products of the British insular possessions and not those of the foreign West

Indian colonies, especially the commodity which was one of the main articles

of colonial commerce; in the mid-eighteenth century and before that date, the

rum made from West Indian molasses formed the basis of many profitable

New England voyages. The policy of mercantilism pointed unerringly to the

regulation of trade as a main function of an imperial government, a function

second only to providing for defense. The activity of Parliament in this

particular was very real; every colonist, though only slightly interested in traffic

on the high seas, must have been conscious of this fact.



Once again, for purposes of emphasis, it is desirable to remind the reader that

the colonial assemblies managed their own "internal police." They levied taxes

for local purposes; they had in reality defended themselves as parts of the

empire — more or less inadequately and without concert, it is true, but fairly

successfully; their local trade was in their own hands; and they in short did the

many things — sometimes under pressure from the representatives of the

royal authority — that concerned the daily life of the colonies. Even in the

royal colonies, the legislative assemblies had little by little worn away the

actual authority of the Crown. The old method of opposition, by which the

royal power in England had been gradually diminished, was often used

successfully by colonial assemblies, for possession of the purse strings

enabled the assemblies to reach their goal.[8] 



But in certain aspects the scope of the imperial power stood forth

conspicuously. Parliament regulated trade beyond the confines of any single

colony. The Crown had charge of the post office, foreign affairs, war and

peace, the army and navy, leaving the subordinate military forces, the militia,

to the individual colony; it was in the mid-century beginning to take active

general charge of Indian affairs and trade with the Indians; it had ownership of

the Crown lands within the royal colonies and was soon to become busily

interested in the whole western question; it had taken some part in the

establishment of the colonies, though they had been begun by private

enterprise; it was prepared soon after the mid-century to enter upon plans of

founding and organizing new settlements. Now, every colonist must have been

familiar with the main features of the picture of the empire. Some conspicuous

and important powers of imperial scope must have been taken for granted; to

their existence and the need of their existence the colonists were accustomed.



In the whole picture of the imperial system we see plainly the fact that each

colonist was living under two governments; the colonial government which

was peculiarly his own was not in possession of complete authority. The

colonists at no time were wonted to the sight of a single government

exercising more than limited power. If one insists that in theory the

government at Westminster had complete and unalloyed power, the fact,

nevertheless, if practice and habits are properly taken into account, is that the

government allowed colonial governments to function. Should we admit that in

theory Parliament was supreme, we must nevertheless say also that this

supreme power encroached but little upon internal colonial affairs; and if we

recognize the continuing power of the Crown, we must see in addition the

unremitting activity of colonial assemblies. The Crown, through disallowance

and judicial review, brought into light the fact of colonial subordination and the

existence of a central government controlling certain matters of general

importance.



This rough sketch of the empire, the reader must be warned, presents only a

general picture, subject to modification or enlargement in details. But anyone

even slightly familiar with the American constitutional system will see at once

the similarity between the general scheme of the old empire and the American

political system of federalism. Plainly enough in essentials, if we look at the

actual practice, the empire of the mid-eighteenth century was a diversified

empire; powers were actually distributed and exercised by various

governments. And if we consider the conspicuous powers exercised by the

central government, we find the list strikingly like the list confided by the

Constitution of the United States to the national government. If we add to the

powers exercised by imperial authority the single power to obtain money by

taxation, the similarity is even more evident. It is quite impossible to estimate

with detailed accuracy the measure of influence of this system in the days

when the Americans were called upon to organize their own empire, but that

the Americans were not influenced by their own experiences and by

well-known relationships appears to be an impossible supposition; such a

supposition would compel us to think that the American system of federalism

was a sudden creation, unbegotten by historical forces and unguided by

teachings and habits of the past.



Britain had, therefore, in the mid-eighteenth century an empire characterized

in actual practice by the principle of distribution and not by concentration of

authority. If Great Britain in 1760 had reached out her hand and said, "This is

the law of the empire; thus the system is formed," she would have recognized

herself as the most considerable member of an empire with the pivotal

characteristic of federalism — many governments, each possessing its legal

sphere of authority. If the empire could have been hardened or petrified into

the form then existing, it would have been in essential and important

particulars a federal empire.[9] This system, we must notice, was the product

of growth largely unintended and unplanned. Its value came from that very

fact, from opportunistic effort, from allowing, often heedlessly, spontaneous

growth. Developments had been the product of natural forces and conditions.



A narrative account of colonial history would relate a series of controversies,

not violent but argumentative in character, between the representative

assemblies and the royal or proprietary governors. If these are made to stand

forth, the impression is left of a steady movement forward to independence;

but there was no real purpose of breaking the ties of allegiance. Disputes do

disclose, however, a fairly continuous development of the sense of

self-dependence and the desire of the colonists, especially the politicians, to

have their own way; political controversy was laying the foundations for future

action because of the steady growth of competence and the influence of

practical experience. We are dealing in these pages, however, not with the

causes of disruption but with a general scheme of empire, as it actually took

shape and persisted; we are dealing with actual distribution of powers in a

complex imperial system. The colonists might occasionally object to the

power of a royal or proprietary governor, and they occasionally fretted under

the prohibitions of the navigation acts and acts of trade; but the general

system continued. Any attempt to overthrow the system, or to alter its

essentials, any attempt, above all, to encroach upon that sphere of authority

which had developed under the play of natural forces, was sure to awaken

resentment and alarm.



We shall see, as we go on, various evidences of the effect produced by the

dualistic structure of the old empire. The practice of that empire, as the

colonists knew it and felt it, must be appreciated for an understanding of the

rise and establishment of American federalism. In the succeeding chapters,

covering the years before the federal Constitution was framed and adopted,

this work has in mind two things: the emergence of federalism as a legal

system and the protection of individual right and freedom under limited

government.[10]







[1] Some evidence of the extent of the use of disallowance can be seen from

the following statement: "Of 8,563 acts submitted by the continental colonies,

469 or 5.5 per cent. were disallowed by orders in council." E. B. Russell,

The Review of American Colonial Legislation by the King in Council

(Columbia University Studies in History, etc., LXIV, no. 2), p. 221. "The

royal disallowance was an executive rather than a legislative act, performed

not by the king but by the Council as his executive agent. It was an exercise

of the royal prerogative, an expression of the king's supreme authority in the

enacting of laws by inferior law-making bodies, whose right to make laws at

all rested on the king's will.... The royal disallowance was, therefore, not a

veto but an act of regulation and control, in the same sense that a royal letter

and instruction was an act of regulation. In fact, disallowance and instruction

were synonymous, for both expressed in different forms the royal will." C. M.

Andrews, "The Royal Disallowance," Am. Antiq. Society Proceedings, new

series, XXIV, p. 343.



[2] Professor Andrews classifies the actual purposes of disallowance as

follows: "The policy which governed the board and its advisers had four

leading aspects. First, to defend the law and custom of the British constitution;

secondly, to guard the interest and welfare of British subjects; thirdly, to

protect the colonies or any of their inhabitants from ill-advised legislation; and

lastly, to prevent the passing of laws that were extraordinary, oppressive,

improper, or technically defective." The first group, Andrews says, was the

largest, but "Probably the most important of all the reasons for disallowance

was that an act affected the trade and shipping of the kingdom or the

privileges and prerogatives of British subjects." Ibid., pp. 349, 354. See also,

O. M. Dickerson, American Colonial Government 1696-1765, ch. V.



[3] A. M. Schlesinger, "Colonial Appeals to the Privy Council," Pol. Sci.

Quart., XXVIII, p. 446. "The king in council reversed the colonial courts 76

times and affirmed their decisions 57 times.... In 77 cases no decision is

recorded; 45 cases were discharged for non-prosecution. Only eleven

appeals are noted in the records as having been heard ex parte." Ibid., p.

448.



[4] The discussion in the Constitutional Convention of 1787 concerning the

proposal to give Congress the authority to negative state acts will be spoken

of in a later chapter. The proposal bore a distinct resemblance to the old

disallowance. Madison mentioned the resemblance. It is interesting to see the

men founding the American system considering, some of them advocating, the

institutional practice which had been used by Britain for the maintenance of an

empire. But it is even more interesting to see that the framers of the

Constitution finally recognized the distinction between disallowance because

of the undesirability of an act, on the one hand, and on the other, judicial

determination of the illegality of an act.



[5] "It's true, the legislative Power is absolute and unaccountable, and King,

Lords and Commons may do what they please; but the Question is not about

Power, but Right: And shall not the supreme Judicature of all the Nation do

right? One may say, that what the Parliament can't do justly, they can't do at

all. In Maxim/is minima eft licentia. The higher the Power is, the greater

Caution is to be us'd in the Execution of it, because the Sufferer is helpless

and without Resort." Italics of the original omitted. Jeremiah Dummer,

Defence of the New-England Charters (Boston, 1745), pp. 40-41.



[6] "Some of the interests sacrificed for the good of the Empire were British,

some colonial." G. L. Beer, British Colonial Policy 1754-1765, p. 196.



[7] Notice the provisions in our own Constitution concerning piracy, the post

office, paper money, naturalization, bankruptcy, and rates of foreign coins.

The act making real estate chargeable with debts was intended to prevent a

colony from releasing persons who came to settle in the colony from their

obligations to the creditors to whom they owed money before their migration;

it may be looked upon as an enforcement of the principles of reasonable

comity.



