A
CONSTITUTIONAL HISTORY OF THE UNITED STATES
BY ANDREW C. MCLAUGHLIN
PROFESSOR EMERITUS OF HISTORY
UNIVERSITY OF
CHICAGO
D. APPLETON-CENTURY COMPANY
INCORPORATED
NEW YORK
LONDON 1936
COPYRIGHT, 1935, BY D. APPLETON-CENTURY COMPANY, INC.
All rights reserved. This book, or parts thereof, must not be reproduced in any form without permission of the publisher
PRINTED IN THE UNITED STATES OF AMERICA
"For who are a free people? Not those, over whom government is reasonably and equitably exercised, but those, who live under a government so constitutionally checked and controuled, that proper provision is made against its being otherwise exercised." — John Dickinson, Letters From a Farmer in Pennsylvania (1768).
PREFACE
The purpose of this volume is to present briefly and clearly the constitutional history of the United States during nearly two centuries. I have no special ambition to write a long and learned work — so long as to deter a prospective reader from the task of scanning its pages, and so technical that only the learned expert, to whom I can give no valuable information, will occasionally turn its pages. I have attempted, therefore, to include essentials and those alone, to discuss those matters which in my own judgment the American citizen, not highly trained in the law, should know familiarly.
But the writing of a short history of a long and complex period furnishes its special difficulties. The author is under continuous obligation to practice self-restraint. He must exercise unremitting care in selecting the materials that he wishes to include in his story. This process of choice makes unrelenting demand and requires the use of discriminating judgment; the results may not satisfy the wisely critical reader. Conclusions, though they may be based on extensive exploration, must often be summed up in a sentence or two, without cautious modification or elaborate exposition. But one can only do his best, and choose the things he believes to be the most significant and useful.
This volume does not pretend to be in the main a history of constitutional law as announced by the courts. I have sought above all to make it concrete and not abstract, to associate constitutional principles with actual political and social conditions and with actual controversies reaching far beyond the court-room. But in many cases this association had to be presented briefly or to be plainly indicated only by inference. The great controversies, however, needed to be treated with sufficient detail. After all, the most important question, during the first three-fourths of a century under the Constitution, was the question whether the nation would survive, continue to live as an undivided whole. The most significant and conclusive constitutional decision was not rendered by a court of law but delivered at the famous meeting of General Grant and General Lee at Appomattox. This is only an illustration of the fact that, not judicial pronouncements, but great controversies, discussed and rediscussed by statesmen and the common people, are, or may be, the crucial matters.
It may seem that I have given disproportionally brief attention to the first third of the present century. If that be a just criticism, it may, nevertheless, be pointed out that, when we view the occurrences within our own memories, we are in danger of forcing unduly our own prejudices upon the reader. Only the greatest historians have ever succeeded in writing objectively of their own times. Furthermore, in discussing recent events it is difficult or impossible to get perspective; and perspective is for the historian his one necessity. And yet the apparent brevity of treatment of the later years is partly not real. Constitutional decisions, rendered in the early decades of this century, are often cited or briefly discussed in connection with problems arising in the more distant past. Frequently — and I hope with due caution — problems of early years are appraised by the principles laid down at a later time. Among the 342 cases referred to in the course of the book, 112 were decided in the twentieth century. Perhaps I ought to add that I have not attempted to trace constitutional developments after 1932.
I wish to acknowledge the suggestions furnished by some of my colleagues and others: Professor Arthur H. Kent; Professor Edward W. Hinton; Professor Avery O. Craven; Professor Quincy Wright; Professor Rodney L. Mott; Professor Edward S. Corwin; Professor James G. Randall; Dr. Howard K. Beale. I wish also to give full recognition to the patient and intelligent labors of my assistant, Miss Marjorie L. Daniel.
ANDREW C. MCLAUGHLIN.
Chicago, Illinois.
CONTENTS
CHAPTER
PAGE
PREFACE .............. vii
I. INTRODUCTION ............ 3
II. THE OLD EMPIRE ........... 7
III. THE PROBLEM OF IMPERIAL ORGANIZATION. THE ALBANY PLAN .......... 17
IV. THE WRITS OF ASSISTANCE AND THE REVENUE ACT . 25
V. THE STAMP ACT ........... 35
VI. AFTER THE STAMP ACT ......... 52
VII. AN OBDURATE PARLIAMENT AND OBSTINATE COLONIES, 1769-1773. THE GREAT CONTROVERSY BETWEEN GOVERNOR AND LEGISLATURE IN MASSACHUSETTS ........... 64
VIII. THE INTOLERABLE ACTS. THE ARGUMENTS IN DENIAL OF PARLIAMENTARY AUTHORITY ..... 75
IX. THE CONGRESSES OF 1774-1775 ........ 83
X. THE PHILOSOPHY OF THE REVOLUTION AND THE DECLARATION OF INDEPENDENCE ...... 91
XI. EARLY STATE CONSTITUTIONS ....... 106
XII. THE ARTICLES OF CONFEDERATION ...... 118
XIII. THE TRIBULATIONS OF THE CONFEDERATE PERIOD. THE CHIEF PROBLEM OF THE TIME ..... 137
XIV. THE FEDERAL CONVENTION ........ 148
I. DETERMINATION TO FOUND A NATIONAL GOVERNMENT .......... 148
II. CONTROVERSY AND COMPROMISE; THE ESSENTIALS OF FEDERALISM; COERCION OF LAW AND NOT OF ARMS ....... 163
III. SECTIONAL DIVERSITY; SLAVERY; THE PRESIDENCY; THE PHILOSOPHY OF THE FATHERS 185
XV. THE ADOPTION OF THE CONSTITUTION ..... 198
XVI. ORGANIZATION OF THE GOVERNMENT. HAMILTON'S FINANCIAL POLICY. IMPLIED POWERS. THE JUDICIAL SYSTEM .......... 224
XVII. THE ESTABLISHMENT OF THE EXECUTIVE DEPARTMENTS AND THE DEVELOPMENT OF THE CABINET 238
XVIII. THE ESTABLISHMENT OF THE AUTHORITY OF THE EXECUTIVE IN FOREIGN AFFAIRS ...... 248
XIX. THE ALIEN AND SEDITION ACTS ....... 264
XX. THE VIRGINIA AND KENTUCKY RESOLUTIONS ... 272
XXI. THE ELECTION OF 1800. THE REPEAL OF THE JUDICIARY ACT OF 1801 ......... 282
XXII. THE ANNEXATION OF LOUISIANA ...... 294
XXIII. JOHN MARSHALL, CHIEF JUSTICE. THE EARLY HISTORY OF THE SUPREME COURT. MARBURY v. MADISON 299
XXIV. THE IMPEACHMENT OF PICKERING AND CHASE. THE BURR CONSPIRACY ......... 320
XXV. FEDERAL AND STATE DIFFERENCES. FEDERALIST OPPOSITION. THE EMBARGO. THE OLMSTEAD CASE . 331
XXVI. THE WAR OF 1812 ........... 348
XXVII. CONDITIONS AFTER 1815. THE RISE OF THE NEW WEST. INTERNAL IMPROVEMENTS ...... 356
XXVIII. THE DEVELOPMENT OF STATE CONSTITUTIONS ... 366
XXIX. THE MISSOURI COMPROMISE ........ 372
XXX. CONSTITUTIONAL LAW UNDER CHIEF JUSTICE MARSHALL ............ 383
XXXI. THE PARTY SYSTEM AND PARTY MACHINERY. THE DEATH OF KING CAUCUS ....... 401
XXXII. JACKSON AND THE BANK. THE EMERGENCE OF THE MODERN PRESIDENCY ........ 410
XXXIII. GEORGIA AND STATES' RIGHTS. SOUTH CAROLINA RESORTS TO NULLIFICATION. THE THEORIES OF JOHN C. CALHOUN ......... 426
XXXIV. CHIEF JUSTICE TANEY AND THE SUPREME COURT .. 454
XXXV. EARLY CONTROVERSIES OVER THE SLAVERY PROBLEM (1833-1842) .......... 473
XXXVI. THE ANNEXATION OF TEXAS ........ 496
XXXVII. WAR WITH MEXICO. THE WILMOT PROVISO. SLAVERY IN THE TERRITORIES ........ 506
XXXVIII. THE COMPROMISE OF 1850 ........ 523
XXXIX. THE REPEAL OF THE MISSOURI COMPROMISE ... 542
XL. THE DRED SCOTT CASE ......... 552
XLI. THE STRUGGLE FOR KANSAS ........ 565
XLII. THE LINCOLN-DOUGLAS DEBATES ...... 578
XLIII. THE EVE OF THE CIVIL WAR ........ 589
XLIV. CONSTITUTIONAL PROBLEMS OF THE CIVIL WAR .. 615
XLV. RECONSTRUCTION: I. EARLY PROBLEMS; RADICAL VICTORY ............. 642
XLVI. RECONSTRUCTION: II. CONGRESS HAS ITS WAY; IMPEACHMENT ........... 660
XLVII. RECONSTRUCTION: III. THE UNION RESTORED.; CARPETBAGGERS AND FEDERAL TROOPS ...... 676
XLVIII. THE ELECTION OF 1876 ........ 696
XLIX. THE FOURTEENTH AMENDMENT ...... 720
L. THE LATER YEARS OF THE NINETEENTH CENTURY. DEVELOPMENT OF NATIONAL AUTHORITY. THE PROBLEM OF IMPERIALISM ...... 760
LI. INTERSTATE COMMERCE. RAILROADS. TRUSTS. AMENDMENTS. THE PRESIDENCY. CONCLUSION ... 771
CONSTITUTION OF THE UNITED STATES ..... 795
TABLE OF CASES ........... 811
INDEX .............. 819
CHAPTER I
INTRODUCTION
To find a beginning of American constitutional history is a difficult or impossible task. Certain important principles of constitutional government were in existence long before the United States was founded; some of these principles are commonly, though rather loosely, said to have had their origin in Magna Charta. This means only that, to know fully the forces and ideas which are embodied in our constitutional system, it is necessary to know the main course of English constitutional history. There are — to choose a simple example — in the Constitution of the United States terms and provisions which disclose their full meaning only when studied as a part of English constitutional history — habeas corpus, bill of attainder, common law, trial by jury, and other phrases. Moreover, the institutions and the elementary, though all-important, constitutional principles were not suddenly begotten in the America of the eighteenth century. Even in recent years the courts of this country have found it necessary to examine the laws and constitutional principles of England which were very old when the Federal Convention met in Philadelphia in 1787.
Furthermore, institutional forms as distinguished from principles were the product of long growth; to some extent their developments can be traced in English history. They are, however, more distinctly seen in the American colonies. When these colonies became states, their institutions were patterned in very large measure on the actual institutions of the colonies as they had developed in preceding decades. The framers of the federal Constitution were in their turn guided by the state constitutions; they did not enter upon their great task by ignoring the past; they did not seek in any large degree to invent what was new and untried. A complete constitutional history of the United States would include, therefore, at least a full outline of colonial development. Indeed, the states as they stand to-day are a part of our system of government, and an exhaustive treatment of our history would necessarily deal with the origin and development of state institutional forms; it would, for instance, deal with the bicameral system and the position and authority of the governor. But if one is to compress his work within manageable and readable limits, he must begin somewhere and curb his anxiety to seek origins and to portray the forces which worked through the earlier centuries. The purpose of this work is to trace the main lines of constitutional development for more than a hundred and fifty years, beginning with the middle of the eighteenth century. State history must be largely neglected, but not totally lost to view.
Constitutional history, moreover, when viewed in its entirety, is of almost limitless extent, because to comprehend it fully one must have in mind social and industrial change and movement. Institutions and principles do not develop or move in a vacuum; they bear the impress of actual social need and of imperative adjustment, even though the waves of time often seem to dash in vain against the walls of habit and of established practice. But here again, there is so much to be taken into account that one must exercise continuous restraint. He must be satisfied by only occasional references to the pulsations of the social and economic life which cause constitutional controversies and account for important determinations by voters, legislatures, and courts.
In discussing the earlier period covered by this work, the purpose of the writer is to dwell upon the emergence of the constitutional system as embodied in the Constitution of the United States. Some attention must be paid to the transformation of colonies into self-governing commonwealths, and to the principles on which state constitutions were founded, for that was the heart of the Revolution. But I do not expect to enter upon more than incidental study of the growing irritation between the colonies and the home country. There is no need of prolonged examination of the dispute as a mere prelude to war. The causes of the conflict by arms which broke the empire in twain have been often told by competent scholars. Our main purpose must be to look for ideas, the announcements of doctrines, the unfolding of principles, which are of significance because they entered into the American constitutional system, when that system came into tangible existence.
There are two main thoroughfares which may be traced in traversing the three decades before 1788: (1) one of these marks the course of developing principles of limited government which was supposed to guard individual liberty. Legally limited governments were the impressive products of the generation which formed state constitutions and brought the United States as a body politic into being. (2) The other main thoroughfare is that which led on to the particular form which the United States assumed; with the adoption of the federal Constitution, a federal state was founded. This was a state almost, if not quite, new to the world, though to-day states of similar structure dot the earth. As a system of political order, federalism is characterized by a distribution of essential powers of sovereign authority among governments; each government has its distinct share of powers; and as long as the system remains unchanged by some constitutional process, each has its inviolable hold upon its field of activity. To put the case concretely — the United States is a federal state, because it is a composite or complex system of political organization; it has the quality of diversification, not of concentration or complete consolidation.[1] The central government on the one hand and each state on the other have their respective spheres of legal authority. The United States differs from a mere league of totally sovereign states and from a totally unitary state.
If we look upon the Revolutionary period as a period in which constitutional principles developed and found expression, and in which institutions were produced, if we are not content with the war and the cleavage of the old empire, if we examine the years to discover their creative character, we find the two main achievements which have already been mentioned — the establishment of limited government and the founding of the federal state. These were the products of discussion and aspiration. Every period in history must be evaluated by its results; only thus can its actual life be comprehended. The Revolutionary period, which lasted for a generation and ended with the adoption of the federal Constitution, was peculiarly prolific in ideas, principles, and political philosophy of a practical character; it ended in the successful building of a political structure which has survived.
Much of what is important to us as evidence of the creative forces of the Revolutionary period comes to light in an examination of the arguments used in the years before the war. Probably we can see better than did the statesmen of the time the full significance of the contest, because we know the results; we realize the implications of what was said and done as history brings them into the light. Our interest in those discussions is not due to any desire to discover whether, on the basis of the constitutional system of the old empire, the position taken by the colonists was legally sound or not. We must bear in mind the historical processes of preceding decades and also the immediate character of the controversy; but we must select those things which we find leading up to the end — the establishment of institutions and the crystallization of principles in the American constitutional system.
As one examines the speeches and pamphlets and resolutions which were put forth to support the colonial position, he discovers, quite naturally, that the lines which led on the one hand to limited government and were designed to protect individual liberty, and the lines which, on the other hand, led to the final foundation of the federal state — that is to say, the two lines of progress selected for special attention in this work — were interlaced; the arguments and pronouncements were mutually supporting. The declarations against parliamentary taxation included a demand for protection of the individual from arbitrary taxation and also the right of the colonies as constituent parts of the empire to tax themselves; they included, therefore, the striving for personal rights and for the recognition of colonial competence. The rights of the individual and the rights of each colony appeared, though logically distinguishable, to rest in some respects on a common foundation.
If chronological order is to be followed, rather than purely logical order, we may expect to find this interweaving; and in general it may be necessary to leave to the reader the comparatively easy task of determining whether the facts and arguments as presented point to the coming of limited governments guarded by written constitutions or give evidence of the principle of diversification which is embodied in the federal state. In the minds of the men of the time, the inevitable and fully-developed results of their own words were not of course perfectly plain. They were participants in a great movement, the full products of which could not be entirely appreciated.
[1] It would be easier to describe the United States as a body in which sovereignty is divided between state and nation. And that would probably be the definition of the men of the late eighteenth century. But that brings up the question whether sovereignty can be divided; and the vaguer definition given above seems therefore preferable here. If sovereignty is complete political authority, then there seems to be only one possessor of sovereignty in our system, viz., the power that can amend the Constitution of the United States.
CHAPTER II
THE OLD EMPIRE
In the middle of the eighteenth century Britain had a wide-reaching empire. It was beset with difficulties, for there were enemies of long standing who were not content. The empire was powerful and prosperous. Studious efforts had been made on the basis of mercantilism to build up a self-sustaining empire. Rigorous enactments were passed to ward off invasion by commercial rivals and to hold the profits of the empire within its own hands. There had been some attempts to simplify the colonial system, which was, however, still very complex; for things had moved along under no well-defined and consistent plan. There were two types of colonies: corporate colonies and the provinces. The corporate colonies chose their own officials and had charge, without substantial interference from Westminster, of their own internal affairs. There were two kinds of provinces: proprietary, with a charter granting to the proprietor considerable authority, which, however, in the course of time proved to be not easily or independently exercised; and royal provinces (only one, Massachusetts, having a charter), in which the royal governor as the Crown's agent was supposed to carry out the royal behests. It is quite apparent that the royal colonies were most directly, effectively, and immediately controlled from Westminster.
Each colony had an assembly, in which at least one chamber was elective. And these assemblies were not lacking in self-respect or in activity. Royal governors complained of headstrong legislatures desirous of having their own way and ready to ignore the orders sent from across the ocean. In large degree, the colonies managed their own internal affairs, occasionally hampered by royal instructions and disallowance of colonial acts. Their external affairs were in the hands of the Crown. Acts of Parliament, especially sundry measures directing the course of external commerce, had been passed and were more or less obeyed. Nothing like complete analysis of the situation can be presented here and none is here attempted. The salient fact is the reality of diversity, complexity, and the existence of an imperial system in which there was a large measure of colonial self-government. The colonies were daily growing in self-assurance, in economic well-being, and in political competence; and the time was near when they were prepared to announce their rights or to demand assurance as to what their rights were.
Not that there was a spirit of disloyalty or intentional independence; but the colonies had been living their own lives, not without restraint, but with considerable freedom. Virginia, for instance, had managed her internal affairs for over a century; her political capacity was high; any attempt to change the political system by encroaching upon the colonial field, especially in matters of taxation, was sure to awaken opposition. Connecticut, a corporate colony, complacent in her possession of self-government, serves as another example. Resentment was certain to be aroused by the intrusion of the hand of the British government, if it should roughly disturb the habits and the rights of the colony; The essential matter is this colonial competence which had been strengthened by decades of experience. The right or the propriety of interference with an established regime was not decided and cannot be decided on the basis of mere logic or abstract governmental theory.
In a general view of imperial administration and control, certain elements stand forth with some distinctness. Great officers of state were the agencies through which royal management was actually exercised. Among these ministers the Secretary of State for the Southern Department had chief charge of American affairs. The Privy Council had wide and in some respects effective authority. The Board of Trade was a body engaged in gathering information, in consultation, advice, and recommendation rather than in issuing direct and authoritative orders; but its influence was of importance and its views upon questions of colonial policy and management were often determinative. The royal authority was chiefly and most conspicuously exercised by (1) appointment and commissioning of the royal governor; (2) instructions which the governor was directed to carry out, and which were likely to include orders for the use of the gubernatorial veto or directions to see that certain policies were followed in the colony; (3) disallowance by the king in council of colonial statutes, probably the most effective and far-reaching method of control;[1] (4) review of the decisions of colonial courts by the Privy Council acting in its judicial capacity.
As a general rule, the royal control was not exercised heedlessly. The investigations of the Board of Trade were commonly painstaking and were conducted fairly and intelligently. There was little ill-considered and hasty interference with colonial affairs; and this appears to be especially true of the exercise of disallowance and judicial review. Power was used, on the whole, not for the purpose of rude intrusion, but for essentially non-local purposes, or for ends which appeared to be of imperial scope and interest.[2] But disallowance, though the most effective means of retaining imperial authority and building up a homogeneous empire, was often a source of annoyance to the colonies, more, it seems, because of delay and uncertainty before actual use of the power than because of its objects or effects. While the colonies legislated and colonial courts sat and issued decisions, the Board of Trade and the Privy Council strove, not altogether without result, to maintain and build up a common system of law — or at least a colonial recognition of certain principles. The colonies did not absorb in all respects the forms and procedure of the common law; but especially in those matters which dealt with civil rights and liberties, the history of English constitutionalism was by no means ignored. It is not easy to distinguish those elements in the common law which can safely be placed within the realm of constitutional principles and those elements which have to do only with relationships and responsibilities of individuals. But it is plain that those elements of constitutional right, not commonly catalogued as belonging within the field of common law, were common, in large measure, to the empire, if we use the term to include England and the continental colonies. During the century ending in 1780, 265 cases were carried from colonial courts to the Privy Council.[3] It is, of course, difficult to say how much emphasis should be laid on the exercise of judicial control and how much it affected later events and the establishment of American institutions. There is no very tangible evidence indicating that the American system of appeals from state to federal courts was a direct inheritance from the old imperial system; but one would not dare to deny its influence; institutional principles and practices do not spring out of nothingness; they are not self-creative. Though there appears to have been only a few cases in which the scope of the legislative authority of a colony was passed upon by the Privy Council in a manner to suggest plainly a complete parallel between the power of the Privy Council and the power of our courts in declaring an act void, the practice of judicial review, we are justified in assuming, was not without its influence upon later times.
The decisions of the Council in exercising the power of disallowance often involved constitutional principles in a very broad sense; there was an attempt to maintain the general principles of the common law and of the law of Britain, which thus became, if we use general terms, in a sort of way the law of the empire. Disallowance of colonial acts, though technically to be distinguished from judicial decisions, often in reality was exercised in such a manner as to keep the colonies within their own sphere and to preserve parliamentary acts, notably the navigation acts, from violation or impairment.[4] In other words, if a colonial law were disallowed because it exceeded the power of the legislature under a charter, or because it disregarded the principle that the colony should not pass an act contrary to the law of Britain, the disallowance really involved the question of the extent of legislative authority. There is therefore a certain resemblance between such disallowance and a decision, which, under our constitutional system, may be rendered by an American court passing upon the validity of state legislation which is asserted to be in violation of laws, treaties, or the Constitution of the United States.
The role of Parliament, beyond the passage of navigation acts and acts of trade, had not been conspicuous. If a thoughtful colonist had been asked concerning the extent of parliamentary power, his answer presumably would have been that Parliament was the supreme legislative authority in the empire; but the admission would have been qualified, as Jeremiah Dummer had at one time qualified it, by saying, "And shall not the supreme Judicature of all the Nation do right?" [5] Here again it is impossible to speak with complete accuracy in a few words, or to show with absolute certainty the extent to which parliamentary statutes had invaded or affected internal colonial concerns. But the main fact is the absence rather than the plenitude of parliamentary legislation. The colonists had lived for years in most respects unaffected by such legislation, and must have thought of the legislature at Westminster as far away from their own immediate interests.
There were a few enactments which more or less directly affected the internal legislation and freedom of action of the colonies. The conspicuous ones are the following: the Piracy Act (1700) may perhaps be thus classified though in general it appears plainly an imperial matter; but more important are the acts fixing the rates at which foreign coins should circulate (1708), establishing the post office (1710), making colonial real estate and slaves chargeable with debts (1732), providing for naturalization (1740), extending the Bubble Act to the colonies (1741), and forbidding the issue of paper money in New England (1751). But these acts were not of a purely local character; considerations of the general welfare entered into them; and at all events the very fact that such acts were passed and thus brought within the purview of actual imperial control is a matter of some consequence. This field of parliamentary legislation was occupied because of the teachings of experience or because of apparent need. And it is from the real, rather than the formal or theoretical scope of imperial power, that the empire was taking shape — a matter of importance to anyone seeking the historical foundations of the American constitutional system.
It ought to be said that, in addition to the acts referred to above which appear to have the essential quality of acts passed for general imperial interests — at all events, not to be intrusions on colonial management of internal affairs — there were certain other acts which were passed to check American manufacturing and thus to protect British interests. These measures, such as those restricting the making of woolens and, at a later time, hats and iron, rested on the assumption that the insular interests of Britain should receive particular support. But, we should notice, there were other acts or provisions of acts which were not peculiarly for British advantage.[6] Most of these matters which Parliament had actually dealt with do not appear, in the light of our own system, to be suitable subjects for local legislatures alone in a well-articulated system in which powers are distributed between the central government and the states.[7]
For a hundred years, parliamentary acts had with greater or less earnestness and success regulated the external commerce of the empire. Against the barriers set up, the colonists had at times complained. The extent to which the acts were broken is not for us a subject of extreme importance. The fact is that such acts were passed, the colonists were accustomed to the regulations. One act, the West India Act or Molasses Act of 1733, was systematically avoided; it was designed by high duties to force the colonies to purchase the products of the British insular possessions and not those of the foreign West Indian colonies, especially the commodity which was one of the main articles of colonial commerce; in the mid-eighteenth century and before that date, the rum made from West Indian molasses formed the basis of many profitable New England voyages. The policy of mercantilism pointed unerringly to the regulation of trade as a main function of an imperial government, a function second only to providing for defense. The activity of Parliament in this particular was very real; every colonist, though only slightly interested in traffic on the high seas, must have been conscious of this fact.
Once again, for purposes of emphasis, it is desirable to remind the reader that the colonial assemblies managed their own "internal police." They levied taxes for local purposes; they had in reality defended themselves as parts of the empire — more or less inadequately and without concert, it is true, but fairly successfully; their local trade was in their own hands; and they in short did the many things — sometimes under pressure from the representatives of the royal authority — that concerned the daily life of the colonies. Even in the royal colonies, the legislative assemblies had little by little worn away the actual authority of the Crown. The old method of opposition, by which the royal power in England had been gradually diminished, was often used successfully by colonial assemblies, for possession of the purse strings enabled the assemblies to reach their goal.[8]
But in certain aspects the scope of the imperial power stood forth conspicuously. Parliament regulated trade beyond the confines of any single colony. The Crown had charge of the post office, foreign affairs, war and peace, the army and navy, leaving the subordinate military forces, the militia, to the individual colony; it was in the mid-century beginning to take active general charge of Indian affairs and trade with the Indians; it had ownership of the Crown lands within the royal colonies and was soon to become busily interested in the whole western question; it had taken some part in the establishment of the colonies, though they had been begun by private enterprise; it was prepared soon after the mid-century to enter upon plans of founding and organizing new settlements. Now, every colonist must have been familiar with the main features of the picture of the empire. Some conspicuous and important powers of imperial scope must have been taken for granted; to their existence and the need of their existence the colonists were accustomed.
In the whole picture of the imperial system we see plainly the fact that each colonist was living under two governments; the colonial government which was peculiarly his own was not in possession of complete authority. The colonists at no time were wonted to the sight of a single government exercising more than limited power. If one insists that in theory the government at Westminster had complete and unalloyed power, the fact, nevertheless, if practice and habits are properly taken into account, is that the government allowed colonial governments to function. Should we admit that in theory Parliament was supreme, we must nevertheless say also that this supreme power encroached but little upon internal colonial affairs; and if we recognize the continuing power of the Crown, we must see in addition the unremitting activity of colonial assemblies. The Crown, through disallowance and judicial review, brought into light the fact of colonial subordination and the existence of a central government controlling certain matters of general importance.
