From Frank Forman
This is the only writing I have ever come across about the actual *arguments* back and forth between the colonists and Great Britain over independence. Most discussion of the Revolutionary War deal with speeches and pamphlets and the actual fighting itself.
I bought the volume for $1 in the 1970s. I gave the volume to some school or college, but I always remembered its existence. Happily, I found it online, so here it is for a different perspective on the glorious Fourth.
Apologies if I sent this earlier. This is the *old* Cambridge Modern History, which has been updated to The New Cambridge Modern History.
THE CAMBRIDGE MODERN HISTORY
PLANNED BY THE LATE LORD ACTON LL.D.
REGIUS PROFESSOR OF MODERN HISTORY
EDITED BY A. W. WARD Litt.D., G. W. PROTHERO Litt.D., and STANLEY LEATHES M.A.
THE MACMILLAN COMPANY
LONDON: MACMILLAN & CO., Ltd.
VOLUME VII: THE UNITED STATES
CHAPTER VI: THE DECLARATION OF INDEPENDENCE (1761-1776), pp. 175-208
By Melville M. Bigelow, Professor in the Law School, Boston University
The struggle between Great Britain and her colonies in America, after it had become acute, and the struggle which followed, over the form of government of the American States, after the War of Independence, concerned one and the same thing, the theory, in public and private relations, of legal right; the popular name for which, both in England and America, was liberty or freedom. It is proper to put aside, as declamatory, the violence of the few on the one side who flouted the idea that the colonies or colonists had ^ rights” against the State which made them, and of the many on the other who profaned the name of liberty or used it in ignorance; and then it will be found that both sides to the struggle, and aU sides, sooner or later, came to agree upon the question at issue. Every argument, finally, as the struggle went on, planted itself in legal right. Whether the question was of the issuance of ** writs of assistance,” or of the extension of admiralty jurisdiction, or of the general powers of Parliament over the colonies–whether it was one of private or public right–it was in reality a question of legal right. Right according to English law is a train of light–running through the whole dark time of trouble and anxiety–by which both sides professed to be led.
The general meaning too of legal right was agreed upon by most of the leaders and thinkers, on both sides of the Atlantic. Americans had learned from England that legal right exists where States and men have and hold their own without unjust interruption, and where, in time of need, one must yield to another, but no further than need requires; which is but saying that legal right exists where equal rights prevail. This was the common law of England, which was the “birthright”of Americans. If the teaching that legal right imports equality before the law had not, by the middle of the eighteenth century, come to be universal in England, it was at any rate the general teaching of the Courts, of Parliament, and of jurists there. It had long been the prevailing idea in America, as doctrine; it became universal as law, from the War of Independence. Indeed the few Englishmen who declared that colonies had no ^^ rights”against the parent-State, probaUf held that language, where it was not mere declamation or violence, upon the very footing that rights, in the English legal sense, imported equality; and the equality of the colonies with England was of the very substance of what they denied. And as for that, if rights in the sense of equality meant the equality just named, most Englishmen and many Americans, perhaps a majority of Americans, even at the time of the Declaration of Independence, held the same view. It was never contended in America that the colonies had equal rights, in the largest sense, with England. Such a contention would have been false and silly. It was legal right, as they understood the term, rather than equal rights with England, that they were contending for.
There was however a plain sense in which the Whigs (if not the loyalists) of the colonies contended for equality with the mother-State, even in matters in which they admitted their subordination. Legal right, in the sense of equality, was consistent, they said, with a certain degree of subordination. Nothing was more familiar to lawyers and jurists, not to speak of philosophers, than the idea of subordination in equality, nay, of subordination as necessary to equality in the social organism of the State. Evil besets mankind; rights are constantly being invaded; and the breach must be made good, if equality is to be kept up. But the redress of broken rights may bring hardship upon innocent men; and so may the ordinary exercise of legal righte, as distinguished from the redress of broken rights; still innocent men must yield, they must suffer, just so much as in reason is necessary for redress of the wrong; otherwise there could be no equality, and legal right would be only a name. All this was familiar enough; and it was virtually applied by most of the Whigs to the relation of the colonies to Great Britain. The colonies, consistently with having leg^ rights against Great Britain, must yield to demands for redress–of one colony for instance, against another; they must yield to Great Britain, where it was reasonably necessary to do so to enable Great Britain to maintain her rights. AH this was considered sound theory; but most Americans, who opposed the English Ministry, took their stand there. Furtlier they would not go; there legal right on the one side met legal right on the other; there, at the line of meeting, the colonies stood upon equality with the mother-State.”The theory is just, and time will estaULsh it,”said the Maryland jurist Dulaney, a man of ability and moderation.
The real question therefore was whether the English and American doctrine of legal right, in the sense of equality in subordination, should be applied to the relation of England to the colonies. America held that it should; England denied and refused, and separation followed.
Three classes of complaint were made against Great Britain by the colonies, namely :
1. Abuse of authority; the authority of government admitted, that iuthority had been unduly exercised in the issuance of general “writs of issistance” in prohibiting and breaking up ^^ assemblies,”in suspending ind refusing assent to acts of legislation, in laying unduly burdensome restrictionfl upon trade, and in other things.
2. Discriminating legpLslation; passing by the question of the general powers of Parliament over the colonies. Parliament had lately extended admiralty jurisdiction in America over matters not within it in England, and had proposed to deprive Americans accused of treason of the right to be tried by a jury of the vicinage.
3. Interference in the affairs of the colonies under claim of universal authority,”in all cases whatsoever.”
These topics cover the American theory, at the time, of the true relation of the colonies to the mother-State. Let us take them in order.
(i) Abuse of Authority
The acute stage in the troubles between England and the colonies began, it may fairly enough for the present purpose be said, with a cause in Court touching private right. In the February term, 1761, of the Superior Court of Massachusetts Bay, application was made by Charles Paxton, Surveyor and Searcher of the Port of Boston, and by other officers of the customs, for a renewal of certain revenue process called the writ of assistance or ^^ assistants.”This was King’s debtor process of the Court of Exchequer in England. The writ had been framed under statutes of the reign of Charles II, passed in aid of the officers of revenue; which legislation had, by statute of the reign of William III been extended to America. The writ was addressed to all justices of the peace, sheriffs, constables, and other officers and subjects of the King. Reciting the statutes and the jurisdiction of the Superior Court, the writs now asked for declared, in substance, that the officer serving the process had power to enter any ship, bottom boat, or other vessel, and any shop, house, warehouse, kostelry, or other place whatsoever, to make diligent search into any trunk, chest, pack, case, truss, or any other parcel or package whatsoever, for any goods, wares, or merchandise prohibited to be imported or exported, or whereof the customs or other duties had not been duly ip&id, and to seize the same to his Majesty’s use. It then commanded Itte persons addressed to permit the revenue officers, by night and by day, to enter any ship, boat, or other vessel, within or coming to the port of Boston or places pertaining thereto, to search and oversee, and .trictly to examine, the persons therein touching the premises, and also, in the daytime, to enter the vaults, cellars, warehouses, shops, and other places where any prohibited goods, wares and merchandise, or any goods, ^res and merchandise for which the customs or other duties had not Wn duly paid, lay concealed or were suspected to be concealed; that they inspect and oversee and search for the said goods, wares, and merchandise : and that they, from time to time, be aiding, assisting, and helping the revenue officers in the execution of the process. The process (which was against goods alone; it did not authorise arrest of men) ran through the particular reign in which it was granted, and for six months afterwards.
Writs of the kind had been granted by CroWn judges or governors before in Massachusetts, as the statement above made, that the application was for a renewal of process, implies; but former applications had not created excitement. Still the use made, or to be made, of the writs had not passed unnoticed; and now that, at the outset of the reign of George III, the old writs were about to expire, and new ones were asked for, to run of course indefinitely in time, the whole situation was at once changed. The public was aroused; it seemed indeed as if all the people of Massachusetts had become parties to the cause. The merchants of Boston formally asked and obtained leave to be heard bj counsel on the question whether the Crown really had the right, by law, to invade private premises, and to seize property, under process, not based on oath, which was not to name the premises or the property, or to allege any ground for supposing that an offence against the revenae laws had been committed. The case was argued twice.
The ground taken for the petitioners is shown in the opening words of the petition;”they cannot,”they allege, *^ fully exercise their offices in such a manner as his Majesty’s service and the laws in such cases require, unless your Honours, who are vested with the power of a Court of Exchequer for this province, will please to grant them writs of assistants.”Gridley, who appeared for the petitioners, admitted that the writ of assistance took away the common privileges of Englishmen; but so did process in cases of crime; officers might break and enter houses to serve process in common law cases of felony. The necessity of the case justified the writ. Smugglers would elude the law if they had notice, and government would lose its means of support. Was not the revenue the sole support of fleets and armies abroad and ministers at home? Could the nation be preserved without such help? Was not this a matter infinitely more important than the punishment of thieves or even murderers? Indeed the power in question was the same as that given by law of the province to treasurers for collecting taxes. Individuals must yield in such cases; the necessity of having public taxes and public revenues speedily collected was of much greater moment than the liberty of individuals.
In the course of the second hearing Gridley further argued that the writ in question was a writ of assistants, not of assistance; it was not intended to give greater power to officers, but to provide a check upon them; they were to have assistants to watch them. They could not enter a house without the presence of the sheriff or some other civil officer to have an eye over them; that would save the writ from objection.