[8] "Despite the refusal of the home government to accept the inevitable, the

fact remains that before 1760 the royal control of the colonies was largely

destroyed.... Thus colonial government was no longer in the hands of the

royal officials; the authority of the royal and proprietary governors relaxed;

they lost their patronage, their control over the military, their ability to employ

secret funds, to check riots and revolts, to manage a police or to take any

adequate measures to ensure security at home, or to protect the frontiers

against the French and Indians." C. M. Andrews, The Colonial Period, pp.

174-175.



[9] In an earlier paper ("The Background of American Federalism," Am. Pol.

Sci. Rev., XII, pp. 215-240), I said that Great Britain by the middle of the

eighteenth century had a working federal empire. To this statement Professor

G. B. Adams, though not criticizing the main contents of the paper, objected

on the ground that an empire with a central government free from control by

the empire as a whole was not a federal empire. The criticism may be sound.

The important idea is, however, that the chief quality of federalism —

distribution of powers — appeared in the working practices of the old

empire, and that distribution, as a practical fact, does more than merely

suggest the scheme of distribution in the American constitutional system of a

later day. The similarity between actual distribution in the old empire and the

distribution provided for by the Constitution of the United States is apparent

and discloses the evident fact of a family relationship; in essentials American

federalism was the child of the old empire.



[10] In addition to the references cited in this chapter, see E. B. Greene,

Provincial America 1690-1740 (Am. Nation Series, VI); E. B. Greene,

The Provincial Governor in the English Colonies of North America

(Harvard Historical Studies, VII); M. W. Jernegan, The American

Colonies 1492-1750; H. L. Osgood, The American Colonies in the

Seventeenth Century, III; H. L. Osgood, The American Colonies in the

Eighteenth Century, I-II.







                       CHAPTER III



   THE PROBLEM OF IMPERIAL ORGANIZATION. THE

                      ALBANY PLAN



By the middle of the eighteenth century Britain was faced with the problem of

imperial organization. We cannot say that her leaders were fully conscious of

the fact; but looking back upon those years it is plain to us that, if her empire

was to survive undamaged, a problem of great difficulty presented itself. And

this problem, as we now view the facts, was central and insistent in its

demands. Even if the blind could not see it, the question was there. Could the

empire be so organized and arranged that it could find adequate means of

preserving and using its strength? Could actual conditions be so envisaged

that colonial valor and colonial enterprise would, without diminution of

colonial self-government, contribute their vigor to the essential unity and

development of the empire? The pressing and immediate question appeared

to be means of securing men and money for imperial defense;' but the

necessity of the case demanded the establishment of a system which would

not only recognize imperial unity but conserve local rights and local

self-respect. Principles of self-government, consonant with the actual

competence and experience of the colonies, must find their place in the

system; principles of individual liberty, the outgrowth of English

constitutionalism — and deeply cherished by the colonists — must be

watchfully guarded; and all arrangements and plans must be adjusted to the

needs of a powerful and developing general system of empire.



That Britain failed to find a solution of the problem the reader need not be

told. The story of conflict and failure is of immense consequence in the history

of British imperial growth; but we are entering upon the study of events which

produced the United States; and our attention is called to the fact that

essentially the problem was passed on to the American states when they

became free to organize their own empire. To solve the problem of imperial

organization, therefore, grounded as it was in the history of the old empire,

was the central, dominating, irrepressible task of a generation (1750-1788). 



If there had been no danger to Britain because of the menace of France and

her Indian allies, events might have moved on quietly for a time; the old

easy-going system of imperial management might have continued undisturbed,

save by the recurring evidence of unrest characteristic of a people on this side

of the water who were not easily content. And if in any crisis the colonists had

freely, generously, and thoughtlessly turned over their funds to be spent in

defense, the problem of imperial order, we may well imagine, would not have

been pressing. But this is only saying that if responsibility, expense, and

coöperation had been assumed voluntarily, there would have been no need of

law or compulsion. The cold fact was, however, that the colonies would not

work together, and if there was one thing they disliked more than granting

money — a dislike common to humanity in general — it was the pain of being

deprived of the right to argue about the matter and of spending the money

themselves, if spend they must.[1] Hesitation, debate, and delay are among the

pains and penalties of popular government.



So varied were the colonies, so different in their social and industrial life, so

far-removed one from the other, that any scheme of voluntary coöperation or

systematic union presented enormous difficulty. Each colony had a fixed sense

of its own importance and not much interest in its neighbors or sympathy with

its neighbors' needs. In one view of the case, this readiness of each colony to

look out for itself, this sentiment of local allegiance, this sense of self stands

forth as the salient feature in the picture of the mid-century. So evident were

the conditions that it appears to-day as a remarkable fact that the colonies

were later, under pressure of common danger, brought to coöperation and

union. And still, underlying all this reality of variation and of local loyalty,

political institutions were strikingly similar; grumble as the colonists might over

navigation acts or disallowance, they had worked out their system of

self-government on the basis of a common tendency and desire; they all

cherished the principles of English liberty, as they conceived it. From one end

of the land to the other they spoke the same political language, cherished the

same ideas, believed in the same fundamental doctrines; in these respects —

omitting differences in religion and in habits of life and industry which militated

against a feeling of common interest — there existed a real unity, a unity

which was based on possession of certain principles and aspirations.

Contradictions often appear to be the core of life; and so we find the

principles of self-government and of self-control making for segregation, and

yet the very desire for political self-determination constituted a common

quality and made for coöperation when political interests and economic needs

were at stake. In the long run, coöperation and ultimate union were found to

be necessary for the preservation of the separate colonies and states.



Long before the mid-eighteenth century, various suggestions or plans of union

had been put forth as well as attempts on the part of the royal authority to

simplify the colonial system. But it is difficult to trace with assurance the

influence of these proposals upon later movements. The New England

Confederation which was established in 1643 and lasted for fifty years, most

of the time in a state of desuetude, had some effect in suggesting a general

scheme of union when that problem in the eighteenth century demanded an

answer.



After the peace of Aix-la-Chapelle, which was in reality only a truce, it was

apparent that a new struggle with France was likely to come, a contest for

dominion in the great valley beyond the mountains and also, it might well be,

for the very existence of the coast colonies. What part were the colonies

prepared to play in this encounter? Would they freely enlist their men and

open wide their purses, or would they hesitate and talk and insist upon their

privileges when danger was at their very doors? Their general attitude

furnished little hope or consolation. It was especially necessary to hold the

Iroquois Indians and in general to handle the Indian question with discretion.

Recognizing the need of effective coöperation, the Board of Trade planned a

conference of colonial governors, and in 1753 instructions were sent to the

governors of royal and proprietary colonies [2] north of the Carolinas directing

them to see that commissioners were sent to treat with the Six Nations and to

renew the "Covenant Chain" with them. The formation of some kind of union

appears to have had the sanction of the British authorities.



The outcome was the Albany Congress of 1754. After the Indian matters

were disposed of, the commissioners entered upon consideration of the need

for union and coöperation. They unanimously decided that a union was

absolutely necessary for security and defense, and they drew up a plan of

union which appears to have been based on "Hints" furnished by Franklin

and, though seemingly the product of considerable discussion, was probably

largely his own handiwork. The plan deserves careful examination for various

reasons, but especially because it points unerringly to certain distinct elements

in the general problem of union; and those matters came to the fore and

pressed for consideration not only then but in later years; it plainly discloses

the nature of the task of imperial organization and it points to certain definite

powers which were of common interest and needed to be confided to some

central authority. It marks the beginning of an effort to single out the things

that should be turned over to a central government or an agency of central

administration. Any effort to formulate a basis of classification and distribution

of powers is of commanding interest to the student of the American political

system as it came to be. By the terms of the plan, a Grand Council was

provided for, the members to be chosen by the representative assemblies in

the colonies.[3] The general executive authority was given to a President

General who was to be appointed and supported by the Crown, and who

had the right to negative all acts of the Council; with the advice of the Council,

he was to make all Indian treaties which concerned the colonies generally,

and he was to make peace or declare war with the Indians. The President

and the Council were authorized to regulate Indian trade, and to "make all

purchases from Indians for the Crown, of lands [now] not within the bounds

of particular Colonies, or that shall not be within their bounds when some of

them are reduced to more convenient dimensions." They were to have charge

of founding new settlements on such purchases and of providing laws for

them, until the Crown should "think fit to form them into particular Governts ."

To this central authority also was confided the right to raise armies and pay

them, to equip vessels of war, and "for these purposes" to levy "duties,

imposts or taxes...." A General Treasurer was to be appointed and also a

particular treasurer in each colony when necessary; and the President General

and the Council were to have the extraordinary power of ordering the sums in

the treasuries of each government into the General Treasury, or of drawing on

them "for special payments...." All laws were to be, as near as might be,

agreeable to the laws of England and should be transmitted to the king for

approbation. The President General could nominate for the approval of the

Council all military officers, while all civil officers could be nominated by the

Council for approval by the executive.