This rough sketch of the empire, the reader must be warned, presents only a general picture, subject to modification or enlargement in details. But anyone even slightly familiar with the American constitutional system will see at once the similarity between the general scheme of the old empire and the American political system of federalism. Plainly enough in essentials, if we look at the actual practice, the empire of the mid-eighteenth century was a diversified empire; powers were actually distributed and exercised by various governments. And if we consider the conspicuous powers exercised by the central government, we find the list strikingly like the list confided by the Constitution of the United States to the national government. If we add to the powers exercised by imperial authority the single power to obtain money by taxation, the similarity is even more evident. It is quite impossible to estimate with detailed accuracy the measure of influence of this system in the days when the Americans were called upon to organize their own empire, but that the Americans were not influenced by their own experiences and by well-known relationships appears to be an impossible supposition; such a supposition would compel us to think that the American system of federalism was a sudden creation, unbegotten by historical forces and unguided by teachings and habits of the past.
Britain had, therefore, in the mid-eighteenth century an empire characterized in actual practice by the principle of distribution and not by concentration of authority. If Great Britain in 1760 had reached out her hand and said, "This is the law of the empire; thus the system is formed," she would have recognized herself as the most considerable member of an empire with the pivotal characteristic of federalism — many governments, each possessing its legal sphere of authority. If the empire could have been hardened or petrified into the form then existing, it would have been in essential and important particulars a federal empire.[9] This system, we must notice, was the product of growth largely unintended and unplanned. Its value came from that very fact, from opportunistic effort, from allowing, often heedlessly, spontaneous growth. Developments had been the product of natural forces and conditions.
A narrative account of colonial history would relate a series of controversies, not violent but argumentative in character, between the representative assemblies and the royal or proprietary governors. If these are made to stand forth, the impression is left of a steady movement forward to independence; but there was no real purpose of breaking the ties of allegiance. Disputes do disclose, however, a fairly continuous development of the sense of self-dependence and the desire of the colonists, especially the politicians, to have their own way; political controversy was laying the foundations for future action because of the steady growth of competence and the influence of practical experience. We are dealing in these pages, however, not with the causes of disruption but with a general scheme of empire, as it actually took shape and persisted; we are dealing with actual distribution of powers in a complex imperial system. The colonists might occasionally object to the power of a royal or proprietary governor, and they occasionally fretted under the prohibitions of the navigation acts and acts of trade; but the general system continued. Any attempt to overthrow the system, or to alter its essentials, any attempt, above all, to encroach upon that sphere of authority which had developed under the play of natural forces, was sure to awaken resentment and alarm.
We shall see, as we go on, various evidences of the effect produced by the dualistic structure of the old empire. The practice of that empire, as the colonists knew it and felt it, must be appreciated for an understanding of the rise and establishment of American federalism. In the succeeding chapters, covering the years before the federal Constitution was framed and adopted, this work has in mind two things: the emergence of federalism as a legal system and the protection of individual right and freedom under limited government.[10]
[1] Some evidence of the extent of the use of disallowance can be seen from the following statement: "Of 8,563 acts submitted by the continental colonies, 469 or 5.5 per cent. were disallowed by orders in council." E. B. Russell, The Review of American Colonial Legislation by the King in Council (Columbia University Studies in History, etc., LXIV, no. 2), p. 221. "The royal disallowance was an executive rather than a legislative act, performed not by the king but by the Council as his executive agent. It was an exercise of the royal prerogative, an expression of the king's supreme authority in the enacting of laws by inferior law-making bodies, whose right to make laws at all rested on the king's will.... The royal disallowance was, therefore, not a veto but an act of regulation and control, in the same sense that a royal letter and instruction was an act of regulation. In fact, disallowance and instruction were synonymous, for both expressed in different forms the royal will." C. M. Andrews, "The Royal Disallowance," Am. Antiq. Society Proceedings, new series, XXIV, p. 343.
[2] Professor Andrews classifies the actual purposes of disallowance as follows: "The policy which governed the board and its advisers had four leading aspects. First, to defend the law and custom of the British constitution; secondly, to guard the interest and welfare of British subjects; thirdly, to protect the colonies or any of their inhabitants from ill-advised legislation; and lastly, to prevent the passing of laws that were extraordinary, oppressive, improper, or technically defective." The first group, Andrews says, was the largest, but "Probably the most important of all the reasons for disallowance was that an act affected the trade and shipping of the kingdom or the privileges and prerogatives of British subjects." Ibid., pp. 349, 354. See also, O. M. Dickerson, American Colonial Government 1696-1765, ch. V.
[3] A. M. Schlesinger, "Colonial Appeals to the Privy Council," Pol. Sci. Quart., XXVIII, p. 446. "The king in council reversed the colonial courts 76 times and affirmed their decisions 57 times.... In 77 cases no decision is recorded; 45 cases were discharged for non-prosecution. Only eleven appeals are noted in the records as having been heard ex parte." Ibid., p. 448.
[4] The discussion in the Constitutional Convention of 1787 concerning the proposal to give Congress the authority to negative state acts will be spoken of in a later chapter. The proposal bore a distinct resemblance to the old disallowance. Madison mentioned the resemblance. It is interesting to see the men founding the American system considering, some of them advocating, the institutional practice which had been used by Britain for the maintenance of an empire. But it is even more interesting to see that the framers of the Constitution finally recognized the distinction between disallowance because of the undesirability of an act, on the one hand, and on the other, judicial determination of the illegality of an act.
[5] "It's true, the legislative Power is absolute and unaccountable, and King, Lords and Commons may do what they please; but the Question is not about Power, but Right: And shall not the supreme Judicature of all the Nation do right? One may say, that what the Parliament can't do justly, they can't do at all. In Maxim/is minima eft licentia. The higher the Power is, the greater Caution is to be us'd in the Execution of it, because the Sufferer is helpless and without Resort." Italics of the original omitted. Jeremiah Dummer, Defence of the New-England Charters (Boston, 1745), pp. 40-41.
[6] "Some of the interests sacrificed for the good of the Empire were British, some colonial." G. L. Beer, British Colonial Policy 1754-1765, p. 196.
[7] Notice the provisions in our own Constitution concerning piracy, the post office, paper money, naturalization, bankruptcy, and rates of foreign coins. The act making real estate chargeable with debts was intended to prevent a colony from releasing persons who came to settle in the colony from their obligations to the creditors to whom they owed money before their migration; it may be looked upon as an enforcement of the principles of reasonable comity.
[8] "Despite the refusal of the home government to accept the inevitable, the fact remains that before 1760 the royal control of the colonies was largely destroyed.... Thus colonial government was no longer in the hands of the royal officials; the authority of the royal and proprietary governors relaxed; they lost their patronage, their control over the military, their ability to employ secret funds, to check riots and revolts, to manage a police or to take any adequate measures to ensure security at home, or to protect the frontiers against the French and Indians." C. M. Andrews, The Colonial Period, pp. 174-175.
[9] In an earlier paper ("The Background of American Federalism," Am. Pol. Sci. Rev., XII, pp. 215-240), I said that Great Britain by the middle of the eighteenth century had a working federal empire. To this statement Professor G. B. Adams, though not criticizing the main contents of the paper, objected on the ground that an empire with a central government free from control by the empire as a whole was not a federal empire. The criticism may be sound. The important idea is, however, that the chief quality of federalism — distribution of powers — appeared in the working practices of the old empire, and that distribution, as a practical fact, does more than merely suggest the scheme of distribution in the American constitutional system of a later day. The similarity between actual distribution in the old empire and the distribution provided for by the Constitution of the United States is apparent and discloses the evident fact of a family relationship; in essentials American federalism was the child of the old empire.
[10] In addition to the references cited in this chapter, see E. B. Greene, Provincial America 1690-1740 (Am. Nation Series, VI); E. B. Greene, The Provincial Governor in the English Colonies of North America (Harvard Historical Studies, VII); M. W. Jernegan, The American Colonies 1492-1750; H. L. Osgood, The American Colonies in the Seventeenth Century, III; H. L. Osgood, The American Colonies in the Eighteenth Century, I-II.
CHAPTER III
THE PROBLEM OF IMPERIAL ORGANIZATION. THE ALBANY PLAN
By the middle of the eighteenth century Britain was faced with the problem of imperial organization. We cannot say that her leaders were fully conscious of the fact; but looking back upon those years it is plain to us that, if her empire was to survive undamaged, a problem of great difficulty presented itself. And this problem, as we now view the facts, was central and insistent in its demands. Even if the blind could not see it, the question was there. Could the empire be so organized and arranged that it could find adequate means of preserving and using its strength? Could actual conditions be so envisaged that colonial valor and colonial enterprise would, without diminution of colonial self-government, contribute their vigor to the essential unity and development of the empire? The pressing and immediate question appeared to be means of securing men and money for imperial defense;' but the necessity of the case demanded the establishment of a system which would not only recognize imperial unity but conserve local rights and local self-respect. Principles of self-government, consonant with the actual competence and experience of the colonies, must find their place in the system; principles of individual liberty, the outgrowth of English constitutionalism — and deeply cherished by the colonists — must be watchfully guarded; and all arrangements and plans must be adjusted to the needs of a powerful and developing general system of empire.
That Britain failed to find a solution of the problem the reader need not be told. The story of conflict and failure is of immense consequence in the history of British imperial growth; but we are entering upon the study of events which produced the United States; and our attention is called to the fact that essentially the problem was passed on to the American states when they became free to organize their own empire. To solve the problem of imperial organization, therefore, grounded as it was in the history of the old empire, was the central, dominating, irrepressible task of a generation (1750-1788).
If there had been no danger to Britain because of the menace of France and her Indian allies, events might have moved on quietly for a time; the old easy-going system of imperial management might have continued undisturbed, save by the recurring evidence of unrest characteristic of a people on this side of the water who were not easily content. And if in any crisis the colonists had freely, generously, and thoughtlessly turned over their funds to be spent in defense, the problem of imperial order, we may well imagine, would not have been pressing. But this is only saying that if responsibility, expense, and coöperation had been assumed voluntarily, there would have been no need of law or compulsion. The cold fact was, however, that the colonies would not work together, and if there was one thing they disliked more than granting money — a dislike common to humanity in general — it was the pain of being deprived of the right to argue about the matter and of spending the money themselves, if spend they must.[1] Hesitation, debate, and delay are among the pains and penalties of popular government.
So varied were the colonies, so different in their social and industrial life, so far-removed one from the other, that any scheme of voluntary coöperation or systematic union presented enormous difficulty. Each colony had a fixed sense of its own importance and not much interest in its neighbors or sympathy with its neighbors' needs. In one view of the case, this readiness of each colony to look out for itself, this sentiment of local allegiance, this sense of self stands forth as the salient feature in the picture of the mid-century. So evident were the conditions that it appears to-day as a remarkable fact that the colonies were later, under pressure of common danger, brought to coöperation and union. And still, underlying all this reality of variation and of local loyalty, political institutions were strikingly similar; grumble as the colonists might over navigation acts or disallowance, they had worked out their system of self-government on the basis of a common tendency and desire; they all cherished the principles of English liberty, as they conceived it. From one end of the land to the other they spoke the same political language, cherished the same ideas, believed in the same fundamental doctrines; in these respects — omitting differences in religion and in habits of life and industry which militated against a feeling of common interest — there existed a real unity, a unity which was based on possession of certain principles and aspirations. Contradictions often appear to be the core of life; and so we find the principles of self-government and of self-control making for segregation, and yet the very desire for political self-determination constituted a common quality and made for coöperation when political interests and economic needs were at stake. In the long run, coöperation and ultimate union were found to be necessary for the preservation of the separate colonies and states.
Long before the mid-eighteenth century, various suggestions or plans of union had been put forth as well as attempts on the part of the royal authority to simplify the colonial system. But it is difficult to trace with assurance the influence of these proposals upon later movements. The New England Confederation which was established in 1643 and lasted for fifty years, most of the time in a state of desuetude, had some effect in suggesting a general scheme of union when that problem in the eighteenth century demanded an answer.
After the peace of Aix-la-Chapelle, which was in reality only a truce, it was apparent that a new struggle with France was likely to come, a contest for dominion in the great valley beyond the mountains and also, it might well be, for the very existence of the coast colonies. What part were the colonies prepared to play in this encounter? Would they freely enlist their men and open wide their purses, or would they hesitate and talk and insist upon their privileges when danger was at their very doors? Their general attitude furnished little hope or consolation. It was especially necessary to hold the Iroquois Indians and in general to handle the Indian question with discretion. Recognizing the need of effective coöperation, the Board of Trade planned a conference of colonial governors, and in 1753 instructions were sent to the governors of royal and proprietary colonies [2] north of the Carolinas directing them to see that commissioners were sent to treat with the Six Nations and to renew the "Covenant Chain" with them. The formation of some kind of union appears to have had the sanction of the British authorities.
The outcome was the Albany Congress of 1754. After the Indian matters were disposed of, the commissioners entered upon consideration of the need for union and coöperation. They unanimously decided that a union was absolutely necessary for security and defense, and they drew up a plan of union which appears to have been based on "Hints" furnished by Franklin and, though seemingly the product of considerable discussion, was probably largely his own handiwork. The plan deserves careful examination for various reasons, but especially because it points unerringly to certain distinct elements in the general problem of union; and those matters came to the fore and pressed for consideration not only then but in later years; it plainly discloses the nature of the task of imperial organization and it points to certain definite powers which were of common interest and needed to be confided to some central authority. It marks the beginning of an effort to single out the things that should be turned over to a central government or an agency of central administration. Any effort to formulate a basis of classification and distribution of powers is of commanding interest to the student of the American political system as it came to be. By the terms of the plan, a Grand Council was provided for, the members to be chosen by the representative assemblies in the colonies.[3] The general executive authority was given to a President General who was to be appointed and supported by the Crown, and who had the right to negative all acts of the Council; with the advice of the Council, he was to make all Indian treaties which concerned the colonies generally, and he was to make peace or declare war with the Indians. The President and the Council were authorized to regulate Indian trade, and to "make all purchases from Indians for the Crown, of lands [now] not within the bounds of particular Colonies, or that shall not be within their bounds when some of them are reduced to more convenient dimensions." They were to have charge of founding new settlements on such purchases and of providing laws for them, until the Crown should "think fit to form them into particular Governts ." To this central authority also was confided the right to raise armies and pay them, to equip vessels of war, and "for these purposes" to levy "duties, imposts or taxes...." A General Treasurer was to be appointed and also a particular treasurer in each colony when necessary; and the President General and the Council were to have the extraordinary power of ordering the sums in the treasuries of each government into the General Treasury, or of drawing on them "for special payments...." All laws were to be, as near as might be, agreeable to the laws of England and should be transmitted to the king for approbation. The President General could nominate for the approval of the Council all military officers, while all civil officers could be nominated by the Council for approval by the executive.
The plan, therefore, granted to the proposed central government a method and the power of raising money; it marked out a fairly definite sphere of action; and it bestowed ample authority over four subjects of supreme importance — Indian affairs, war, purchase of wild lands, and control, for a time at least, of western settlement. The commissioners even ventured to provide for proportional rather than equal representation of the several colonies in the Grand Council and to suggest quite plainly the desirability of limiting the extent of the larger colonies, some of which had claims to a vast territory beyond the mountains. Both of these latter proposals were sure to arouse opposition and in later years proved to be especially perplexing obstacles in the way of forming a federal union.
The document, as we read it to-day, appears remarkably precocious. It foreshadowed the anxieties, aspirations, disputes, and achievements of the years ahead. We need not be astonished that thirty-five years later, after the debates, trials, and tribulations of a generation, Franklin declared that in his judgment, if this plan or something like it had been adopted and carried out, "Separation of the Colonies from the Mother Country might not so soon have happened, nor the Mischiefs suffered on both sides have occurred perhaps during another Century." [4] But the significance of these proposals lies not so much in their suggestions for a method of saving the old empire as in their indication of the route that was to be followed in later years.
There was small ground for hope that the plan would be favorably received on either side of the ocean. It received short shrift in England. The Board of Trade had its own ideas and drafted a plan, but it need not detain us; it is significant, however, as proof of the fact that the home authorities were seriously considering the problem of empire and chiefly the need of acquiring and controlling means of defense. No colony accepted the Albany proposals.[5] Franklin said the plan was not favored in the colonies because it allowed too much to prerogative and the Crown disapproved it because it "placed too much Weight in the Democratic Part of the Constitution...." [6]
The plan indeed was ahead of the time; though measures for defense were imperative, any general plan of union, in which the colonies would have a large share, and which would be political in character and not calculated for defense alone, was objectionable to Britain, and on the other hand, colonial self-esteem and caution looked askance at intrusion upon hard-won preserves. How disconcerting to the average colonist was the proposal to establish a central government — even a central government in which the colonies would be represented — which could put its hand into the colonial treasury and draw forth funds even for war against a common enemy! "Every Body," said Franklin, "cries, a Union is absolutely necessary; but when they come to the Manner and Form of the Union, their weak Noddles are perfectly distracted." [7] The task was to distract weak and strong noddles alike for several decades to come. This was no job for puny minds. Something, the shrewdest heads on both sides of the water believed, had to be done. The Board of Trade declared that if the colonies would not acquiesce in some such arrangement as the one proposed by the Board, there was no alternative but an act of Parliament.
Eager and anxious for imperial stability and for success in the war with France, Franklin wrote the next year (1755) that a plan of union ought to "take Place" and be established by king and Parliament. " 'Till it is done never expect to see an American War carried on as it ought to be, nor Indian Affairs properly managed." [8] Colonial governors were beginning to think that the only way to get money for defense was parliamentary taxation and some of them advised it. Governor Shirley of Massachusetts declared the behavior of the colonies showed the necessity not only of "a Parliamentary Union, but taxation...." [9] The ministry during these years must have received ample assurance [10] that the colonies would not act of themselves and that some sort of compulsion was necessary.[11] The course of the war probably hardened this belief, and yet some of the colonies participated with a good deal of vigor, especially under the inspiring leadership of Pitt. And it is an interesting example of the apparent perversity of human nature that the freer colonies, those most fully in command of themselves, were the readiest to do their part. In the royal colonies, where affairs were most directly under royal control, bickerings and disputes with the governor were prominent and almost continuous. The proprietary colonies indulged in enjoyable disputes with the representative of the proprietary authority and yielded with ill grace to any demands for effective coöperation. The spirit of individual right and an insistence on colonial privileges were marked features of the situation. Despite all of the difficulties, Britain triumphed in the war, but the embarrassment resulting from incoherence and from the absence of a thoroughly articulated empire was apparent In some respects the war probably brought forth a certain sense of imperial unity, and it may have developed a recognition of identity of interests between one colony and another. But we must not speak with too much assurance. Each colony was quite conscious of itself and of its own right to guard what it deemed to be its privileges. The war gave special opportunity for the exercise of political craftsmanship. At the end, if the need of coöperation was more evident than it had been at an earlier time, and if there was glorification of British prowess and exultation over the victory, nevertheless imperial unity, organization on any viable basis suitable to the conditions, and the establishment of any effective system were even more remote, to all appearances than before hostilities began.[12] If one is inclined to blame the British statesmen for not working out a scheme of imperial order then or at a later time, he must surely also perceive the herculean nature of the task; and, moreover, the background of colonial incoherence and of colonial self-sufficiency must be taken into account in any attempt to appreciate the job which the Americans faced, not only in 1754 but in later years, when, for their own well-being, there was imperative need of coöperation and continental organization. The casual reader is probably inclined to overemphasize the single feature of the individual's belief in his personal liberties and his readiness to defend them, and is likely to underestimate the sense of self which was cherished by each colony as a constituent part of an empire. And we must remember that the empire had grown up without any consistent and adequate political system, the eyes of the British administration being fixed largely on trade, while Britain watched her enemies and her commercial rivals in Europe. A commercial rather than a well-articulated political empire had received the weight of attention.
[1] Franklin writing in 1754 portrayed the situation: "... some Assemblies being before at variance with their governors or councils, and the several branches of the government not on terms of doing business with each other; others taking the opportunity, when their concurrence is wanted, to push for favourite laws, powers, or points, that they think could not at other times be obtained, and so creating disputes and quarrels; one Assembly waiting to see what another will do, being afraid of doing more than its share, or desirous of doing less, or refusing to do any thing because its country is not at present so much exposed as others, or because another will reap more immediate advantage; from one or other of which causes, the Assemblies of six out of seven colonies applied to, had granted no assistance to Virginia, when lately invaded by the French, though purposely convened, and the importance of the occasion earnestly urged upon them...." Franklin, Writings (A. H. Smyth, ed.), III, p. 203.
[2] Virginia and New Jersey did not send representatives. The Lieutenant-Governor of New York seems to have represented Virginia. Representatives from Rhode Island and Connecticut attended.
[3] No representation from Georgia was provided for. There were to be not less than two nor more than seven representatives from any one colony. Documents Relative to the Colonial History of the State of New-York, VI, p. 889.
[4] Franklin, Writings (A. H. Smyth, ed.), III, p. 226, note 1.
[5] Nothing could more amply bring before us the watchful regard for colonial pence than the instructions of Connecticut to her commissioners at the Albany Congress. She desired the commissioners to join with others in representing to the king the defenseless state of his governments in America, to make evident the great expense Connecticut had assumed in comparison with southern colonies in former wars, and to be sure that the obligation on Connecticut was "no greater than of necessity." The commissioners were to "agree to no proportion of expence save for the present occasion," to make no presents to the Indians unless necessary, and to oppose as far as possible everything of that nature. They were to see to it that Connecticut troops served with eastern and not western troops, if there were any such distinction, and they must be careful not to bind the colony in any way before ratification by "this Hon. Assembly." Public Records of the Colony of Connecticut. X, p. 268 note.
[6] Franklin, Writings (A. H. Smyth, ed.), III, p. 227 note.
[7] Ibid., III, p. 242.
[8] Ibid., III, p. 267.
[9] Documents Relative to the Colonial History of the State of New-York, VI, p. 940.
[10] See the "Sharpe Correspondence," I, Archives of Maryland, VI, pp. 96, 99, 203. "This perverseness of the Virginia Assembly has induced the Gover[r] to apply home as I am told some other Governors have also done for an Act of the British Legislature to be obligatory upon all the Govern[ts] equally, & compel them to contribute their Quotas for the Defence & Protection of their Properties & His Majesty's American Dominions...." Sharpe to Calvert, September 15, 1754, in Ibid., p. 99. Sharpe made his own proposals — a poll tax, or a duty on wines and liquors, or a stamp duty. "... or can I now think we can have any Dependence on the Assemblies of the different Colonies with't a B. Act of Parliam't to raise a gen'l Tax on all his M'y's Subjects on this Cont't.... I much want to know if any Thing is done in regard to the Union of the Colonies. The Scheme from Albany on y't head is by no means agreeable to our people, and I dare not give my Opinion thereon, as I hear it lies with his M'y in Council; but it will be very agreeable if any Thing can be done to bring the wrong-headed People in this Part of the World to a proper Understand'g of their pres't Danger, and to rouse an Emulat'n among them for their Safety in rais'g proper Supplies for defeat's the Designs of the Com'n Enemy." Governor Dinwiddie to the Earl of Halifax, February 12, 1755, in "Dinwiddie Papers," I, Va. Hist. Soc. Collections, new series, III, pp. 496-497. See also Governor Dinwiddie to the Lords of Trade, February 23, 1756, in "Dinwiddie Papers," II, Va. Hist. Soc. Collections, new series, IV, p. 340.
[11] For references, see G. L. Beer, British Colonial Policy 1754-1765, pp. 44-46 note. For an account of conditions, see E. I. McCormac, "Colonial Opposition to Imperial Authority During the French and Indian War," University of California Publications in History, I, no. 1, pp. 1-98.
[12] "Despite the coöperation of many colonies in a common military undertaking, which, it may be, smoothed the way to an eventual understanding, the dislike and even the enmity of colony for colony were as great in 1763 as in 1750, while the absorption of each in its own affairs was as profound as at any time in its history." C. M. Andrews, The Colonial Period, pp. 232-233.
CHAPTER IV
THE WRITS OF ASSISTANCE AND THE REVENUE ACT
Let us now take up the course of events in the years beginning about the end of the French war. In giving this chronological narrative, we shall be concerned chiefly with detecting the statement of principles of government. We shall find some confusion and some inconsistency; we shall find a shifting from one position to another, and we should err if we assumed that the Americans had at the beginning a perfectly clear line of thought which was finally triumphant. But we shall see from the experiences of the fifteen years before independence was declared some fairly definite ideas emerging; and we shall have in mind, amid the confusion, those principles that finally became domesticated and firmly seated in our institutional system; especially we shall look for two essentials of American constitutionalism: (1) that governments have only limited power; (2) that governmental power may be distributed among governments; in other words, we shall find the two most salient ideas of the American system: the written Constitution, binding on governments, and the American federal system.
In 1761 an event took place that John Adams declared marked the birth of the American Revolution — "Then and there", he said of the famous speech of James Otis against writs of assistance, "the child Independence was born." The circumstances were these. Massachusetts merchants had been in the habit of treating with a lofty disdain the navigation act burdening their trade with the foreign colonies in the West Indies. Just how common and grave was this habit of disobedience (vulgarly known as smuggling) is of no considerable Importance. Soon after the death of George II (1760), an application was made to the superior court of Massachusetts for the issuance of writs of assistance; for it appears that old writs ceased to be good six months after the death of a monarch. The writ in question gave to the persons to whom it was issued general authority to search for smuggled goods, and its terms were very comprehensive and sweeping. In opposition to the granting of such authority by the issuing of the writ, James Otis appeared before the court. He and his associates were faced by able lawyers on the other side. The subject of dispute was significant. The brilliant oratory of Otis was called into being to denounce a process which, he contended, threatened the sanctity of one's dwelling and the security of property.
We do not know very much of what Otis said. John Adams, then a young lawyer, present at the argument, wrote in later years an extended account; but that account was written nearly sixty years after the speech; and, quite plainly, Adams included in his statement a sort of summary of the Revolutionary argument; it probably differs in many ways from the line Otis followed. However that may be, Adams did put down at the very moment, certainly practically contemporaneously, a brief outline of what Otis did say; and that brief outline is full of significance. Otis denounced the dangerous character of the writ as an infringement of an Englishman's right of "House"; he dwelt upon the extensive authority given by the writ and declared it to be "against the fundamental Principles of Law." "... all Precedents," he declared, were "under the Control of the Principles of Law." He had in mind, presumably, the fundamental principles of British freedom, and he probably used the word "Constitution" as that word was and is used in Britain; but he went further, declaring that Parliament was incapable of enacting legislation providing for such a writ. As the question before the court was the lawfulness of the writ, he would not stop by endeavoring to discover whether parliamentary authority sanctioned it; for not even Parliament could lawfully go beyond the constitution. Furthermore, the court must uphold the constitution even against Parliament itself; the court must "pass such acts into disuse." [1]
We find here, therefore, more than fervid eloquence appealing to the sacred rights of Englishmen; we find American doctrines, startling probably to the solemn judges who heard them. Even an act of Parliament might be no law, and if so, it was the duty of the court so to declare. It seems almost incredible that Otis comprehended the full import of his own words; for in after years such an elementary principle in American law was not clearly seen by even keen-minded men.