Thacher, who was with Otis for the merchants of Boston, contended that the Superior Court had solemnly disclaimed the authority of the English Court of Exchequer. But assuming that the Court had the power of the English Exchequer, there were many circumstances which made the English practice an improper precedent for this case. There the oflBcers were sworn in Court, and were accountable to it–they were obliged to pass their accounts there weekly; that was not the case here. In the English Court too cases were tried and tried finally; which was another diflference. Again, the officers of the customs in England were officers of the Exchequer, and could be punished corporally for misbehaviour. No such authority had been given to this Court by the statute under which alone the petition was drawn. On the merits of the question, Thacher said that it was either a case in which the judges must act, or it was one of discretion. The statutes did not support the first view; as for the second, it could not be within the power of a judge, at discretion, to determine whether a man’s house shouldbe broken open, any more than to determine, at discretion, whether a man should be hanged or not.
Thacher’s argument did not touch the authority of Parliament; his contention was, that the writs desired by the Crown officers were not authorised by the statutes of England. Though such writs were good there, they were invalid in America; a distiuction made also in Pennsylvania by John Dickinson.
Otis argued against the very writ itself. It was an unlawful thing in very sul^tance; it was against the fundamental principles of law. A man’s house was his castle, a place privileged from officers of government in matters of debt and civil process of any kind, including that of the Exchequer. Houses might, he admitted, be broken open to serve process of felony, as Gridley had said; but that could be done only by special (as distinguished from general, indefinite) warrant, granted on oath, naming the house to be searched as suspected, and alleging good grounds of suspicion. Let the officers now make oath and get such special warrants, if they needed to break open houses; that was what the Acts of Parliament meant; they did not authorise these general writs prayed for by the petitioners.
Referring to the precedents, admitted to be few, Otis argued that all precedents were subject to the principles of law. He quoted Lord Talbot, who had said from the bench :”I think it much better to stick to the known general rules than to follow any one particular precedent which may be founded upon reasons unknown to us.”The argument thus far was consistent with the idea that the statutes were sound; the statutes did not justify the writs in question; the writ might have been framed by”some ignorant clerk of the Exchequer.”But Otis went further; if the writ was authorised by Act of Parliament, then the Act of Parliament itself was unauthorised–it was against the constitution and was void.”An Act of Parliament…in the very words of this petition…would be void.”
Otis did not deny the authority of Parliament over the general affairs of the colony. He had no occasion to do so now, even if he believed that Parliament had no such authority, for the question before the Court pertained to external trade, over which the authoritj of Parliament was not questioned. But even had it not been so, there would have been no difference; Otis held that Parliament had full authority to regulate the internal, as well as the external, affairs of the colonies. His denial here of the constitutionality of any Act of Pariiiment which really should authorise these writs of assistance, was a dfr nial of the validity of such a statute over America.
The justices, four in number, or some of them, had doubts at the first hearing in regard to the practice in England; but having meantime satisfied themselves on that point, they were on the second hearing unanimously of opinion that the writ should be granted, and gave judgment accordingly.”The child Independence was bom on that occasion,”afterwards wrote an eager listener, who lived to be President of the United States.
How the matter was looked upon at the time may be seen in the heated columns of the newspapers, in pamphlets, and especially in the action of the legislature of Massachusetts in the February foUowing the decision. At that time a bill was passed ^^ for the better enaUiog the oflBcers of his Majesty’s customs to carry the Acts of trade into execution.”After a short preamble, ironically expressing the desire of the colony to assist his Majesty’s officers, the bill declared that upon application, on oath, to the Superior Court, or other Courts named, by an officer alleging that he had information of a breach of the revenue laws, and that he verily believed or knew such information to be true, it should be lawful for the Court, upon reducing such oath to writing, with the name of the person informing and the place informed against, and not otherwise, to issue a writ or warrant of assistance; the form of which followed. The governor rejected the bill; afterwards, in a letter to the Lords of Trade, saying that ^^ the intention of it was to take away from the officers the writ of assistance granted in pursuance of the Act or William 8,”and to substitute for it a writ”wholly inefficacious.”The governor adds, that the bill”was very popular,”and that he silenced all clamour by the manner in which he rejected it; that this”reduced the popular cry to a murmur only, which soon ceased,”and he believed there was”now a total end to this troublesome altercation about the custom house officers.”The business of issuing these writs now vent on in Massachusetts, for some years, without effective resistance.
Writs of assistance, not before in use elsewhere in the thirteen colonies, now began to spread. They appear in New Hampshire in 1762, and in one or two other colonies after the passage of the Act of Greorge III, 1767, specifically giving jurisdiction to the Superior Courts of the several colonies to grant writs of assistance. They were thus granted in New York, refused in Pennsylvania, refused in Virginia as general writs, but granted as special ones, and not granted or refused apparently in Connecticut, Rhode Island, Maryland, and other colonies.
After the Declaration of Independence, State after State put into its constitution provisions against the issuance of general search warrants, of whatever kind; and one of the ten amendments to the Constitution of the United States, brought forward and adopted at the beginning of the new government, followed the lead of the States. This was only in conformity with the general common law of England; to which the granting of writs of assistance in the English Exchequer itself was finally made comformable, in the year 1817.
The complaint that gatherings or assemblies of the people to consider supposed grievances against Great Britain had been prohibited and broken up by the government, and that legislation of the colonies had been suspended and denied assent, may be shortly disposed of. The complaint generally was of the abuse, not of the want, of authority; enough that it was abuse–it was therefore an invasion of legal right. Little if any attempt was made to find the boundary of authority. Indeed no bounds could be laid down; all that could be done was to declare that Great Britain was invading the rights of her colonies. The Continental Congress at Philadelphia, in the autumn of 1774, referring particularly to the troubles in Massachusetts, acute as they were, could only say that assemblies had been frequently dissolved, contrary to the rights of the people, when they were attempting to deliberate upon their grievances, and resolve that the people have a right peaceably to assemble, consider their grievances, and petition the King for redress, and that all prosecutions, prohibitory proclamations, and commitments in such cases were illegal. The subject passed into the constitutions of the various States and into the first amendment to the Federal Constitution; but, so far as gatherings of the people were concerned, it was still impossible to use terms of definition of authority. The most that could be said was that”The people have a right, in an orderly and peaceable manner, to assemble to consult upon the public good,^’ as the Massachusetts Declaration of Rights put it. As for suspending legislation, that of course could be dealt with effectually, at a single blow.”The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it,”said the same Declaration of Rights; and so in effect the constitutions of the States generally. The division of powers between the federal and the State governments prevented, it was thought, after much debate in the Constitutional Convention, the need or propriety of any declaration in the Federal Constitution in regard to suspending State legislation; and the powers of the departments of federal government were so laid dovi as to make it unnecessary to declare that Congress alone could suspeod federal laws. A single exception was made with regard to State legislation, such as there had been under the previous state of things, laying duties d imports; duties were declared thereafter to be for the use of the United States, and the laws themselves to be subject to the control of CongresB. As for the exercise of the power of veto, that was given to the governois by various, but not all, State constitutions, and to the President by the Constitution of the United States, under particular restrictions.
The right of Great Britain to regulate the external trade of the colonies was admitted. ** The sea is yours,”said Franklin to the Hchiï¿½ of Commons during the troubles over the Stamp Act;”you make it s&fe for navigation; you keep it clear of pirates. You are therefore entitled to some toll or duty on merchandise carried through the seas, towards the expense.””There are many things beyond the reach of our legislatures,”said Governor Hopkins; one was the commerce of the whok British empire collectively, and of each kingdom and colony as parts of it The Continental Congress of 1774, putting it broadly, said,”From the necessity of the case and a regard to the mutual interests of Great Britain and the colonies, we cheerfully consent to the operation of such Acts of the British Parliament as are bona fide restrained to the regulation of our external commerce.”The power of Parliament to regulate trade was the only bond, as Dickinson admitted, that could have held the colonies together.
No American attempted to define the bounds of the right of Grest Britain; general theory was all that was urged. What this theory wmï¿½ was expressed in one of the resolutions of the Stamp Act Congress, in 1765. Assuming that the increase, prosperity, and happiness of the colonies were desired by Great Britdn as well as by themselves, the Congress resolved that such things depended upon the full and free enjoyment of the rights and liberties of the colonies, ^^ and an intercourse with Great Britain mutually affectionate ai^d advantageous.” On that footing, recent legislation in Parliament restricting the foreign tradeof the colonies had infringed the rights of Americans; the effect of it was to prevent”an intercourse with Great Britain mutually affectionate vA advantageous.”The colonies were now obliged to take from Grcai Britain alone the manufactures which they required from abroad. The British manufacturer accordingly set his own price; and the ooloniste must pay more than they would have had to pay in other markets. & complained Samuel Adams, for the Massachusetts House of Represeotatives, to Lord Sherburne. It amounted to ^^ a tax, though indirect, on the colonies,”the plainest sort of invasion of legal right.