The plan, therefore, granted to the proposed central government a method

and the power of raising money; it marked out a fairly definite sphere of

action; and it bestowed ample authority over four subjects of supreme

importance — Indian affairs, war, purchase of wild lands, and control, for a

time at least, of western settlement. The commissioners even ventured to

provide for proportional rather than equal representation of the several

colonies in the Grand Council and to suggest quite plainly the desirability of

limiting the extent of the larger colonies, some of which had claims to a vast

territory beyond the mountains. Both of these latter proposals were sure to

arouse opposition and in later years proved to be especially perplexing

obstacles in the way of forming a federal union.



The document, as we read it to-day, appears remarkably precocious. It

foreshadowed the anxieties, aspirations, disputes, and achievements of the

years ahead. We need not be astonished that thirty-five years later, after the

debates, trials, and tribulations of a generation, Franklin declared that in his

judgment, if this plan or something like it had been adopted and carried out,

"Separation of the Colonies from the Mother Country might not so soon have

happened, nor the Mischiefs suffered on both sides have occurred perhaps

during another Century." [4] But the significance of these proposals lies not so

much in their suggestions for a method of saving the old empire as in their

indication of the route that was to be followed in later years.



There was small ground for hope that the plan would be favorably received

on either side of the ocean. It received short shrift in England. The Board of

Trade had its own ideas and drafted a plan, but it need not detain us; it is

significant, however, as proof of the fact that the home authorities were

seriously considering the problem of empire and chiefly the need of acquiring

and controlling means of defense. No colony accepted the Albany

proposals.[5] Franklin said the plan was not favored in the colonies because it

allowed too much to prerogative and the Crown disapproved it because it

"placed too much Weight in the Democratic Part of the Constitution...." [6] 



The plan indeed was ahead of the time; though measures for defense were

imperative, any general plan of union, in which the colonies would have a

large share, and which would be political in character and not calculated for

defense alone, was objectionable to Britain, and on the other hand, colonial

self-esteem and caution looked askance at intrusion upon hard-won

preserves. How disconcerting to the average colonist was the proposal to

establish a central government — even a central government in which the

colonies would be represented — which could put its hand into the colonial

treasury and draw forth funds even for war against a common enemy! "Every

Body," said Franklin, "cries, a Union is absolutely necessary; but when they

come to the Manner and Form of the Union, their weak Noddles are

perfectly distracted." [7] The task was to distract weak and strong noddles

alike for several decades to come. This was no job for puny minds.

Something, the shrewdest heads on both sides of the water believed, had to

be done. The Board of Trade declared that if the colonies would not

acquiesce in some such arrangement as the one proposed by the Board, there

was no alternative but an act of Parliament.



Eager and anxious for imperial stability and for success in the war with

France, Franklin wrote the next year (1755) that a plan of union ought to

"take Place" and be established by king and Parliament. " 'Till it is done never

expect to see an American War carried on as it ought to be, nor Indian

Affairs properly managed." [8] Colonial governors were beginning to think that

the only way to get money for defense was parliamentary taxation and some

of them advised it. Governor Shirley of Massachusetts declared the behavior

of the colonies showed the necessity not only of "a Parliamentary Union, but

taxation...." [9] The ministry during these years must have received ample

assurance [10] that the colonies would not act of themselves and that some

sort of compulsion was necessary.[11] The course of the war probably

hardened this belief, and yet some of the colonies participated with a good

deal of vigor, especially under the inspiring leadership of Pitt. And it is an

interesting example of the apparent perversity of human nature that the freer

colonies, those most fully in command of themselves, were the readiest to do

their part. In the royal colonies, where affairs were most directly under royal

control, bickerings and disputes with the governor were prominent and almost

continuous. The proprietary colonies indulged in enjoyable disputes with the

representative of the proprietary authority and yielded with ill grace to any

demands for effective coöperation. The spirit of individual right and an

insistence on colonial privileges were marked features of the situation. Despite

all of the difficulties, Britain triumphed in the war, but the embarrassment

resulting from incoherence and from the absence of a thoroughly articulated

empire was apparent In some respects the war probably brought forth a

certain sense of imperial unity, and it may have developed a recognition of

identity of interests between one colony and another. But we must not speak

with too much assurance. Each colony was quite conscious of itself and of its

own right to guard what it deemed to be its privileges. The war gave special

opportunity for the exercise of political craftsmanship. At the end, if the need

of coöperation was more evident than it had been at an earlier time, and if

there was glorification of British prowess and exultation over the victory,

nevertheless imperial unity, organization on any viable basis suitable to the

conditions, and the establishment of any effective system were even more

remote, to all appearances than before hostilities began.[12] If one is inclined

to blame the British statesmen for not working out a scheme of imperial order

then or at a later time, he must surely also perceive the herculean nature of the

task; and, moreover, the background of colonial incoherence and of colonial

self-sufficiency must be taken into account in any attempt to appreciate the

job which the Americans faced, not only in 1754 but in later years, when, for

their own well-being, there was imperative need of coöperation and

continental organization. The casual reader is probably inclined to

overemphasize the single feature of the individual's belief in his personal

liberties and his readiness to defend them, and is likely to underestimate the

sense of self which was cherished by each colony as a constituent part of an

empire. And we must remember that the empire had grown up without any

consistent and adequate political system, the eyes of the British administration

being fixed largely on trade, while Britain watched her enemies and her

commercial rivals in Europe. A commercial rather than a well-articulated

political empire had received the weight of attention.







[1] Franklin writing in 1754 portrayed the situation: "... some Assemblies being

before at variance with their governors or councils, and the several branches

of the government not on terms of doing business with each other; others

taking the opportunity, when their concurrence is wanted, to push for

favourite laws, powers, or points, that they think could not at other times be

obtained, and so creating disputes and quarrels; one Assembly waiting to see

what another will do, being afraid of doing more than its share, or desirous of

doing less, or refusing to do any thing because its country is not at present so

much exposed as others, or because another will reap more immediate

advantage; from one or other of which causes, the Assemblies of six out of

seven colonies applied to, had granted no assistance to Virginia, when lately

invaded by the French, though purposely convened, and the importance of

the occasion earnestly urged upon them...." Franklin, Writings (A. H. Smyth,

ed.), III, p. 203.



[2] Virginia and New Jersey did not send representatives. The

Lieutenant-Governor of New York seems to have represented Virginia.

Representatives from Rhode Island and Connecticut attended.



[3] No representation from Georgia was provided for. There were to be not

less than two nor more than seven representatives from any one colony.

Documents Relative to the Colonial History of the State of New-York,

VI, p. 889.



[4] Franklin, Writings (A. H. Smyth, ed.), III, p. 226, note 1.



[5] Nothing could more amply bring before us the watchful regard for colonial

pence than the instructions of Connecticut to her commissioners at the Albany

Congress. She desired the commissioners to join with others in representing

to the king the defenseless state of his governments in America, to make

evident the great expense Connecticut had assumed in comparison with

southern colonies in former wars, and to be sure that the obligation on

Connecticut was "no greater than of necessity." The commissioners were to

"agree to no proportion of expence save for the present occasion," to make

no presents to the Indians unless necessary, and to oppose as far as possible

everything of that nature. They were to see to it that Connecticut troops

served with eastern and not western troops, if there were any such distinction,

and they must be careful not to bind the colony in any way before ratification

by "this Hon. Assembly." Public Records of the Colony of Connecticut. X,

p. 268 note.



[6] Franklin, Writings (A. H. Smyth, ed.), III, p. 227 note.



[7] Ibid., III, p. 242.



[8] Ibid., III, p. 267.



[9] Documents Relative to the Colonial History of the State of New-York,

VI, p. 940.



[10] See the "Sharpe Correspondence," I, Archives of Maryland, VI, pp. 96,

99, 203. "This perverseness of the Virginia Assembly has induced the

Gover[r] to apply home as I am told some other Governors have also done

for an Act of the British Legislature to be obligatory upon all the Govern[ts]

equally, & compel them to contribute their Quotas for the Defence &

Protection of their Properties & His Majesty's American Dominions...."

Sharpe to Calvert, September 15, 1754, in Ibid., p. 99. Sharpe made his

own proposals — a poll tax, or a duty on wines and liquors, or a stamp duty.

"... or can I now think we can have any Dependence on the Assemblies of the

different Colonies with't a B. Act of Parliam't to raise a gen'l Tax on all his

M'y's Subjects on this Cont't.... I much want to know if any Thing is done in

regard to the Union of the Colonies. The Scheme from Albany on y't head is

by no means agreeable to our people, and I dare not give my Opinion

thereon, as I hear it lies with his M'y in Council; but it will be very agreeable if

any Thing can be done to bring the wrong-headed People in this Part of the

World to a proper Understand'g of their pres't Danger, and to rouse an

Emulat'n among them for their Safety in rais'g proper Supplies for defeat's the

Designs of the Com'n Enemy." Governor Dinwiddie to the Earl of Halifax,

February 12, 1755, in "Dinwiddie Papers," I, Va. Hist. Soc. Collections,

new series, III, pp. 496-497. See also Governor Dinwiddie to the Lords of

Trade, February 23, 1756, in "Dinwiddie Papers," II, Va. Hist. Soc.

Collections, new series, IV, p. 340.



[11] For references, see G. L. Beer, British Colonial Policy 1754-1765, pp.

44-46 note. For an account of conditions, see E. I. McCormac, "Colonial

Opposition to Imperial Authority During the French and Indian War,"

University of California Publications in History, I, no. 1, pp. 1-98.