But there stands his assertion. So, to Otis at least, the British constitution must have been something real and tangible, fairly direct and conclusive in its limitations. The logical conclusion from his statement is that an unconstitutional law is not necessarily a bad law, or an inappropriate law, or even a law running counter to endeared traditions; an unconstitutional law is not a law at all; it is void; and a court must so declare. One inevitable result of this reasoning he did not state and, as far as we know, perhaps he did not see; if the act in question was no law, no one was under obligation to obey it. He did, however, say that the court must not treat the act as law and thus aid in enforcing obedience.[2]
Otis's argument is so impressive and so prophetic of the constitutional system which was to come that we are in danger of overestimating its actual effect or of thinking of him as the creator of a fundamental American doctrine. We can well believe, however, that the doctrine was as precocious as it was prophetic, though it was by no means altogether without historical background. It was for the moment ahead of its time, but the days were soon to come when the refuge of Americans was to be found in the declaration that some things were beyond the power of Parliament, and if Parliament exceeded its power, it acted illegally. We should not overstress the appeal to judicial authority as a relief from unconstitutional enactment, but notice the thought on which that appeal rested: there are limits, constitutional limits, to power. That was the staff on which developing revolution was to rest, and that was the foundation on which American constitutionalism was to be reared. In light of what went on and of what men said in succeeding years, it is not so much judicial duty as this fundamental idea of limited as over against unlimited power that is of chiefest significance. Judicial authority must wait upon the developing principle that limited government is possible and that unlimited government is tyranny.
This belief that there were legal limits, beyond which Parliament must not go, was associated with the belief in natural law and the unchanging principles of reason and justice; "natural equity" were Otis's words. And of similar import were "Reason of the common law" — those fundamental principles were supposed to be established in English constitutionalism. In this connection he referred to Coke,[3] having in mind Coke's dictum in the famous Doctor Bonham case.[4] It thus appears that Otis, and others that thought like him, believed their position was founded on revered legal authority; for had not Lord Coke himself plainly spoken? "... it appears in our books, that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void." Had not other British judges announced the same doctrines? But withal — and this is important — Otis was asserting that Britain had a fixed constitution and its limits were applicable, indeed must be observed, in the empire. Thus he was announcing that there already existed what in reality the Americans were to create as a tangible fact. This tendency to assert the undeniable existence of principles, which were to find institutional expression, is a significant quality of the American Revolutionary process, of which we shall find other proof.
We do not and cannot know just how much effect these declarations of Otis had on the popular mind, though we do know that the mind of the average New Englander was prepared for them. The writs were issued after some delay, and we need not follow their history. Other events were in progress which brought in new objections and similar doctrines concerning the exercise of British authority. These events now claim attention.
In 1764 Parliament passed, at the suggestion of George Grenville, First Lord of the Treasury and Chancellor of the Exchequer, the Sugar Act, part of a general plan for enforcing the acts of trade and navigation and for obtaining some revenue from the colonies.[5] It is not our business to look into Grenville's purposes minutely. However great the temptation to obtain relief for the financial burdens of Britain by getting money from America, whatever justification there might appear to be in compelling America to pay at least a portion of the expense incurred for her defense, the means and method proposed by Grenville proved to be obnoxious. They were, furthermore, innovations upon long-established practices. That the sums received from certain duties in the colonies had fallen far short of meeting the cost of collection, producing, it was said, about one-fourth of the cost,[6] was not necessarily a reason for attempting to make the customs remunerative. The acts of navigation were not for revenue, but for regulation, restriction, or prevention of trade.
The purposes for which such acts were passed might have been obtained, even if no revenue at all reached the public coffers. It is not our affair to scrutinize the violation of law or to examine the ineptitude or corruption of certain officials, though the story is an interesting, if rather sordid, tale. The facts are that the plan of enforcing the acts of navigation and at the same time using them or parts of them for revenue was a most serious innovation; and it was an innovation likely, not only to affect seriously the commercial practices of the colonies, but also to arouse colonial opposition because it involved new principles. At a later date Burke put the thing in a nutshell: "Whether you were right or wrong in establishing the colonies on the principles of commercial monopoly, rather than on that of revenue, is at this day a problem of mere speculation. You cannot have both by the same authority. To join together the restraints of an universal internal and external monopoly with an universal internal and external taxation is an unnatural union, — perfect, uncompensated slavery." [7] Men had borne the burdens of trade regulations, "Because men do bear the inevitable constitution of their original nature with all its infirmities. The Act of Navigation attended the colonies from their infancy, grew with their growth, and strengthened with their strength. They were confirmed in obedience to it even more by usage than by law." [8] Burke thus saw not only what he called "uncompensated slavery" in the joining of taxation and burdensome restriction, but that the colonies were used to the regulations of trade but not used to the imposition for revenue.[9] An examination of the West India Act — the Molasses Act of 1733 — shows that its purpose was to compel the colonies to forego trade in certain commodities with the French and Spanish colonies in the Caribbean. The Sugar Act lowered the duties, plainly to get revenue.
This act of 1764, adding in some respects rather grievous restrictions on colonial trade and onerous red tape for their enforcement, provided that trials might be instituted in any colonial court, or in any vice-admiralty court which might be appointed over all America, as the informer or prosecutor might elect. This provision was naturally unwelcome to the colonial mind, for it might involve a trial in a distant court with all the accompanying burdens and inconveniences. But objectionable as such new regulations were, they were not more ominous than the announcement in the act that the purpose was to improve the revenue, that "the commons of Great Britain, ... being desirous to make some provision ... towards raising the said revenue in America, have resolved to give and grant unto your Majesty the several rates and duties herein after-mentioned...." [10]
We can pass over the outcries against the burdensome character of the act as a restriction on trade, and against the unwisdom of interfering with a commerce beneficial to the colonies and to Britain herself, significant though those outcries were as indications of colonial feeling or provocative as they might be of later rebellion. There appeared little or no opposition, as far as I am aware, to the general right of Parliament to regulate the trade of the empire. There was opposition to the revenue plan as well as combative argument breaking out into open violence when the proposals for raising revenue were further carried out in the Stamp Act the next year (1765). The opposition to the revenue-raising feature of the Sugar Bill was especially presented by Otis in his Rights of the British Colonies Asserted and Proved,[11] a pamphlet of such popularity that it deserves special examination.
The author begins in the orthodox fashion of those questioning the authority of government; he considers the origin of government, and finds its "everlasting foundation in the unchangeable will of God, the author of nature, whose laws never vary." [12] There must be in every society a sovereign, absolute, and uncontrollable power, "from whose final decisions there can be no appeal but directly to Heaven." [13] This power was originally and ultimately in the people, who did not make nor can they rightfully make an absolute unlimited renunciation of their essential right. As people are the origin of power, and as government obtains such authority as it has from the people, "There is no one act which a government can have a right to make, that does not tend to the advancement of the security, tranquility and prosperity of the people." There remains still in the people a supreme power to remove, or alter the legislative, when they find the legislative act contrary to the trust reposed in them.[14] But though the reasoning will support revolution and though it contains the essence of democratic thinking as far as the ultimate authority in the state is concerned, this pamphlet was not intended to preach revolution. Otis probably believed that Britain would accept its fundamentals without alarm. He pointed out that the colonists, having endured the hardships of settling a new country, did not renounce their natural liberty, for the gift of God cannot be annihilated.
The powers of Parliament, the supreme legislature of the kingdom and its dominions, Otis expressly acknowledges. Parliament has the right to make acts for the general good and by naming the colonies to bind them as well as the subjects within the realm.[15] No authority, however, has a right to make itself arbitrary nor can any supreme power "take from any man any part of his property, without his consent in person, or by representation." [16] In other words, the principles of representation must apply in the empire.
To solve this problem, or as a partial solution, he commits himself to the idea of representation in Parliament, a proposal never taken very seriously by any number of persons on either side of the ocean; the proposal, nevertheless, is in itself proof beyond cavil that Otis was not then merely a revolutionary firebrand, and in succeeding portions of his paper he gives us visions of a really free and glorious empire.[17] We mistake the whole character of the work if we see in it only a pamphlet making for rebellion. Doubtless he is at times vague; he was as a matter of fact troubled by the same perplexing problem that vexed Locke and others presenting the idea of natural law as a restraint upon governmental authority. Could order be based on the right to disobey? So Otis acknowledges openly the authority of Parliament, for "There would be an end of all government, if one or a number of subjects or subordinate provinces should take upon them so far to judge of the justice of an act of parliament, as to refuse obedience to it." What then is to be done, if on the one hand government has no right to exceed certain limits and, on the other, people have no right to disobey? [18] This is his answer; this is the peaceful solution: "If the reasons that can be given against an act, are such as plainly demonstrate that it is against natural equity, the executive courts will adjudge such acts void." [19] Thus, for unauthorized acts of government, Otis finds a remedy in the organs of government itself.
The appendix to this Rights of the British Colonies Asserted and Proved[20] contains the substance of a memorial presented to the Massachusetts house in pursuance of the instructions of the town of Boston to its representatives, and by the house ordered to be sent to the colony's agent in London. " 'Tis hoped," said these men of Boston, "it will not be considered as a new doctrine, that even the authority of the parliament of Great-Britain is circumscribed by certain bounds, which if exceeded their acts become those of meer power without right, and consequently void. The judges of England have declared in favour of these sentiments, when they expresly declare; that acts of parliament against natural equity are void. That acts against the fundamental principles of the British constitution are void." [21] In a footnote to this memorial, quotations are made from English judicial decisions to the effect that acts against natural equity are void.
Concerning natural rights Otis of course refers to Locke and makes incidental reference to certain writers of continental Europe. Connected with the memorial there appears a striking passage from Vattel, the influence of which is easily discerned in the later developments of American law: "It is here demanded whether, if their power [legislative power] extends so far as to the fundamental laws, they may change the constitution of the state? The principles we have laid down lead us to decide this point with certainty, that the authority of these legislators does not extend so far, and that they ought to consider the fundamental laws as sacred, if the nation has not in very express terms given them the power to change them. For the constitution of the state ought to be fixed...." [22] In the same passage from which these words are taken, Vattel says that the legislators cannot change the constitution without thereby destroying their own foundation.
In this pamphlet Otis does not let loose his thunderbolts against the acts of trade, as Adams many years later asserted that Otis did in the writs of assistance case. On the contrary, he accepts the navigation act as "a good act...." He admits that Parliament has the right as well as the power to bind both Ireland and America, but "whether this can be extended to an indefinite taxation of both, is the greater question." He asserts that Parliament has on the whole not taxed; for the Molasses Act was intended as a prohibition, "and 'tis pity it had not beem [sic] so expressed, as there is not the least doubt of the just and equitable right of the parliament to lay prohibitions thro' the dominions, when they think the good of the whole requires it. But as has been said, there is an infinite difference between that and the exercise of unlimited power of 'taxation [sic], over the dominions, without allowing them a representation...." [23]
[1] "As to Acts of Parliament. An act against the Constitution is void; an act against natural equity is void; and if an act of Parliament should be made, in the very words of this petition, it would be void. The executive Courts must pass such acts into disuse. 8 Rep. 118 from Viner. Reason of the common law to control an act of Parliament." The words "executive Courts" distinguish the judicial tribunals from the General Court, which was the legislature of the province.
[2] Logically of course, if an act is not a law, no one is legally bound by it; he can simply refuse to obey the lawbreaker. Perhaps Otis saw it all, though later words from him make doubtful his full grasp of it. But it is to be noticed that he did summon judicial support to the constitution, and did announce a judicial power; and thus he helped to bring in the American conception of the Constitution as a law to be recognized by courts. And still, the fact is not so much the extent of Otis's influence as the inference we are entitled to make concerning a condition of affairs or an attitude of mind which would account for the doctrine. Possibly we should also take into account the fact that in this case Otis was a lawyer arguing for his client. It is by no means impossible for a lawyer to announce as undoubted law principles which he scarcely hopes the court will accept, and to which under less demanding conditions he would scarcely adhere himself.
[3] That is the significance of his reference to "8 Rep. 118 from Viner."
[4] All this is elaborately treated by Horace Gray, afterwards Justice Gray of the federal Supreme Court, in an appendix to Quincy (Mass.) Reports (1761-1772).
[5] "It was the first statute distinctly taxing the colonies, and marked a radically new departure in colonial policy." G. L. Beer, British Colonial Policy 1754-1765, p. 277.
[6] George Grenville, The Regulations Lately Made concerning the Colonies (London, 1765), p. 57.
[7] Edmund Burke, Works (revised ed.), II, p. 35.
[8] Ibid., II, p. 33.
[9] It is no answer to say that the colonists would have objected to furnishing revenue, even if the whole navigation system had been abolished. Nor is it an answer to say that some acts, the West India or Molasses Act chiefly, had been in reality sedulously disobeyed. The principles of the act were essentially new.
[10] Italics and capitalization of the original omitted. For the details of this act, see The Statutes at Large, 4 Geo. III, c. 15.
[11] This pamphlet was mentioned in Parliament in the debates on the repeal of the Stamp Act.
[12] "It is by no means an arbitrary thing, depending merely on compact or human will for its existence." But he resorts to compact as the formal method of setting up human authority. "... the form and mode of government is to be settled by compact, as it was rightfully done by the convention after the abdication of James II...." Italics of the original omitted.
[13] The distinction here between Locke and Otis is noteworthy. Otis emphasizes the power of a people before government is set up; he seems to see a people as a real preexisting authority.
[14] Cf. John Locke, Two Treatises on Civil Government (Henry Morley, ed.), bk. II, sec. 149.
[15] He asserted that to his personal knowledge this principle had been held to for twenty years in Massachusetts. "The act of navigation is a good act, so are all that exclude foreign manufactures from the plantations, and every honest man will readily subscribe to them." In the years after the war a number of changes and additions were made to the system for the regulation of trade; these were in part aimed to encourage certain branches of colonial industry. There was some indication of an appreciation of the fact of the unity of imperial interests. See G. L. Beer, The Commercial Policy of England Toward the American Colonies (Columbia University Studies in History, etc., III, no. 2), p. 145.
[16] Italics of the original omitted.
[17] The whole argument through this portion of the pamphlet is enough to show that Otis in those days was not a mere declamatory malcontent or mischief-maker. His main idea after all was the liberty of Englishmen and the building up of a free empire based on the lasting foundations of unchanging law.
[18] I am not at all sure I should say that people, according to Otis, have no right to disobey. But he was here, after flatly announcing popular right, showing that there was a remedy short of revolution and disorder, short of an "appeal ... to Heaven." He was putting forth a constructive argument.
[19] Italics of the original omitted.
[20] I cannot be absolutely sure that this appendix appeared in the original edition. There were several editions or reprints. The one I have had access to is the Boston edition, 1764.
[21] Italics of the original omitted.
[22] Emeric de Vattel, born in Neuchâtel, 1714. His Droit des gens was published in 1758, and published in English in 1760. The edition to which I have had access is dated 1811, where the reading is the constitution of the state "ought to possess stability...." The Law of Nations, bk. I, p. 11.
[23] Otis here distinguished between taxation and regulation, but the idea was not as yet brought out distinctly.
CHAPTER V
THE STAMP ACT
Grenville's general scheme for obtaining revenue from the colonies culminated in the Stamp Act (1765) — of unhappy memory.[1] It provided for a burdensome tax upon the colonies and was of course immediately resented, and that too with an approach to unanimity. How could the colonies declaim against the tax? What routes could they follow? (1) They might object in general to the grievous financial burden, and this they did. (2) They denied not only the justice but the legality of the legislation — or at least they denounced it as violation of elementary principles of English liberty; they asserted that as British subjects they were immune from taxation because they were not represented; they set forth their rights as Englishmen. (3) They declared that the colonies, as corporate parts of the empire, had their own governments possessed of the power to tax and to regulate internal concerns. The resolutions of public assemblies and the arguments in pamphlets did not of course clearly distinguish between the various modes of opposition. The contentions, though mutually supporting, were different; we find them on the one hand asserting the rights of individuals under government; and on the other announcing, even when men did not see the full nature and could not see the product of their argument, that the British empire was in reality not a simple empire but a composite empire in which each commonwealth had its share of duty and authority.
This fact is well illustrated by the resolutions offered by Patrick Henry to the Virginia House of Burgesses. They appear to have been scattered broadcast through the colonies, as broadcasting was done in those simple days. They declare that the Stamp Act encroached on the fundamental rights of Englishmen and that Virginia had its own assembly which from time immemorial had possessed the right to tax Virginians. In other words, the people had a twofold protection — the fundamental constitutional immunity belonging to Britons and also the constitution or structure of the empire.[2]
To protest against the Stamp Act, a Congress assembled in New York in October, 1765. The resolutions of the Congress are possibly not quite so plainly and forcibly constructed as those of Henry, but they follow the same general lines: His Majesty's liege subjects in the colonies are entitled to the inherent rights of natural-born subjects within the kingdom; it is essential to the freedom of a people, and is the undoubted right of Englishmen, that no taxes be imposed on them without their consent, given personally, or by their representatives; the colonists cannot be represented in Parliament; the only representatives of the people are those chosen by the people of the colonies, and no taxes ever have been or can be imposed on them but by their legislatures.[3] They acknowledge not only the same allegiance to the Crown that is owing from His Majesty's subjects within the realm but "all due subordination to that august body the parliament of Great-Britain."
The debates in the House of Commons on the repeal of the Stamp Act are illuminating because they disclose the nature of the controversy, and it seems well to discuss them before passing on to a fuller consideration of the American arguments. We find the parliamentarians, then as later, taking refuge in an absolute announcement of complete control over the colonies. The mere statement of this authority, these men seem to have thought, scarcely allowed room for protest or needed the support of elaborate argument, though ere long detailed defense of Britain's power was presented by countless pamphleteers and eager penmen. Parliamentarians scorned distinctions and refinements; Parliament, sovereign in the empire, necessarily had the right to tax. And it is desirable, in passing, to note the last resort of noble minds — an insistence upon naked legal rights; to surrender under compulsion would lower the dignity and honor of the kingdom. The duty to maintain parliamentary dignity, to wrest from the colonists an acknowledgment of parliamentary power, even though no one might intend to use it or at least to use it harshly, was first and last of supreme consequence.[4]
William Pitt, who was then the idol of America and for years to come was hailed as the founder of the empire and the friend of freedom, vigorously attacked the Stamp Act and denied that Parliament possessed the power to tax the colonies. Asserting the authority of the "kingdom over the colonies, to be sovereign and supreme, in every circumstance of government and legislation whatsoever", he denied that taxation is a part of the governing or legislating power. "The distinction between legislation and taxation is essentially necessary to liberty." [5] Grenville scouted any difference between internal and external taxation, declaring that "this kingdom has the sovereign, the supreme legislative power over America," that taxation is "one branch of the legislation", and it is, and has been, exercised over those who are not and never were represented.[6] In reply to Grenville, Pitt struck another key: "If the gentleman does not understand the difference between internal and external taxes, I cannot help it; but there is a plain distinction between taxes levied for the purposes of raising a revenue, and duties imposed for the regulation of trade, for the accommodation of the subject; although, in the consequences, some revenue might incidentally arise from the latter." [7]
The examination of Benjamin Franklin at the bar of the House was dramatic, one might also say humorous, for the Yankee from Philadelphia was even then a man of mark, and if his customary humor was not in evidence at the time, it appears to us now as we read the pages of the proceedings. But the examination was, after all, confusing in some respects, if one aim of the witness was to bring out clear distinctions between what Parliament could and what it could not do. He seems at one time to distinguish between external and internal taxation, at another to distinguish between taxation and duties or impositions laid for the regulation of commerce; the net result was probably to instill in the minds of his hearers the opposition in America to internal taxes.[8] Although he fumbled his argument a bit, he must have impressed upon the Commons the seriousness of the occasion, and he made one especially wise and humorous statement; it contained the elements of prophecy: "Does the distinction between internal and external taxes exist in the words of the charter?" he was asked. "No, I believe not." "Then may they not, by the same interpretation, object to the parliament's right of external taxation?" "They never have hitherto. Many arguments have been lately used here to shew them that there is no difference, and that if you have no right to tax them internally, you have none to tax them externally, or make any other law to bind them. At present they do not reason so, but in time they may possibly be convinced by these arguments." [9] If parliamentarians would not recognize distinctions, but insisted on absolute and complete power, then the colonists would be driven to deny that Parliament possessed any power whatsoever.
The speech of Lord Lyttelton in the House of Lords [10] admirably illustrates how cleverly men may reason to reach foolish conclusions; and the results showed how unwise it is for statesmen to bandy raw logic. The noble lord accepted as fundamental "The last great maxim of this and every other free government ... that 'No subject is bound by any law to which he is not actually or virtually consenting' ", and he then proceeded to announce that "If the colonies are subjects of Great Britain, they are represented and consent to all statutes" — equivalent to saying that, inasmuch as you admit that the foundation of British government is consent, as long as you remain subject you do consent to have money taken from your pockets whether you like the operation or not. There is no difference between internal and external taxes, he further declared; the Americans make no such distinction and Mr. Otis himself, "their champion, scouts such a distinction...." By declaring the colonists exempt from one statute, he solemnly warned the assembled Lords, "you declare them no longer subjects of Great Britain...." All of this is a pretty piece of legalism, but a very poor basis for practical statesmanship. Lord Mansfield [11] spoke much to the same effect as Lyttelton. No wonder that Pitt in the Commons exclaimed that he did not come into the House with law books doubled down in dog's-ears to defend the cause of liberty, and that Burke at a later time, scorning finespun theories, said, "The question with me is, not whether you have a right to render your people miserable; but whether it is not your interest to make them happy? It is not what a Lawyer tells me I may do, but what humanity, reason, and justice, tell me I ought to do." [12]
Nevertheless, we must take facts as they were. The British lawyers laid down absolute doctrines, unbending principles. And it is also a fact that there was serious difficulty in seeing the possibility of reconciling the power of Parliament with a reasonable or moderate freedom and self-dependence of the colonies. Instead of ridiculing British statesmen because they could not see the possibility of modified or incomplete authority, we may notice a similar blindness among many Americans. The truth is, the problem was in many aspects a perplexing one; and its final solution grew out of the nature of things and out of the necessities of the case rather than out of early and continuously clear perception of principles. But this is equally true: the defenders of American liberties in Parliament announced that there were limits to parliamentary authority; at least some of them saw that the colonies could have the right of self-taxation without dismemberment of the empire. The debates of 1766 showed fairly clearly that the gist of dispute was whether Parliament had in theory limited or unlimited authority; and that continued to be the source and center of disagreement.
Parliament repealed the Stamp Act, coupling it, however, with a fatuous Declaratory Act, the announcement of a principle, a warning that the government would not by one jot or one tittle abate its supreme authority.[13] The colonists accepted the olive branch and ignored the threatening rod; more accurately, they rejoiced in the repeal of the Stamp Act and paid little apparent heed to the announcement of power; but they never forgot Parliament's assertion of unlimited power to bind them "in all cases whatsoever." It is unnecessary to repeat that the validity of that assertion was the center of the Revolutionary controversy.
Let us leave the colonists rejoicing over their victory (a victory doubtless achieved more because of the fear or distress of British merchants than because of the weight of American resolutions and arguments), and return to view more fully than we have yet done the nature of American opposition while the Stamp Act was still in force. Let us look first at certain pamphlets, selected not altogether at random, but chosen as indicative of able, fairly conservative, and influential expositions of America's case. In The Grievances of the American Colonies Candidly Examined,[14] Stephen Hopkins, Governor of Rhode Island, protested against the wisdom of the Sugar Act as an unwholesome interference with colonial trade, a trade beneficial to both Britain and the colonies.[15] He was far from a rebellious state of mind, though he pointed out that to tax the colonies as the Stamp Act did was to deprive them of long-established rights, and that "one who is bound to obey the will of another, is as really a slave, though he may have a good master, as if he had a bad one...." Of greater interest was his acknowledgment of the power of Parliament to regulate trade and, furthermore, although each colony had a legislature, "there are many things of a more general nature, quite out of the reach of these particular legislatures, which it is necessary should be regulated, ordered and governed.... Indeed, every thing", he said, "that concerns the proper interest and fit government of the whole commonwealth, of keeping the peace, and subordination of all the parts towards the whole, and one among another, must be considered in this light...." There must be this general power, superintending and ordering the whole, and that power "every man of the least knowledge of the British constitution, will be naturally led to look for, and find it in the parliament of Great Britain...." Here, then, we find a conservative and calm presentation of an idea, so conservative and calm that it fails, perchance, in driving power: there is a whole, but there are also parts, and these parts have their own particular interests. To guard and upbuild those interests is the duty of Parliament; but that duty does not involve the right to disregard the legitimate rights of the colonies and their respective legislatures. What Hopkins sees or comprehends is an empire, within its limits are colonies possessed of their share of authority, and over all is one general superintending body whose business it is to care for the interests of the whole. The next pamphlet to be examined came from the pen of Daniel Dulany of Maryland.[16] Here again we find the distinctions already mentioned. The colonies are dependent upon Great Britain; and the authority of Parliament may be justly exercised to preserve their dependence; but from that fact does not come the right to seize the property of the colonists. "In what the Superior may rightfully controul, or compel, and in what the Inferior ought to be at Liberty to act without Controul or Compulsion, depends upon the Nature of the Dependance, and the Degree of the Subordination.... May not then the Line be distinctly and justly drawn between such Acts as are necessary, or proper, for preserving or securing the Dependance of the Colonies, and such as are not necessary or proper for that very important Purpose?" [17] He speaks of the fact that the colonies are "impowered to impose internal Taxes", but he does not in reality make the distinction between internal taxes and external, or grant Parliament the right to levy the external. On the contrary, conceding to Parliament the right "to regulate the Trade of the Colonies," for "a Denial of it would contradict the Admission of the Subordination, and of the Authority to preserve it," [18] he declares that "there is a clear and necessary Distinction between an Act imposing a Tax for the single Purpose of Revenue,[19] and those Acts which have been made for the Regulation of Trade, and have produced some Revenue in Consequence of their Effect and Operation as Regulations of Trade." [20]
It is rather sad to recall that the writer of this able pamphlet, unable to follow the colonists into rebellion, was later vehemently denounced as a Tory and his property confiscated. This is one of many examples of the loss to America of men of active minds and distinguished ability whose services were much needed in later years.
This pamphlet is of undoubted significance. Dulany was a lawyer, educated in England, with a reputation on both sides of the Atlantic, a man of very remarkable mental gifts and learning. His insistence that the British Commons had no right to "Give and Grant the Property of the Commons of America" may have suggested to William Pitt the center of his argument in the House of Commons a few months after Dulany's pamphlet was published. "... what Right", asks the writer of the Considerations, "had the Commons of Great Britain to be thus munificent at the Expence of the Commons of America?" His argument against "virtual representation" is overwhelming and convincing.
In the pamphlets which have been mentioned as especially significant, we find objections to parliamentary authority and also evidence of a desire to single out certain measures as beyond parliamentary control. The distinction between taxation and regulation of trade is made or implied, and even if the distinction between internal and external taxes appears not very sound, it indicates a problem, an attempt to separate and distinguish one power from another; internal government and taxation belonged to the colonies.