The pecuniary condition of the country added sorely to the grievance; the people were borne down with debt in some of the greatest of the colonies. ^^ The restraints imposed by several late Acts of Parliament on the trade of this province,”declared the General Assembly of Pennsylvania, in 1765, ^^must of necessity be attended with the most fatal consequences.”The balance of trade between Great Britain and the colonies was much against the colonies. Formerly the trade with foreign countries enabled them to keep up their credit with Great Britain, by applying the balance they had gained against foreigners; now the trade was so fettered that it could not be carried on with profit. The supply of coin in the country was small; and, such was the effect of the legislation in question, it could not be much increased. Once exhausted, as soon it must be, it could not well be replaced; no gold or silver mines had been discovered. How was the balance against them to be discharged? And what of the future? To go on was ruin. So in effect Dulaney wrote and lamented.
Moderate men and houses of legislature in the colonies could not believe that Parliament had had accurate knowledge; what reason, said Governor Hopkins, could be given for a law to cramp trade and ruin the colonies, which must at the same time lessen the consumption of British goods? Perhaps, as Hamilton later thought, it was punishment; if it was, the Massachusetts House of Representatives feared that the colonies had been misrepresented as undutif ul and disaffected, and so stated to the ministry. But feeling ran high, and England persisted after hearing. The issue then was this–the English theory was that the colonies should be of advantage to the mother-country; their prosperity was desired, but desired to that end; the colonies must trade with the mother-country, and, with trifling exceptions, not elsewhere. The American theory was that the colonies should indeed be of advantage to Great Britain, but not to their own disadvantage; intercourse should be ‘* mutually advantageous.”Settled American theory did not reach the point afterwards reached in England, that the government of the colonies should be for the benefit of the colonies alone, though Hamilton, Dulaney, and others fell little if at all short of it.
The subject was peculiar to the colonial relation, and could find no place in the State or Federal constitutions; there was no territorial separation of the federal government from that oi the States; all commerce was necessarily carried on with or through the States. The Constitution therefore needed only to declare for uniformity of duties, imposts, and excises, and against preferences in commerce of the ports of one State over those of another.
There were a few other complaints falling under the head of abuse of authority; complaints that private citizens were unnecessarily disarmed, that armies were kept in the colonies, without consent, in time of peace, and that soldiers were wrongfully quartered in private houses. These things, with some variation, found their way into State and Federal constitutions. But the Federal Constitution recognises the right of the States to maintain a body of militia, and to have command of it when not employed in the service of the United States; as Great Britain had done in the colonial time.
(ii) Discriminating Legislation
Of discriminating legislation there was much concerning which no serious complaint was made. The subordination of the colonies implied some discrimination against them, according to theories of government prevailing in the eighteenth century and admitted by the colonies. What was understood by ^^ regulation of trade,*’ that is, of external and inter-colonial trade, was the ever-present example. The colonies must not trade with foreign countries, except as permitted by government; they were subject to trade-duties peculiar to them as colonies. But there was somewhere a limit beyond which it was agreed discrimination ought not to go; to pass that limit was to violate legal right. Where was the limit? No general answer was given; no one indeed contended that there was any fixed boundary line; each case was treated as standing more or less by itself. The American contention then, arising out of particular cases, was simply this :–assuming, or waiving the question of, the authority of Great Britain, authority had been exercised so as to discriminate unduly against America.
Leaving for later consideration questions whether certain complaints belong to this head or to another, and taking up none but adjnitted cases, the first thing to be noticed must be the legislation touching the jurisdiction of the colonial Courts of Admiralty.
Complaint was five-fold. First, it was complained that the revenue jurisdiction of the Courts of Admiralty in America, which theretofore had been local, had now been extended, for every Court, over the entire coast of the colonies. Secondly, that jurisdiction had been given to the colonial Courts of Admiralty in matters beyond the jurisdiction of the Admiralty in England, namely in matters of the common law; whereby Americans had, so far, been deprived of the Englishman’s right of trial by jury. Thirdly, that, while in England damages could, in ease of acquittal, be recovered against officers who seized goods, in America no action could be maintained if the judge in Admiralty would only certify that there had been probable cause for the seizure. Fourthly, that the judge in Admiralty held office at the pleasure of the Crown, instead of during good behaviour as in England. Fifthly, that the judge was paid in fees, a large percentage being payable to him for every condemnation of goods, much larger than in cases of acquittal.
The complaints of political bodies usually took the form of resolutions or declarations, without stated argument. The Stamp Act, and other Acts of Parliament–so the Stamp Act Congress declared, in October 1766 -“by extending the jurisdiction of the Courts of Admiiralty beyond its ancient limits, have a manifest tendency to subvert the rights and liberties of the colonists.””Trial by jury is the inherent and invaluable right of every British subject in these colonies.”Trial by jury in these cases of the revenue–so said the address to the King, on the same occasion–is a security against the arbitrary decisions of the executive. His Majesty’s subjects in America are required to submit to the determination of a single judge, in a Court not restrained by the wise rules of the common law, the birthright of Englishmen and the safeguard of their persons and property. The colonies have the misfortune to find, said the address to the House of Commons, that all the penalties and forfeitures mentioned in the Stamp Act and other late Acts are, at the election of the informers, recoverable in any Court of Admiralty in America. A newly-elected Court of Admiralty has general jurisdiction over all British America, so that his Majesty’s subjects are liable to be carried at the greatest expense from one end of the continent to the other. It is painful to see such a distinction made between the subjects of England and the colonies; there the like penalties and forfeitures are recoverable only in his Majesty’s Courts of Record (i.e. the common law Courts).
Individual leaders also took part in the matter, in newspapers and pamphlets. Governor Hopkins dwelt upon the territorial extension of jurisdiction. Goods lawfully imported may now be seized in Georgia and carried to Halifax, for trial there; and if the judge can be prevailed upon to certify that there was probable cause for the seizure, the unhappy owner, if he has followed his goods, may return to Georgia quite ruined. The power given to Courts of Admiralty, said Thacher, who with Otis had argued against the writs of assistance, alarms the people. The common law is the birthright of every subject; trial by jury is a darling privilege. It was so long before the colonies were planted; our ancestors had many struggles against attempts of the Court of Admiralty to inundate the land. What chance has the subject for his rights when the judge is to have a hundred or perhaps five hundred pounds for condemning, and less than twenty shillings upon an acquittal–the judge too acting alone, without a jury? Worse than that, the seizor may at his pleasure inform in any Court of Admiralty in the particular colony, or wherever in America a Court may sit. Thus a malicious seizor may take any man’s goods, however lawfully imported, and carry the trial a thousand miles away, and the owner shall lose his right from sheer inability to follow. The Act of Parliament makes other distinctions. In Great Britain no jurisdiction is given to any other than the common law Courts; and there the subject is near the throne, and can soon be heard. In England the officer seizes goods at his peril; if the goods are not liable to forfeiture, the seizor must pay the claimant his costs, and is besides liable to an action for These complaints were answered by the English Ministry, by judges, and by loyalists. The Stamp Act itself, it was pointed out, had recognised the grievances and proposed a suitable remedy. It contained a clause providing for the creation of such a number of Courts of Vice-Admiralty as would bring trials within the reach of every subject in America. In the execution of that purpose the then Commissioners of the Treasury had in fact formed and submitted to the Privy Council a plan for creating three such Courts, with proper districts, and with ample fixed salaries for the judges, in lieu of all fees. But the repeal of the Stamp Act followed; ** and the Americans will owe the grievances which they suffer from the present situation and constitution of the Court of Admiralty to the administration which”caused the repeal.
The extension of jurisdiction of the colonial Admiralty over matters of the common law was itself justified, as the ministry, Crown judges, and loyalists held, on the ground of necessity. ^^ The reason for putting these causes,”arising under the Stamp Act, ^^ in a course of trial without any jury undoubtedly arose from an apprehension that juries in these cases were not to be trusted.”The force of that reason might be abated, it could not be wholly destroyed; no candid man would ^^ take it upon him to declare that at this time an American jury is impartial and indifferent enough to determine upon frauds in trade.”It was declared to be ^^ notorious that smuggling had well-nigh become established in some of the colonies.””The way to Holland and back was well-known”; and then Whig and smuggler had been ^^ playing into each other’s hands.”Smuggler had been protected by Whig, Whig in turn had been supported by smuggler, bitterly observed a New England loyalist–with truth, if not with the whole truth.”What,”said another,”could the government do but apply a remedy as desperate as the disease?”
No definition of Admiralty jurisdiction was given in any of the American constitutions. The subject was probably referred to in certain provisions of State constitutions, or bills of right, that”in controversies respecting property”trial by jury was”preferable to any other,”or was matter of”right”except where it had been”otherwise used and practiced.”The seventh amendment (passed in 1789) to the Constitution of the United States provides that”in suits at conmion law, where the controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”Great difficulty was found in the Federal Convention in fixing jury trials, in civil cases, through the States ^ and the subject was finally dropped, and left to the States. As for Admiralty powers, the Federal Constitution simply declares that”The judicial power of the United States shall extend…to all cases of Admiralty and maritime jurisdiction.”The Courts therefore were to determine what that was. Rights of action for damages for improper seizure of goods under revenue laws (to be passed) were left for legislation and the Courts. Judges of the federal Courts were to hold office during good behayiour, and to receive fixed salaries without fees. Such, altogether, was the net constitutional result, federal and State.