[12] "Despite the coöperation of many colonies in a common military

undertaking, which, it may be, smoothed the way to an eventual

understanding, the dislike and even the enmity of colony for colony were as

great in 1763 as in 1750, while the absorption of each in its own affairs was

as profound as at any time in its history." C. M. Andrews, The Colonial

Period, pp. 232-233.







                       CHAPTER IV



 THE WRITS OF ASSISTANCE AND THE REVENUE ACT



Let us now take up the course of events in the years beginning about the end

of the French war. In giving this chronological narrative, we shall be

concerned chiefly with detecting the statement of principles of government.

We shall find some confusion and some inconsistency; we shall find a shifting

from one position to another, and we should err if we assumed that the

Americans had at the beginning a perfectly clear line of thought which was

finally triumphant. But we shall see from the experiences of the fifteen years

before independence was declared some fairly definite ideas emerging; and

we shall have in mind, amid the confusion, those principles that finally became

domesticated and firmly seated in our institutional system; especially we shall

look for two essentials of American constitutionalism: (1) that governments

have only limited power; (2) that governmental power may be distributed

among governments; in other words, we shall find the two most salient ideas

of the American system: the written Constitution, binding on governments, and

the American federal system.



In 1761 an event took place that John Adams declared marked the birth of

the American Revolution — "Then and there", he said of the famous speech

of James Otis against writs of assistance, "the child Independence was born."

The circumstances were these. Massachusetts merchants had been in the

habit of treating with a lofty disdain the navigation act burdening their trade

with the foreign colonies in the West Indies. Just how common and grave was

this habit of disobedience (vulgarly known as smuggling) is of no considerable

Importance. Soon after the death of George II (1760), an application was

made to the superior court of Massachusetts for the issuance of writs of

assistance; for it appears that old writs ceased to be good six months after the

death of a monarch. The writ in question gave to the persons to whom it was

issued general authority to search for smuggled goods, and its terms were

very comprehensive and sweeping. In opposition to the granting of such

authority by the issuing of the writ, James Otis appeared before the court. He

and his associates were faced by able lawyers on the other side. The subject

of dispute was significant. The brilliant oratory of Otis was called into being to

denounce a process which, he contended, threatened the sanctity of one's

dwelling and the security of property.



We do not know very much of what Otis said. John Adams, then a young

lawyer, present at the argument, wrote in later years an extended account; but

that account was written nearly sixty years after the speech; and, quite plainly,

Adams included in his statement a sort of summary of the Revolutionary

argument; it probably differs in many ways from the line Otis followed.

However that may be, Adams did put down at the very moment, certainly

practically contemporaneously, a brief outline of what Otis did say; and that

brief outline is full of significance. Otis denounced the dangerous character of

the writ as an infringement of an Englishman's right of "House"; he dwelt upon

the extensive authority given by the writ and declared it to be "against the

fundamental Principles of Law." "... all Precedents," he declared, were "under

the Control of the Principles of Law." He had in mind, presumably, the

fundamental principles of British freedom, and he probably used the word

"Constitution" as that word was and is used in Britain; but he went further,

declaring that Parliament was incapable of enacting legislation providing for

such a writ. As the question before the court was the lawfulness of the writ,

he would not stop by endeavoring to discover whether parliamentary

authority sanctioned it; for not even Parliament could lawfully go beyond the

constitution. Furthermore, the court must uphold the constitution even against

Parliament itself; the court must "pass such acts into disuse." [1] 



We find here, therefore, more than fervid eloquence appealing to the sacred

rights of Englishmen; we find American doctrines, startling probably to the

solemn judges who heard them. Even an act of Parliament might be no law,

and if so, it was the duty of the court so to declare. It seems almost incredible

that Otis comprehended the full import of his own words; for in after years

such an elementary principle in American law was not clearly seen by even

keen-minded men.



But there stands his assertion. So, to Otis at least, the British constitution must

have been something real and tangible, fairly direct and conclusive in its

limitations. The logical conclusion from his statement is that an unconstitutional

law is not necessarily a bad law, or an inappropriate law, or even a law

running counter to endeared traditions; an unconstitutional law is not a law at

all; it is void; and a court must so declare. One inevitable result of this

reasoning he did not state and, as far as we know, perhaps he did not see; if

the act in question was no law, no one was under obligation to obey it. He

did, however, say that the court must not treat the act as law and thus aid in

enforcing obedience.[2]



Otis's argument is so impressive and so prophetic of the constitutional system

which was to come that we are in danger of overestimating its actual effect or

of thinking of him as the creator of a fundamental American doctrine. We can

well believe, however, that the doctrine was as precocious as it was

prophetic, though it was by no means altogether without historical

background. It was for the moment ahead of its time, but the days were soon

to come when the refuge of Americans was to be found in the declaration that

some things were beyond the power of Parliament, and if Parliament

exceeded its power, it acted illegally. We should not overstress the appeal to

judicial authority as a relief from unconstitutional enactment, but notice the

thought on which that appeal rested: there are limits, constitutional limits, to

power. That was the staff on which developing revolution was to rest, and

that was the foundation on which American constitutionalism was to be

reared. In light of what went on and of what men said in succeeding years, it

is not so much judicial duty as this fundamental idea of limited as over against

unlimited power that is of chiefest significance. Judicial authority must wait

upon the developing principle that limited government is possible and that

unlimited government is tyranny.



This belief that there were legal limits, beyond which Parliament must not go,

was associated with the belief in natural law and the unchanging principles of

reason and justice; "natural equity" were Otis's words. And of similar import

were "Reason of the common law" — those fundamental principles were

supposed to be established in English constitutionalism. In this connection he

referred to Coke,[3] having in mind Coke's dictum in the famous Doctor

Bonham case.[4] It thus appears that Otis, and others that thought like him,

believed their position was founded on revered legal authority; for had not

Lord Coke himself plainly spoken? "... it appears in our books, that in many

cases, the common law will control Acts of Parliament, and sometimes

adjudge them to be utterly void: for when an Act of Parliament is against

common right and reason, or repugnant, or impossible to be performed, the

common law will control it, and adjudge such Act to be void." Had not other

British judges announced the same doctrines? But withal — and this is

important — Otis was asserting that Britain had a fixed constitution and its

limits were applicable, indeed must be observed, in the empire. Thus he was

announcing that there already existed what in reality the Americans were to

create as a tangible fact. This tendency to assert the undeniable existence of

principles, which were to find institutional expression, is a significant quality of

the American Revolutionary process, of which we shall find other proof.



We do not and cannot know just how much effect these declarations of Otis

had on the popular mind, though we do know that the mind of the average

New Englander was prepared for them. The writs were issued after some

delay, and we need not follow their history. Other events were in progress

which brought in new objections and similar doctrines concerning the exercise

of British authority. These events now claim attention.



In 1764 Parliament passed, at the suggestion of George Grenville, First Lord

of the Treasury and Chancellor of the Exchequer, the Sugar Act, part of a

general plan for enforcing the acts of trade and navigation and for obtaining

some revenue from the colonies.[5] It is not our business to look into

Grenville's purposes minutely. However great the temptation to obtain relief

for the financial burdens of Britain by getting money from America, whatever

justification there might appear to be in compelling America to pay at least a

portion of the expense incurred for her defense, the means and method

proposed by Grenville proved to be obnoxious. They were, furthermore,

innovations upon long-established practices. That the sums received from

certain duties in the colonies had fallen far short of meeting the cost of

collection, producing, it was said, about one-fourth of the cost,[6] was not

necessarily a reason for attempting to make the customs remunerative. The

acts of navigation were not for revenue, but for regulation, restriction, or

prevention of trade.



The purposes for which such acts were passed might have been obtained,

even if no revenue at all reached the public coffers. It is not our affair to

scrutinize the violation of law or to examine the ineptitude or corruption of

certain officials, though the story is an interesting, if rather sordid, tale. The

facts are that the plan of enforcing the acts of navigation and at the same time

using them or parts of them for revenue was a most serious innovation; and it

was an innovation likely, not only to affect seriously the commercial practices

of the colonies, but also to arouse colonial opposition because it involved new

principles. At a later date Burke put the thing in a nutshell: "Whether you were

right or wrong in establishing the colonies on the principles of commercial

monopoly, rather than on that of revenue, is at this day a problem of mere

speculation. You cannot have both by the same authority. To join together the

restraints of an universal internal and external monopoly with an universal

internal and external taxation is an unnatural union, — perfect,

uncompensated slavery." [7] Men had borne the burdens of trade regulations,

"Because men do bear the inevitable constitution of their original nature with

all its infirmities. The Act of Navigation attended the colonies from their

infancy, grew with their growth, and strengthened with their strength. They

were confirmed in obedience to it even more by usage than by law." [8] Burke

thus saw not only what he called "uncompensated slavery" in the joining of

taxation and burdensome restriction, but that the colonies were used to the

regulations of trade but not used to the imposition for revenue.[9] An

examination of the West India Act — the Molasses Act of 1733 — shows

that its purpose was to compel the colonies to forego trade in certain

commodities with the French and Spanish colonies in the Caribbean. The

Sugar Act lowered the duties, plainly to get revenue.