In October, 1765, the house of representatives of Massachusetts, in answer to the Governor's speech, made a significant announcement of principles in a document attributed to the flowing pen of Sam Adams.[21] We are forced to present only a portion of the document, though the whole deserves careful reading. It was at once courteous, dignified, and cutting. "You are pleased to say, that the stamp act is an act of Parliament, and as such ought to be observed. This House, sir, has too great a reverence for the supreme legislature of the nation, to question its just authority: It by no means appertains to us to presume to adjust the boundaries of the power of Parliament; but boundaries there undoubtedly are.... Furthermore, your Excellency tells us that the right of the Parliament to make laws for the American colonies remains indisputable in Westminster. Without contending this point, we beg leave just to observe that the charter of the province invests the General Assembly with the power of making laws for its internal government and taxation; and that this charter has never yet been forfeited. The Parliament has a right to make all laws within the limits of their own constitution; they claim no more. Your Excellency will acknowledge that there are certain original inherent rights belonging to the people, which the Parliament itself cannot divest them of, consistent with their own constitution: among these is the right of representation in the same body which exercises the power of taxation." The most significant words are "boundaries there undoubtedly are", but we should notice the claim, based on the charter, of the right of the colony to make laws for internal government as well as taxation, and we should notice, too, the use of the word "constitution" and the apparent influence of Vattel.
A few days after this answer, the house drew up a series of resolutions declaring "That there are certain essential rights of the British Constitution of government, which are founded in the law of God and nature, and are the common rights of mankind...." Then followed a number of declarations of their rights as Britons, the announcement that such a representation as the subjects in Great Britain enjoyed was "impracticable for the subjects in America", that the "several subordinate powers of legislation in America were constituted upon the apprehensions of this impracticability", and that "the only method whereby the constitutional rights of the subjects of this Province can be secure, consistent with a subordination to the supreme power of Great Britain, is by the continued exercise of such powers of government as are granted in the royal charter, and a firm adherence to the privileges of the same." [22]
To accuse one's opponents of harboring the most extreme views, and especially to charge them with advocating the conclusions which relentless logic may extort from their actual words, is a common practice of politicians and of all persons who indulge in heated controversy. We must therefore not take too seriously the assertions of royal officials or other informers who found the colonists even in 1765 or 1766 determined upon independence; nor need we give full credit to the announcements that the colonists were even then declaring their complete freedom from parliamentary control. Perhaps some extremists went this far; for the people were indignant, and it is easy for indignant people to utter threats or indulge in extravagant expressions. "All of a sudden," wrote Thomas Hutchinson of Massachusetts in February, 1766, "... we have it advanced that acts of parliament of England or Great Britain have no more relation to us than acts of parliament of Scotland had before the Union." [23]
No one can know just how widely such opinions were held. Some persons, it appears, besides the ready-tongued, did have some such theory in mind as early as 1766. Richard Bland of Virginia toyed with the idea; but his pamphlet is confusing.[24] He seems not only to make an able defense of colonial right to self-taxation, but also to lay a fairly good basis for looking upon the colonies as dominions of the king free from parliamentary supervision. His main reliance, however, appears to be upon the principle of natural rights, but he does not proclaim sharply that natural rights are a legal limitation upon authority. On the whole, we are justified in concluding that the Americans in no formal way, and probably few in their own minds, were asserting their complete freedom from parliamentary authority. The day for such pronouncement lay some distance ahead. The fact is, the empire was in existence and Parliament had a share in its management; and that share had actually consisted largely in passing acts for the maintenance of the trade of the empire and for matters of general rather than local concern. Though thoughtful men believed portions of the navigation acts to be a hardship, and there were manifestations of a lawless and even turbulent spirit among the restless traders and watermen of the New England seaports, there is little evidence that there was objection to the form or workings of the imperial system as it had been in the past.
Probably many Americans, though I speak only of those capable of thinking connectedly on a principle of government, were troubled by the difficulty of reconciling the freedom of the colonies, or their possession of certain powers of government, with the fact of parliamentary control in certain rather imposing aspects. It was an easy mental exercise to accept the complete and unalloyed authority of Parliament, and it was easy to deny the existence of such authority in toto; but to envisage the composite or multiple empire was not so easy. The significant fact, therefore, is not the readiness of the colonists to announce the total incapacity of Parliament, but the tardiness of such an announcement. And it should be noticed that the great powers of empire in the hands of the Crown — foreign affairs, war, peace, and the like — were not challenged.
For our constitutional history the important fact is this: however many persons were ready to proclaim the total absence of parliamentary power over the colonies, writers and debaters were struggling for years more or less successfully with the conception of restricted governmental power and the organization of a politically-diversified empire. Such success as they had in reaching the conception of distributed authority was due to their own experiences with an actual, not a theoretical, British empire, an empire of which each colony was an integral part, an integral part of an actual whole. It may not be necessary to remind the reader that the question is not whether any one principle involving the legal structure of the empire was sound in logic or law; the important thing is the situation and the argument, be it good or bad. It is not even necessary to be confident concerning just how many persons held a single doctrine. Knowing as we do the products of the time, recognizing theories foreshadowing the coming of a diversified American "empire", we must take special interest in the emergence of the idea and the nature of the problem.
In Massachusetts, at all events, thanks to the preaching of the ministers, thanks to the doctrines which the ministers had long been heralding, and thanks also to the teachings of James Otis, it is plain enough that at the Stamp Act crisis men did not devote their nimble wits to working out an idea of an empire based wholly on the Crown and the power of the Crown. They surely began by admitting the authority of Parliament and denying its omnipotence — "boundaries there undoubtedly are". Those "boundaries" were the fundamentals of the British constitution. No matter how many other arguments they might have, or how many theories as to the structure of the empire they might put forth, the colonists never lost sight of what they claimed to be the elementary rights of Englishmen. Hutchinson himself said in 1765, "The prevailing reason at this time is, that the Act of Parliament is against Magna Charta, and the natural Rights of Englishmen, and therefore, according to Lord Coke, null and void." [25] When the town of Boston presented to the Governor in council a memorial asking for the opening of the courts, stamps or no stamps, James Otis, John Adams, and Jeremy Gridley appeared in support of the memorial. Otis opened an eloquent harangue with tears; he quoted Molloy: [26] "When there are no Courts of Law to appeal to, it is then we must have Recourse to the Law of Nature...." Adams, not so tearful apparently, declared the Stamp Act "utterly void, and of no binding Force" — not, it seems, because Parliament had no authority over the colonies, but because the act was contrary to "certain Principles fixed unalterably in Nature." [27]
A Virginia court, doubtless under the influence of the same kind of reasoning as that used by Otis and Adams, did not hesitate to take a decided stand. The court "unanimously declared it to be their opinion that the said act did not bind, affect, or concern the inhabitants of this colony, in as much as they conceive the same to be unconstitutional, and that the said several officers may proceed to the execution of their respective offices without incurring any penalties by means thereof...." [28]
We have thus far seen several distinct but not contradictory ideas, all of them important to one wishing to see the emergence of American constitutionalism. Some of these ideas were as yet rather vague; some of them appeared more sharply outlined in later discussions. (1) There were certain fundamental rights which government could not take away from its subjects. (2) Those rights were embedded in the British constitution. (3) Men were not called upon to obey an act depriving them of their rights. An unconstitutional act was not binding. This doctrine was perhaps implicit rather than explicit. (4) There was a British constitution limiting governmental authority, a constitution, in the American way of viewing it, more definite, not to say rigid, than any conception of it held by Britons. (5) Furthermore, the colonies, as parts of the empire, had functions and powers. (6) There could be and there was a clear distinction between one "power" and another; the "power" to tax was distinguishable from other powers. Parliament might have one power and not another. (7) The charters and immemorial custom gave sanction to the right, the legal right, of the colonies to manage their taxation and internal government. (8) Reason and a just regard for the interests of the whole sanctioned the authority of Parliament to legislate for the maintenance of the empire and for the coöperation of its parts. I am not intent upon forcing the conclusion that every man speaking this language beheld clearly all its logical consequences; I am intent only upon showing that these theories, if not so plain that the thoughtless man could think them, were actually part of the practical politics of the early Revolutionary period. And we should notice also that the discussion at that time as well as later was within the field of law.[29] If one is desirous of tracing the development of the American argument, he is compelled to see that, in 1765 and for a year or two thereafter, the emphasis was laid on the principles of individual liberty under the British constitution rather than on the freedom of the colonies as constituent parts of the empire; but there was reliance, not only on the rights of colonists as Englishmen, but also on the right to colonial self-government in the empire.
The colonists, someone may say, had no right to set up the principles of the English system as their defense, when they were claiming more than the English system actually contained; they could not properly declare that men's property could not be taken from them without their own consent given in a representative assembly of their own choosing. But the fact of their making the claim, not its theoretical justification, was the important thing. The British system of representation as it existed, and as it continued to exist until 1832, was far from recognizing the populace or the body of voters as the source of authority. No taxation could be levied save by the consent of Parliament; thus far had English constitutionalism progressed. Representation, especially borough representation, was, however, nearly farcical. Old Sarum, almost utterly without human habitation, had the privilege of sending two members to Parliament, while large and populous cities sent no member at all. And this was but one example of prevailing conditions.[30] Elections were rather a method of filling the benches of the House of Commons than a mode of ascertaining the wishes of voters or a mode of exercising their will. But again we must remind ourselves that Englishmen, though some of them were soon to fret under the system, did have something called representation which distinguished their government from the big and little autocracies of Europe. The Parliament had many able members, some of whom were the beneficiaries of the owners of pocket boroughs. The worth of English representation is not to be entirely ignored.[31]
The Americans, on the other hand, thanks to the colonial conditions, and thanks to the aquiescence, and, in part, to the magnanimity of the home authorities, had developed a system of representation fairly worthy of the name. It was not theoretically perfect, if judged by the doctrines of modern democracy; but it did in considerable degree recognize the right of popular voice in government, and it included the thought that the representative carried with him the desires and behests of his constituents. Suffrage was limited, and moreover there was no proper and proportional adjustment of representation to the numbers of the respective communities; the back-country suffered from discrimination. But withal, the fact is that the colonies had a system so far in advance of British practices that it is almost amusing to see Patrick Henry insisting upon the undoubted right of Englishmen not to be taxed without their own consent given personally or by their representatives. When, therefore, Britain and America entered upon any discussion of representation, they were separated farther than mere ocean space could divide them. Rightly or wrongly, the Americans were announcing principles which they had partly and effectively put into operation, principles to which in later years they gave fuller institutional expression and which are the basis of modern popular government.
Why did the Americans not continually cry out against the rotten and pocket boroughs, and why did they not vociferously denounce the bribery and the spoils practices so evident in the home country? Some of them did this occasionally. Otis, for example, at one time spoke impatiently of the everlasting changes rung upon the fact that large cities sent no members to Parliament; if they are not represented, he said, "they ought to be." [32] Bland spoke of the "Work worthy of the best patriotick Spirits in the Nation to effectuate an Alteration in this putrid Part of the Constitution...." [33] But the Americans as a rule were not casting aside as unworthy the whole British system; they made no pretense of having pushed onward to higher ground. They based their arguments on what they thought to be old and well-established principles; they saw in British constitutionalism the basis for their claim. Thus, the very method of approach is significant; it was legalistic rather than revolutionary; and it is difficult to overestimate the importance of this fact. The Americans setting forth the constitutional rights of Englishmen on both sides of the water, as they claimed those rights to be, did not appear to be engaged in destruction, but in conservation. The character of the formal documents which issued from America during the whole contest is a matter of consequence; they do not seem to breathe forth the air of revolution; they help us to understand how and why it was that even war did not beget thorough social disintegration, and how and why it was that the men of that generation did more than any other single generation to institutionalize principles of government and to perform the difficult task of constructive statesmanship; for in the end the movement was constructive; the institutions and principles, the establishment of which is the theme of these pages, rested not on imaginings — though men cannot move on without imagination — but on history.[34] It is easy, however, to see why the Britons did not feel comfortable, though abundant references were made to Britain's own past by the argumentative colonists. If a member of the House had acknowledged the ethics of the American position, and had not clouded the issue by what he called "virtual representation", he would have denied his right to his own seat; and a general acceptance of American principles would have shaken the British constitution to its foundations.
[1] Not merely a provision for an occasional halfpenny stamp. Newspapers or pamphlets contained in half a sheet carried "a stamp duty of one halfpenny, for every printed copy thereof." Every advertisement carried a tax of two shillings; admission to the bar, ten pounds, though a license to retail spirituous liquors, only twenty shillings; a diploma or certificate of any degree taken in a college, university, academy, or seminary, two pounds. These are but indications of the character and the weight of the tax. The act provided for stamps on legal documents, playing cards, etc.
[2] Some of the resolutions were not passed by the assembly; but all except one appear to have been in the set that was widely spread abroad. See the resolutions and notice the critical discussion by M. C. Tyler in his Patrick Henry (revised ed.), pp. 69-76 and especially p. 75, note 1. The resolutions assert first, that the colonists are entitled to all the privileges ever held by the people of Great Britain; second, that the royal charters declare that they are entitled to all immunities of natural-born subjects of England; third, that taxation by the people or persons chosen by themselves to represent them is the distinguishing characteristic of British freedom; fourth, that the Virginians have "uninterruptedly enjoyed the right of being thus governed by their own Assembly in the article of their taxes and internal police"; fifth, that the general assembly have the only and sole exclusive right and power to lay taxes and impositions; sixth, that the people of Virginia are not bound to yield obedience to any law imposing taxes on them except the laws of the general assembly of their province; seventh, that any person maintaining that any other person or persons have the right to tax the people of that colony shall be deemed an enemy of the colony.
[3] The above condensation does not give the full content of the resolutions, but it is sufficient to show their character. For the Congress and its resolutions, see H. Niles, Principles and Acts of the Revolution in America, p. 451 ff.; Select Charters (William MacDonald, ed.), pp. 313-315.
[4] The position of Mr. Nugent, afterwards Lord Clare, is characteristic of a "diehard" — a man willing to let all else go, if he can secure the acknowledgment of what he calls a principle. "... a pepper-corn," declared this gentleman, "in acknowledgment of the right, was of more value, than millions without." Parliamentary History, XVI, col. 97.
[5] Ibid., XVI, cols. 99-100. This may appear to the reader an impossible distinction, and I have no wish to defend it. One might see, however, the mere fact that the Commons had taxation fully or nearly in their control in the kingdom; and as a practical fact, taxation was singled out as a particular power in the constitution of the kingdom. Might not such a distinction be applied to the empire? Any such argument as this of Pitt is of interest in this study because it illustrates the nature of the problem. Were there limits on the power of Parliament? Could you make distinctions between powers, or must you rest content with asserting that all powers and authorities are necessarily an undivided whole?
[6] Ibid., XVI, col. 101.
[7] Ibid., XVI, col. 105. Pitt may have got this distinction from Otis, though Otis did not make the distinction so clear as it was to be made later. It more likely came from Dulany's Considerations, etc., a pamphlet discussed later.
[8] The reasons for the confusion in the minds of a good many persons doubtless were, first, the difficulty which human beings find in being logical, especially in practical politics; second, almost invariably those endeavoring to maintain that the colonists really did help to support the empire were led off into statements of the burdens of regulations which in their effect put money into the hands of British merchants and finally into the coffers of Britain.
[9] Parliamentary History, XVI, cols. 158-159.
[10] February 24, 1766, Ibid., XVI, cols. 166-168.
[11] Ibid., XVI, col. 172 ff. As illustration of the fact that in some considerable degree the British argument, at least in the ensuing years, was made not so much for money as for authority — for the recognition in theory of imperial might — see Chatham's statement in 1775: "... and when men are driven for want of argument, they fly to this as their last resource ... 'acts of parliament (say their advocates) are sacred, and should be implicitly submitted to ... for if the supreme power does not lodge somewhere operatively, and effectually, there must be an end of all legislation.' " Lord Chatham's Speech on the 20th of January 1775. Taken by a Member (London, 1775), p. 9.
The attitude of the more conservative Britons appeared in the protest or dissenting opinion of a number of the Lords (March 11, 1766), with respect to the repeal of the Stamp Act. These Lords contended that repeal in the face of tumults would make the Parliament ridiculous; that it was not only right, but expedient, for Parliament to exert its authority to lay a general tax on the colonies; that the American reasons for disobeying the Stamp Act extended to other laws, and, if admitted, would set the colonies absolutely free from any obedience to the power of the British legislature; and that concessions would lessen the respect of all His Majesty's subjects and throw the whole empire into confusion. In addition to the debates on the Declaratory Act and the repeal of the Stamp Act found in the Parliamentary History, XVI, important reports on these debates may be found in the Am. Hist. Rev., XVII, pp. 563-586.
[12] "Mr. Burke's Resolutions for Conciliation With America," American Archives (Peter Force, ed.), fourth series, I, col. 1760.
[13] The act, after stating that the colonies were "subordinate" and "dependent", went on to say "that the King's majesty, by and with the advice and consent of the lords spiritual and temporal, and commons of Great Britain, in parliament assembled, had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America ... in all cases whatsoever." Italics of the original omitted.
[14] London, 1766. The first edition had the title, The Rights of Colonies Examined.
[15] Hopkins's attack on the breaking up of the trade with the West Indies is not oratorical but damaging, a severe attack, in reality, on the unwisdom of the restrictive system. The attack came naturally from a Rhode Islander, for the rum, molasses, and slave trade of the Rhode Island merchants was large and lucrative, and to break it down spelled something like disaster.
[16] Considerations on the Propriety of Imposing Taxes in the British Colonies, for the Purpose of Raising a Revenue, by Act of Parliament. This pamphlet, like that of Hopkins, did not bear the author's name. I have used the second edition (London, 1766). Tyler says the first edition issued from the press in October, 1765. M. C. Tyler, The Literary History of the American Revolution (one volume ed.), p. 101.
[17] Ibid., pp. 16-17.
[18] Ibid., p. 47. Italics mine.
[19] Ibid., p. 46. See also p. 48. Italics in the original.
[20] Ibid., p. 46. Part of the italics mine. I do not mean to assert that in this respect Dulany's argument is all the way through so perfectly clear as to be plain even to the stupid or perverse. He admits, for example, that the imposition of a duty may in some instances be the "proper Regulation." But on the whole, he plainly distinguishes between the right to regulate and the right to tax. To the unwary reader he is also confusing because he argues that the colonies have paid taxes in Great Britain; but as a matter of fact he is dealing with the incidence of taxation — on whom does the burden of a tax ultimately fall? As well might we argue that if the United States to-day levies a duty on British steel rails, the people of Great Britain are taxed to the amount of the duty.
[21] Samuel Adams, Writings (H. A. Cushing, ed.), I, p. 13 ff. Massachusetts State Papers, p. 43 ff. How much, especially in the earlier days, Sam Adams owed to Otis, is an interesting though for us not a very important question. Otis at one time said to John Adams, "I have drawn them all up, and given them to Sam to quieu whew them", at least so John declared. There is little doubt in my own mind that, whoever wrote the first draft of some important papers, the hand or the ideas of Otis are to be found in some of the papers commonly and perhaps rightly attributed to Sam Adams.
[22] Samuel Adams, Writings (H. A. Cushing, ed.), I, pp. 23-25. Italics of the original omitted. In this connection it is well to quote a passage from a letter of Sam Adams, written November 13, 1765: "... the only way to preserve to the Colonists their rights as British Subjects, consistent with their acknowledgd Subordination to the supreme Legislature of Great Britain, ... is to continue to them the same powers of Governmt , which they have hitherto been used to, with the same Checks & no other: This is all they desire:" Ibid., I, p. 39.
[23] Quoted in Quincy (Mass.) Reports (1761-1772), p. 443. "The King of Great Britain indeed is our Sovereign, but we have no representation in parliament, & strictly speaking, not meerly those acts which lay taxes upon us, but no other acts any further than we adopt them, are binding upon us." Thus Hutchinson presented the opinions of 1766.
[24] Richard Bland, An Inquiry Into the Rights of the British Colonies (Williamsburg, Virginia, 1766; reprinted in Richmond, 1922). See also Tyler, The Literary History of the American Revolution (one volume ed.), pp. 230-231. A reader of Bland's pamphlet is inclined to agree with Jefferson that it is "a singular one", not leading by a direct and simple route to a definite goal.
[25] Quoted in an appendix to Quincy (Mass.) Reports (1761-1772), p. 527. Italics of the original omitted. The whole note on pp. 527-528 is worth studying carefully. Even Justice Cushing, in a letter to Chief Justice Hutchinson, dated "In a hurry Feby . 7, 1766," said, "Its true It is said an Act of Parliament against natural Equity is void. It will be disputed whether this is such an Act. It seems to me the main Question here is whether an Act which cannot be carried into execution should stop the Course of Justice, and that the Judges are more confined than with respect to an obsolete Act." Ibid., p. 528 (quoted from 25 Mass. Archives, 55).
[26] De Jure Maritimo et Navali.
[27] Quincy (Mass.) Reports (1761-1772), p. 198 ff. Otis also referred to Grotius, De Jure Belli et Pacis. Again, the whole discussion is illuminating. It is true that Adams said, "A Parliament of Great Britain can have no more Right to tax the Colonies than a Parliament of Paris." And this sort of thing Adams in later years based on a view of the empire in which the Parliament had no authority whatever over the colonies; but his argument in 1765 was the invalidity of the act because the colonies were not represented, and was based on "our Rights as Men, and our Priviledges as Englishmen." Ibid., pp. 201, 200.
It is a noteworthy fact that the Governor, Francis Bernard, in replying to Otis and Adams, and possibly simply to escape discussion, shrewdly asserted that their arguments indicated that it was not the business of the Governor in council but of the court to determine the very question at issue: "The Arguments made Use of, both by Mr. Adams and you, would be very pertinent to induce the Judges of the Superiour Court to think the Act of no Validity, and that therefore they should pay no Regard to it; but the Question with me is, whether that very Thing don't argue the Impropriety of our Intermeddling in a Matter which solely belongs to them to judge of in their Judicial Department." Ibid., p. 206.
[28] Virginia Gazette, March 21, 1766. This decision, the first probably of any court in America and probably in the world to declare an act void because of unconstitutionality, was given by a court held for Northampton County, February 11, 1766. We need not comment here at length on the significance of all this. The thing to be stressed in this connection is not the action of the court as a court — we shall have more to say of that hereafter — but the use of the word "unconstitutional" and the principles on which it was undoubtedly based: there were certain fundamentals of the constitution, there was a constitution, and the legislature of Great Britain could not violate its principles. The thought of a constitution not to be tampered with in its fundamental principles must come before any court could act.
[29] This matter will be discussed somewhat more fully in the next chapter. As indicated at the beginning of this chapter, the Americans had more than one way of attacking the Stamp Act. Their objections were not entirely confined to the hardship entailed. Furthermore, they might have said, "This is the law; Parliament has the legal power, but we will not obey." It is of primary importance to notice that they did not say this, but denied the legal validity of this act as they came to deny the legal validity of other acts. That fact is what gave distinction to the Revolution.
[30] Samuel Curwen, an American who was in England from 1775 to 1783, wrote that the spot which formerly was the site of Old Sarum contained about sixty acres without one house on it. But on the lower plain stood one house where a family dwelt. See Edward and A. G. Porritt, The Unreformed House of Commons, I, p. 36.
[31] George Grenville, in his Regulations, gives an able argument in behalf of British representation: "All British Subjects," he says, "... are virtually represented in Parliament; for every Member of Parliament sits in the House, not as a Representative of his own Constituents, but as one of that august Assembly by which all the Commons of Great Britain are represented." "... they [Birmingham and Manchester] and the Colonies and all British Subjects whatever, have an equal Share in the general Representation of the Commons of Great Britain, and are bound by the Consent of the Majority of that House, whether their own particular Representatives consented to or opposed the Measures there taken, or whether they had or had not particular Representatives there." p. 109. Italics of the original omitted. So the men of Boston were "represented" by the ploughed fields of Old Sarum and by the pigsties and the pigeon-lofts of Richmond!
[32] Considerations on Behalf of the Colonists, in a Letter to a Noble Lord (2nd ed.; London, 1765), p. 6.
[33] Inquiry, p. 12. "... I cannot", Bland also said, "comprehend how Men who are excluded from voting at the Election of Members of Parliament can be represented in that Assembly, or how those who are elected do not sit in the House as Representatives of their Constituents." Ibid., p. 6.
[34] By this statement I do not mean that the Americans were right in their claims, nor do I mean that their arguments and their institutions were entirely the product of historical forces. It is the method of approach that is significant. Though actually creating what was in some respects new, and developing the old, American thinking was strikingly conservative. I refer, of course, not to the crowds that burned effigies and coerced stamp men, but to studied pronouncements of leaders.
CHAPTER VI
AFTER THE STAMP ACT
American satisfaction, induced by the repeal of the Stamp Act, did not long endure, for new troubles were in store. The politicians and placemen at Westminster had no proper appreciation of American sentiment; they had no sense of the enormous difficulty of managing an empire, especially an empire containing some two million colonists who were shrewd, determined, and peculiarly restless under restraint. The Rockingham ministry, in whose administration the stamp tax had been withdrawn, was succeeded in the summer of 1766 by a ministry a number of the members of which were followers of Pitt, who at the same time accepted a peerage and entered the Lords as Earl of Chatham; "the Great Commoner" was to be heard no more in the House where he had electrified his hearers and led the nation. Illness, moreover, soon came upon him, and such influence as he otherwise might have exerted was thus denied him; he could have done little to shape events. Britain was in no mood to listen to the sort of doctrine he was prepared to advocate; above all, the men who had their hands on the offices and on the treasury coffers, the men who were the leaders in politics and those who were the bright stars in the social firmament, were not inclined to emphasize the principle of freedom in the empire.
The new cabinet was a strange compound, the "mosaic" ministry Burke called it, "a very curious show, but utterly unsafe to touch and unsure to stand on." Charles Townshend, the Chancellor of the Exchequer, a nimble-witted and eminently clever man, who had a strange capacity for amusing the Commons by his audacity and trivial sallies, took matters in hand and proposed to collect a revenue in America. He could do it, he seems to have thought, without ruffling the easily-ruffled tempers of those strange people who made a nonsensical distinction between internal and external taxation; if they loved the distinction, he would make the most of it. The scheme which he carried through provided for the appointment of commissioners to superintend the collection of duties in the colonies; there were to be no more shuffling and unmannerly avoidance. Taxes were laid on glass, tea, painters' colors, and paper; the old navigation acts were to be enforced and duties were to find their way into the treasury. Furthermore, writs of assistance were elaborately provided for; and, as if intent on making the medicine as unpalatable as possible, the preamble of the Revenue Act (1767) announced the expediency of raising revenue to make a more certain "provision for defraying the charge of the administration of justice, and the support of civil government, in such provinces where it shall be found necessary; and towards further defraying the expences of defending, protecting, and securing the said dominions...." [l]
Though it is not our job to discern the cumulative irritations that finally provoked rebellion, or to discuss at length the expediency of ministerial conduct, it is scarcely possible to pass over these acts or their enforcement without comment. Here was an expensive and troublesome method of enforcing the acts of trade and navigation, a method proving to be exceedingly trying, though on the whole effective. The colonists did not like to pay taxes; they especially disliked the show of power, the ceaseless surveillance. They did not like writs of assistance, those general warrants which in the hands of unmannerly or corrupt officials appeared to menace the very sanctity of their households. They were accustomed to a wide freedom of legislation in their own assemblies; what was to become of self-government, if Parliament with a word could let loose upon them a whole flock of revenue-collecting locusts? But more distasteful than all else, more distasteful at least to the colonial politicians, was the intent or the threat of placing the courts of justice under the control of the Crown. Officers of civil government were to be paid or might be paid from the revenue thus collected. Were the royal governors to be relieved from their old fear, the fear that they might not receive their salaries, if they did not behave themselves?