The trouble which arose over the determination to take Americans accused of treason to England for trial, is a shorter matter. Orders had gone forth for closing the port of Boston; and, in anticipation of resistance, riots, and bloodshed in enforcing the same, the legislation in question had been passed by Parliament. It had lately been resolved in Parliament, said the Continental Congress of Philadelphia in the autumn of 1774, that by force of a statute of the time of Henry VIII, colonists may be transported to England and tried there upon accusation for treason and misprisions, or concealment of treason, committed in the colonies; and by a late statute such trials had been directed in cases therein mentioned.
Against this and other new legislation affecting Massachusetts, it was resolved that at the time of the emigration the colonists were entitled to all the rights, liberties, and immunities of free natural born subjects within England; that they had not, by their emigration, forfeited, surrendered, or lost any of those rights; and that their descendants were still entitled to exercise and enjoy the same so far as circumstances enabled them to do so. Accordingly, the colonies were entitled to the common law of England, and more especially to the great and inestimable privilege of being tried for crime by their peers of the vicinage, by the course of that law. The legislation in question was unjust, unconstitutional, destructive of the rights of Americans.
Necessity was of course the justification urged. Boston juries could not be depended upon to convict Boston citizens of crime in resisting ofiicers of the British government, or to acquit officers under indictment for acts done by them in the discharge of their duty; to which sarcasm might reply, that British juries could be depended upon to convict in the one case and acquit in the other, for want of witnesses who heard and saw. Men accused of crime in Massachusetts must be tried by a Massachusetts jury, not merely because British juries would be apt to be prejudiced against them for what they had done against natives of England, but because witnesses in favour of the accused would not be present at the trial there, or if present would probably be overawed. So Americans maintained; and that view passed into the State constitutions and then into the sixth amendment to the Constitution of the United States.
(iii) Interference under Claim of Universal Authority
The great dispute between the colonies and Great Britain was of the true relation between the two parts of the British empire. Parliament, first distinctly claiming the right to tax the colonies for the support of the empire upon the close of the French war in America, shortly afterwards put the claim of right, plainly following on the first position, universally; Parliament had the right to legislate for the colonies, ** in all cases whatsoever/’ As the first claim was denied in the colonies, so still more, of course, was the second. Thus was raised one of the greatest issues of legal right which has ever stirred the English race. Well for the world that there were men in America equal to their part in it; for the dispute was of a kind to affect the history of the world; the future of distant and foreign races, as well as of all those of English blood, might be turned by it.
During all the time embraced in the troubles now under consideration, all Americans, Whigs or ^^ patriots,”with few expections, as well as Tories or”loyalists,”were devoted to the colonial relation. The stand taken by the Whigs against the mother-country was taken accordingly; and it should be distinctly observed that their opposition to the policy adopted by the British government was the opposition of colonists, seeking their ends for the colonies as such. In other words, their theory of rights was a theory of the colonial relation between Great Britain and her American possessions, the thirteen colonies; thej believed it to be the true theory of rights touching that relation. The sincerity of the professions of loyalty by the Whig or generally dominant party in the colonies was indeed doubted in England and sneered at by the Tories in America; but the profession was stoutly made throughout the time in question, and there is evidence enough that it was made with sincerity. But even if it were true that the Whigs were already bent upon separation, the basis of their contention was the colonial relation; and the subject must be considered upon the ground upon which it was put.
The Continental Congress of September, 1774, put the claim of exemption of the colonies from the general authority of Parliament on three grounds of legal right, to wit, rights fixed (a) by the”immutable laws”of human nature, (6) by the British Constitution, and (c) by the colonial charters. How was the claim supported? How was it opposed in America, that is by the loyalists? The several groimds will be considered in order, by way of answer. First, then, of the laws of nature.
(a) Laws of Nature
The contention on this point, beginning with the Stamp Act troubles, in 1764, was, that the rights of the colonists were not all or chiefly derived from the sovereign power of Great Britain, or from Great Britain in any way. Rights were not necessarily created by legislatures or by municipal law; they were not necessarily created at all. The greatest rights were original, inherent in man; they arose from law indeed, but from that law only which, through the social instinct, draws men together in social relation. The State itself was nothing but a body of men in social relations, with power given to it, or created with power, to enforce the obligations arising therefrom. In other words, Americans contended that the chief rights of men arose from human nature. Instead of being created by municipal law, these rights themselves gave rise to all laws enforced by the State.
This theory of legal right was put as English doctrine. American jurists, including loyalists, were in the habit of quoting Calvin’s case, of the time of Coke. In that case all the authorities had been examined, and the judges had unanimously resolved, first, that the laws of nature are part of the law of England; secondly, that the laws of nature cannot be changed; thirdly, that protection and government are due to the subject by the laws of nature; fourthly, that neither”ligeance”nor protection is tied to municipal law, but is due by the laws of nature.
Plainly then there was, at the time of the settlement of the colonies, a”law of nature”which was not derived from Parliament, a law which Parliament could not change. Indeed Americans believed that doctrine without regard to Calvin’s case; the doctrine did not rest on ^^ musty records”; it was sound in itself. So in effect it was put by all the leaders–by Otis, Hopkins, Samuel Adams, John Adams, and Hamilton. ^^ The sacred rights of mankind,”said Hamilton, ^^ are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature by the hand of the Divinity itself, and can never be erased or obscured.”
The rights referred to as derived from the laws of nature were generally spoken of, as Hopkins put them, as inherent and indefeasible; they were Blackstone’s”absolute rights”of individuals to life, liberty, and property, and his secondary, consequent rights of legislation. The term”birthright”was constantly applied to the first. But the doctrine that these or any other rights of the colonists were beyond the power of Parliament was denied in England and by loyalists in America. Discussion began with the rights of individuals.
Howard, a Rhode Island loyalist and lawyer, said that, in speaking of the rights of free-born Englishmen, personal and political rights were confounded. He put the case, in substance, thus : 1. Political rights are not”natural”; these come from Parliament, and Parliament comes from the constitution of England, which was the common law. These rights, in the case of the colonists, are derived, immediately, from the charters. 2. Personal rights of life, liberty, and property, called”inherent, indefeasible”rights, are not”natural”; these come from the common law. These, too, in the case of the colonists, are derived, immediately, from the charters. 3. All the rights of the colonists therefore are derived immediately from the charters, ultimately from the common law. 4. If then the colonists claim the common law, as they do, as the source of these personal rights, they must accept Parliament also, for Parliament too was the offspring of the common law. 5. But corporate rights were matters of grace and favour of the donor or founder. 6. Therefore, the rights of the colonists, political and personal alike, were matters of grace and favour.
Otis denied Howard^s distinction between personal and political rights; it was ^^a new invention.*’ The rights of men were natural or civil Q” political”), and they might be both, at the same time, for the two divisions were not opposed to each other; which, it may be remarked, meant that all rights were civil, but certain civil rights were”natural.”Civil rights were principally three, rights of personal security, personal liberty, and private property; these by Blackstone were called absolute civil or political rights, and these were natural. Now natural, absolute (Howard’s ^^ personal”) rights, so far from being opposed to civil or political rights, were the very basis of all municipal laws of any great value.
Howard’s distinction too had led him to confound the rights of bodies politic or corporate with the civil or political rights of natural persons. Because the rights of bodies corporate, so far as they depended upon charter, were matters of grace and favour of the donor or founder, Howard had inferred that the colonies, as bodies corporate, had no rights independent of their charters. But this, said Otis, contradicted his statement that by”the common law”every colonist had a right to his life, liberty, and property.
Rights of life, liberty, and property, by nature and by the common law, were civil or political rights. But in the colonies these and all other rights, according to Howard, depended upon charter. It must follow that the people of those colonies (New York, for instance) which had no charters, had no right to life, liberty, or property. And even in the colonies which had charters, these rights depended upon the mere goodwill, grace, and pleasure of the supreme power. That could not be true; the origin of these rights was found in the law of nature. If all the charters were abolished, this would not shake one of the essential rights of the colonists; the colonists would still be men, citizens, British subjects. No Act of Parliament could deprive them of the liberties of such. It followed–although Otis left the plain deduction to the reader–that the colonists could claim the common law, without admitting the authority of Parliament, even if it were true that the British Constitution was, properly speaking, the common law in such a way that Parliament, like the rights of life, liberty, and property, could be said to be the offspring of it. Otis made no allusion to this point; his argument was not affected by it. It was enough that the”personal”rights in question, being civil or political, were at the same time natural, and hence above charters or Parliaments.
Otis however did not deny that Parliament had the right to lay taxes upon the colonies, and so far take the property of the colonists without their consent. On the contrary he in terms affirmed the right :”^ the Parliament of Great Britain has a just and equitable right, power, and authority, to impose taxes on the colonies, internal and external, on lands as well as on trade.”This was involved in the idea of the sovereign power of the State. But he held that it would be inexpedient and unreasonable for Parliament to exercise the right without allowing the colonies actual representation. Otis was writing in 1765; but even then the whole Whig party was against him. The Whigs carried the doctrine of rights under the laws of nature to the conclusion that Parliament had no authority to lay taxes upon the colonies; the rights of”personal security, personal liberty, and private property”were beyond the reach of Parliament, except as incident to the right of Parliament to regulate the external affairs of the country. That would have been said to be the true effect of Otis’ own argument.
So far as individual rights were concerned, these absolute rights were perhaps all that the colonists meant when they spoke of rights derived from the laws of nature.”Birthright”had a wider, an indefinite meaning; it was often usyd to include the common law, the great English statutes, and the British Constitution; hence many things having no bearing on the question of exemption from Parliamentary control.