This act of 1764, adding in some respects rather grievous restrictions on

colonial trade and onerous red tape for their enforcement, provided that trials

might be instituted in any colonial court, or in any vice-admiralty court which

might be appointed over all America, as the informer or prosecutor might

elect. This provision was naturally unwelcome to the colonial mind, for it might

involve a trial in a distant court with all the accompanying burdens and

inconveniences. But objectionable as such new regulations were, they were

not more ominous than the announcement in the act that the purpose was to

improve the revenue, that "the commons of Great Britain, ... being desirous to

make some provision ... towards raising the said revenue in America, have

resolved to give and grant unto your Majesty the several rates and duties

herein after-mentioned...." [10] 



We can pass over the outcries against the burdensome character of the act as

a restriction on trade, and against the unwisdom of interfering with a

commerce beneficial to the colonies and to Britain herself, significant though

those outcries were as indications of colonial feeling or provocative as they

might be of later rebellion. There appeared little or no opposition, as far as I

am aware, to the general right of Parliament to regulate the trade of the

empire. There was opposition to the revenue plan as well as combative

argument breaking out into open violence when the proposals for raising

revenue were further carried out in the Stamp Act the next year (1765). The

opposition to the revenue-raising feature of the Sugar Bill was especially

presented by Otis in his Rights of the British Colonies Asserted and

Proved,[11] a pamphlet of such popularity that it deserves special

examination.



The author begins in the orthodox fashion of those questioning the authority of

government; he considers the origin of government, and finds its "everlasting

foundation in the unchangeable will of God, the author of nature, whose laws

never vary." [12] There must be in every society a sovereign, absolute, and

uncontrollable power, "from whose final decisions there can be no appeal but

directly to Heaven." [13] This power was originally and ultimately in the

people, who did not make nor can they rightfully make an absolute unlimited

renunciation of their essential right. As people are the origin of power, and as

government obtains such authority as it has from the people, "There is no one

act which a government can have a right to make, that does not tend to the

advancement of the security, tranquility and prosperity of the people." There

remains still in the people a supreme power to remove, or alter the legislative,

when they find the legislative act contrary to the trust reposed in them.[14] But

though the reasoning will support revolution and though it contains the essence

of democratic thinking as far as the ultimate authority in the state is concerned,

this pamphlet was not intended to preach revolution. Otis probably believed

that Britain would accept its fundamentals without alarm. He pointed out that

the colonists, having endured the hardships of settling a new country, did not

renounce their natural liberty, for the gift of God cannot be annihilated.



The powers of Parliament, the supreme legislature of the kingdom and its

dominions, Otis expressly acknowledges. Parliament has the right to make

acts for the general good and by naming the colonies to bind them as well as

the subjects within the realm.[15] No authority, however, has a right to make

itself arbitrary nor can any supreme power "take from any man any part of his

property, without his consent in person, or by representation." [16] In other

words, the principles of representation must apply in the empire.



To solve this problem, or as a partial solution, he commits himself to the idea

of representation in Parliament, a proposal never taken very seriously by any

number of persons on either side of the ocean; the proposal, nevertheless, is

in itself proof beyond cavil that Otis was not then merely a revolutionary

firebrand, and in succeeding portions of his paper he gives us visions of a

really free and glorious empire.[17] We mistake the whole character of the

work if we see in it only a pamphlet making for rebellion. Doubtless he is at

times vague; he was as a matter of fact troubled by the same perplexing

problem that vexed Locke and others presenting the idea of natural law as a

restraint upon governmental authority. Could order be based on the right to

disobey? So Otis acknowledges openly the authority of Parliament, for

"There would be an end of all government, if one or a number of subjects or

subordinate provinces should take upon them so far to judge of the justice of

an act of parliament, as to refuse obedience to it." What then is to be done, if

on the one hand government has no right to exceed certain limits and, on the

other, people have no right to disobey? [18] This is his answer; this is the

peaceful solution: "If the reasons that can be given against an act, are such as

plainly demonstrate that it is against natural equity, the executive courts will

adjudge such acts void." [19] Thus, for unauthorized acts of government, Otis

finds a remedy in the organs of government itself.



The appendix to this Rights of the British Colonies Asserted and

Proved[20] contains the substance of a memorial presented to the

Massachusetts house in pursuance of the instructions of the town of Boston to

its representatives, and by the house ordered to be sent to the colony's agent

in London. " 'Tis hoped," said these men of Boston, "it will not be considered

as a new doctrine, that even the authority of the parliament of Great-Britain is

circumscribed by certain bounds, which if exceeded their acts become those

of meer power without right, and consequently void. The judges of England

have declared in favour of these sentiments, when they expresly declare; that

acts of parliament against natural equity are void. That acts against the

fundamental principles of the British constitution are void." [21] In a footnote

to this memorial, quotations are made from English judicial decisions to the

effect that acts against natural equity are void.



Concerning natural rights Otis of course refers to Locke and makes incidental

reference to certain writers of continental Europe. Connected with the

memorial there appears a striking passage from Vattel, the influence of which

is easily discerned in the later developments of American law: "It is here

demanded whether, if their power [legislative power] extends so far as to the

fundamental laws, they may change the constitution of the state? The

principles we have laid down lead us to decide this point with certainty, that

the authority of these legislators does not extend so far, and that they ought to

consider the fundamental laws as sacred, if the nation has not in very express

terms given them the power to change them. For the constitution of the state

ought to be fixed...." [22] In the same passage from which these words are

taken, Vattel says that the legislators cannot change the constitution without

thereby destroying their own foundation.



In this pamphlet Otis does not let loose his thunderbolts against the acts of

trade, as Adams many years later asserted that Otis did in the writs of

assistance case. On the contrary, he accepts the navigation act as "a good

act...." He admits that Parliament has the right as well as the power to bind

both Ireland and America, but "whether this can be extended to an indefinite

taxation of both, is the greater question." He asserts that Parliament has on the

whole not taxed; for the Molasses Act was intended as a prohibition, "and 'tis

pity it had not beem [sic] so expressed, as there is not the least doubt of the

just and equitable right of the parliament to lay prohibitions thro' the

dominions, when they think the good of the whole requires it. But as has been

said, there is an infinite difference between that and the exercise of unlimited

power of 'taxation [sic], over the dominions, without allowing them a

representation...." [23] 







[1] "As to Acts of Parliament. An act against the Constitution is void; an act

against natural equity is void; and if an act of Parliament should be made, in

the very words of this petition, it would be void. The executive Courts must

pass such acts into disuse. 8 Rep. 118 from Viner. Reason of the common

law to control an act of Parliament." The words "executive Courts" distinguish

the judicial tribunals from the General Court, which was the legislature of the

province.



[2] Logically of course, if an act is not a law, no one is legally bound by it; he

can simply refuse to obey the lawbreaker. Perhaps Otis saw it all, though later

words from him make doubtful his full grasp of it. But it is to be noticed that

he did summon judicial support to the constitution, and did announce a

judicial power; and thus he helped to bring in the American conception of the

Constitution as a law to be recognized by courts. And still, the fact is not so

much the extent of Otis's influence as the inference we are entitled to make

concerning a condition of affairs or an attitude of mind which would account

for the doctrine. Possibly we should also take into account the fact that in this

case Otis was a lawyer arguing for his client. It is by no means impossible for

a lawyer to announce as undoubted law principles which he scarcely hopes

the court will accept, and to which under less demanding conditions he would

scarcely adhere himself.



[3] That is the significance of his reference to "8 Rep. 118 from Viner."



[4] All this is elaborately treated by Horace Gray, afterwards Justice Gray of

the federal Supreme Court, in an appendix to Quincy (Mass.) Reports

(1761-1772).



[5] "It was the first statute distinctly taxing the colonies, and marked a radically

new departure in colonial policy." G. L. Beer, British Colonial Policy

1754-1765, p. 277.



[6] George Grenville, The Regulations Lately Made concerning the

Colonies (London, 1765), p. 57.



[7] Edmund Burke, Works (revised ed.), II, p. 35.



[8] Ibid., II, p. 33.



[9] It is no answer to say that the colonists would have objected to furnishing

revenue, even if the whole navigation system had been abolished. Nor is it an

answer to say that some acts, the West India or Molasses Act chiefly, had

been in reality sedulously disobeyed. The principles of the act were essentially

new.



[10] Italics and capitalization of the original omitted. For the details of this act,

see The Statutes at Large, 4 Geo. III, c. 15. 



[11] This pamphlet was mentioned in Parliament in the debates on the repeal

of the Stamp Act.



[12] "It is by no means an arbitrary thing, depending merely on compact or

human will for its existence." But he resorts to compact as the formal method

of setting up human authority. "... the form and mode of government is to be

settled by compact, as it was rightfully done by the convention after the

abdication of James II...." Italics of the original omitted.



[13] The distinction here between Locke and Otis is noteworthy. Otis

emphasizes the power of a people before government is set up; he seems to

see a people as a real preexisting authority.



[14] Cf. John Locke, Two Treatises on Civil Government (Henry Morley,

ed.), bk. II, sec. 149.



[15] He asserted that to his personal knowledge this principle had been held to

for twenty years in Massachusetts. "The act of navigation is a good act, so are

all that exclude foreign manufactures from the plantations, and every honest

man will readily subscribe to them." In the years after the war a number of

changes and additions were made to the system for the regulation of trade;

these were in part aimed to encourage certain branches of colonial industry.