Whatever argument may be made in behalf of the naked legal right of Parliament to extort money, it is plain that the cunning Charles Townshend and the clamoring official claquers at Westminster were running counter to the practices of a century and were disregardful of what Americans deemed their privileges. If the colonists had an unusual dislike of taxes, they were also proud and sensitive; and there were among them not only merchants and men of commerce, but astute players in the game of politics. If money could be raised only by such means as the agile-witted Townshend adopted, then revenue might be no blessing to anybody. The net results appear to have been, on the fiscal side, the collection of no inconsiderable revenue and the expenditure of the funds to enforce the acts;[2] on the purely human side, the exasperation of the British subjects in America; in other words, the whole thing was somewhere below the lowest limit of statesmanship. Finally, the revenue was to be used for "protecting, and securing the said dominions...." It was to be used or might be used to pay the soldiery; and though the colonists were still unwavering in their loyalty, there was no love lost between them and the British men-at-arms. True, the Britons had sent troops to fight the French and Indians; Canada had been conquered; but there must have been something humorous in the anxiety to defend colonists who for a hundred and fifty years had been gradually though surely pushing their way westward and had, almost entirely by their own exertions and brave persistence, built up an empire, the advantages of which were now supposed to accrue to the Parliament and merchants of the mother country.[3]
That the colonists were vexed is not a matter for wonder; the wonder is that they did not immediately take arms, at all events the arms of counter argument, against the whole system of trade restrictions; for the acts of navigation, though modified in some particulars for revenue purposes, were now enforced as never before, and one would be inclined to think that the system of regulating colonists "on the maxims of the counter" would have called forth maledictions on its head. But the colonists were used to the navigation acts, though in part the restrictions were honored more in the breach than the observance. And again we recall Burke's later words that "men do bear the inevitable constitution of their original nature with all its infirmities." Colonies were "confirmed in obedience ... even more by usage than by law."[4]
We must now turn to what is for us the important matter. How did the colonists take up opposition to the Townshend Acts? What principles of government did they announce? Their most important spokesman was John Dickinson of Pennsylvania. He had taken an important share in the Stamp Act Congress of 1765 and earned in the course of the coming years the title of the "Penman of the American Revolution." Like other colonial leaders, he was a lawyer by training, for lawyers were now coming into their own; he had studied law at the Middle Temple in London; like some leaders, and more than most, he could write with clearness and he knew what he was talking about — a happy, if unusual, combination of abilities. In 1767 and 1768, his "Farmer's Letters" were printed in a Philadelphia newspaper.[5] The attention they received was remarkable; they were reproduced in the American press and were soon published in pamphlet form, not only in America but abroad.[6] None but the illiterate or the remote frontiersman could have been ignorant of the case presented by the "Farmer", and the wide acclaim justifies us in believing that he stated the American cause as the people wished it to be stated.[7]
Of first importance is the fact that Dickinson, while writing with real eloquence and with literary power, did not indulge in declamation or wild denunciation. There was no intent of arousing the passions of the multitude. He was himself, as Tyler has said, "a man of powerful and cultivated intellect, with all his interests and all his tastes on the side of order, conservatism, and peace, if only with these could be had political safety and honor." [8] While he defended the principles of English liberty, he spoke for an empire of justice.
Dickinson had a difficult task, for he had really to present in broad outline a scheme of empire. He spoke as an Englishman claiming the birthright of an Englishman, as the possessor of privileges won for him and for others by Englishmen who had dared to struggle for their rights; but he spoke also as a citizen of a wide empire in which the rights of Englishmen must be maintained. His argument was not wholly new, but it presented with elaboration and with clarity important views of the constitutional structure of the empire.[9] He envisaged a composite or decentralized system regardful of individual liberty and colonial privilege. He seemed at times to be more insistent upon the unity of the empire than upon the rights of the colonies; or, if that be an over-statement, this is beyond cavil — he spoke not as a disgruntled colonist, cherishing rebellion, but as a citizen of the British empire who gloried in its symmetry and strength. The general applause which his words received is striking proof that people did not wish independence but freedom; and those capable of following his argument must have seen that his picture of the empire embraced both freedom and authority.[10]
The most signal contribution made by Dickinson, if we except his strong portrayal of imperial unity consonant with local rights, was his sharp definition of taxation and the distinction between taxation and the regulation of commerce. As we have already seen, others had made the distinction; but even Dulany had not left a clear-cut impression. Dickinson defined taxation as an imposition for raising revenue. The difference between internal and external taxation, he scorned and rejected. He quite properly denied that the Americans had ever committed themselves to such a classification; "all taxes are founded on the same principles; and have the same tendency."[11]
Why is Dickinson's position important? It is important because he believed that in the British empire powers had been distributed; because he made a sharp distinction between one "power" and another; and because our system of government rests on the distribution of "powers" among governments. Every schoolboy knows that we now, in the United States, distinguish the "power" to tax from the "power" to regulate commerce. Anyone knowing the simplest rudiments of American constitutional law as America produced it knows that "powers" are singled out and deposited in one government or another. Everybody knows that this essential characteristic of our system has caused legal discussion in Congress and courts of law and that perplexing problems have arisen in actual practice. Without distribution of powers, American federalism would be non-existent. The important thing now is to see Dickinson portraying an empire in which the central government could exercise wide authority for the whole, while the colonies maintained their freedom; for the Parliament could not tax.
The English pamphleteers could have a merry time with the "Farmer", but their merriment and their serious attempts at refutation were a tribute to the strength of his appeal. If forsooth, said the pamphleteers, you can lay impositions for trade regulations and not for taxation, then, to be sure, a light tax would be unconstitutional while an imposition, so heavy as to be prohibitory and intended to prohibit, would be constitutional; could anyone in his senses defend such a legal system? As a matter of cold fact, such refinements are now simple and crude in comparison with those constantly made by our own courts in laying down constitutional principles. Any person, even the brilliant scoffers at the "Farmer's" scheme of empire, insisting that Parliament must have all power or none,[12] ought to have known that even in the application of private law, distinctions are often to be drawn which are so tenuous as to be almost undiscernible to the untrained mind. So if you are to have a legal structure of empire, you may expect to find finely-drawn distinctions.
The whole controversy, we may remind ourselves, was over the problem of whether Parliament was absolute or not. Was it absolute in its authority over every British subject? Was it possessed of full and unqualified competence in the empire — in other words, was the empire a centralized empire or was it on the contrary a legally diversified empire? Dickinson proved, or thought he did, that Parliament had regulated trade and had not taxed. There can be no question of the fact that in a very large degree the empire had been a commercial empire, not a lawmaking empire for all its subjects. And if we did not know the perversity of human nature and the ease with which men believe what they want to believe, we should be puzzled by the men who so emphatically denied the possibility of there being legal recognition of what had in reality been a working practice for a hundred years. If Parliament had in the past regulated trade and had not taxed, why was it impossible to conceive the make-up of an empire in which Parliament could legally regulate trade and could not legally tax? [13] However this may be, the American colonists of 1768, eagerly devouring the "Farmer's Letters" and toasting the author in public houses up and down the land,[14] were, in appearance at least, accepting the theory of an empire guided by a Parliament with authority to guard the whole and to regulate intercolonial and foreign trade, and with the obligation not to tax the colonies or reduce their legislatures to impotence.
What was Massachusetts to say to the Townshend Acts and the new customs commissioners? Where Sam Adams lived, there something would be said. In the early days of 1768 the Massachusetts representatives were busily at work. Various letters were drawn up and sent to England, all of them announcing the same principles, all of them couched in polite, but unmistakable language.[15] The appeal was chiefly to the British constitution in which were placed and guarded the fundamental rights of men. Over and over again appeared in one form or another the declarations that "The supreme legislative, in every free state, derives its power from the constitution; by the fundamental rules of which, it is bounded and circumscribed." [16] "It is an essential, natural right, that a man shall quietly enjoy, and have the sole disposal of his own property. This right is adopted into the constitution." "Property is admitted to have an existence, even in the savage state of nature." "In all free states, the constitution is fixed; it is from thence, that the legislative derives its authority; therefore it cannot change the constitution without destroying its own foundation." "The security of right and property, is the great end of government." Such sentiments were often repeated, but there was no denial of parliamentary control; even in the petition to the king there was an acknowledgment of "the supreme Legislative power of the whole Empire" and its "superintending authority ... in all Cases, that can consist with the fundamental Rights of Nature & the Constitution...."
Among these documents the most important was a circular letter sent by the Massachusetts house to the speakers of other houses of representatives. It gave utterance to the principles just quoted, declaring that the constitution is fixed, that the legislative power cannot overleap the bounds of it, and that it "ascertains & limits both Sovereignty & allegiance...." This letter was of course the common property of the colonists. It was made especially conspicuous by the action of Hillsborough, the Colonial Secretary, who ordered the house to rescind; this the house promptly refused to do.
We have, then, in the "Farmer's Letters" and in these documents from the Massachusetts house definite evidence of American opinion in 1768. No doubt there were other opinions even more advanced, for some men were more rebellious in spirit; and doubtless, too, some persons were ready to assert their total freedom from parliamentary control; but almost to the days of the outbreak of war, these more radical positions cannot be considered the opinions of America. How did the principles of the "Farmer" differ from those of Sam Adams and his followers, and what did the two writers have in common? Neither one denied the authority of Parliament as the superintending power of the empire; neither denied the authority of Parliament to regulate trade. Dickinson, however, spoke more plainly than Adams of the empire; that empire was built on the foundations of English liberty; in this empire there was a distinction between powers. Adams, in denying the right to tax, relied upon the argument of natural rights, insisted that the constitution was fixed, and emphasized the right to property as fundamental. The British statesmen might announce the supreme and unlimited authority of Parliament; Adams was prepared to deny the existence of absolute authority in any free state, above all in the constitution of Britain. Briefly, one brought out clearly the possibility of distinguishing "powers" of government and presented to view a diversified empire; the other emphasized the limits on all free governments and stressed the fundamental, unchangeable bounds of the constitution; and this is only to say that the two, mutually supporting, brought forward the two chief foundations of the American constitutional system — a diversified state or empire and a fixed constitution superior to legislative authority. The constitution, as Adams and others viewed it, was fixed and, at least in certain respects, was beyond the touch of legislative authority because within it were embodied fundamental natural rights which were eternal and unalterable. The principles of Adams and of Dickinson coincided in this: both believed in the right and the necessity of living under governments constitutionally limited.
Though Dickinson dwelt chiefly on the difference between taxation and other powers, plainly the superintending power of the Parliament included more than the regulation of commerce. A full examination of the discussion would reveal the colonial acceptance, in theory at least, of the distribution of powers in the empire as the empire had been. I say "in theory at least", for lasting satisfaction with acts of trade, or humble acquiescence in the activities of customs commissioners and of a swarm of spoilsmen let loose from the hives of Westminster, would have been impossible. The Revolution might have come before many years because of diverging interests, ineptitude of British administration, and the willfulness of the colonists; in fact, however, the Americans set forth the old empire as the one with which they were content, and that empire was in practice an empire in which the colonial governments had their share of authority.
So much has been said of the justice or injustice of taxation that we do not always see that the very existence of the colonial governments was at stake. True, the eager legalists in Britain had no intention of banishing the colonial assemblies altogether; but the colonists were afraid, and justly so, for the empire in the British view was a unitary empire and a centralized empire; all power was gathered at the center and the subordinate governments existed only by sufferance. While the colonials resisted the injustice and illegality of taxation, they must have been stupid indeed not to see that the choice lay between a diversified or decentralized empire on the one hand and a unitary, centralized empire on the other.
The discussion was legal discussion; it concerned the structure of the empire and the authority of government. It will not do to dwell upon the number of shillings collected as revenue, or even upon the vexing intrusions of the royal officials, and lose sight of the peril to the assemblies and to the whole political structure of the colonies. If the colonists are not to be charged with political incapacity and a remarkable obtuseness, it is folly to declare that the Revolution was only an economic movement in its causes, operations, and results. No people, possessed of self-respect and a glimmering of political sagacity, could listen unmoved while pamphleteers proclaimed a doctrine, which, if carried out in detail and wrought out to its theoretical end, would deprive them of their own institutions of government. Without the citation of countless references, we can be confident that the American colonists, more strongly than any other people on earth, were imbued with an instinct for practical politics; they, too, were legal-minded, and they, too, even more than the obedient servants of King George, were sensitive and proud, even when not rebellious.[17]
Almost, if not quite, from the beginning of the dispute — in the Stamp Act dispute as well as later — discussion was within the realm of law. Certainly not entirely for any immediate, practical, financial gain, but from a desire to establish a system and a settled legal authority, royal officers in the colonies had spoken of remodeling colonial governments. Francis Bernard, writing in the summer of 1764, said, "It seems to me that the affairs of America are becoming very critical; that common expedients would soon begin to fail; and that a general reformation of the American Governments would become not only a desirable but a necessary measure." [18] Bernard was against mere opportunism. "The patchwork government of America will last no longer: the necessity of a parliamentary establishment of the governments of America upon fixed constitutional principles, is brought on with a precipitation which could not have been foreseen but a year ago...." This he wrote in 1765.[19] Soon after this, Hutchinson wished "to see known established principles, one general rule of subjection...." [20] "... while the rules of law are vague and uncertain, especially in such fundamental points, our condition is deplorable...."[21]
The brusque British pamphleteers laid down their final conclusion as the starting-point for their argument, and what they desired was an acknowledgment by America of parliamentary power; they desired the acceptance of a constitutional theory. We need not deny the British landowner's anxiety for a reduced tax upon his acres; but he also desired to see an acknowledgment of the authority of the Parliament in which he or men like him sat and legislated. The Americans in their turn, though many would be content with negligence, were now insisting on the necessity of maintaining their privileges and the legal basis on which they rested. They were not quite satisfied, now that the issue was raised, to accept the principles of absolute power with the assurance that a kindly king and a well-intentioned Parliament would not abuse the power: "In all free states, the constitution is fixed...." Dickinson eloquently phrased the central idea: "For who are a free people? Not those, over whom government is reasonably and equitably exercised, but those, who live under a government so constitutionally checked and controuled, that proper provision is made against its being otherwise exercised." [22] Freedom, then, there was none, if there was no constitutional restraint upon authority. This, again, is American doctrine.
Both sides were technical and legalistic. The parliamentarians were the victims of certain dogmas curiously similar to the doctrine of indivisible sovereignty, and they cherished the august power of Parliament. The Americans were legal-minded and argumentative; if Parliament asserted its supremacy, announcing that it was, so to speak, above the law, the colonists were eager to assert the supremacy of the constitution, their indefeasible, legal rights in their own institutions. They asserted that the law was above Parliament.
Soon after 1768, in light of the objection raised in America, there appears to have been no real hope in Britain of raising revenue in America. It is true that the acts regulating trade were more vigorously enforced and that more revenue was collected than in earlier days. To some considerable extent from 1766, but especially after 1768, the question was not so much whether the colonists would pay taxes as whether they would acknowledge their legal obligation to pay. To avoid misunderstanding, this should be said: the measures taken to enforce the laws of Parliament were annoying and irksome, provocative of rebellion; the colonists of Massachusetts resented troops sent to overawe them, and disliked ships of war, informers, and all the panoply of power. They resented the show of British authority and they, or many of them, had no taste for taxes or for the strict enforcement of navigation laws. That they would have flown to arms against a naked declaration of British supremacy, unaccompanied by actual acts and threats against their government, we have no reason to suppose.
[1] Italics of the original omitted.
[2] In about seven years the commissioners collected over £200,000 sterling; a large portion was paid out in salaries. See Edward Channing, A History of the United States, III, p. 91. "Actually there was no return whatever because the cost of the soldiers and sailors and vessels required to enforce these revenue acts far exceeded the gross returns." Ibid., p. 91, note 1.
[3] I have not taken up in these pages the justice or injustice of taxing the colonies; but it may be said, as the colonists distinctly said, that they did pay taxes, though not directly into the British treasury; they supported their own governments; the colonists paid the governors' salaries, though only in two colonies did they choose them. They had taken part in the wars of the empire and some of the colonies were then burdened with heavy taxes. Their trade was in some respects made secondary to the interests of West Indian planters and to the pockets of British merchants.
[4] Edmund Burke, "Speech on American Taxation" (1774), Works (revised ed.), II, p. 33.
[5] The full title was "Letters From a Farmer in Pennsylvania, to the Inhabitants of the British Colonies."
[6] Tyler, The Literary History of the American Revolution (one volume ed.), pp. 236-237, says the "Letters" were reproduced in all but four of the twenty-five newspapers then published in America. Editions appeared in England and Ireland, and there was also a French edition. Dickinson was applauded by Voltaire, and on the continent of Europe his essays "became ... the fashion." See also, John Dickinson, Writings (P. L. Ford, ed.; Memoirs of the Hist. Society of Pa., XIV), I, p. 279 ff.
[7] For a statement of the popularity of Dickinson's "Letters", see C. J. Stillé, The Life and Times of John Dickinson (Memoirs of the Hist. Society of Pa., XIII), pp. 90-92. Thomas Hutchinson stated the position the colonies had come to occupy (1767): "The authority of Parliament to pass any acts whatever affecting the interior polity of the Colonies is, he says, challenged, as destroying the effect of the charters, to which great sacredness is attached. People have teen induced to settle in the plantations on the strength of the charters, relying on the continuance of the privileges. King, Lords, and Commons form the legislature of Great Britain: the Governor, who is the King's representative, the Council, and the Assembly form the legislature of the Colony. But as Colonies cannot make laws to extend further than their respective limits, Parliament must step in in all cases to which the legislative power of the Colonies does not extend. Parliament ought to go no farther than this: all beyond is infringing upon the domain of the colonial legislatures. From Virginia to Massachusetts this has now come to be the accepted doctrine." J. K. Hosmer, The Life of Thomas Hutchinson, p. 122. This statement Hosmer bases upon Hutchinson's own words in his History of Massachusetts Bay, III, p. 172.
[8] Tyler, The Literary History of the American Revolution (one volume ed.), p. 235.
[9] As we have seen, Hopkins and Dulany had a view of empire, and the view is not to be denied to others.
[10] "The parliament unquestionably possesses a legal authority to regulate the trade of Great-Britain, and all her colonies. Such an authority is essential to the relation between a mother country and her colonies; and necessary for the common good of all. He, who considers these provinces as states distinct from the British Empire, has very slender notions of justice, or of their interests. We are but parts of a whole; and therefore there must exist a power somewhere to preside, and preserve the connection in due order. This power is lodged in the parliament; and we are as much dependent on Great-Britain, as a perfectly free people can be on another." John Dickinson, Writings (P. L. Ford, ed.; Memoirs of the Hist. Society of Pa., XIV), I, p. 312. Italics of the original omitted.
[11] Ibid., I, p. 332. Italics of the original omitted.
[12] "There is no alternative: either the Colonies are a part of the community of Great Britain, or they are in a state of nature with respect to her, and in no case can be subject to the jurisdiction of that legislative power which represents her community, which is the British parliament." See William Knox, The Controversy Between Great Britain and Her Colonies Reviewed (London, 1769), pp. 50-51. We find once again, too, the theories of centralization and the absolute authority of Parliament. Nothing could more fully discredit legalism, so shortsighted that it could not see any possibility of change. Knox was denying that Parliament or common reason could recognize the illegality of doing what it had not done and what the passing years showed it could not do.
[13] To-day those persons finding Dickinson's argument full of inconsistencies and sweeping it aside as one of those heated blunderings dear to the colonial heart seem to forget the rudiments of the American constitutional system. Dickinson was speaking in the terms of American constitutionalism as it came to be. His argument, while distinguishing between taxation and regulation of commerce, rested partly on the purpose of the legislation. He saw the difficulty of making the purpose absolutely effective. He relied on the good sense of the British people, if once the distinction was recognized. He might, theoretically, have gone further, and as James Otis had called upon the court to check legislation in violation of natural equity, so Dickinson might have declared that courts would recognize the fact of the purpose or effect and would declare void an act, which, though on its face a regulation, was intended to collect revenue.
For an attempt of Congress, under cover of a granted power, to accomplish ends not within the scope of its authority, see Hammer v. Dagenhart, 247 U. S. 251 (1918). In this case the Court declared an act which purported to regulate interstate commerce was an encroachment upon the powers of the states: "The purposes intended must be attained consistently with constitutional limitations...." 276. The necessary effect of the act, the Court declared, was "by means of a prohibition against the movement in interstate commerce of ordinary commercial commodities, to regulate the hours of labor of children in factories and mines within the States...." Ibid. See also Bailey v. Drexel Furniture Company, 259 U. S. 20 (1922), for a somewhat similar decision. In McCulloch v. Maryland, 4 Wheaton 316, 423 (1819), Chief Justice Marshall said: "Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land." Italics mine.
[14] A town-meeting in Boston in March, 1768 passed a vote of thanks to "the ingenious author...." See Stillé, op. cit., p. 91.
[15] Most of them were written to the friends of America in Britain, and are attributed to the pen of Sam Adams. See Samuel Adams, Writings (H. A. Cushing, ed.), I, pp. 134-199. Concerning authorship, see p. 152, note 2. One letter was a petition to the King; one letter was addressed to the Lords Commissioners of the Treasury.
[16] Ibid., I, p. 134. See also, Ibid., I, p. 135 ff.
[17] Some of the words in the sentences above sound like mere patriotic exclamations of an older day than this. There is no reason for denying the influence of economic causes in the Revolution; but men have and had their pride as well as thrift, and it is folly not to see the immense significance of a struggle for constitutional liberty.
[18] Francis Bernard, Select Letters on the Trade and Government of America; and the Principles of Law and Polity, Applied to the American Colonies (London, 1774), p. 24. Capitalization and italics of the original omitted.
[19] Letter of November 23, 1765, in Ibid., pp. 33-34. Italics of the original omitted.
[20] Letter of April 21, 1766, quoted in Quincy (Mass.) Reports (1761-1772), pp. 443-444.
[21] Letter of December 31, 1766, quoted in Hosmer, Hutchinson, p. 121.
[22] John Dickinson, Writings (P. L. Ford, ed.; Memoirs of the Hist. Society of Pa., XIV), I, p. 356. Capitalization and italics of the original omitted.
CHAPTER VII
AN OBDURATE PARLIAMENT AND OBSTINATE COLONIES, 1769-1773. THE GREAT CONTROVERSY BETWEEN GOVERNOR AND LEGISLATURE IN MASSACHUSETTS
We cannot watch the gathering clouds of trouble in the empire without seeing the essence of the difficulty. The problem of managing an empire in which were colonists possessed of political skill and the spirit of freedom was too big for the brain and temper of British politicians. It is easy enough to heap blame on wrong-headed ministers and an obstinate king, but the reality to be grasped is that the social and political order of Britain still tolerated a government of that particular mental density, unsuited to the job which an empire of freedom presented. "Magnanimity in politics," said Burke, "is not seldom the truest wisdom; and a great empire and little minds go ill together." The classes ruling in society and the state had a firm grasp on the government, and to those classes the essential principles of America were obnoxious. But withal, two things need to be remembered: as we have already pointed out, the problem was inherently difficult; and Britain, if she had nothing else to be proud of, could well indulge in self-glorification, had she so minded, at the sight of colonists, the fruit of her own loins, who were so capable in politics and in reality so free — and that freedom was the product of her own liberality. Decades had to pass before Britain was in condition to yield in her own insular structure to the ever-growing forces of popular government. The tone of public life, the very principles, and practices of the kingdom, though even then there were symptoms of disquietude, lay beneath parliamentary and ministerial arrogance. We must be content here with a few facts, briefly related, which will help in bringing to light the nature of the American position.
One source of trouble was the British army. Justify as you may the need or the advisability of its presence in America, the fact remains that a regiment or two of soldiers in an American town were not considered agreeable companions. The Quartering Act, which was passed about the time of the Stamp Act, aroused special opposition in New York where the legislature was calmly ordered to provide housing and to make provision for the support of the troops. The situation, when General Gage settled down in the province with his soldiery, was next to intolerable. The legislature refused to comply fully with the demands made upon it (1766), and saw fit to debate the question; but that would never do, and the next year, along with Townshend's revenue acts, came an act of Parliament suspending the functions of the legislature until it carried out the terms of the Quartering Act. Even before the news of the measure reached the colony, the legislature yielded, "saving its face by not itemizing the 'salt, vinegar, beer or cyder' which were in dispute." [1] But cider and beer were not the whole of the matter; the measure of repression had done incalculable harm. It was the natural result of an attitude toward a social problem; the way to secure obedience is not by conciliation, not by consideration and affection, but by punishment and above all by steady adherence to a policy, lest yielding diminish dignity. And this fear and belief that America was taking advantage of indulgence took possession of many Britons who were not natively imbued with the qualities of recalcitrant Toryism. But the Americans, in their turn, were led to inquire whether their legislatures were, within their customary fields, independent bodies or only agencies of a government across the sea which could order them to make appropriations as it saw fit.
Then Hillsborough, indignant at the Massachusetts Circular Letter, sent out to the other twelve colonies a letter of his own.[2] He would have none of these efforts to create "unwarrantable combinations" and "unjustifiable opposition to the constitutional authority of Parliament"; and the Massachusetts legislature was ordered to rescind its "rash and hasty proceeding." [3] When the House of Representatives, by a vote of 92 to 17, refused to rescind, the legislature was dissolved; and the next General Court when chosen contained not 17 but 10 supporters of the prerogative.[4] Other legislatures hastened in loyal addresses to announce their adherence to the principles of Massachusetts. Hillsborough's conduct only strengthened American opposition, brought the doctrines of the Circular Letter into clearer light, and helped to unify opinion. Thus, thanks to these unseemly quarrels with the colonial legislatures, the detached question of the right of Parliament to levy taxes had risen, or degenerated, into the question whether legislatures could even pass resolutions expressing in calm and uninflammatory fashion their opinion of the constitution of the empire.[5] "If the votes of the House", said the Massachusetts assembly, "are to be controlled by the direction of a minister, we have left us but a vain semblance of liberty." [6]
Still, despite all this unnecessary and dangerous disputation, it is conceivable that Britain might have succeeded; for the revenue acts were being enforced, though not without difficulty and occasional lawlessness. But Parliament was impatient; it is the nature of fatuous high-handedness to be impatient. In an address to the throne in 1768 appeared an ominous proposal. Passed by the Lords, the address went to the Commons (1769) where there was a debate which was declared to be "very fine indeed", and the address was finally passed. It suggested the advisability of procuring full information "touching all treasons, or misprision of treason," and the appointment of a special commission for "enquiring of, hearing, and determining, the said offences within this realm, pursuant to ... the statute of the 35th year of the reign of king Henry the eighth...." A most astounding proposal — to try the "traitors" of Massachusetts in Britain! The threat aroused opposition in America. In a series of resolutions, the House of Burgesses in Virginia asserted once again that the sole right to impose taxes on Virginians was vested in that house, and that trials for treason ought to be held within the colony; sending suspected persons across the sea for trial would rob them of the "inestimable privilege of being tried by a jury from the vicinage...." [7]
The next step taken by Parliament was the repeal of duties levied by the Townshend Acts, except a duty on tea (1770). Lord North, who had just come to the head of the ministry, where he remained for years the obedient servant of the king, advocated repeal. The acts were "preposterous"; [8] he would gladly take steps to soothe the angry Americans, but lenience did not seem to encourage a spirit of obedience; it led to further insult of "our authority". The tax on tea must be retained. "The properest time to exert our right of taxation, is, when the right is refused." But there were British soldiers in America. Boston did not like them; their presence awakened unpleasant reflections. On the very day that North advocated the repeal of the Townshend duties, occurred the Boston "massacre"; and the next day came the stern demand of the citizens that the soldiers be removed to the castle in the harbor. The spirit of rebellion was waxing strong in the Puritan town.