As a direct consequence of the claim to such exemption in respect of the great individual rights, the Whigs claimed exemption in respect of the means whereby those rights were protected; they had rights to legislatures and Courts of their own. And these rights of direct consequence they also called inherent and indefeasible, andtherefore ^^ natural.”^^ The supreme and subordinate powers of legislation should be free and sacred in the hands where the community have once rightfully placed them,”as ^^ a natural, essential, inherent, and inseparable right.”A legislature of the colonies might be forfeited (in virtue of allegiance) to the Crown, for good cause, according to Otis, who, writing in 1764, went further than the Whig leaders ten years later; but forfeiture of the kind could not affect the natural persons of the members of the legislature or of the inhabitants of the colonies in their rights of legislation. The colonists would still have the right either to be represented in Parliament or to possess a new subordinate legislature.
Seabury, a rector of New York, an able, caustic writer, denied that the colonies had any inherent or natural right of legislation; their powers of legislation were derived from the indulgence or grant of the parent-State.”Upon the supposition that every English colony enjoyed a legislative power independent of the Parliament, and that the Parliament has no just authority to make laws to bind them, this absurdity will follow, that there is no power in the British empire which has authority to make laws for the whole empire; that is, we have an empire without government;…we have a government which has no supreme power.”Supreme power must be lodged somewhere. Hamilton answered Seabury, first disciissmg the theory of the authority of the House of Commons by way of showing that the authority of Parliament must be limited to Great Britain. The House was a check against despotism in various ways peculiar to the mother-country. The very aim of this part of the government was to secure the rights of the people, that is, the people of Great Britain. The House of Commons represented them; their own interests were in every way connected with those of their constituents. Again, as Governor Hopkins, writing in 1765, had put it, all the powers of the House were derived from its electors, and these were persons of Great Britain; it followed that all its authority was confined to Great Britain.”The power which one society bestows upon any man or body of men can never extend beyond its own limits.”
Proceeding to Seabury’s proposition that supreme power must be lodged somewhere in government, Hamilton denied the inference that, unless the supreme authority be lodged in one part of the empire over all the other parts, there can be no government. Each part might enjoy a distinct, complete legislature, and still goodjgovernment might prevail everywhere. It was vain to deny that two or morer distinct legislatures could exist in the same State. Such a denial might hold good as regards a single community; there could not be two legislatures in England or in New York. But it did not hold good of a number of distinct societies or bodies politic imder one common head; thus there might be one legislature in England, another in Ireland, and another in New York; and still these several parts might form but one State. There must indeed be some connecting, pervading principle; but that was found in the King. ^^ His power is equal to the purpose, and his interest binds him to the due prosecution of it.”How could this frustrate or obstruct government?
He affirmed then that legislation was an inherent right of the colonies, not a matter of indulgence or grant. All men were equal bj birth; natural liberty was the gift of the Creator to the whole human race; and ^^ civil liberty is only natural liberty, modified and secured by the sanctions of civil society,”which of course included legislation. Neither Parliament nor Crown had bestowed natural liberty upon the colonists, or could bestow it.
(b) The British Constitution
How did Americans claim exemption from Parliament in virtue of the British Constitution? The chief answer to that question is found in the English doctrine, running back to Magna Carta, and the various stages of representation. Property could not be taken without consent of the owner given personally or by his representatives; that was the ordinary, specific way of putting it, but the ground taken was general–Parliament had no authority over individuals in the colonies (except incidentally, in the regulation of their external affairs) for want of representation by them.
In answer to this position it was contended that what came to be called *’ virtual representation”satisfied the meaning of the constitution; and in that sense, America, it was said, was represented in Parliament. The maxim, as the loyalist Howard was willing to call it, that Englishmen could not be taxed without their consent, was a”dry maxim”; it was not to be taken literally. Rightly explained, it did not support the Whig case. It was, said Howard, the opinion of the House of Commons, and might be considered as a ^^law of Parliament,”that the Commons were the representatives of every British subject, wheresoever he might be. In that view the maxim in question was fully vindicated, and the whole benefit of it extended to the colonies. In a literal sense the maxim never was and never could be carried out. Was the Isle of Man, or Jersey, or Guernsey represented in that sense? What was the value of the representation of each man in the kingdom of Scotland, which contained near two millions of people, and yet not more than three thousand had a vote in the election of members of Parliament? The moneyed interest of Britain, though vast, had no share in the representation; and copyholders could not vote for members of Parliament.
Otis replied with legal sarcasm. Howard had said that the opinion of a House of Commons was a ^^law of Parliament.”Therefore it was determined by act of Parliament, that Americans were, and should believe they were, in fact represented in the House of Commons I Would any man’s calling himself an agent or representative make him such? Howard saw no difference between a literal sense of his”dry maxim”and no sense at all. Could it be argued that, because it was impracticable that each individual should in fact be represented, there should be nd representation whatever?
Seabury said that the Whig doctrine had arisen from an artful change of terms. To say that an Englishman was not bound by laws to which the representatives of the nation had not given their consent was to say what was true. But to say that an Englishman was bound by no laws but those to which he had consented in person, or by his representative, was saying what never was true, and never could be true. A great part of the people of England had no share in the choice of representatives. One of the Commissioners of the Treasury, in England, speaking more directly still, said that the merchants of London, the proprietors of the public funds, the inhabitants of Leeds, Halifax, Birmingham, and Manchester, and the East India Company, did not choose representatives; and yet they were all represented in Parliament.”‘ And the colonies, being exactly in their situation, are represented in the same manner.”
It fell to Dolaney to make the chief answer. The non-electors of England were under no personal incapacity to vote. All the inhaitants of the towns named, the members of the East India Company, and the rest might acquire the franchise. In point of fact there were electors in the towns, and even members of Parliament. Further, the interests of the non-electors, the electors, and the representatives, were individually the same; to say nothing of the connexion among neighbours, friends, and relatives. The security of the non-electon against oppression was that oppression of them would fall also upon the electors and the representatives. Again, if non-electors should not be taxed by Parliament, they would not be taxed at all; and it would be iniquitous that they should enjoy the benefits resulting from taxation and yet not bear any of the burdens. In that state of things a doable virtual representation might reasonably be supposed. The electors, ^o were inseparably connected with the non-electors in interest, might in voting be deemed to represent the non-electors; and the persons cboeen were therefore the representatives of both. This was the only rational explanation of virtual representation. The inhabitants of the colonies, as such, were incapable of being electors; if every one in America had the requisite freehold interest, not one could vote. Nor was there any intimate and inseparable relation between the electors of Great Britain and the colonists which must involve them in the same taxation. Not a single elector in England might be immediately affected by a taxation in America imposed by a statute having a general operation in the colonies. The latter might be oppressed without any sympathy or alarm in England. Indeed oppression of the colonies, by taxation, might be popular in England, as giving ease to the people there. Ultimately England would be liable to be affected, but not soon enough to cause alarm.
Dulaney wrote in October, 1764; in January, 1765, Pitt adopted the argument in a speech in favour of repealing the Stamp Act, referring to Dulaney’s pamphlet in terms of admiration. The argument was destined to prevail through the world as established British doctrine.
Another complaint arising in virtue of the British Constitution, as the colonists held, was that the departments of the local governments were interfered with in England and confused.”It is indispensably necessary to good government,”declared the Continental Congress of 1774,”and rendered essential by the British Constitution, that the constituent branches of the legislature be independent of each other; that therefore the exercise of legislative power in several colonies, by council appointed, during pleasure, by the Crown, is imconstitutional, dangerous, and destructive of American legislation.”
It was a common objection to the American contention that the colonies were only corporations engaged in trade, agriculture, and other pursuits, and that accordingly the colonists were no more entitled to exemption from taxation by Parliament because of want of representation, than were other corporations–than was indeed the City of London. Dulaney met this ar^ment thus. The colonies had complete legislative authority, and the people were represented in their legislatures, and in no other way. The power of making bye-laws vested in corporations, such as the City of London, was incomplete, being limited to a few particular subjects. And as for London, the Common Council were actually represented in Parliament, having a choice of members. The power of the colonies to make laws was not limited by anything else than what resulted from their subordinate relation to Great Britain. The term bye-law would be as improper when applied to the assemblies as the expression Acts of Assembly would be if applied to Parliament. Thacher, writing about the same time, said that it was impossible to consider the colonies as corporations, in the sense of corporations existing in England. Distance had made it necessary that the colonies should have the power of legislation; the colonies could not have existed otherwise. Now the colonies had always taxed themselves in their own legislatures, and had supported a complete domestic government among themselves; was it then just that they should be doubly taxed?
The loyalist Galloway of Pennsylvania, lately Speaker of the House of Assembly of that province, agreed with this view, as expressing the purport of the charters; which however he regarded as usurpations. The inferior corporations of England, he said, were governed by the general laws of the State, and their powers were so confined that they had frequent occasion to apply to Parliament for laws and regulations necessary to their own welfare. The colonies”were made competent to every act which could be necessary in a society perfectly independent.’* There was nothing for which they had to look to Parliament. They were not obliged by their charters to send any of their transactions for the inspection or control either of the Crown or Parliament; and they could declare war or make peace, in virtue of their charters. Galloway had indeed in 1776 thought that the colonies ought to be represented in Parliament, under the British Constitution, regardless of their charters. The rights of Americans, he believed, could be traced to no other source than the Constitution of the British State; and this was founded upon real property as the thing to be above all protected. Hence real property in England was represented in Parliament. Real property in America ought also to have representation there; the emigrants had neither surrendered, forfeited, nor lost their rights of representation by coming to America; Americans, as the subjects of a free State, were justly entitled to participate in the government of it; they should be restored to their ancient and essential right of sharing in the making of laws. That right originally was, and still is, of the essence of the British Constitution. As the case now stood, the British government was as absolute and despotic over the colonies as any monarch could be. That was a situation in which people accustomed to liberty, especiallj Americans, could not easily acquiesce.