There was some indication of an appreciation of the fact of the unity of

imperial interests. See G. L. Beer, The Commercial Policy of England

Toward the American Colonies (Columbia University Studies in History,

etc., III, no. 2), p. 145.



[16] Italics of the original omitted.



[17] The whole argument through this portion of the pamphlet is enough to

show that Otis in those days was not a mere declamatory malcontent or

mischief-maker. His main idea after all was the liberty of Englishmen and the

building up of a free empire based on the lasting foundations of unchanging

law.



[18] I am not at all sure I should say that people, according to Otis, have no

right to disobey. But he was here, after flatly announcing popular right,

showing that there was a remedy short of revolution and disorder, short of an

"appeal ... to Heaven." He was putting forth a constructive argument.



[19] Italics of the original omitted.



[20] I cannot be absolutely sure that this appendix appeared in the original

edition. There were several editions or reprints. The one I have had access to

is the Boston edition, 1764.



[21] Italics of the original omitted.



[22] Emeric de Vattel, born in Neuchâtel, 1714. His Droit des gens was

published in 1758, and published in English in 1760. The edition to which I

have had access is dated 1811, where the reading is the constitution of the

state "ought to possess stability...." The Law of Nations, bk. I, p. 11.



[23] Otis here distinguished between taxation and regulation, but the idea was

not as yet brought out distinctly.







                       CHAPTER V



                     THE STAMP ACT



Grenville's general scheme for obtaining revenue from the colonies culminated

in the Stamp Act (1765) — of unhappy memory.[1] It provided for a

burdensome tax upon the colonies and was of course immediately resented,

and that too with an approach to unanimity. How could the colonies declaim

against the tax? What routes could they follow? (1) They might object in

general to the grievous financial burden, and this they did. (2) They denied not

only the justice but the legality of the legislation — or at least they denounced

it as violation of elementary principles of English liberty; they asserted that as

British subjects they were immune from taxation because they were not

represented; they set forth their rights as Englishmen. (3) They declared that

the colonies, as corporate parts of the empire, had their own governments

possessed of the power to tax and to regulate internal concerns. The

resolutions of public assemblies and the arguments in pamphlets did not of

course clearly distinguish between the various modes of opposition. The

contentions, though mutually supporting, were different; we find them on the

one hand asserting the rights of individuals under government; and on the

other announcing, even when men did not see the full nature and could not see

the product of their argument, that the British empire was in reality not a

simple empire but a composite empire in which each commonwealth had its

share of duty and authority.



This fact is well illustrated by the resolutions offered by Patrick Henry to the

Virginia House of Burgesses. They appear to have been scattered broadcast

through the colonies, as broadcasting was done in those simple days. They

declare that the Stamp Act encroached on the fundamental rights of

Englishmen and that Virginia had its own assembly which from time

immemorial had possessed the right to tax Virginians. In other words, the

people had a twofold protection — the fundamental constitutional immunity

belonging to Britons and also the constitution or structure of the empire.[2] 



To protest against the Stamp Act, a Congress assembled in New York in

October, 1765. The resolutions of the Congress are possibly not quite so

plainly and forcibly constructed as those of Henry, but they follow the same

general lines: His Majesty's liege subjects in the colonies are entitled to the

inherent rights of natural-born subjects within the kingdom; it is essential to the

freedom of a people, and is the undoubted right of Englishmen, that no taxes

be imposed on them without their consent, given personally, or by their

representatives; the colonists cannot be represented in Parliament; the only

representatives of the people are those chosen by the people of the colonies,

and no taxes ever have been or can be imposed on them but by their

legislatures.[3] They acknowledge not only the same allegiance to the Crown

that is owing from His Majesty's subjects within the realm but "all due

subordination to that august body the parliament of Great-Britain."



The debates in the House of Commons on the repeal of the Stamp Act are

illuminating because they disclose the nature of the controversy, and it seems

well to discuss them before passing on to a fuller consideration of the

American arguments. We find the parliamentarians, then as later, taking refuge

in an absolute announcement of complete control over the colonies. The mere

statement of this authority, these men seem to have thought, scarcely allowed

room for protest or needed the support of elaborate argument, though ere

long detailed defense of Britain's power was presented by countless

pamphleteers and eager penmen. Parliamentarians scorned distinctions and

refinements; Parliament, sovereign in the empire, necessarily had the right to

tax. And it is desirable, in passing, to note the last resort of noble minds — an

insistence upon naked legal rights; to surrender under compulsion would

lower the dignity and honor of the kingdom. The duty to maintain

parliamentary dignity, to wrest from the colonists an acknowledgment of

parliamentary power, even though no one might intend to use it or at least to

use it harshly, was first and last of supreme consequence.[4]



William Pitt, who was then the idol of America and for years to come was

hailed as the founder of the empire and the friend of freedom, vigorously

attacked the Stamp Act and denied that Parliament possessed the power to

tax the colonies. Asserting the authority of the "kingdom over the colonies, to

be sovereign and supreme, in every circumstance of government and

legislation whatsoever", he denied that taxation is a part of the governing or

legislating power. "The distinction between legislation and taxation is

essentially necessary to liberty." [5] Grenville scouted any difference between

internal and external taxation, declaring that "this kingdom has the sovereign,

the supreme legislative power over America," that taxation is "one branch of

the legislation", and it is, and has been, exercised over those who are not and

never were represented.[6] In reply to Grenville, Pitt struck another key: "If

the gentleman does not understand the difference between internal and

external taxes, I cannot help it; but there is a plain distinction between taxes

levied for the purposes of raising a revenue, and duties imposed for the

regulation of trade, for the accommodation of the subject; although, in the

consequences, some revenue might incidentally arise from the latter." [7] 



The examination of Benjamin Franklin at the bar of the House was dramatic,

one might also say humorous, for the Yankee from Philadelphia was even

then a man of mark, and if his customary humor was not in evidence at the

time, it appears to us now as we read the pages of the proceedings. But the

examination was, after all, confusing in some respects, if one aim of the

witness was to bring out clear distinctions between what Parliament could and

what it could not do. He seems at one time to distinguish between external

and internal taxation, at another to distinguish between taxation and duties or

impositions laid for the regulation of commerce; the net result was probably to

instill in the minds of his hearers the opposition in America to internal taxes.[8]

Although he fumbled his argument a bit, he must have impressed upon the

Commons the seriousness of the occasion, and he made one especially wise

and humorous statement; it contained the elements of prophecy: "Does the

distinction between internal and external taxes exist in the words of the

charter?" he was asked. "No, I believe not." "Then may they not, by the same

interpretation, object to the parliament's right of external taxation?" "They

never have hitherto. Many arguments have been lately used here to shew

them that there is no difference, and that if you have no right to tax them

internally, you have none to tax them externally, or make any other law to

bind them. At present they do not reason so, but in time they may possibly be

convinced by these arguments." [9] If parliamentarians would not recognize

distinctions, but insisted on absolute and complete power, then the colonists

would be driven to deny that Parliament possessed any power whatsoever.



The speech of Lord Lyttelton in the House of Lords [10] admirably illustrates

how cleverly men may reason to reach foolish conclusions; and the results

showed how unwise it is for statesmen to bandy raw logic. The noble lord

accepted as fundamental "The last great maxim of this and every other free

government ... that 'No subject is bound by any law to which he is not

actually or virtually consenting' ", and he then proceeded to announce that "If

the colonies are subjects of Great Britain, they are represented and consent to

all statutes" — equivalent to saying that, inasmuch as you admit that the

foundation of British government is consent, as long as you remain subject

you do consent to have money taken from your pockets whether you like the

operation or not. There is no difference between internal and external taxes,

he further declared; the Americans make no such distinction and Mr. Otis

himself, "their champion, scouts such a distinction...." By declaring the

colonists exempt from one statute, he solemnly warned the assembled Lords,

"you declare them no longer subjects of Great Britain...." All of this is a pretty

piece of legalism, but a very poor basis for practical statesmanship. Lord

Mansfield [11] spoke much to the same effect as Lyttelton. No wonder that

Pitt in the Commons exclaimed that he did not come into the House with law

books doubled down in dog's-ears to defend the cause of liberty, and that

Burke at a later time, scorning finespun theories, said, "The question with me

is, not whether you have a right to render your people miserable; but whether

it is not your interest to make them happy? It is not what a Lawyer tells me I

may do, but what humanity, reason, and justice, tell me I ought to do." [12]



Nevertheless, we must take facts as they were. The British lawyers laid down

absolute doctrines, unbending principles. And it is also a fact that there was

serious difficulty in seeing the possibility of reconciling the power of

Parliament with a reasonable or moderate freedom and self-dependence of

the colonies. Instead of ridiculing British statesmen because they could not see

the possibility of modified or incomplete authority, we may notice a similar

blindness among many Americans. The truth is, the problem was in many

aspects a perplexing one; and its final solution grew out of the nature of things

and out of the necessities of the case rather than out of early and continuously

clear perception of principles. But this is equally true: the defenders of

American liberties in Parliament announced that there were limits to

parliamentary authority; at least some of them saw that the colonies could

have the right of self-taxation without dismemberment of the empire. The

debates of 1766 showed fairly clearly that the gist of dispute was whether

Parliament had in theory limited or unlimited authority; and that continued to

be the source and center of disagreement.