In 1769, as the legislature refused to carry on business at Boston in the presence of troops, it was adjourned to meet at Cambridge. Governor Bernard soon departed for England, and Lieutenant-Governor Hutchinson, who shortly thereafter was given the full title, was left to meet the waves of discontent. When he summoned the legislature to Cambridge, the storm broke — not the storm of riot, but the more trying deluge of argument.[9] Samuel Adams was on hand to inquire by what authority the Governor acted. Both the council and the house objected, though on somewhat differing grounds, and contested at length the Governor's position; for he simply declared that as an officer of the Crown he could do no other; he must obey instructions. Did instructions, then, coming from a ministry three thousand miles away give full justification for the Governor's doing everything that a minister might desire? If so, what was the value of a charter and wherein lay the authority of the legislature?
The discussion [10] lasted for months and the months lengthened into years, ending only in 1772, when the legislature was allowed to meet again at Boston. And so, because of a needless order from an incompetent ministry, Massachusetts was taught to consider over and over again the nature of her institutions and her property in her principles of self-government. Hutchinson declared that the people who had previously disowned the power of Parliament now allowed little or no share of government to the king. But this indictment appears to have been false or at least extravagant in both counts; certainly, whatever may have been openly said by the irresponsible or covertly by the more radical leaders, it can hardly be declared that the colonists had come to these ultimate positions. They had not definitely reached the point of announcing in any formal and tangible way that Parliament had no power. Hutchinson himself was to bring them nearly, if not quite, to that declaration. And the time had not yet come when they were prepared to say that the king had degenerated into a tyrant. They were, however, easily to be persuaded; but, while it may to us appear in theory to be a short step from denying the binding effect of instructions to the denial of royal power, the distance in reality was considerable. If the colonists were not prepared to renounce allegiance, petty interference and nagging were likely to arouse the spirit of real rebellion almost as quickly as would acts of cruelty and tyranny.[11]
The year 1772 is for some reasons deserving of special notice; it cannot be passed over without comment. This is true especially because of the activity of Sam Adams, who, whether he was purposely working for complete independence or not, was certainly intent upon keeping alive the spirit of resistance to measures endangering his conception of American liberty.[12] Many times he used the arguments of which he was fond; he referred to Montesquieu, and Vattel, and Locke. Of chief interest was his work for the establishment of committees of correspondence in the towns of Massachusetts, a means of arousing a common action and sentiment and a common fear of peril. The document adopted by the town of Boston (November 20, 1772), seemingly the work of Adams, giving "the Rights of the Colonists and of this Province in particular, as Men, as Christians and as Subjects", is an able one, sprinkled with plentiful quotations from the philosophers and asserting the right to freedom to be inalienable. All this is of consequence to us because it brings out so clearly, once more, those fundamental notions which were widely held as the basis of free government — individual right to freedom and property and the necessity of limited rather than unlimited government.
In 1773, thanks to threats that persons accused of offenses committed in America should be sent beyond the sea for trial, another important step was taken, this time by Virginia. That colony recommended the formation of intercolonial committees of correspondence, and thus on a continental scale prepared the system which made opposition effective. The union of the colonies which later became a union of states rested thus at first on community of ideas fostered, though not begotten, by committees — extra-legal, if not illegal, bodies — which could present forcibly the spirit of discontent. Important in our history as opposition is, of importance also is the development of the mechanism and the practices which secured a degree of political unity or coöperation.[13]
In this same year (1773) Governor Hutchinson entered upon a perilous undertaking. Clothed with wisdom of the law and of history, he dared to argue with the Massachusetts legislature, to measure swords in reality with Sam Adams, who in some measure was coached by John Adams, an able and learned lawyer. The Governor dared to bring forcibly to the attention of an eager populace the essential nature of the controversy between Great Britain and the colonies. He was vigorous, talented, and determined, but we still wonder at his folly. A number of impressive state papers[14] lie before us to-day, the weapons and the products of the dispute. The Governor's speeches are perhaps the best single presentation of Britain's case, the ablest arguments for parliamentary authority. Hutchinson believed he could conquer by argument. He believed he could convince by reasoning; but where did his reasoning lead? To the conclusion that the colonists had no rights, no institutions, no security, if Parliament wished to take them away; all were held by the insecure tenure of parliamentary grace. Once more the theory of parliamentary omnipotence must be acknowledged. No self-respecting people, accustomed to manage their own affairs, could accept such conclusions.
The council's second answer to the Governor is a memorable document; it is cogent and compelling. What possibilities had Hutchinson's cleverness conjured up! The councilors insisted on freedom from parliamentary taxation, but they were not to be drawn by the Governor's forensics to a denial of all authority. "What is usually denominated the supreme authority of a nation, must nevertheless be limited in its acts to the objects that are properly or constitutionally cognizable by it." Thus, they seem to say, in any constitutionally-organized nation there are legal duties and legal limitations. There is, in the nature and practices of government, no impossibility of recognizing those duties and those obligations. This is not quite the old argument from natural rights and the existence of a constitution that must be fixed; the council saw the possibility of distributed authority in an organized empire. The council plainly grasped the principle which in its reasonings had so far been only reached after, not seized. It referred to Hutchinson's statement that, "although ... there must be one supreme authority ... , this constitution will admit of subordinate powers, with legislative and executive authority, greater or less, according to local and other circumstances." "This is very true," the council replied, "and implies that the legislative and executive authority granted to the subordinate powers, should extend and operate, as far as the grant allows; and that, if it does not exceed the limits prescribed to it, and no forfeiture be incurred, the supreme power has no rightful authority to take away or diminish it, or to substitute its own acts, in cases wherein the acts of the subordinate power can, according to its constitution, operate. To suppose the contrary, is to suppose, that it has no property in the privileges granted to it; for, if it holds them at the will of the supreme power, ... it can have no property in them.... But, as in fact, the two powers are not incompatible, and do subsist together, each restraining its acts to their constitutional objects, can we not from hence, see how the supreme power may supervise, regulate, and make general laws for the kingdom, without interfering with the privileges of the subordinate powers within it? And also, see how it may extend its care and protection to its colonies, without injuring their constitutional rights? What has been here said, concerning supreme authority, has no reference to the manner in which it has been, in fact, exercised; but is wholly confined to its general nature."
Here we see a fairly firm grasp of the essentials of federalism. Plainly the central principle — the distribution of powers among governments — was taking definite shape in some colonial minds. Though the Parliament was spoken of as "supreme", we are not justified in supposing that the council meant by that word complete and all-embracing authority. Such authority was the very object attacked. The demand was for the recognition of "property" possessed by the colony — legal security within its legal sphere of government. And if to the reader this argument seems neither conclusive nor altogether clear, the fact remains that distribution of authority in the empire and the recognition of the rights of the colonies as constituent portions of the empire were asserted. If Hutchinson's reasoning and his conclusions were legally sound, he nevertheless thrust them unwisely into the faces of a politically-minded people who had practiced freedom; to dare such a thrust was a negation of cautious statesmanship. If the colonists, convinced by his reasonings, were forced to choose between unlimited submission to Parliament and complete freedom from control, which horn of the dilemma would they choose?
In the course of his argument, Hutchinson laid down a principle which he thought was beyond the reach of all denial: "I know of no line that can be drawn between the supreme authority of Parliament and the total independence of the colonies: it is impossible there should be two independent Legislatures in one and the same state; for, although there may be but one head, the King, yet the two Legislative bodies will make two governments as distinct as the kingdoms of England and Scotland before the union." Thus he handed out a principle of political science or philosophy; but men are not always willing to be governed by the principles of philosophy. Hutchinson, be it noticed, could not conceive of a government that possessed only limited authority; he could not conceive of two independent legislatures, not to say two independent governments, in one and the same state; one must be so distinctly subordinate to the other as to have no legally indefeasible property in its own authority.
When Hutchinson boldly threw down the gauntlet, the house eagerly took it up and, after discussing the general question of the powers of Parliament over the province, reached the critical point to which the Governor's speech had forced it. "Your Excellency tells us, 'you know of no line that can be drawn between the supreme authority of Parliament and the total independence of the colonies.' If there be no such line, the consequence is, either that the colonies are the vassals of the Parliament, or that they are totally independent. As it cannot be supposed to have been the intention of the parties in the compact, that we should be reduced to a state of vassalage, the conclusion is, that it was their sense, that we were thus independent. 'It is impossible,' your Excellency says, 'that there should be two independent Legislatures in one and the same state.' May we not then further conclude, that it was their sense, that the colonies were, by their charters, made distinct states from the mother country? ... there is more reason to dread the consequences of absolute uncontroled power, whether of a nation or a monarch, than those of a total independence.
... If your Excellency expects to have the line of distinction between the supreme authority of Parliament, and the total independence of the colonies drawn by us, we would say it would be an arduous undertaking, and of very great importance to all the other colonies; and therefore, could we conceive of such a line, we should be unwilling to propose it, without their consent in Congress."
The house appears to admit the possibility of a line of distinction between complete parliamentary power and the total absence of it, but the net result was a denial of any authority at all. Cleverly also the hint was given that the colonies acting together might be able to work out a scheme which would distinguish between powers and save some remnant of parliamentary jurisdiction; and what could be more ominous in the eyes of Westminster than a continental congress? The assertions made by the men of England in their discussions over the Stamp Act repeal, the declarations continually made that the denial of one power necessarily involved the denial of all, had now brought their legitimate and inevitable fruit. The direct and inescapable crisis was induced under provocation from a cocksure Governor who believed that he could do more than English pamphleteers, parliamentary orators, and loyalist newspaper writers had been able to accomplish; he thought that by sheer weight of metal he could sink the tiny shallop of provincial assumption and could overwhelm the great incendiary, its commander. Logic may have been on his side and references to precedent may not have been unavailing; but more than logic and theory were needed. And on their side, the cohorts of Sam Adams had the historical fact, even though here and there is was weakened by precedent, that the Massachusetts legislature did exist, had existed, had legislated, and had acted as a competent legislative body.
One or two other facts require brief statement. Hutchinson endeavored with some success to show that the Massachusetts legislature, in times gone by, had acquiesced in parliamentary legislation. But this, if it be in all respects true, could not, the house replied, destroy colonial rights, for the "fundamentals of the constitution" were stipulated in the charter, and they could not be altered by the legislature. Reference was made to the old favorite doctrine and to the favorite sentiment which was gathered from Vattel: for the authority of the legislature — the house maintained — " 'does not extend so far as the fundamentals of the constitution. They ought to consider the fundamental laws as sacred, if the nation has not in very express terms, given them the power to change them. For the constitution of the state ought to be fixed; and since that was first established by the nation, which afterwards trusted certain persons with the Legislative power, the fundamental laws are excepted from their commission.' " Thus once again appeared the doctrine of fundamental law and an unchanging constitution.[15]
[1] C. H. Van Tyne, The Causes of the War of Independence, p. 278.
[2] George Bancroft, History of the United States (last revision), III, p. 284. For Hillsborough's letter as addressed to Rhode Island, see John Almon, Prior Documents, p. 220.
[3] Hillsborough to Governor Bernard, April 22, 1768, in Ibid., pp. 203-204.
[4] Edward Channing, A History of the United States, III, p. 99.
[5] Consider, for example, the sentiments of South Carolina. Was an assembly a mere gathering of schoolboys, if such sentiments were to be held as impertinent or unlawful? See D. D. Wallace, The Life of Henry Laurens, p. 155.
[6] Massachusetts State Papers, p. 150.
[7] See the Constitution of the United States, amendment VI.
[8] "Preposterous", it seems, chiefly because they were injurious to British commerce.
[9] The methods and the words of the Massachusetts leaders may appear to the reader, as he reads over the documents, exceedingly trying, and he certainly cannot wonder at the irritation or dismay of the Crown's representatives. But irritation and dismay on the one side and continuing, skillful, persistent opposition to authority on the other are for us as students of constitutional history not the center of the matter. Take as just one example the answer of the house to a statement by Bernard when removing the General Court to Cambridge. He lamented the "waste of time and treasure to no purpose." The house replied, "No time can better be employed, than in the preservation of the rights derived from the British constitution, and insisting upon points, which, though your Excellency may consider them as non essential, we esteem its best bulwarks. No treasure can be better expended, than in securing that true old English liberty, which gives a relish to every other enjoyment." We should notice they were defending English liberty, defending the principles of the English constitution. Massachusetts State Papers, pp. 172-173.
[10] The same kind of discussion had arisen in 1728 when Governor Burnet called the legislature to meet at Salem. He gave as one reason the fact that the inhabitants of Boston had in town-meeting declared against "Setling a Salary". Such "forwardness" set an example to the towns in the country and was "better adapted to the Republick of Holland than to a British Constitution." The house contested the right of the Governor to remove the legislature, but, though protesting, did its work. Journals of the House of Representatives of Massachusetts 1727-1729, p. 362 ff. Italics of the original omitted. The discussions furnish an interesting illustration of the irritation caused by the superior tone of the Governor, and an illustration also of the determination of the colonists to maintain their rights and to guard their purses. The principles of the Revolution did not suddenly flock upon the scene in bright and unknown colors in 1765.
[11] Evidence of the fact that the colonial leaders were not at this time (1770-1771) bent upon total disruption of the empire is seen in the fact that in 1773 even the Massachusetts house hurled its arguments not against the king but against the Parliament, and the papers that came from the pens of leaders in 1774 were intended to establish the legal position of the colonies as dominions of the king. Jefferson, it is true, in his "Summary View" (1774), spoke to King George in no humble tones and found fault with His Majesty's conduct, but the time had not yet come to declare that the monarch had at no time legal authority over the colonies. Indeed, the time did not come at all, for the final charge (1776) was to the effect that the king had abused his authority and acted illegally by giving his consent to acts of "pretended legislation", and he had thus degenerated into a tyrant.
[12] It is often stated that Adams was set upon independence much earlier than 1772, but his own published writings do not give proof of that assertion. Perhaps he was so determined, but if so, he kept it well out of sight, if we can properly judge from the written word. If he was so determined, his apparent reticence is evidence of the essential loyalty of those to whom he appealed. To show that his reasoning led or would lead to independence, because there was no halting place, is not enough. To reason so would be to attribute to him the very line of reasoning he emphatically denounced. "This is Chronus's 'method of reasoning', to prove that because it is necessary that the parliament should enact laws for the regulation of trade, about which there has as yet been no dispute that I know of, ... Therefore, the parliament hath a right to make laws imposing duties or taxes...." Samuel Adams, Writings (H. A. Cushing, ed.), II, p. 314. Italics of the original omitted.
[13] See Van Tyne, op. cit., p. 427 ff.; J. M. Leake, The Virginia Committee System and the American Revolution.
[14] They are to be found in J. K. Hosmer, The Life of Thomas Hutchinson, p. 249 ff. and in Massachusetts State Papers, p. 336 ff.
[15] The reader will remember that in the memorial appended to Otis's Rights of the British Colonies Asserted and Proved, this passage from Vattel was referred to, and that the house, in the Circular Letter and in other letters of 1768, had made repeated use of this sentiment. My reason for calling attention to it here is that I am desirous of making very plain that this doctrine of fundamental law superior to all governmental authority had taken hold of the Revolutionary mind. It was, however, by no means a new or unfamiliar belief.
In the preceding pages attention has been given to the developing conception of federalism; but the treatment is incomplete. The author presented the subject and considerable evidence in a paper already referred to — "The Background of American Federalism", Am. Pol. Sci. Rev., XII, pp. 215-240. The evidence there given (though again there was no attempt to present everything) appears to be enough to bring out the fact that the principle of federalism was at stake, at least so far as it embodied the idea of the distribution of authority; and it appears plain (1) that the forms and practices of the old empire were a distinct foreshadowing of the American constitutional system of federalism; (2) that the colonists almost to the last were content with what they had been accustomed to under the old imperial system which had never been formulated or diagrammed. "Every advantage that could arise from commerce they have offered us without reserve; and their language to us has been — 'Restrict us, as much as you please, in acquiring property by regulating our trade for your advantage; but claim not the disposal of that property after it has been acquired. — Be satisfied with the authority you exercised over us before the present reign.' " Richard Price, Additional Observations on the Nature and Value of Civil Liberty, and the War With America (London, 1777), p. 76. Notice also the position of the Pennsylvania convention of 1774. See American Archives (Peter Force, ed), fourth series, I, cols. 561-562. These are illustrations of what I believe to be the main fact.
CHAPTER VIII
THE INTOLERABLE ACTS. THE ARGUMENTS IN DENIAL OF PARLIAMENTARY AUTHORITY
At the end of the great controversy between Hutchinson and the political leaders to whom he had sought to read a lesson in constitutional law, certain colonial positions were fairly plain. The colonial argument rested on two main pillars: the first was the doctrine of natural rights; the English constitution was supposed to embody natural rights and to make them secure; and closely associated with these principles was the belief that the only free government is restricted government — one that is constitutionally and legally limited. The second was the assertion that the colonies were possessed of an indefeasible portion of governmental power, that the empire was not a centralized or unitary empire, but was decentralized and diversified. Probably the Revolution had already advanced too far not to have very positive results, but on the face of the formal arguments the colonists were content with what had been their privileges and their rights ten years before, in other words, content with the old empire;[1] for it will be noticed, though the Massachusetts house was driven nearly, perhaps we should say fully, to the point of announcing total freedom from parliamentary control, it referred at length to the history of the colony and sought to prove, from history its right to freedom from parliamentary interference; it did not assert its independence of the king, but complained of innovations, made by Parliament and its agents in America. The council insisted on the reality of the system of distributed powers, the system which had grown up in the empire.
Here, therefore, we can see foundation for the statements made on an earlier page of this volume. The reasoning of the colonists was wanting in some of the essentials of revolutionary thinking — that is to say, wanting in an attitude of rebellion toward established institutions, lacking an attitude of mind which would welcome an overturning and would sweep away the past and build new structures on its ruins. Colonial reasoning was both abstract and concrete. It was concrete and historical because it referred definitely to actual working institutions; it was in a measure abstract because it laid stress upon natural rights that were postulates of argument. But, it must always be remembered, those rights, as the colonists viewed them, were embodied in British citizenship; they had been given a degree of actuality in British constitutional doctrine; they had been announced time and again by revered British thinkers and political leaders, and, in part at least, were woven into the history of the "glorious revolution" of 1688, which was as near to the colonists as the days of Lincoln are to the men and women of the fourth decade of the twentieth century. It would be folly, of course, to deny that there was nothing in the spirit and history of English constitutionalism on which the colonists could base their demands.
One other thing we can see clearly: the Americans were arguing that they already possessed what in reality they were about to create — of course, only partly create, if create at all, because men, however wise, cannot make something from nothing. It is more nearly accurate to say that from the depths of history, from their own practical experiences, from the lessons of a practical exigency, they were being led forward to the time when they would establish their own institutions, and these institutions were to embody, more tangibly than ever before, adequate representation, limited government, and a diversified "imperial" or widely-extended political system. They were also to find an approach to democracy — some expression for the belief that government exists for man and is legitimately authorized to govern for his good.
The trouble was a fundamental one. The Revolution, even if we are thinking only within the rather narrow limits of constitutional history, gets its chiefest significance as a successful protest against superimposed government, a protest founded on ideas and principles which, active among the American colonists, were to find a wider expression in institutions and to shock and disturb the placid rule of the chosen few, until, in the course of time, the whole foundation on which authority rested was replaced and democracies took upon themselves the burden, the trials, and the anxieties of popular government in a troubled world. Even America, advanced as her principles were, had still to embody fully, in her thinking and her acts, the essentials of popular control — a consummation, if devoutly to be wished, not even yet actually and completely realized.
The action of Parliament (1773) in giving the British East India Company what amounted to a monopoly of the tea trade in America aroused opposition. Resistance was widespread. The most dramatic expression of resentment was the Boston Tea Party. That particular drama brought down upon the heads of the inhabitants of that uneasy town the vengeance of Parliament.[2] The destroyers of valuable property were to be adequately punished for their lawlessness until they paid for the fragrant weed they had cast upon the waters of the harbor. Indignant orators at Westminster then shouted "delenda est Carthago." Burke and a few others kept their heads, and that great statesman declared, "This dignity of yours is a terrible incumbrance to you." But the defenders of parliamentary authority were in no mood to listen to his chiding; for underneath all their exclamations was, as ever, the feeling of dignity; Parliament must be obeyed. So Parliament passed the Boston Port Bill shutting up Boston harbor, removing the customhouse to Salem, and leaving the townsmen to ponder on their poverty and their sins until the East India Company was repaid. The outraged parliamentarians might have known, had they stopped to think (an unusual exercise for some of them), that there might be serious trouble; for in other colonies the people had shown equal determination not to pay the duty, admit the principle of taxation, and drink the East India Company's tea. Not that all the colonists were determined and rebellious, far from it; but the disaffection was not confined to the uneasy and truculent Bostonians, who, if they had "to take their medicine", were not willing to take it in taxed tea. Harsh measures for the punishment of Boston were sure to awaken the resentment of the extremists from one end of the continent to the other.
Then came the Massachusetts Government Act. No more should the province be in the hands of common folks who knew nothing about politics. There is something really humorous in the statements of these men, who were about to lose an empire partly as the result of their ineptitude, denouncing the incapacity of the Boston men for politics.[3] But they had their way. The Governor of the province was by the bill given more authority; the king was to appoint the councilors of Massachusetts; and the noisy town-meetings — save for the election of town officers and representatives — were not to be held without permission of the Governor. The practical politicians of Westminster supposed they could prevent men from coming together and talking — call their meetings what you will — and supposed that these institutions, which were the very heart and center of New England life and thought, would be snuffed out at the word of a body of wisemen three thousand miles away.
To make matters worse, if it were possible, other bills were passed; one, euphoniously called a bill for the "impartial administration of justice", provided that under certain circumstances, at the word of the royal Governor, with the advice and consent of the council, the trial of an officer or soldier might be transferred to another colony or to England. Lord North might have stopped to remember, if he knew the fact, that the British soldiers charged with the crime of firing on innocent citizens at the Boston "massacre" had been defended by two able colonial lawyers,[4] and that only two were punished, and then not severely; But it was n6 time for thought or memory. Another act, the Quartering Act, directed the Governor, when the need arose, to provide suitable accommodations for the royal troops. The army, whose presence had done so much to keep the Bostonians irritated, was thus not to be housed and confined in the castle, but placed, if thought best, where its constant presence would curb the people, and, it might be said, provoke them to new outbreaks. These acts were so extreme, so far beyond the ordinary processes of government, that they were nearly in the field of martial law; they looked like war, a war by an army and a Governor responsible only to kingly authority, and directed against a town and a province.
These were four of the five "intolerable acts" of 1774. They were directed against Massachusetts and against disobedient and naughty Boston. The fifth, the Quebec Act, though in the American mind classed with the others, was really an act apart; it provided for greater fairness and justice in the administration of Canada, especially by the recognition of French law and by assuring a degree of liberty for Roman Catholics. In New England, religious animosity was pushed to the fore, and hatred of Catholicism gained new heights. More than once in these pages attention has been called to the incapacity of British statesmen in the task of solving the problems of empire; the irony of the situation is apparent, for, when Parliament did pass an act which breathed the spirit of liberality, the air of the colonies was filled with cries of denunciation.
There was also a provision for extending the boundaries of the Canadian province to the Ohio in the region beyond the mountains; and thus the colonies, some of them claiming under their charters the right to control large areas in the west, were deprived of any right or authority in the vast region toward which certain seaboard easterners were beginning to look with more than languid interest. The measure, heartily disapproved of by many colonials, was denounced as one more measure of tyranny. It should, however, be associated with the king's Proclamation of 1763, with various other plans, with the proposals of the Albany Congress, and with British interest in the Indian trade. The time was coming when the Americans must themselves tackle the western problem; the time was not far distant when they must face the task of working out the principles upon which their own empire should be extended and their own colonies established.
Boston was locked up; but her spirit was indomitable. The colonists were now not prepared to submit to measures which even to-day a person knowing the difficulties of imperial control and administration must consider harsh and intemperate. There was from colony to colony a flash of resentment and a wave of indignation. Not all of the colonists were aroused; there were still many who were acquiescent, believing that liberty could best be secured under Britain, and fearing, too, the radicals, dreading the rise of unpropertied classes — "the mob". The story of the struggle between conservatives and radicals is important, for in America there were differing views, many shades of opinion; but of greater moment in this connection was the awakened public sentiment, the realization, along the line of the colonies from north to south, of a common danger. The issue had passed beyond the mere disputed right of parliamentary taxation; for if Britain, in any emergency, could pass such acts as those which were directed against
Massachusetts, the whole fabric of colonial self-government was in peril. So while many still held back, and while there was unity in no single colony, the "intolerable acts" created sympathy, fellow feeling, the sense of a common interest among the colonies as a whole; and thus, as never before, there was the basis of a national feeling, or, if nationalism is too strong a word, the basis of colonial union.
Advanced thinkers in the colonies were by 1774 ready to move on to a new position. That was natural and inevitable. Events, humorously and ironically announced by Franklin to the Commons eight years before, had run their course. That Parliament was totally without authority over them, the colonists had not at first asserted; [5] but the lofty tone of Britain and the dignified assurance of men like Hutchinson had done their work. Not merely thoughtless and irresponsible, but sober-minded men, who were far from being temperamental rebels, were now at the point of denying that they owed obedience to Parliament in any respect. In preparing the second answer to Hutchinson, the men of the Massachusetts house had been coached on some technical legal points by John Adams, and when that controversy ceased for want of words, Adams, in a pamphlet war, announced definitely and at length his theory of the empire: the union with Britain was only a personal union; the British and the Americans owed allegiance to the same king; there were many kingdoms under the headship of George III; as one of these kingdoms, Massachusetts possessed her own Parliament.[6]
The "Summary View",[7] written by Thomas Jefferson in 1774, also contains the same theory of colonial right; it contains a spirited attack on Parliament and its acts, "acts of power, assumed by a body of men, foreign to our constitutions, and unacknowledged by our laws...." America would no longer listen to meddlesome interference. But significant as is this denunciation of Parliament, of even greater significance are the admonition to King George himself and the declaration of certain formal principles of democratic or popular government. Revolutionary thinking was moving fast toward a goal, natural to a free people who had in large degree looked after themselves and handled their own affairs. Jefferson was familiar with the arguments so often used: the origin of government in consent, the right of revolution when tyranny becomes intolerable, and all the rest of it; he well knew the great writers on law and politics; but his first notable utterance in the cause of America was more than a repetition of seventeenth-century law and philosophy, dear as they were to him.