To the suggestion that the Parliament might grant the colonies representation if request were properly made, the answer on both sides of the Atlantic uniformly was, that the situation of the colonies m&de the idea impracticable; with a play upon the favourite Whig phrase, Leonard of Boston, a loyalist, said that by ^^ the immutable laws of nature”we cannot enjoy it. And history has made good the answer. Representation was out of the question, and therefore the colonies were not to be subject to the general authority of Parliament–such was the Whig or American position.
(c) The Charters
The Whigs generally held that the charters confirmed their view that the colonies were exempt from the general authority of Parliament. Most loyalists, but (as will be seen) not all, held with the ministry the contrary view. Howard had been content with making the statement that the charters had not taken away Parliamentary jurisdiction- a statement which, coming from a lawyer of high standing, might under other circumstances have been accepted by laymen. But this was not a time for bare assertion on such a question; and other loyalists proceeded to call attention to the very language of the charters. Seabury published extracts from them in one of his pamphlets, and summing up said : ^^ These extracts abundantly prove that the colonial charters by no means imply an independence of the supreme leg^lative authority of Great Britain.”Leonard, an able lawyer of Boston, put the case of the Massachusetts charters, which were thought by Galloway to go to the furthest length of them all, in this way : to interpret the clause about liberties and immunities of free and natural born subjects as exempting the colony from Parliament, they must throw away all the rest of the charter, for every other part indicated the contrary. The meaning of the clause in question was this : if a person born in England removed to Ireland, he and his posterity were still subject to Parliament; and so if he removed to any other part of the British dominions. ^’ So that the inhabitants of the American colonies do in fact enjoy all the liberties and immunities of natural born subjects. We are entitled to no greater privileges than those that are born within the realm; and they can enjoy no other than we do when they reside out of it.”The clause amounted only to a royal assurance that the colonies were part of the British empire. That the powers of legislation were subject to Parliament was shown by the words relating to them, ^’So as the same be not repugnant or contrary to the laws of this our realm of England.”Our patriots had made many nice distinctions to evade the force of these words, but to no purpose. Finally, the Crown could neither alienate part of the British dominions nor impair the supreme power of the empire. The Whig contention was best put by Samuel Adams, by Dulaney, and by Hamilton.
Adams and Dulaney, taking the same ground substantially, treated the charters as contracts, or ^^ compacts,”this being a term generally in use at the time with a somewhat broader, and, at its borders, vaguer meaning than contract. As the term however was applied by jurists to the charters, it appears generally to have been used in the sense of contract, t.e. binding agreement. The original contract between the King and the first planters was, said Adams, writing in 1768, a promise on behalf of the nation, by authority not till lately questioned, that if the adventurers, at their own cost, would purchase the country, subdue the wilderness, and thereby enlarge the King’s dominions, they and their posterity should enjoy such rights and privileges as in their respective charters were expressed; which in general were all the rights, liberties, and privileges of his Majesty’s natural bom subjects within the realm. The principal privilege, implied by some and expressed by other charters, was freedom from all taxes but such as they should consent to in person or bj*^ representatives chosen by themselves.
Hamilton,”the marvellous boy”- he was then an undergraduate in college, little more than eighteen years of age–made the most original and telling argument in the great debate. He took the position that the colonies were ** without the realm and jurisdiction of Parliament,”and that the charters, and British action touching them, showed the fact. He argued the case thus :–
King James had granted three charters to the Virginia Company. The first one ordained that the colonies to be established should have a council which should govern all matters within them, according to such laws, ordinances, and instructions, as should be given and signed by the King; and that the colonists should have and enjoy all liberties, franchises, and immunities within the King’s”other”dominions, as if abiding and born in England. The King could not have granted such a charter if the colonies had been part of the realm, or within the jurisdiction of Parliament. The second and third charters only enlarged the first. The present government of Virginia was modelled after the third charter; by this the company were to have”one great, general, and solenm assembly,”to dispose of affairs of every sort, with full power to make laws for the good of the plantation,”so always as the same be not contrary to the laws and statutes of this our realm of England.”By this charter King James had divested himself wholly both of legislative and executive authority, but for his own security had prescribed a model for their civil constitution. The laws were not to be contrary to those of England; this was inserted in all later charters, with some little variation. The object of the provision was only to present to the colonies a general model in the British Constitution. The condact of James I and Charles I made the case still clearer. When in tiie year 1621 a bill had been introduced in the House of Commons to giie to English subjects fishing privileges on the coasts of America, the Secretary of State, by command of the King, informed the House tbt ^^ America was not annexed to the realm, and that it was not fitting that Parliament should make laws for those countries.”So when, in the time of Charles I, the same bill was again proposed, the King declared that *^ it was unnecessary; that the colonies were without the realm and jurisdiction of Parliament/’ This showed that the claiueB quoted (that the laws should not be contrary to those of England) ” were not inserted to render the colonies dependent on Parliament, but only…to mark out a model of government for them. If then the colonies were, at first, without the realm and jurisdiction of Parliament, no human authority could afterwards alter the case without their own consent.”
Hamilton then considers the other colonial charters; first those of New England. The object of these colonists ^^ was to be emancipated from their sufferings under the authority of Parliament and the laws of England.”In evidence of this, Hamilton quotes the compact on the Mayflower^ in full. Soon afterwards King James issued his Plymouth charter ^^ for the planting, ordering, and governing of New England in America,”with a charter to the same effect as the charters of Virginia. There was to be a Council having”sole power of legislation”; the right of electing all officers, civil and military, and authority to coin money, and to make war and peace, were also conferred upon the colonists. The charter of Charles I to Massachusetts Bay was similar. The charters of the other colonies were reviewed, with the same result, except in the case of that of Pennsylvania. This contained a clause which was ^^ a reverse, in favour of Parliament, perfectly singular and unprecedented in any foregoing charter, and which must either be rejected or the general tenour of the grant becomes unintelligible”- a statement with which the loyalist Galloway agreed. Reference is then made to the revocation of the Massachusetts charter and the granting of the new one by William and Mary. The agents of the colony would not accept the new charter imtil they had consulted competent authority; which done, the agents drew up a declaration in which they said :”The colony is now made a province; and the General Court has, with the King’s approbation, as much power in New England as the King and Parliament have in England. They haye all English privileges and liberties, and can be touched by no law and by no tax but of their own making.”
The troubles in Virginia over the first Act of Parliament imposing duties in America, in the 25th year of Charles II, were then referred to; and although this was only a matter of the regulation of trade, the result was a declaration, under the King’s privy seal, that *^ taxes ought not to be levied upon…a colony but by the consent of the General Assembly.”And this declaration had been directly acted upon under Governor Culpeper in Virginia, measures intended to raise revenue for protecting the colony being ^^ passed into law by the King’s most excellent Majesty by and with the consent of the General Assembly”of the colony. ** If the Virginians had been subjects of the realm, this could not have been done without a direct violation of Magna Carta, which provides that no English subject shall be taxed without the consent of Parliament.”
As for the admitted jurisdiction of Parliament over the reg^ulation of commerce, which Hamilton’s reasoning seemed to cover, the answer was, ^^It is enough, we have consented to it.”
By the year 1780 Gralloway, who had cut loose all connexion with America and gone to England, agreed in effect with Hamilton. In 1776, while there was still hope for his famous Plan of Union, he could ** discover no exemption or discharge from the authority of Parliament in any of”the charters, save that of Pennsylvania; and there it was only partial, while other parts of the same charter were to the contrary. But disappointed hopes and five years of revolution had their effect; he could now condemn the New England charters as inculcating independence, so far as Parliament was concerned. By the Plymouth charter of 1628 ^^ every prerogative of the Crown, and all the rights of the aristocratic part of the British Constitution, were sacrificed to the republican views of the grantees.”There was no control over *^this complete leg^ative authority,”except that nothing contrary to the laws of the realm should be done. The people of Massachusetts had been *^ educated under the unlimited and [therefore] unconstitutional powers of their former and present charters.”So of the other charters; they contained *^ the same unUmited and unconstitutional powers.”All supervision over their legislative, executive, and federative powers had been given up; the colonies made what laws they pleased, and executed them as they pleased; they made peace and war with whom they pleased. By their several charters they were constituted”so many complete, independent societies”within the State.
The exceptional clause in the charter of Pennsylvania was to the effect that the King grants that he will levy no taxes on the inhabitants of the province unless with the consent of the General Assembly or by Act of Parliament. Franklin, asked on examination by the House of Commons how the assertion could be made that laying taxes on his people by the Stamp Act infringed their rights, in the face of that clause, explained the provision thus. By the same charter, and otherwise, his people were entitled to all the privileges and liberties of Englishmen; one of those privileges was, that they were not to be taxed but by their common consent. They had therefore relied upon it that Parliament would not and could not tax them until it had quatfied itself to do so by admitting his people to representation, who ong^ to make part of the common consent.