Parliament repealed the Stamp Act, coupling it, however, with a fatuous

Declaratory Act, the announcement of a principle, a warning that the

government would not by one jot or one tittle abate its supreme authority.[13]

The colonists accepted the olive branch and ignored the threatening rod; more

accurately, they rejoiced in the repeal of the Stamp Act and paid little

apparent heed to the announcement of power; but they never forgot

Parliament's assertion of unlimited power to bind them "in all cases

whatsoever." It is unnecessary to repeat that the validity of that assertion was

the center of the Revolutionary controversy.



Let us leave the colonists rejoicing over their victory (a victory doubtless

achieved more because of the fear or distress of British merchants than

because of the weight of American resolutions and arguments), and return to

view more fully than we have yet done the nature of American opposition

while the Stamp Act was still in force. Let us look first at certain pamphlets,

selected not altogether at random, but chosen as indicative of able, fairly

conservative, and influential expositions of America's case. In The

Grievances of the American Colonies Candidly Examined,[14] Stephen

Hopkins, Governor of Rhode Island, protested against the wisdom of the

Sugar Act as an unwholesome interference with colonial trade, a trade

beneficial to both Britain and the colonies.[15] He was far from a rebellious

state of mind, though he pointed out that to tax the colonies as the Stamp Act

did was to deprive them of long-established rights, and that "one who is

bound to obey the will of another, is as really a slave, though he may have a

good master, as if he had a bad one...." Of greater interest was his

acknowledgment of the power of Parliament to regulate trade and,

furthermore, although each colony had a legislature, "there are many things of

a more general nature, quite out of the reach of these particular legislatures,

which it is necessary should be regulated, ordered and governed.... Indeed,

every thing", he said, "that concerns the proper interest and fit government of

the whole commonwealth, of keeping the peace, and subordination of all the

parts towards the whole, and one among another, must be considered in this

light...." There must be this general power, superintending and ordering the

whole, and that power "every man of the least knowledge of the British

constitution, will be naturally led to look for, and find it in the parliament of

Great Britain...." Here, then, we find a conservative and calm presentation of

an idea, so conservative and calm that it fails, perchance, in driving power:

there is a whole, but there are also parts, and these parts have their own

particular interests. To guard and upbuild those interests is the duty of

Parliament; but that duty does not involve the right to disregard the legitimate

rights of the colonies and their respective legislatures. What Hopkins sees or

comprehends is an empire, within its limits are colonies possessed of their

share of authority, and over all is one general superintending body whose

business it is to care for the interests of the whole. The next pamphlet to be

examined came from the pen of Daniel Dulany of Maryland.[16] Here again

we find the distinctions already mentioned. The colonies are dependent upon

Great Britain; and the authority of Parliament may be justly exercised to

preserve their dependence; but from that fact does not come the right to seize

the property of the colonists. "In what the Superior may rightfully controul,

or compel, and in what the Inferior ought to be at Liberty to act without

Controul or Compulsion, depends upon the Nature of the Dependance, and

the Degree of the Subordination.... May not then the Line be distinctly and

justly drawn between such Acts as are necessary, or proper, for preserving

or securing the Dependance of the Colonies, and such as are not necessary or

proper for that very important Purpose?" [17] He speaks of the fact that the

colonies are "impowered to impose internal Taxes", but he does not in reality

make the distinction between internal taxes and external, or grant Parliament

the right to levy the external. On the contrary, conceding to Parliament the

right "to regulate the Trade of the Colonies," for "a Denial of it would

contradict the Admission of the Subordination, and of the Authority to

preserve it," [18] he declares that "there is a clear and necessary Distinction

between an Act imposing a Tax for the single Purpose of Revenue,[19] and

those Acts which have been made for the Regulation of Trade, and have

produced some Revenue in Consequence of their Effect and Operation as

Regulations of Trade." [20]



It is rather sad to recall that the writer of this able pamphlet, unable to follow

the colonists into rebellion, was later vehemently denounced as a Tory and his

property confiscated. This is one of many examples of the loss to America of

men of active minds and distinguished ability whose services were much

needed in later years.



This pamphlet is of undoubted significance. Dulany was a lawyer, educated in

England, with a reputation on both sides of the Atlantic, a man of very

remarkable mental gifts and learning. His insistence that the British Commons

had no right to "Give and Grant the Property of the Commons of America"

may have suggested to William Pitt the center of his argument in the House of

Commons a few months after Dulany's pamphlet was published. "... what

Right", asks the writer of the Considerations, "had the Commons of Great

Britain to be thus munificent at the Expence of the Commons of America?"

His argument against "virtual representation" is overwhelming and convincing.



In the pamphlets which have been mentioned as especially significant, we find

objections to parliamentary authority and also evidence of a desire to single

out certain measures as beyond parliamentary control. The distinction

between taxation and regulation of trade is made or implied, and even if the

distinction between internal and external taxes appears not very sound, it

indicates a problem, an attempt to separate and distinguish one power from

another; internal government and taxation belonged to the colonies.



In October, 1765, the house of representatives of Massachusetts, in answer

to the Governor's speech, made a significant announcement of principles in a

document attributed to the flowing pen of Sam Adams.[21] We are forced to

present only a portion of the document, though the whole deserves careful

reading. It was at once courteous, dignified, and cutting. "You are pleased to

say, that the stamp act is an act of Parliament, and as such ought to be

observed. This House, sir, has too great a reverence for the supreme

legislature of the nation, to question its just authority: It by no means

appertains to us to presume to adjust the boundaries of the power of

Parliament; but boundaries there undoubtedly are.... Furthermore, your

Excellency tells us that the right of the Parliament to make laws for the

American colonies remains indisputable in Westminster. Without contending

this point, we beg leave just to observe that the charter of the province invests

the General Assembly with the power of making laws for its internal

government and taxation; and that this charter has never yet been forfeited.

The Parliament has a right to make all laws within the limits of their own

constitution; they claim no more. Your Excellency will acknowledge that there

are certain original inherent rights belonging to the people, which the

Parliament itself cannot divest them of, consistent with their own constitution:

among these is the right of representation in the same body which exercises

the power of taxation." The most significant words are "boundaries there

undoubtedly are", but we should notice the claim, based on the charter, of the

right of the colony to make laws for internal government as well as taxation,

and we should notice, too, the use of the word "constitution" and the apparent

influence of Vattel.



A few days after this answer, the house drew up a series of resolutions

declaring "That there are certain essential rights of the British Constitution of

government, which are founded in the law of God and nature, and are the

common rights of mankind...." Then followed a number of declarations of

their rights as Britons, the announcement that such a representation as the

subjects in Great Britain enjoyed was "impracticable for the subjects in

America", that the "several subordinate powers of legislation in America were

constituted upon the apprehensions of this impracticability", and that "the only

method whereby the constitutional rights of the subjects of this Province can

be secure, consistent with a subordination to the supreme power of Great

Britain, is by the continued exercise of such powers of government as are

granted in the royal charter, and a firm adherence to the privileges of the

same." [22] 



To accuse one's opponents of harboring the most extreme views, and

especially to charge them with advocating the conclusions which relentless

logic may extort from their actual words, is a common practice of politicians

and of all persons who indulge in heated controversy. We must therefore not

take too seriously the assertions of royal officials or other informers who

found the colonists even in 1765 or 1766 determined upon independence; nor

need we give full credit to the announcements that the colonists were even

then declaring their complete freedom from parliamentary control. Perhaps

some extremists went this far; for the people were indignant, and it is easy for

indignant people to utter threats or indulge in extravagant expressions. "All of

a sudden," wrote Thomas Hutchinson of Massachusetts in February, 1766,

"... we have it advanced that acts of parliament of England or Great Britain

have no more relation to us than acts of parliament of Scotland had before the

Union." [23] 



No one can know just how widely such opinions were held. Some persons, it

appears, besides the ready-tongued, did have some such theory in mind as

early as 1766. Richard Bland of Virginia toyed with the idea; but his pamphlet

is confusing.[24] He seems not only to make an able defense of colonial right

to self-taxation, but also to lay a fairly good basis for looking upon the

colonies as dominions of the king free from parliamentary supervision. His

main reliance, however, appears to be upon the principle of natural rights, but

he does not proclaim sharply that natural rights are a legal limitation upon

authority. On the whole, we are justified in concluding that the Americans in

no formal way, and probably few in their own minds, were asserting their

complete freedom from parliamentary authority. The day for such

pronouncement lay some distance ahead. The fact is, the empire was in

existence and Parliament had a share in its management; and that share had

actually consisted largely in passing acts for the maintenance of the trade of

the empire and for matters of general rather than local concern. Though

thoughtful men believed portions of the navigation acts to be a hardship, and

there were manifestations of a lawless and even turbulent spirit among the

restless traders and watermen of the New England seaports, there is little

evidence that there was objection to the form or workings of the imperial

system as it had been in the past.