His voice was the voice of the more radical Virginia.[8] And it is a signal fact that this young man, gifted with rare literary skill, a man of cultivation and learning, though as yet without much experience save that furnished by rural Virginia, was reading a lecture to His Majesty King George on elementary ideas of government and the duties of rulers to their superiors, the people. The big planters of the tidewater region of the Old Dominion, tenacious as they were of American rights when threatened by Britain, must have read Jefferson's words with misgivings, almost with dread, for in fact they foretold trouble for themselves and their privileges. Though they may not then have been fully aware of it, the spirit of a coming democracy was calling to them. His Majesty was warned "that he is no more than the chief officer of the people, appointed by the laws, and circumscribed with definite powers, to assist in working the great machine of government, erected for their use, and consequently subject to their superintendance.... kings are the servants, not the proprietors of the people. Open your breast, sire, to liberal and expanded thought. Let not the name of George the third be a blot in the page of history.... The whole art of government consists in the art of being honest." [9]
Jefferson's arraignment of parliamentary power went far — farther than had the ordinary complaints — in criticizing the actual acts familiar to the colonists. He attacked the acts of trade and disallowance of colonial laws as actually practiced; even the post office, he declared, seemed "to have had little connection with British convenience, except that of accommodating his majesty's ministers and favourites with the sale of a lucrative and easy office." "A Summary View" was therefore a harbinger of the Declaration of Independence; and in it we can see some of those principles of Jeffersonism which in still later years were to be influential in American politics.
I have no intention of entering upon the question of the validity of the arguments which were put forth with elaborate legalism by John Adams and more briefly and passionately by Jefferson. They are important as indicative of a growing opposition; they are important as items in the position taken by the colonial Congress in 1774 and in the Declaration of Independence which arraigned George III for giving his consent to acts of "pretended legislation"; they are of interest to the students of the history of the British empire; but they are of strangely little significance to anyone studying, not the causes of war, but the emergence of American constitutionalism. Even under the system advocated by John Adams and others, the Crown of course retained its functions, and those, as we have already indicated, need not be neglected by anyone seeking to find precedents for the grant of certain powers to the central government under the American Constitution when that was formed. But the creative or constructive effect of the arguments as a whole does not appear, save as Jefferson's statements may have been productive of American democracy. By dwelling on the separate independence of each colony, attention was in reality called away from interdependence, the actual need of coherence, and the need of a central administration in certain particulars. Scholars of unquestioned skill and learning are to-day at variance on the question of the legality of parliamentary control, in this respect reproducing the attitudes of Thomas Hutchinson on the one hand and of John Adams on the other; and this very difference of opinion is of more significance than any definite assurance concerning the indubitable legal correctness of either position.[10] Any discussion of this problem in these pages, sufficient to be of any use, would lead us away from the developments we are attempting to trace, and any dictum as to the correctness of one side or the other would be only another assertion. As in a good many other cases, the important fact is that men at a given time did differ.[11]
[1] When I say "content", I do not mean to say that there were not a good many men ready or, it may be, anxious to go beyond the old regime. I mean that in open public argument, in what we may call the formal presentment of their case, they relied ostensibly and probably honestly on the practices and what they believed to be the real structure of the empire and the real liberties of Englishmen. Whether they were legally right in their claims or not, this historical and legal or semilegal state of mind is important, as we have already said, despite no small amount of lawlessness and turbulence.
[2] The destruction of the tea aroused much opposition. The friends of America in Britain were taken aback. Chatham could not defend the unwarrantable conduct, and even Franklin hoped for a voluntary reparation and that soon. It is not the purpose of the text to glorify the Tea Party or to depreciate the difficulty of Britain's task. A man like Franklin still hoped to make American freedom secure by reason and diplomatic methods. And it is always a question whether riotous conduct furthers a cause.
[3] "I would not have men of a mercantile cast, every day collecting themselves together and debating about political matters...." Lord George Germain, as quoted by Van Tyne, op. cit., pp. 396-397.
[4] No less persons than John Adams and Josiah Quincy.
[5] Again it may be wise to say there is some evidence of opinion at a much earlier date to the effect that the colonies were not subject to Parliament. The statement of the text refers to what on the whole appears to have been formal colonial opinion.
[6] In a series of papers signed "Novanglus", published in The Boston Gazette, 1774. See John Adams, Works (C. F. Adams, ed.), IV, pp. 11-177. These papers were answers to Daniel Leonard ("Massachusettensis").
[7] "A Summary View of the Rights of British America. Set Forth in Some Resolutions Intended for the Inspection of the Present Delegates of the People of Virginia. Now in Convention." Printed at Williamsburg, reprinted in Philadelphia and in London. See Thomas Jefferson, Works (federal ed.), II, pp. 47-89.
[8] Of special interest is H. J. Eckenrode, The Revolution in Virginia. This study brings out the social and political differences in that important colony.
[9] How pleasing this would have been to George, if he had read it, as he probably did not. Had he accepted such admonitions, he would have been tempted to abandon his practice of buying seats for his supporters in the Commons. In truth, the idea that kings were servants, not masters, was startling enough. To be shocked by such sentiments one did not need to wear a crown.
[10] See C. H. McIlwain, The American Revolution: a Constitutional Interpretation; R. L. Schuyler, Parliament and the British Empire; Some Constitutional Controversies Concerning Imperial Legislative Jurisdiction.
[11] To put the matter flatly, the present writer simply cannot be enticed by his own curiosity to pass upon a controversial question when the answer does not lead him to a more distinct view of the emergence of institutional forms and the principles underlying them in the American constitutional system. If that be treason, one must make the best of it.
CHAPTER IX
THE CONGRESSES OF 1774-1775
The treatment of Boston aroused the colonists to a new pitch of resentment and to new unity of action. The first step for a continental congress seems to have been taken by Virginia, but the idea was Variously proposed. The call or suggestion of Virginia was acted upon in the summer of 1774.[1] Delegates were chosen by different methods, but largely through the agency of the committees of correspondence, those irregular but effective bodies fitted for the task of maintaining popular rights and, if need be, for bringing on revolution.[2] Formal procedure by the colonial legislature was, in nearly every case, not taken and would have been difficult, for there was not only official opposition in most of the colonies, but among the timid or conservative much objection to radical measures. The Congress was therefore decidedly and obviously an extra-legal body; save that it was not chosen to foster revolution, it might well be considered a revolutionary body — composed as it was of representatives who in most instances were not even chosen by the popular branch of the colonial legislatures.[3] In no formal sense, therefore, was the gathering representative of existing colonial governments; it represented the people, the dissatisfied elements of the people, such persons as were sufficiently interested to act, despite the strenuous opposition of the conservatives and, in general, the obstruction or disfavor of the governors.
When the Congress met in Carpenters' Hall, Philadelphia, in early September,[4] what were its tasks? The country was by no means united. The conservatives were growing fearful; many of those who strongly objected to Britain's measures were anxious to reach some means of reasonable adjustment of difficulties; the radicals were active and skillful. But the instructions or declarations of opinions which were drafted by the gatherings that sent the delegates were by no means inducements to precipitate rebellion. One question had to be solved: what principles were to be proposed that would, to use the words of Rhode Island, "establish the rights and liberties of the Colonies, upon a just and solid foundation"?
Even those delegates who were intent upon opposition to parliamentary taxation and were indignant at the treatment of Boston were not in accord concerning methods of procedure or concerning any theory of the constitution of the empire, if the empire was to exist at all. But the time had come when there must be more than complaint; there was need of a fairly decisive statement of constitutional order. The more advanced were ready and anxious to go the whole road, short of casting off the power of the king; but others held back.
John Adams tells us more clearly than the Journals, and probably quite as accurately, what the difficulties were. In the committee of which Adams was a member there was much discussion concerning the basis of American rights. Should it "recur to the law of nature, as well as to the British constitution, and our American charters and grants"?[5] This problem did not, however, prove supremely difficult; it was easy enough to lay claim to all these foundations of freedom; but that did not end the matter; for, as Adams says, "The other great question was, what authority we should concede to Parliament; whether we should deny the authority of Parliament in all cases; whether we should allow any authority to it in our internal affairs; or whether we should allow it to regulate the trade of the empire with or without any restrictions." A subcommittee of which Adams was a member met and debated the pivotal questions. Seemingly without great difficulty all the articles of its report were agreed upon "excepting one, and that was the authority of Parliament, which was indeed the essence of the whole controversy...." [6] Finally, the agreement appearing in the fourth resolution of the "Declaration and Resolves" was reached. It declared that the colonies were "entitled to a free and exclusive power of legislation in their several provincial legislatures ... in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed. But, from the necessity of the case, and a regard to the mutual interest of both Countries, 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, for the purpose of securing the commercial advantages of the whole empire to the mother country, and the commercial benefits to its respective members; excluding every idea of taxation, internal or external, for raising a revenue on the subjects in America, without their consent." [7]
This resolution appears to be essentially a compromise; [8] it did not acknowledge the legal power of Parliament even to regulate trade, but it consented to the operation of acts for that purpose. Furthermore, it did not repudiate control by the royal prerogative, which was indeed explicitly acknowledged in the address to the king a few days later.[9] There was a distinct acknowledgment of the "negative of their sovereign," which presumably meant disallowance, by the king in council. In the "address to the people of Great-Britain", the Congress said, "Place us in the same situation that we were at the close of the last war, and our former harmony will be restored." [10] Thus, as far as constitutional theory was concerned, a continental Congress could not go much further than had the Congress of nine years before. There were, it is true, many who were willing to go further; but the Congress was not prepared to pass on to a total and explicit denial of parliamentary authority; and, be it noticed, the old fact and the old practices were still on the whole dominating.
That the colonists, so far as Congress represented their true feelings, were in a temper easily to be changed into actual rebellion is apparent from the proceedings at Philadelphia. But it was still a rebellion against abuses of parliamentary authority, a rebellion to retain, in the empire and under the king, the constitutional rights which were claimed on the basis of the colonial charters and the English constitution. If, however, the British government should persist, the colonists must soon deny the authority of Parliament altogether and soon move on to rebellion against the king himself.
The Congress did not present any theory of empire or set forth any scheme of empire, though Joseph Galloway of Pennsylvania presented one.[11] But the resolutions did assert the legal title of the colonies to certain powers and privileges. Probably at that time, when men's minds were inflamed, it would have been impossible to do any piece of constructive work; for the organization of the empire required long and candid consideration and calm discussion. What the Congress did was to assert rights; it provided no real answer to the critical problem of the whole dispute — what plan could be arranged whereby there would be legal obligation, in freedom, upon the outlying parts of the empire to contribute to the defense and support of the empire? While it is not at all strange that such constructive work was not undertaken, we can reasonably assume that some men were considering it. The hope of having a legal system in which the colonies would have a legal share of power and a legal title to their rights was still in men's minds.
Of great consequence was the "Association", "a non-importation, non-consumption, and non-exportation agreement," [12] solemnly entered into by the colonial delegates before the Congress adjourned. If this could be loyally taken up and rigidly enforced, Britain, it was thought, would feel fully the force of American anger. Some portions of the undertaking were not to be put into effect at once. Throughout the colonies, from one end to the other, efforts to carry out the agreement were made, and contests of strength as well as of opinion were frequent. So nearly thorough were the provisions for the execution of the agreement that we may justly consider that the system of committees and the whole machinery constituted in a very marked degree the unification of the radical or the determined forces of the continent.
Here was union reaching out more widely and further down than previous schemes; and here was a method of securing results through the operation of committees.[13]
The winter of 1774 and 1775 was filled with distraction and with some uncertainty. We have been discussing the conflict of opinion between Britain and America; but that conflict was not all. Every colony, as we have seen, had its differences of opinion;[14] each had its own problems and its own experiences, and it is difficult therefore to use any terms of description quite applicable to all alike; and indeed the Revolutionary movement, the social and economic disturbances, the emergence of new leaders, the gleam of new aspirations among classes of men hitherto inactive or negligible in politics — all these are in some ways the most interesting and significant facts in the whole struggle.
Much more than separation from Britain or resistance to "intolerable acts" of a government across the sea was contained in the Revolution. Much social and political history is to be found in those disputes and controversies among the colonists during the years between the adoption of the "Association" and the outbreak of war and the final acceptance of independence.[15] It is not well to tell here the story of American resistance as if the colonies, each working smoothly within its own limits and in accord with the other colonies, presented a united front to Britain. Each one was internally undergoing very vital and on the whole life-giving though distracting experiences. Save in the self-governing colonies of Connecticut and Rhode Island, the actual management of the Revolutionary movements was passing into the hands of conventions or committees or provincial gatherings — governments outside of the legal government of each colony.[16] During two years or so before independence, therefore, essentially revolutionary governments had partially displaced the purely legal authorities; not that these governments, these extra-legal bodies, necessarily thought of themselves as revolutionary in character; for until toward the end they were not necessarily committed to the task of breaking the empire. They were determined to use popular power to maintain their rights against parliamentary exactions and misgovernment. The thought of complete independence was still almost frightful to many a man earnest in his advocacy of boycott and of hostility to the obnoxious laws of Britain.
Such a condition of affairs could not long continue. Peculiarly hard was the situation in Boston where British forces maintained their hold. There was much that was disorderly about the Revolutionary movement everywhere, but on the whole the calmness and the regularity with which the people of that stern old commonwealth persisted in rebellion without suddenly breaking into tempestuous and profitless rioting is impressive and very conclusive proof of their capacity for self-government. More acts came from Parliament to be heaped on their sullen heads [17] without drawing them into thoughtless outbreaks which might have ruined their cause. The crisis came on the nineteenth of April, 1775; Lexington and Concord, and the hurried retreat of the British troops — such of them as were not killed on the. way — back to the protection of their comrades at Boston signaled the beginning of war. At last, to use the pleasing phrase of Locke, there was an "appeal to Heaven".
When the Continental Congress gathered at Philadelphia on the tenth of May, 1775, war had already begun. The Massachusetts men had gathered about Boston and the British forces. What was Congress to do? It prepared, for war and prayed for peace; it organized an army, appointed Washington commander-in-chief, and sent off to George III a new address asking for justice. The hope of obtaining a redress of grievances without disruption of the empire was daily dwindling; there was a steady though varying forward movement toward independence. Lord North's "Conciliatory Resolution", passed by the Commons (February 27, 1775), was presented to the Congress in May; but it came too late; probably it would have been at no time satisfactory, because there was no abandonment of parliamentary power to "bind the colonies and people of America ... in all cases whatsoever." The proposals were rejected in July, and in August the king issued a "Proclamation of Rebellion".
The autumn and winter passed. In the spring (April 6, 1776) the Continental Congress passed resolutions which substantially established freedom of trade with all the world save Great Britain. The old navigation acts and with them the whole system of parliamentary control and regulation of trade were cast into the discard. With the passing of such resolutions, independence could not be far away.
[1] See C. R. Lingley, The Transition in Virginia From Colony to Commonwealth, pp. 81-82; A. M. Schlesinger, The Colonial Merchants and the American Revolution, 1763-1776 (Columbia University Studies in History, etc., LXXVIII), p. 363.
[2] "When the Continental Congress met, there is good reason to believe that it was looked upon as a meeting of the committees of correspondence of the several colonies...." Van Tyne, op. cit., pp. 427-428.
[3] In New Hampshire, delegates were chosen by "a meeting of the deputies appointed by the several towns" assembled for the purpose; in Massachusetts, by the house, after locking the door to prevent notice of dissolution by the Governor; in Rhode Island, where there were no royal officers in political control, by the general assembly; in Connecticut (likewise a free corporate colony), by the house which authorized the committee of correspondence to appoint delegates; in New York, "By duly certifyed polls, taken by proper persons, in seven wards of New York City and County," and by sundry other committees of outlying districts; in New Jersey, by a convention; in Pennsylvania, by the house; in Delaware, by a convention of we "Representatives of the freemen"; in Maryland, by a convention or a "Meeting of the Committees" from the counties; in Virginia, by a provincial convention; in North Carolina, by "a general meeting of deputies of the Inhabitants"; in South Carolina, by "a general meeting of the inhabitants" whose action was ratified by the house.
It is interesting to note that the basis of representation in the Congress came up for consideration as soon as the members began the task of organization. Should each colony have one vote or should the principles of proportional representation be adopted? A proposal "to establish an equitable representation according to the respective importance of each Colony", was not carried, and in its place it was decided that "each Colony or Province shall have one Vote. — The Congress not being possess'd of, or at present able to procure proper materials for ascertaining the importance of each Colony." September 6, 1774. Journals of the Continental Congress (W. C. Ford, ed.), I, p. 25. Hereafter referred to as Journals. Each colony should have "one voice; but as this was objected to as unequal, an entry was made on the journals to prevent its being drawn into a precedent." Connecticut Delegates to Governor Trumbull, October 10, 1774. Quoted in Ibid., I, p. 25, note 1.
[4] The first meeting was on September 5, 1774. There were present 45 delegates. Representatives from North Carolina appeared later, as did a few additional delegates from colonies represented at the beginning. The first volume of the Journals gives the proceedings with copious and learned notes by the editor. The "Autobiography" and "Diary" of John Adams published in the second volume of his Works are interesting and valuable for side lights on the meeting.
[5] The resolutions as finally adopted declared that the colonists "by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following Rights".
[6] John Adams, Works (C. F. Adams, ed.), II, p. 374.
[7] Journals, I, pp. 68-69.
[8] Of course, whether or not they denied in toto the authority of Parliament depends on the scope the reader may give to the words "internal polity". If those Words are interpreted as excluding entirely from parliamentary control such subjects as naturalization, coinage, the post office, etc. — in other words, those pieces of legislation which we now in our own system recognize as powers within the natural field of general government — then perhaps the conclusion must be reached that the colonies asserted their position as dominions of the king, utterly free, legally, from other control. But, it will be noticed, there was no definite declaration to the effect that Parliament at no time had any authority over them; and the absence of any such statement is to me indicative of hesitation to lay down absolutely plain legal theory. Cf. McIlwain, op. cit., pp. 116-117. Some writers and students may be misled by the wording of the first resolution as given in Select Charters (William MacDonald, ed.), pp. 358-359, the resolution there reading "they have never ceded to any foreign power whatever, a right to dispose of either [life, liberty, and property] without their consent." The word "foreign" should be "sovereign". Journals, I, p. 67; Journals of Congress (1823 ed.), I, p. 20. To object to "sovereign", in any complete sense, was characteristic of the colonial position. MacDonald's work is in general painstaking and accurate.
[9] "We wish not a diminution of the prerogative, nor do we solicit the grant of any new right in our favour." Journals, I, p. 119.
[10] Ibid., I, p. 89. The matter presented above is important for our purpose of following the main line of constitutional argument; but it should be noticed that certain essential rights of Englishmen were also asserted by the Congress: rights to the common law and trial by jury, the right peaceably to assemble and petition, and the right to be freed from the presence of a standing army in time of peace, except by consent of the legislature of the colony. It also asserted that it is necessary to good government that the constituent branches of the legislature be independent of each other and that the exercise of legislative power in the colonies by a council appointed, during pleasure, by the Crown, was unconstitutional and dangerous.
[11] Journals, I, p, 43 ff. Galloway especially pointed out the need of having some general authority in the empire with power to regulate commerce. See John Adams, Works, II, pp. 390-391.
[12] Adopted October 20, 1774. It was a most imposing and thoroughgoing document. Far more than a mere agreement, it provided for execution by calling for committees in every county, city, and town, for inspection by committees of correspondence, and for enforcement by the boycotting of profiteering merchants. It proposed to encourage frugality and to promote agriculture, to discountenance extravagance and dissipation, "especially all horse-racing, and all kinds of gaming, cock-fighting ... and other expensive diversions and entertainments...." Restraint even on the wearing of "mourning-dress" was called for.
[13] Had the Congress without interruption continued to sit and direct the activity of the various colonies, the method of organization and of action would have been strikingly like the present organization of a national political party — that organization which brings into harmonious coöperation on a national scale the interests and the activities of the remotest hamlet and the wards and precincts of the large metropolis; that impressive manifestation of political union of continent-wide dimensions, a manifestation of machinery and of articulated organs more indicative of vital nationalism than the mechanism and operation of what we call the government.
[14] In 1774, the "Association" met determined opposition from the mercantile and moderate classes who disliked the violence and the democratic arguments of the radicals. See Schlesinger, op. cit., p. 432 ff.
"It should never be forgotten that in the eyes of the older men the Revolution was a conservative movement, an effort to uphold their liberties against the encroachments of imperialism. Eighteenth-century liberalism had little touched this older generation.... They wanted the gods to nod on Parnassus — or even to snore — but they wanted the gods. They thought English thoughts and upheld English institutions and condescendingly looked down on dissenters and democrats as not of themselves." Eckenrode, op. cit., pp. 158-159. See also, p. 160. The author is speaking chiefly of Virginia, but his words may be given a somewhat wider application.
[15] Attention is called to Eckenrode, op. cit.; C. H. Lincoln, The Revolutionary Movement in Pennsylvania 1760-1776; C. L. Becker, The History of Political Parties in the Province of New York, 1760-1776; J. F. Jameson, The American Revolution Considered as a Social Movement.
[16] Georgia was still largely outside of the general movement. It was represented by a delegate from one parish in the Congress of 1775, and later (September) by others chosen by a provincial congress.
[17] An act restraining the trade of New England was passed March 30, 1775, and later extended to the other colonies. In December, a bill cutting off all trade with America was enacted. As the Americans wanted to indulge in non-importation Lord North thought they should have their desire to the utmost. "... as the Americans," he is reported to have said, "had refused to trade with Great Britain, it was but just that they be not suffered to trade with any other nation."
CHAPTER X
THE PHILOSOPHY OF THE REVOLUTION AND THE DECLARATION OF INDEPENDENCE
America was the child, the developed child, of seventeenth-century England. She had grown strong and self-reliant. She had breathed the air of a new world; she had been shaped in part by her experiences on a virgin continent; but to understand her character, we need to understand her inheritance almost as much as the environment in which she matured. There is truth in the exaggerated assertion that in the Revolution (1765-1776) the England of the seventeenth century arose to combat the England of the eighteenth; and there is truth in the declaration that America separated from Britain in the seventeenth century rather than in the second half of the next century. The simpler statement is that America was influenced in the course of her development by the thinking and by the struggles to liberalize government in the days of the Stuarts, days which saw a rebellion based on an announcement of rights beyond the reach of kingly prerogative, days which saw the execution of one king, and saw also the dethronement of another because he had broken the original contract between king and people. We are not likely to overemphasize either the fact of the English rebellion and the later peaceful revolution (1688) or the thinking that underlay revolt.
Though in the later days its most popular utterances came from a son of Virginia, and though much of its philosophy was a possession common to America as a whole, this seventeenth-century thinking was especially cherished by the New England colonists. This was so in part because the early New Englanders were the offspring of the protest against Stuart absolutism; perhaps also because Massachusetts peculiarly thought of herself as self-founded and not a child of the empire; but certainly because the thinking of the seventeenth century Was embedded in church polity and in theology.
Fundamental in New England religious thought were the following: (1) there is a divine law superior to all other and binding on every creature, on ruler and ruled; (2) the individual man before entering church relationship is an individual separate and distinct; (3) churches are formed by the consent and agreement of men; the basis of the church is covenant; churches and church government are not superimposed but created by the people composing the churches; (4) the Ruler of the universe, the embodiment and source of unvarying justice and duty, had bound Himself by covenants, by promises. The interlacing of political and religious thinking was very marked; it would be more nearly correct to say that the two modes of thought were in reality only two manifestations of one. Elementary principles of political philosophy were kept alive, not alone by recollection of the seventeenth-century struggles for liberty or by the actual methods of forming churches, but also by the sermons of the preachers, inculcating political and ecclesiastical doctrine.[1]
During the seventeenth century in England there was so much practical as well as purely theoretical presentation of doctrines concerning the origin of state and government, that it is misleading to select any one writer or politician or any one series of events as illustrative.[2] But among all the writers of that century, John Locke stands out above the rest. He did not, however, originate his doctrines, far from it; doctrines of like character had been put forth in previous centuries; for, as a matter of fact, men had often questioned the basis of governmental authority, and they had announced the all-prevailing divine law as superior to human enactment. Especially, in the hundred years before Locke wrote his famous second essay on government, Englishmen had been talking about and for a time fighting about those very problems.[3] Locke's argument in his second essay, written just after the "glorious revolution" of 1688, had continuing effect, partly because of its directness and simplicity, and partly because it came, for England at least, at the end of a controversy and furnished the basis of parliamentary authority as opposed to divine right of kings. His essay deserves our attention because it was used by the men of our Revolution. When men at that crisis thought and spoke in the terms of Locke, they naturally supposed they were relying on an authority, one of the fathers, whose words could not be meaningless to the men of England in the later eighteenth Century. In fact, though a parliamentarian, to refute colonial assumptions, could refer to Locke with approval — as the Scripture is said to be cited by the arch-enemy of mankind — he could not have been entirely at ease when the philosophy of the renowned essay was quoted against him. A reference by a colonist to Locke's writings must not be considered a mere reference to a bookman who had been speculating about government; he was thought of as the expositor of the foundations of English constitutionalism, an authority on constitutional law. When the colonists of the Revolutionary days referred to him, they thought of him as putting forth, not theories of what ought to be, but pronouncements of what actually was; in his words and in the words of many other liberal thinkers of the seventeenth century they saw pronouncements of the real basis on which the rights of Englishmen were founded. And all this is important because it is a matter of great consequence that the American Revolution had, despite much social turmoil, the quality of conserving the old and not merely blasting it; it is important above all because the Revolutionists did more than announce doctrines and quote authorities; they took the theories of the philosophers and the declarations of men like Locke and wove them into an actual constitutional structure. Locke and others like him were to the Americans more than visionaries.[4]
Seeking the source of government, as a method of ascertaining the extent of its authority, Locke started, as did many others before and after him, by declaring that there was a time when men lived in a state of nature in which there was no government. All men were in "a state of perfect freedom to order their actions, and dispose of their possessions and persons" as they saw fit. Men were also in a state of equality; there was no precedence. And yet it was not a state of license, though it was a state of liberty; for there was a law of nature which taught that no man should harm another "in his life, health, liberty or possessions...." But each man was judge in his own case; and so men turned to the establishment of government to avoid the inconveniences by which they were beset. They did not, however, set up government to be absolute over them; "he who attempts to get another man into his absolute power does thereby put himself into a state of war with him...." Man had liberty in nature, and had only the law of nature for his rule; the "liberty of man in society is to be under no other legislative power but that established by consent in the commonwealth...." As liberty existed before government, and as the right of man to his life existed before government, so also property antedated government. Property, therefore, had natural or divine sanction.