But were not these charters of the colonies, though granted in fact by the Kings of England, granted in law by Parliament as the soyeieigi power of the nation? The Whigs said that they were not; though the elder Adams, inconsistently with that idea, had in 1768 spoken of d>i charters as a royal promise ^^on behalf of the nation,”for making wlddi it had never till very lately been”questioned but the King had powï¿½.”The Whigs generally however would have said, then or later, that tfcit was a mere slip or inadvertence. That they generally held that tb King’s promise was made in his own right alone is clear. Gallowaj, speaking with ample knowledge, said of the idea,”We find it in afl the resolves and petitions of the American assemblies, town meetings, and provincial committees, and even in the proceedings of the Continental Congress,”which indeed had declared upon it.
Galloway pronounced the idea a delusion,”a distinction nowhere to be found”; the charters had been granted by the Kingas representatiTe of Great Britain; they had therefore been granted by Parliament, and hence the colonies derived their rights from the Britidi legislature. He supported the proposition thus. The King held the g^eat seal in his representative capacity only. One right which he had under the ee^ was to form territory within the realm into inferior bodies politic, vesting in the people there the power to make laws for the regulation of internal police, but not to discharge the people from obedience to Parlis^ ment, because that would weaken and dismember and in the end destroj the State. The colonies were by their own admission members of the State; which he seems to lead the reader to infer, was bringing them”within the realm.”Every colony in America had been settled under licence and authority of the great seal,”affixed by the representatiTe of the body politic of Britain,”to the charters. There was no otbei source from which the King could derive authority. He brushed aside the position taken by some that the oath of allegiance in America vas professed to the King, not as representative of Great Britain, but ae representing the several legislatures of the colonies; it was **a new and unheard of capacity of his Majesty”; it made his Majesty the representative of his own representatives, delegates, or substitutes.
Seabury dealt with the matter thus :”To talk of being liege subjects to King George while we disavow the authority of Parliament is anodier piece of Whiggish nonsense…If we obey the laws of the King, ^ obey the laws of Parliament. If we disown the authority of the Parliament, we disown the authority of the King. The King of Great Bri^ ain was placed on the throne by virtue of an Act of Parliament, and he is King of America by virtue of being King of Great Britain. He is therefore King of America by Act of Parliament.”
To this Hamilton replied, that the Act of Parliament was not the efficient cause of his Majesty’s being the King of America; it was only the occasion of it. He was ^^ King of America by virtue of a compact between us and the [former] Kings of Great Britain. These colonies were planted and settled by the grants and under the protection of English Kings, who entered into covenants with us, for themselves, their heirs, and successors.” From these covenants the duty of protection by them and of obedience by us arose. ^^ Our compact takes no cognizance of the manner of their accession to the throne.”It could therefore make no difference that King James and the first and second Charles were in truth parliamentary Kings. Passing to the distinction itself between allegiance to the King and subjection to Parliament, Hamilton said that there were valid reasons for such a distinction. The people of America held their lands, by virtue of charters, from the King; they were under no obligation to Lords or Commons for them. *^ Our title is similar, and equal, to that by which they possess their lands; and the King is the legal fountain of both.”But the chief reason was, that the colonists had the right to claim protection from the King of Great Britain. It had been said that they owed this to Great Britain. That was not true; the King, as executive, was the supreme protector of the empire. He it was who had defended the colonies; to him alone were the colonies bound to render allegiance and submission. ^* The law of nature and the British Constitution both confine allegiance to the person of the King.”Calvin’s case had so decided. That is, allegiance was”confined”to a *^ person”who simply bore the name and title of King of Great Britain.
Hamilton made no reference to the fact that the Stewart Kings, under whose charters most of the colonies held, had claimed authority above Parliament, probably because in the contest with Charles I the colonists mainly were with Parliament; and he was replying to Seabury, not to Galloway, who wrote perhaps a little later. With Galloway’s argument before him for answer, there can be little difficulty in supposing that Hamilton would have alluded to the professions of the Stewarts. Was it true, he would have been likely to say, that the Stewart Kings affixed the great seal to the charters as representatives of another? And even if they had forgotten, for the moment, the divine right of Kings, could any King, by using the great seal, or in any other way, without sufficient notice to the grantees, constitute himself a representative of others, to the prejudice of the grantees?
This part of the subject may be closed with a statement of the chief resolutions of the Continental Congress, of the year 1774, as the final summing up of the whole case. In virtue of the three sources of right above considered, the Congpress resolved–First, that the inhabitants of the British colonies in North America were entitled to life, liberty, and property, and that they had never ceded to any foreign power whatever a right to dispose of either without their consent. Secondly, that their ancestors, who first settled the colonies, were at the time of their emigration entitled to all the rights, liberties, and immunities of free and natural born subjects within the realm of England. Thirdly, that by such emigration they had not forfeited, surrendered, or lost any of those rights, but that they and their descendants were entitled to exercise and enjoy all such of them as their local or other circumstances would permit. Fourthly, that the foundation of English liberties and of all free government was a right in the people to participate in their legislative council; and as the English colonists were not represented, and from their local circumstances could not properly be represented, in Parliament, they were entitled to a free and exclusive power of leg^lation in their several provincial legislatures, where their right of representation could alone be preserved, in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as had been theretofore used and accustomed. But from the necessity of the case, and from a regard for the mutual interests of both countries, the colonies cheerfully consented to the operation of such laws of Parliament as were bona fide restrained to the regulation of their external commerce, excluding every idea of taxation, internal or external, for raising a revenue on the subjects in America without their consent Fifthly and Sixthly, that they were entitled to the common law, and to such English statutes as they had by experience found applicable to their several localities and circimistances. Seventhly, that they were entitled to all the immunities and privileges granted and confirmed to them by royal charters and secured by their own provincial laws.
Several resolutions followed pertaining to other grounds of complaint.
(iv) General Objections
There were certain objections to the American position which applied alike to all claims of exemption from the authority of Parliament. One was that the colonies as members of the empire ought to contribute to the support of the general government. Thus the money laid out by Great Britain in establishing and protecting the colonies, especially in the late war with France, gave to the government a right of compensation in taxes. This objection was answered by many of the Whig writers. Governor Hopkins, writing in 1766, considered that there was no foundation for the claim. As for the late war, many of the colonies, especially those of New England, took the charge upon themselves entirely. The same was true of the expenses of protection against the savages and other enemies, for a hundred years. The colonies had been called upon indeed to raise men and send them out for the defence of other colonies, and even to make conquests for the Crown. They had dutifully obeyed, until all Canada and even Havana had been conquered. They had responded cheerfully, but they reaped no benefit : eyerything obtained belonged solely to Great Britain. As for bearing a share of the general expenses of government, was it not enough that the colonies, of themselves, supported a government as expensive to them as was the internal government of Great Britain to its inhabitants? And had they not always responded cheerfully when called upon by the Crown? Why then distrust them now?
Dulaney too pointed out that the British Ministry, in the time of the late war with France, so far from thinking it proper for the House of Commons to ^^ give and grant”the property of the colonists to support the war in America, had directly applied to the colonies to tax themselves; and he added that they had promised to recommend Parliament to reimburse the colonies in the expenses they had borne, a promise which was made good.
Hamilton, in 1774, referring to claims upon the colonies for the support of the British navy, because of its protection of America, replied that Great Britain enjoyed a monopoly of the trade of the colonies. The colonies were compelled to trade with the mother-country, and the profits were a great source of wealth to her; were not these sufficient recompense? Franklin’s answer, as will be seen below, was that Great Britain was entitled to a toll or duty for guarding the seas.
Another objection was, that a power of regulation by government was a power of legislation; and a power of legislation must be universal and supreme. The conclusion drawn was, that as the colonies had acknowledged the x>ower of Parliament to regulate their commerce, they had thereby acknowledged every other power of legislation by that body. Dickinson answered that the objection was based upon confusion. There was a time when England had no colonies; trade was the object for which they had been encouraged. Love of freedom was a chief motive of the adventurers : the connexion of colonies with the parent-State was a new thing in the English laws. That the rights of England extinguished the rights of the adventurers–rights essential to the freedom they would have had, had they stayed at home–was against reason, humanity, and the constitution of England. Colonies could not have been planted on such terms. The colonists simply claimed what they would have had had they never left England. But there was another principle touching trade. All the power of Parliament could not regulate trade at pleasure. It had to be reg^ulated by treaties and alliances formed by the King, without the consent of the nation, with other States. When a universal empire was established, and not till then, could regulations of trade properly be called Acts of the supreme legislature. But let it be admitted that the power to regulate trade is vested in Parliament. Still, commerce rested on concessions and restrictions mutually stipulated between the different powers of the world. How the people of England shall trade must be determined by Germans, Frenchmen, Spaniards.
The right of acquiring property depended on the rights of others; the right of acquired property solely on the owner. Why should this right be sacred in England, and an empty name in the colonies? From the principle stated arose the power of England; should that power now be exerted in suppression of the principle?