Probably many Americans, though I speak only of those capable of thinking

connectedly on a principle of government, were troubled by the difficulty of

reconciling the freedom of the colonies, or their possession of certain powers

of government, with the fact of parliamentary control in certain rather

imposing aspects. It was an easy mental exercise to accept the complete and

unalloyed authority of Parliament, and it was easy to deny the existence of

such authority in toto; but to envisage the composite or multiple empire was

not so easy. The significant fact, therefore, is not the readiness of the colonists

to announce the total incapacity of Parliament, but the tardiness of such an

announcement. And it should be noticed that the great powers of empire in

the hands of the Crown — foreign affairs, war, peace, and the like — were

not challenged.



For our constitutional history the important fact is this: however many persons

were ready to proclaim the total absence of parliamentary power over the

colonies, writers and debaters were struggling for years more or less

successfully with the conception of restricted governmental power and the

organization of a politically-diversified empire. Such success as they had in

reaching the conception of distributed authority was due to their own

experiences with an actual, not a theoretical, British empire, an empire of

which each colony was an integral part, an integral part of an actual whole. It

may not be necessary to remind the reader that the question is not whether

any one principle involving the legal structure of the empire was sound in logic

or law; the important thing is the situation and the argument, be it good or

bad. It is not even necessary to be confident concerning just how many

persons held a single doctrine. Knowing as we do the products of the time,

recognizing theories foreshadowing the coming of a diversified American

"empire", we must take special interest in the emergence of the idea and the

nature of the problem.



In Massachusetts, at all events, thanks to the preaching of the ministers,

thanks to the doctrines which the ministers had long been heralding, and

thanks also to the teachings of James Otis, it is plain enough that at the Stamp

Act crisis men did not devote their nimble wits to working out an idea of an

empire based wholly on the Crown and the power of the Crown. They surely

began by admitting the authority of Parliament and denying its omnipotence

— "boundaries there undoubtedly are". Those "boundaries" were the

fundamentals of the British constitution. No matter how many other arguments

they might have, or how many theories as to the structure of the empire they

might put forth, the colonists never lost sight of what they claimed to be the

elementary rights of Englishmen. Hutchinson himself said in 1765, "The

prevailing reason at this time is, that the Act of Parliament is against Magna

Charta, and the natural Rights of Englishmen, and therefore, according to

Lord Coke, null and void." [25] When the town of Boston presented to the

Governor in council a memorial asking for the opening of the courts, stamps

or no stamps, James Otis, John Adams, and Jeremy Gridley appeared in

support of the memorial. Otis opened an eloquent harangue with tears; he

quoted Molloy: [26] "When there are no Courts of Law to appeal to, it is then

we must have Recourse to the Law of Nature...." Adams, not so tearful

apparently, declared the Stamp Act "utterly void, and of no binding Force" —

not, it seems, because Parliament had no authority over the colonies, but

because the act was contrary to "certain Principles fixed unalterably in

Nature." [27] 



A Virginia court, doubtless under the influence of the same kind of reasoning

as that used by Otis and Adams, did not hesitate to take a decided stand. The

court "unanimously declared it to be their opinion that the said act did not

bind, affect, or concern the inhabitants of this colony, in as much as they

conceive the same to be unconstitutional, and that the said several officers

may proceed to the execution of their respective offices without incurring any

penalties by means thereof...." [28] 



We have thus far seen several distinct but not contradictory ideas, all of them

important to one wishing to see the emergence of American constitutionalism.

Some of these ideas were as yet rather vague; some of them appeared more

sharply outlined in later discussions. (1) There were certain fundamental rights

which government could not take away from its subjects. (2) Those rights

were embedded in the British constitution. (3) Men were not called upon to

obey an act depriving them of their rights. An unconstitutional act was not

binding. This doctrine was perhaps implicit rather than explicit. (4) There was

a British constitution limiting governmental authority, a constitution, in the

American way of viewing it, more definite, not to say rigid, than any

conception of it held by Britons. (5) Furthermore, the colonies, as parts of the

empire, had functions and powers. (6) There could be and there was a clear

distinction between one "power" and another; the "power" to tax was

distinguishable from other powers. Parliament might have one power and not

another. (7) The charters and immemorial custom gave sanction to the right,

the legal right, of the colonies to manage their taxation and internal

government. (8) Reason and a just regard for the interests of the whole

sanctioned the authority of Parliament to legislate for the maintenance of the

empire and for the coöperation of its parts. I am not intent upon forcing the

conclusion that every man speaking this language beheld clearly all its logical

consequences; I am intent only upon showing that these theories, if not so

plain that the thoughtless man could think them, were actually part of the

practical politics of the early Revolutionary period. And we should notice also

that the discussion at that time as well as later was within the field of law.[29] If

one is desirous of tracing the development of the American argument, he is

compelled to see that, in 1765 and for a year or two thereafter, the emphasis

was laid on the principles of individual liberty under the British constitution

rather than on the freedom of the colonies as constituent parts of the empire;

but there was reliance, not only on the rights of colonists as Englishmen, but

also on the right to colonial self-government in the empire.



The colonists, someone may say, had no right to set up the principles of the

English system as their defense, when they were claiming more than the

English system actually contained; they could not properly declare that men's

property could not be taken from them without their own consent given in a

representative assembly of their own choosing. But the fact of their making

the claim, not its theoretical justification, was the important thing. The British

system of representation as it existed, and as it continued to exist until 1832,

was far from recognizing the populace or the body of voters as the source of

authority. No taxation could be levied save by the consent of Parliament; thus

far had English constitutionalism progressed. Representation, especially

borough representation, was, however, nearly farcical. Old Sarum, almost

utterly without human habitation, had the privilege of sending two members to

Parliament, while large and populous cities sent no member at all. And this

was but one example of prevailing conditions.[30] Elections were rather a

method of filling the benches of the House of Commons than a mode of

ascertaining the wishes of voters or a mode of exercising their will. But again

we must remind ourselves that Englishmen, though some of them were soon

to fret under the system, did have something called representation which

distinguished their government from the big and little autocracies of Europe.

The Parliament had many able members, some of whom were the

beneficiaries of the owners of pocket boroughs. The worth of English

representation is not to be entirely ignored.[31]



The Americans, on the other hand, thanks to the colonial conditions, and

thanks to the aquiescence, and, in part, to the magnanimity of the home

authorities, had developed a system of representation fairly worthy of the

name. It was not theoretically perfect, if judged by the doctrines of modern

democracy; but it did in considerable degree recognize the right of popular

voice in government, and it included the thought that the representative carried

with him the desires and behests of his constituents. Suffrage was limited, and

moreover there was no proper and proportional adjustment of representation

to the numbers of the respective communities; the back-country suffered from

discrimination. But withal, the fact is that the colonies had a system so far in

advance of British practices that it is almost amusing to see Patrick Henry

insisting upon the undoubted right of Englishmen not to be taxed without their

own consent given personally or by their representatives. When, therefore,

Britain and America entered upon any discussion of representation, they were

separated farther than mere ocean space could divide them. Rightly or

wrongly, the Americans were announcing principles which they had partly and

effectively put into operation, principles to which in later years they gave fuller

institutional expression and which are the basis of modern popular

government.



Why did the Americans not continually cry out against the rotten and pocket

boroughs, and why did they not vociferously denounce the bribery and the

spoils practices so evident in the home country? Some of them did this

occasionally. Otis, for example, at one time spoke impatiently of the

everlasting changes rung upon the fact that large cities sent no members to

Parliament; if they are not represented, he said, "they ought to be." [32] Bland

spoke of the "Work worthy of the best patriotick Spirits in the Nation to

effectuate an Alteration in this putrid Part of the Constitution...." [33] But the

Americans as a rule were not casting aside as unworthy the whole British

system; they made no pretense of having pushed onward to higher ground.

They based their arguments on what they thought to be old and

well-established principles; they saw in British constitutionalism the basis for

their claim. Thus, the very method of approach is significant; it was legalistic

rather than revolutionary; and it is difficult to overestimate the importance of

this fact. The Americans setting forth the constitutional rights of Englishmen on

both sides of the water, as they claimed those rights to be, did not appear to

be engaged in destruction, but in conservation. The character of the formal

documents which issued from America during the whole contest is a matter of

consequence; they do not seem to breathe forth the air of revolution; they

help us to understand how and why it was that even war did not beget

thorough social disintegration, and how and why it was that the men of that

generation did more than any other single generation to institutionalize

principles of government and to perform the difficult task of constructive

statesmanship; for in the end the movement was constructive; the institutions

and principles, the establishment of which is the theme of these pages, rested

not on imaginings — though men cannot move on without imagination — but

on history.[34] It is easy, however, to see why the Britons did not feel

comfortable, though abundant references were made to Britain's own past by

the argumentative colonists. If a member of the House had acknowledged the

ethics of the American position, and had not clouded the issue by what he

called "virtual representation", he would have denied his right to his own seat;

and a general acceptance of American principles would have shaken the

British constitution to its foundations.







[1] Not merely a provision for an occasional halfpenny stamp. Newspapers or

pamphlets contained in half a sheet carried "a stamp duty of one halfpenny,

for every printed copy thereof." Every advertisement carried a tax of two

shillings; admission to the bar, ten pounds, though a license to retail spirituous

liquors, only twenty shillings; a diploma or certificate of any degree taken in a

college, university, academy, or seminary, two pounds. These are but

indications of the character and the weight of the tax. The act provided for

stamps on legal documents, playing cards, etc.



[2] Some of the resolutions were not passed by the assembly; but all except