Dulaney, Hamilton, and others pointed out that the past regulations of trade plainly were not taxation. The whole remittance from all the taxes in the colonies, on an average of thirty years, had not amounted to ï¿½1900 a year, of which not above ï¿½800 had been remitted from North America; while the cost of the machinery necessary to collect the sum amounted to ï¿½7600 a year. It would be ridiculous to suppose that Parliament would raise a revenue by taxes in the colonies, when to collect them would cost three times the amount of revenue.
But how could any distinction be made between legislation generally and legislation over commerce? The nature of the Act must, Dickinson answered, determine whether the object was to raise revenue or to regulate trade. Sometimes it might indeed be difficult to decide, and in a case of doubt it would be wise to submit. It signified nothing that certain taxes were called external; although the duties lately imposed on paper and glass had been thus distinguished from those of the Stamp Act. There was no distinction in fact between the two. Parliament had no power to lay any tax whatever on the colonies; and a tax was a burden laid for the sole purpose of raising revenue, under whatever name. Otis, who also had denied the distinction, put the case thus : the tax on trade is a tax on every one concerned in it, or it is not. If it is not, it is unequal. If it be said that such a tax is an equal tax on all, what becomes of the distinction between external and internal taxation?
Duties imposed in the regulation of trade were however sometimes called external taxes. In that use of the term the question whether there was any distinction between duties or ^^ external taxes”imposed in regulating trade, and internal taxes, was put to Franklin on his examination by the House of Commons, 1765, in regard to the repeal of the Stamp Act.”I never heard any objection,”Franklin had said,”to the right [of Parliament] of laying duties to regulate commerce; but the right to lay internal taxes was never supposed to be in Parliament, as we are not represented there.”Could he name any Act of Assembly, or public Act of the colonial governments, that made such a distinction?”I do not know,”was the reply, *’ that there was any. I think there was never an occasion…till now that you have attempted to tax us. That has occasioned resolutions of Assembly, declaring the distinction, in which I think every Assembly on the continent…has been unanimous.””Now can you show that there is any kind of difference between”external and internal taxes”to the colony on which they may be laid?””I think the difference is very great. An external tax is a duty laid on commodities imported; that duty is added to the first cost and other charges on the commodity, and when it is offered for sale makes part of the price. If the people don’t like it at that price, they refuse it; they are not obliged to pay it. Bat an internal tax is forced from the people without their consent, if not laid by their own representatives. The Stamp Act says, we shall have no commerce, make no exchange of property,…neither purchase, nor grant, nor recover debts, . . . neither marry nor make our wills, unless we pay such and such sums. …””But supposing the external tax or duty to be laid on the necessaries of life imported into your colony, will not that be the same thing in its effects as an internal tax?”^^ I know not a single article imported into the northern colonies but what they can either do without or make themselves. …”**If an excise was laid by Parliament, which they might avoid paying, by not consuming the article excised, would they not then object to it?”** They would certainly object to it, as an excise unconnected with any service done, and as merely an aid which they think ought to be asked of them, and granted by them, if they are to pay it, and can be granted for them by no persons whatsoever whom they have not empowered for that purpose.””You say they don’t object to the right of Parliament to laying duties on goods, to be paid on their importation; now is there any kind of difference between a duty on the importation of goods and an excise on their consumption?”^^ Yes, a very material one; an excise, for the reasons I have just mentioned, they think you can have no right to lay within their country. But the sea is yours; you maintain by your fleets the safety of navigation in it, and keep it clear of pirates. You may therefore have a natural and equitable right to some toll or duty on merchandise carried throughout that part of your dominions, towards defraying the expense you are at in ships to maintain the safety of that carriage.”
For similar reasons, Franklin said, the post-office was not a tax on the colonies; postage was payment for service done, and no one was compelled to pay if he did not choose to receive the service. Dulaney thought the establishment of the post-office came nearer to being a tax than any other regulation of trade; but still it was materially different. For the same reason that an Act of Parliament was necessary to secure the discipline of the provincial troops acting with those of Great Britain in the late war with France, the authority of Parliament might be properly exercised in establishing a regular post-office. All the laws of each colony were confined to that colony, and therefore local prohibitory and coercive clauses designed to enforce a general obedience, without which the scheme would fail, might be eluded. This matter of the post-office might then be referred to the general superintending authority of the empire.
Such were the three great groundB of complaint of the colonicB against England; such the arguments supporting and opposing them in America. The patriot party, to sum up the case, believed that the true basis of the relation of the colonies to the parent-State was equality in all respects consistent with the relation. No single part, even though far greater than another, was entitled, in virtue of its greatness, to make laws for a smaller part. What control the greater might rightfully exercise, on the footing of being the superior in government, depended upon the nature of subordination of the smaller. When powers compatible with the relation between the two might be exercised by the less without injury to that relation, the greater had no right to interfere. The line, then, appeared to lie between things that were necessary or proper for securing the dependency of the colonies, and things that were not. So held Dulaney; so the Whigs generally; so held some of the loyalists. The effect was, that Parliament was entitled to act, when entitled at all, only upon the colonies, as political bodies, not upon the citizens of the colonies, except incidentally under regulations of commerce or other external affairs; though what the King might do, in virtue of the allegiance to him, was another question.
The people of the colonies and Great Britain were equally important to each other; each must suffer with the misfortunes of the other. Commerce therefore should be as free as the relation justly permitted. What difference to England, said Dulaney, whether the merchants who carried on trade in commodities not wanted in England lived in Philadelphia or in London? The balance of trade due in England was equally well discharged. The colonists ought not to be restrained in their pursuits and interests, said Governor Hopkins, but for the manifest good of the whole people; they should enjoy equal freedom with the people of the mother-State. In particular, they ought to have ample notice of any new measure proposed by government, which would affect their interests, so that they might give to government the benefit of whatever knowledge they possessed.
Even the staunch loyalist Galloway agreed to all this. According to him, the colonies were not upon their rightful footing; there was one great lack, already noticed;”some new provision…should be adopted,””some constitutional union between the two countries,”to put the colonies right, to give them a share in*making the laws. In other words, the true idea of the colonial relation was equality, according to the nature of the case.
The Whigs drew this doctrine from the proposition, stoutly maintained by them, but as stoutly denied by loyalists, that all men are bom equal; that superiority is acquired only, not innate; and that government and governors are only set up for the good of the people.
Pamphlets poured forth in a constant stream from Whig and loyalist press; newspapers were filled with articles on the one side and the other from a thousand sources. But a time came when there was an end of sober, or at least of mutual, discussion. The ^^ force of argument”gave way to the *^ argument of force”at Lexington and Bunker Hill; the loyalists withdrew sullenly from the contest; and now, true to the grim facts of history, patriots, from haters of persecution, turned persecutors; they pillaged the houses of loyalists, and harried the inmates out of the land. Still, though the Whigs were trooping to war, it was not yet to win independence, but only to defend and maintain the colonial theory they had so long championed. They were still ready for concession and reconciliation; they would reject Lord North’s great proposal of autonomy, only because it was not to be permanent. Another year was necessary to convince them that their cause, as colonists in the colonial relation they upheld, was hopeless.
A young Englishman, somewhat discredited in his native land, whence he had lately arrived, must publish the news to America, far and wide, that kings were an abomination and a sin, and hereditary succession an evil even more than an absurdity. Paine could quote Scripture at such a time with telling effect. ^* Your wickedness is great, which ye have done in the sight of the Lord, in asking for a king.”At last the people in their distress cry unto Samuel, ^* Pray for thy servants unto the Lord thy God, that we die not, for we have added unto our sins this evil, to ask a king.”The notion too that hereditary succession had saved people from civil wars was the most bareface falsehood ever imposed on mankind. Monarchy and succession had laid the world in blood and ashes.
No pamphlet was so timely, none had such an effect, as Paine’s Common Sense; which was to sweep away, for the time, all the vain arguments about constitutional law and government. Amidst general doubt everything was ready, and Common Sense struck the note. The people were called upon to come out and separate themselves from kings. ** O ye that love mankind; ye that dare oppose not only the tyranny but the tyrant, stand forth; every spot of the old world is overcome with oppression. Freedom hath been hunted round the globe. ..England hath given her warning to depart. O receive the fugitive, and prepare, in time, an asylum for mankind.”
A few months later, by midsummer, 1776, the Continental Congress was ready, and found the country ready, to declare independence.
The Declaration of Independence is a short and somewhat rhetorical statement of the case of the colonies, and of their determination to separate from Great Britain. A virtual preamble recites that ^^ a decent respect to the opinions of mankind”requires a declaration to the world of the causes of separation. Then comes a summing-up of Whig doctrine.”We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happineas; that to secure these rights, governments are instituted among men. deriving their just powers from the consent of the governed; tlui whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organisbg its powers in such form, as to them shall seem most likely to effect their safety and happiness.” The statement follows that ^^Pradenoe indeed will dictate that governments long established should not be changed for light and transient causes.”
The foregoing makes up the constitutional part of the doenment The rest is a statement of grievances against, chiefly, the King of Great Britain, of the vain appeal to the ^^ native justice and magnanimity” of ^’our British brethren,”and then the solemn declaration that””theae United Colonies are, and of right ought to be, free and independent States; that they are absolved from all allegiance to the British Crown. and that all political connexion between them and the State of Great Britain is, and ought to be, totally dissolved”; and that they have fall power to do all acts”which independent States may of right do.”
The Declaration, with some slight alterations introduced in committee, was by the hand of Jefferson.