But when man leaves his natural state, "he authorizes the society, or which is all one, the legislative thereof, to make laws for him as the public good of the society shall require," and this "puts men out of a state of Nature into that of a commonwealth...." Though Locke was intent upon upholding the legislative power, his main theme was established security for fundamental natural rights under government. "If man in the state of Nature be so free as has been said, if he be absolute lord of his own person and possessions, equal to the greatest and subject to nobody, why will he part with his freedom, this empire, and subject himself to the dominion and control of any other power? To which it is obvious to answer, that though in the state of Nature he hath such a right, yet the enjoyment of it is very uncertain and ... the enjoyment of the property he has in this state is very unsafe, very insecure. This makes him willing to quit this condition ... and it is not without reason that he seeks out and is willing to join in society with others who are already united, or have a mind to unite for the mutual preservation of their lives, liberties and estates, which I call by the general name — property. The great and chief end, therefore, of men uniting into commonwealths, and putting themselves under government, is the preservation of their property...." [5]
Power, Locke declares, "in the utmost bounds of it is limited to the public good of the society.... Thus the law of Nature stands as an eternal rule to all men, legislators as well as others." [6] Having in mind the security of person and possessions, he also declares that not even the legislature can assume the power to rule by "extemporary arbitrary decrees, but is bound to dispense justice and decide the rights of the subject by promulgated standing laws, and known authorized judges." [7] "Absolute arbitrary power, or governing without settled standing laws, can neither of them consist with the ends of society and government...." [8] He was thinking of the eternal and unvarying law of nature and of nature's God, and, in addition, the need of established and open principles as a means of giving security.[9]
How far Locke goes in indicating the principles of legally limited government can especially be seen in his reference to a well-recognized principle of the common law — an administrative officer, acting beyond his warrant, may be resisted — and he inquires why this principle is not applicable to the highest magistrate in the land. We find in this the kernel of the doctrine later firmly embedded in American constitutionalism: no one has a right to enforce an unconstitutional law. There are legal bounds to governmental authority. Though we should err in attributing to Locke alone the origin of this idea, we do not err in finding in his philosophy — closely associated as it was with practical politics and with certain established principles of English liberty — a popularization of certain essential principles which were prominent at the time of the American Revolution and of great subsequent importance. That a law contrary to natural right and justice is no law at all was no new doctrine.[10]
It may be at times necessary to transcend the law. The power to act "according to discretion for the public good ... is called prerogative...."[11] But "Wherever law ends, tyranny begins, if the law be transgressed to another's harm...." [12] To go beyond the law for the good of the people, is, then, prerogative; to do so for the injury of the people is tyranny. Who is to judge what is good and what is harmful? That is the pivotal question. To determine this, there must under some circumstances be an "appeal to Heaven", and the people have the right to determine whether this appeal to the final arbitrament of force is justified or not. This right of determination they cannot surrender, "God and Nature never allowing a man so to abandon himself as to neglect his own preservation." [13]
Locke's argument leads him to the right of revolution, but it must not be conceded that the end is turmoil. May then the prince be opposed, may he be resisted as often as anyone shall find himself aggrieved? This would leave "nothing but anarchy and confusion." [14] But no such consequence is admissible because man has the right to oppose only "unjust and unlawful force." This right of revolution, this final resort to force, this right to rise not against law but against lawlessness, to rise not against legitimate but illegitimate authority, naturally was and remained a cardinal doctrine.[15]
And still, someone may declare that, as the people may dissolve a government, as this is their final right, the very hypothesis lays a foundation for frequent rebellion. The answer to this assertion is: "cry up" your governors as much as you will "for sons of Jupiter" — adopt, that is to say, your theory of divine right — and you shall still have rebellion, because people will not endure the extreme of misery; furthermore, revolutions do not occur on account of mere "slips of human frailty"; but "a long train of abuses, prevarications, and artifices, all tending the same way," may arouse the people to put the rule into hands that will secure to them the ends "for which government was at first erected...."[16] Thus we see, when once it be admitted that there are limits on government, a critical question remains: who is to judge whether the limits have been exceeded or not? That proved to be in reality a perplexing question, not to be forgotten in the history of American constitutional doctrine. Locke did not foresee the development of popular government and its mechanism; nor did he see the full implication of his assertions; but implications there were; and in the later developments of American institutions we discover a partial solution of this pressing and imperative question in the full recognition of judicial authority as well as in the right by institutional processes to reorganize government.
The idea that an act contrary to the fundamentals of the constitution (natural justice, natural equity, the law of God, and the law of nature) was no law played its part in the American Revolution. It was notably influential in New England where the ministers had frequently preached the doctrine of covenant and the limits of governmental power. A cardinal illustration is the sermon of Jonathan Mayhew which he preached in 1749-1750, the anniversary of the death of Charles I;[17] the bold young minister ridiculed the attribution of sainthood to the executed monarch, and denied the propriety of calling the great rebellion of the seventeenth century by the name of rebellion, for it surely was not unlawful to oppose acts of tyranny or to refuse to obey a monarch who had "unkinged" himself by his own acts.
In looking over this revolutionary thinking of Locke and his disciples, we discover some things especially notable in addition to those already selected for comment: (1) though his whole line of argument grew out of historical necessities and though it was applied to a practical problem, it was at the same time in its nature very artificial, making no great effort to find out whether government really did originate in compact. The artificial as opposed to the realistic method is evident at every turn. (2) The basic assumption is that men did make the state, that man existed as an individual and that, by the conscious purpose of unrelated beings, a new comprehensive being, a new entity, can come into existence. (3) As man existed in a state of nature under natural law, as he was an abstracted being, it is possible to build upon certain principles which are abstractly true, forever unchangeable; those principles are not the product of experience; they are not of relative validity but of absolute validity. We need not descant upon the value, in any argument, of having absolutes to deal with — unchanging and unchangeable principles. (4) There is in Locke's reasoning no conception of a body politic — that is to say, a conception agreeable to modern metaphysical political philosophy — a single coherent though not fully-organized body laying down its will authoritatively concerning its own structure and the limits of government.
Now, central in all this thinking is the foundation or source of authority by consent of the governed. By inevitable logic, as well as by pious thinking, governments were bound by the purposes of the compact. The whole idea of limited government, bound by law, is implicit, if not absolutely obvious, in the whole theory. We have already noticed the announcement of natural rights in sundry American arguments of the Revolutionary period. Natural and fundamental rights are conspicuous in the declarations of the Massachusetts representatives (1768). The extent to which they were to be taken seriously, when the people came to found their new institutions, will be spoken of later. At the present, the purpose is to point out briefly the nature and the logical effect of the assumption that men existed before government and had rights which were not granted by government (one of the conspicuous principles of American constitutionalism).[18] These doctrines were used as the basis of resistance to Britain, but they are to be taken into account not simply because they partly explain the American Revolution. It is, in fact, rather difficult — though perhaps the learned may succeed — to interpret the course of American constitutional history or American constitutional law without an understanding of the compact philosophy. One illustration must suffice: in a decision rendered by the Supreme Court of the United States in 1875 we find these words: "The theory of our governments, State and National, is opposed to the deposit of unlimited power anywhere.... There are limitations on such power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name."[19]
By the spring of 1776, the pretense or the appearance of waging war as subjects of the king was scarcely tenable; many there were who still shrank from formal announcement of independence; but when the Continental Congress adopted resolutions recommending the establishment of governments in the various colonies, it was apparent that they were to be considered as no longer colonies but states. The transmutation of colonies into totally self-governing commonwealths was the heart of the Revolution as a practical fact.
In May a convention in Virginia — an extra-legal body — instructed the colony's delegates in Congress to propose the declaration that the colonies were free and independent and to give the assent of the colony to such a declaration. They were also directed to give assent to any measures which might be thought proper for forming foreign alliances and a "Confederation of the Colonies," with the distinct proviso, however, that "the power of forming Government for, and the regulations of the internal concerns of each Colony, be left to the respective Colonial Legislatures." [20]
Richard Henry Lee of Virginia, offered in Congress, June 7, 1776, the following resolutions:
"Resolved, That these 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 connection between them and the State of Great Britain is, and ought to be, totally dissolved.
"That it is expedient forthwith to take the most effectual measures for forming foreign Alliances.
"That a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation."
Not all the delegates were as yet convinced that the time had come to take this final and irrevocable step. If New England was restless and its leaders out of patience with discussion and delay, and if Virginia and one or two other colonies were ready and eager to move on, the large and powerful colonies of New York and Pennsylvania were still hesitating. Without unanimity of sentiment and without coöperation among the colonies from one end of the land to the other, the announcement of independence would be peculiarly bold and perhaps foolhardy.
In other colonies there were controversies; there were still differing elements in each; one element was anxious for advanced measures; another was holding back, afraid of independence or dreading the radicals and all their works; a third was lukewarm, undecided, or even uninterested. No complete picture of the situation is possible; any general statement is inexact. On the whole, this is true: the naturally conservative elements of the population, the well-to-do, the people who had most to lose from unsuccessful or perhaps from successful rebellion, many of the merchants fearing "the mob" and the total annihilation of their industry, were inclined to oppose the more eager and radical elements.[21]
On the first day of July the subject of immediate announcement of independence was discussed in the committee of the whole; the debate took up most of the day but it was, John Adams said, "an idle mispence of time," because nothing was said that had not been said a hundred times before. Only nine colonies were then prepared to take the final step. New York refused to vote; South Carolina and Pennsylvania voted in the negative; the vote of Delaware was divided. The Pennsylvania delegates were in a state of uncertainty because their authority came from the legal assembly of the colony, while the resolution favoring independence was passed by another body. In South Carolina the advocates of separation from the mother country were met by strong opposition, and the colony's delegates in Congress could not be sure of their right to vote for separation or of the support of the colony should they do so. The next day, however, the situation cleared. Caesar Rodney had hurried from Delaware to Philadelphia in time for the crucial vote. A majority of the Pennsylvania delegates decided to vote for independence, and the South Carolina delegates made up their minds that they could take the same stand. So when on July 2 the final vote was taken, only three delegates [22] are known to have cast their votes in the negative. New York did not vote at all. The formal Declaration was adopted July 4, and at a later time, August 2, it was signed by the members of Congress.[23]
The Declaration was naturally and inevitably directed against George III — inevitably because the time had come to break the bonds of allegiance between king and subjects. Moreover, there was absolutely no reason for getting involved once again in a confusing argument about the old question of parliamentary authority. The supposition underlying the Declaration was that the colonies then were and always had been free from any legal control by Parliament. The king was charged in the Declaration with having given his consent to "acts of pretended legislation". In light of the long preceding contest concerning constitutional authority, there was no other reasonable basis for the announcement of independence;[24] there were certainly men in the Congress — John Adams and Jefferson for example — who would not be ready to confess that it was necessary or proper to declare the overthrow of parliamentary power.
The document is of very great moment in American history because of the philosophy of government set forth in the opening paragraphs. Of that philosophy we have already spoken. It was the philosophy — the political thinking — of compact and natural rights, the philosophy which justified rebellion or revolution against tyranny, which announced the principle of the popular origin of government and proclaimed the doctrine that governments were possessed of derived authority — a doctrine, then and now, of pivotal importance in American constitutionalism. The passages in which these principles were proclaimed were clear and powerful; they expressed the beliefs and the theories held by the American people. Jefferson merely made use of commonly accepted ideas concerning the origin and nature of government.[25] It was not his duty to create a new system of beliefs; and therefore to charge him with having no originality and with indulging in airy phrases is, of course, quite foolish.
George III is stigmatized in the Declaration as a prince "whose character is thus marked by every act which may define a Tyrant...." How, it has been asked, can such a charge be justified? George was an obstinate, perilously active, wrong-headed monarch, but no one can justly call him a "Tyrant". In answer, one may ask a question in return — what, under the circumstances, could Jefferson and his colleagues have said? Certainly not that the king was a kindly father of his people. But in reality the propriety of using the term "Tyrant" depends on the meaning of the word, and its meaning was clearly defined in the very political philosophy which was embodied in the Declaration: a tyrant is a ruler who goes beyond the law to the injury of the people. With that definition in mind, no one desirous of independence would strain and strangle over the word "Tyrant".[26] The Americans then, according to this theory, were not lawbreakers; the king had become a lawbreaker by disregarding the very ends for which government was established — the good of the people.[27]
Earlier pages of this chapter contain a brief summary of the political philosophy of Locke and of the Revolution; and that philosophy was presented in condensed form and with astonishing skill in the Declaration. One aspect of the subject merits special attention: "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 Happiness." These words would strike few men in those days as novel or absurd. It remained for men of later times to ridicule the assumption of natural equality. But doubtless Jefferson, like Locke, did not intend to assert that each man was as strong, virtuous, and competent as every other; nor was he desirous of announcing social, economic or political equality. There were, however, certain great rights which man had in a state of nature — before there was a government to which he must be obedient; of these rights, certain ones were not surrendered and could not be surrendered. But this is not by any means the whole of the matter; for the main thesis of Jefferson is that governmental power is derived from the consent of the governed; government has not inherent or intrinsic authority, but only granted or delegated authority. The most important word in the Declaration is "deriving".[28]
In a state of nature there was equality; no one had the right to say yea or nay to his neighbor; no one had the right to bid his neighbor do this or not to do that. But government and political order were established by consent, and the system of the original state of nature and of original equality disappeared. Men must continue to be equal in the possession of fundamental natural rights, for they would not have given up equality and freedom to put themselves under absolute, arbitrary, and merciless rule; but, as the result of compact, a superior came into existence; there existed one man or body of men with authority to command; and those commands should be obeyed so long as government kept itself within the limits which the original compact implied.[29] Jefferson was not bent upon announcing to people who were then engaged, or soon to be engaged, in framing constitutions that they must provide for universal suffrage or must grant equality of either political or economic power. He was primarily intent upon presenting a basis for overthrowing the authority of King George.
The critical question, we may repeat, was how it came about that one man, a monarch, or one set of men had been placed above other men with power to issue orders, laws, and decrees; if governmental power was derived, if men voluntarily and by consent had surrendered their original equality, then, unquestionably, government was authoritative only when acting within the limits of the compact and when guarding the natural rights of life, liberty, and property. Before government was established, men were in a state of equality; after government was established they were not; they gave up their equality and subjected themselves to a superior; but this superior must rule for the common good. This is the sum and substance of the philosophy of Locke and of the Declaration of Independence.
The Declaration is not to be read as if it had no meaning for us save as it permitted an excuse or a reason for separating America from Britain. It contains doctrines which on their peculiarly theoretical side have partly lost their cogency. The notion that the only way in which men can be legitimately bound is by a promise, or something akin to promise and contract, is to-day not quite orthodox political philosophy or quite the thinking of the common man. We do not postulate a pre-social state of existence in which man was an isolated, absolutely independent, and segregated atom. We think historically; we know how governments did arise; we think of society as a living fact, even if it does in some way establish a government by votes of individuals. But the significance of the Revolution is lost if one does not see the Americans taking this "compact" philosophy seriously, and if he does not see that the elementary principle — the existence of individual rights which governments were established to protect — has not lost its force in American constitutional law.
This interpretation of the thinking of the Declaration should not imply the absence of more radical or more advanced doctrines or impulses and desires among the men of the Revolution, especially among those who in some of the colonies had been most active in protesting against the established order of things. Jefferson himself was prepared to attack the intrenchments of privilege secured by law in the Old Dominion. Everywhere men who hitherto had been ignored in colonial politics were forging to the front; they were pushing ahead to new positions, in some cases demanding or assuming further political rights. Some persons were envious of the more fortunate, and probably quite justly so; they envied the possessors of large landed estates and they disliked the economic domination of their owners. The Revolution, in part begotten by social and economic discontent within the individual colonies, was moving on to its inevitable conclusion — not to immediate social equality or to complete economic equality, but to a greater degree of power and confidence in the main body of the people. But that is a long story; its end was not reached in the days of the war or for some decades thereafter. The movements that produced the downfall of British rule, probably also the very philosophy on which the Revolution was based as well as the struggle itself, broke down old traditions and helped in carrying forward the principles of political equality and a fuller realization of the worth and competence of the common man. Revolution was working out its natural consequences; there lay ahead the inevitable diminution of that presumption of superiority which was the dear possession of social and economic leaders.
[1] Very valuable is A. M. Baldwin, The New England Clergy and the American Revolution. One must weigh the fact that two treatises, published in the early part of the eighteenth century from the pen of John Wise, which contained distinct and detailed presentation of the theory of compact, were republished in Boston in 1772, "and so eager was the perusal of them, and so extensive the demand for their clear reasoning in favor of democracy as the best government, that another edition, of which more than one thousand copies were bespoken before its issue, was put to press in the same city in the same year." H. M. Dexter, The Congregationalism of the Last Three Hundred Years, As Seen in Its Literature, pp. 501-502.
[2] Of special usefulness in this matter is T. C. Pease, The Leveller Movement.
[3] The long effort, though at times only an effort of a secluded closet philosopher, to answer the great question — are there limits on human authority? — is especially interesting to American students of constitutional law. The Revolution and the formation of American institutions should be seen as part of the history of political thought. It is not the intention of these pages to declare that the philosophy of the American Revolution was new; it is not the intention to assert that it came wholly from Locke or from the polity and theology of Puritanism. There was little that was new in the American doctrines, perhaps nothing. But we do find that Americans were ready to institutionalize their principles and not merely to fight for them. For a discussion of the antiquity of the doctrines, see James Sullivan, "The Antecedents of the Declaration of Independence," Am. Hist. Asso. Report for 1902, I, pp. 65-81. Sullivan finds all of the doctrines of the Declaration, though many parts were much older, in the philosophy of Nicolas of Cusa, of the early fifteenth century.
[4] Even after, long after, our Constitution was founded, American lawyers not only spoke in the philosophy of Locke, but quoted him or referred to him. See, as an example, T. M. Cooley, The General Principles of Constitutional Law (4th ed.), p. 138 and note 1, referring to Locke to show the unconstitutionality of delegation of power by a legislative body.
[5] Locke, op. cit., bk. II, secs. 123-124.
[6] Ibid., bk. II, sec. 135.
[7] Ibid., bk. II, sec. 136.
[8] Ibid., bk. II, sec. 137; see also secs. 22, 124.
[9] Locke's summary of his chapter, "Of the Extent of the Legislative Power", presents some of the ideas just discussed: "These are the bounds which the trust that is put in them by the society and the law of God and Nature have set to the legislative power of every commonwealth, in all forms of government. First: They are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favourite at Court, and the countryman at plough. Secondly: These laws also ought to be designed for no other end ultimately but the good of the people. Thirdly. They must not raise taxes on the property of the people without the consent of the people given by themselves or their deputies. And this properly concerns only such governments where the legislative is always Ml being, or at least where the people have not reserved any part of the legislative to deputies, to be from time to time chosen by themselves. Fourthly: Legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have." Ibid., bk, II, sec. 142.
[10] See, for example, Thomas Aquinas, Summa Theologica, part 2, no. 3, q. 95, art. 2, p. 57 (1915 ed.): "Every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature it is no longer a law; it is but a perversion of law."
[11] Locke, op. cit., bk. II, sec. 160.
[12] Ibid., bk. II, sec. 202.
[13] Ibid., bk. II, sec. 168. The reader thinking in the terms of modern politics would now answer the question by saying, "The people must judge." But it is to be noticed that Locke means their right to fight, their right to "appeal to Heaven." To constitutionalize and institutionalize this right to judge was to be part of the work of the American Revolution.
[14] Ibid., bk. II, sec. 203.
[15] Rebels in behalf of the great ends of society were not rebels; the tyrant was the lawbreaker, a rebel against law superior to himself. "In whatsoever he has no authority, there he is no king, and may be resisted: for wheresoever the authority ceases, the king ceases too...." Ibid., bk. II, sec. 239.
[16] Ibid., bk. II, sec. 225. Cf. the Declaration of Independence.
[17] A Discourse Concerning Unlimited Submission (Boston, 1750), p. 38 ff.
[18] This subject of convenant, compact, and binding law is briefly treated in the author's The Foundations of American Constitutionalism, a series of lectures delivered in New York University. The purpose of those lectures was to show the origins of American constitutional doctrines, especially as indicated by New England history.
[19] Loan Association v. Topeka, 20 Wallace 655, 663. The word "reservations" deserves special attention. It unquestionably implies the existence of rights before governments were established, and it is similar to, if not identical with, the theory of a body of natural rights under natural law anterior to the constitution of social order. We may well notice also the principles often announced in federal court decisions two hundred years and more after Locke, which declared acts void because they violated principles of right and justice; the supposition is that there is a standard of justice beyond which legislation must not go and which is protected by the due process clause of the fourteenth amendment.
[20] Journal of the convention in American Archives (Peter Force, ed.), fourth series, VI, col. 1524. See also, H. B. Grigsby, The Virginia Convention of 1776, pp. 8, 17-18. It is interesting to notice that the Pennsylvania assembly, when consenting to the compacts between the colonies in 1776, spoke of "reserving to the people of this Colony the sole and exclusive right of regulating the internal government and police of the same." American Archives, fourth series, VI, col. 755.
[21] See Becker, op. cit.; Lincoln, op. cit.; Schlesinger, op. cit., especially p. 591 ff.
[22] These were Willing and Humphreys of Pennsylvania and Read of Delaware. John Dickinson and Robert Morris of Pennsylvania were absent when the vote was taken. Dickinson appears to have been influenced by the belief that, before actual declaration of independence, state governments should be set up and that there should be agreement on the terms of confederation. It was not unreasonable to contend that substantial governmental union should precede separation or that the two be practically contemporaneous.
[23] "The declaration of independence being engrossed and compared at the table was signed...." Journals, V, p. 626. See Herbert Friedenwald, The Declaration of Independence, ch. VI. Some of the signers whose names were on the list were not members of Congress on July 4. One member is known to have signed as late as 1781.
[24] Of course, Congress might have discussed at length the problem of just how much power Parliament had had; but there would have been disagreement, and the whole declaration, if one had ever been reached, would have been ineffective. Thus Parliament was ignored as a body "foreign to our constitutions, and unacknowledged by our laws...."
[25] By this I do not mean that there were no persons who rejected the doctrines of compact and natural rights; but these beliefs were so widely held that they may with some confidence be ascribed even to many who were not ready to act upon them by rebellion.
[26] "As usurpation is the exercise of power which another hath a right to, so tyranny is the exercise of power beyond right, which nobody can have a right to...." Locke, op. cit., bk. II, sec. 199. "Wherever law ends, tyranny begins, if the law be transgressed to another's harm...." Ibid., bk. II, sec. 202. Doubtless the American patriots were willing in their excitement to use terms of denunciation fitting a Borgia or a Caligula. But without reference to that fact, the philosophy of the Declaration is consistent. It is tyranny that justifies revolution, and surely Jefferson piled up a rather large series of specific indictments.
[27] Notice that John Milton (quoted without reference by J. W. Thornton in The Pulpit of the American Revolution, pp. 67-68 note) pointed out that to resist authority acting contrary to what St. Paul makes the duty of those in authority is not to "resist the power nor the magistracy" but to "resist a robber, a tyrant, an enemy." Jared Eliot, in his Connecticut election sermon, 1738, said, "Arbitrary Despotick Government, is, When this Sovereign Power is directed by the Passions, Ignorance & Lust of them that Rule. And a Legal Government is, When this Arbitrary & Sovereign Power puts itself under Restraints, and lays itself under Limitations, in all Instances where they see it Either possible or probable, that the Exercise of this Sovereign Power may prove or have proved Prejudicial or Mischievous to the Subject: Even this is an Act of Sovereign Power. This is what we call a Legal Limited & well Constituted Government. Under such a Government only there is true Liberty." Quoted in Baldwin, op. cit., p. 176.
[28] "The Power of the greatest Potentate on Earth is not Inherent in him, but is a Derivative...." Ebenezer Pemberton, On the Power and Limitations of Magistrates, Massachusetts election sermon, 1710. Quoted in Ibid., p. 174.
[29] In a pamphlet ascribed to Elisha Williams and issued in 1744, we find this: "Reason teaches us that all Men are naturally equal in Respect of Jurisdiction or Dominion one over another.... But it [natural freedom] consists in a Freedom from any superior Power on Earth, and not being under the Will or legislative Authority of Man, and having only the law of Nature (or in other Words, of its Maker) for his Rule...." Quoted in Ibid., p. 176. The writer goes on to consider why men gave up the original state of nature and he refers to Locke.
"... 'Tis not indeed pretended that any one man or number of men have any natural right or superiority, or inherent claim of dominion or governmental authority over any other man or body of men. All men are by nature free and equal and independent in this matter. It is in compact, and in compact alone, that all just government is founded." Jonas Clark, Massachusetts election sermon, 1781, Quoted in Ibid., p. 180.
"But though men when they enter into society give up the equality, liberty, and executive power they had in the state of Nature into the hands of the society ... yet ... the power of the society ... can never be supposed to extend farther than the common good...." Locke, op. cit., bk. II, sec. 131. See also secs. 4, 54.
CHAPTER XI
EARLY STATE CONSTITUTIONS
The Declaration of Independence involved the necessity of establishing state governments. Separation from the mother country meant that the colonies were no longer colonies in the British empire, but independent states. The early stages of the process of transition were distinctly a part of the conflict with Britain. The Revolutionary movement, while it was still only a rebellion and before there was any definite intention to break with Britain altogether, necessarily produced some form of extra-legal government; royal and proprietary governors were ignored or steps were taken to overcome or circumvent their power. Provincial congresses or conventions or committees chosen in the various communities contrived, as best they might, to get their way. The growth of the power of these conferences, especially of the committees having in charge the whole management of resistance, was as a rule gradual; but it began before the fourth of July, 1776.
The Continental Congress was naturally interested in the establishment of substantial governments in the rebellious colonies. Some of the members were at an early day quite aware of what such an establishment would imply, and if they were eager for independence, they were keenly desirous of seeing the colonies enter upon the job of fashioning governments capable not only of resistance but of doing the work of self-dependent commonwealths.
The first important step was taken by the provincial congress of Massachusetts. That colony sent a formal letter (dated May 16, 1775) to the Continental Congress asking for explicit advice "respecting the taking up and exercising the powers of civil government," and promising to submit to such "a general plan" as Congress might direct for the colonies.[1] Early in June Congress answered the inquiry: inasmuch as no obedience was due to the act of Parliament for altering the charter, and no obedience to a governor or lieutenant-governor endeavoring to subvert the charter, those officers should be considered as absent and their offices vacant; it was resolved that "in order to conform, as near as may be, to the spirit and substance of the charter, it be recommended to the provincial Convention, to write letters to the inhabitants of the several places, which are intituled to representation in Assembly, requesting them to chuse such representatives, and that the Assembly, when chosen, do elect counsellors; which assembly and council should exercise the powers of Government, until a Governor, of his Majesty's appointment, will consent to govern the colony according to its charter."
In the latter part of the same year New Hampshire sent a somewhat similar request, which was answered in substantially the same manner.[2] Soon afterwards, like recommendations were made to South Carolina [3] and Virginia.[4] In these three cases, however, the advice of Congress, more clearly than in the reply to Massachusetts, brought out the idea of an independent representative body capable of setting up a government; it more nearly approached the conception of a representative constitutional convention. Indeed, that idea in its fundamentals is plain.[5]
The next spring (May, 1776) a resolution with a very expressive and conclusive preamble was passed in Congress. It declared it necessary that the exercise of every kind of authority under the Crown should be totally suppressed, that all of the powers of government should be exerted under the authority of the people, and that it be recommended to the assemblies and conventions of the united colonies, where no government sufficient to the exigencies of their affairs had been established, to adopt such government as should, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents and of America in general.[6] Thus nearly a year had passed between the advice to Massachusetts and the general recommendation to the colonies. The hesitant might still persuade themselves that the governments established were to be but temporary, lasting only until the unfortunate dispute with the mother country should be settled, but this general advice meant that the colonies were henceforth to be free and independent states.
In the transmutation of colonies into commonwealths the principles on which these new states were to be founded were a matter of transcendent importance. And, as principles have reality and stability only when made actual, the method and the machinery whereby the states were established and organized are of signal significance. Many times in the past, writers on government had asserted that the people were the original possessors of power and the source of governmental authority. Such declarations had been announced as the corner stone of the American argument against Britain. Now that the Americans had the opportunity to set up governments, how nearly would their conduct accord with this doctrine? An intelligent people, a reading people, a people well-schooled by orators, pamphleteers, lawyers, and preachers, and instructed by the political discussions of a decade, had the chance to rear governments and to fix the limits of their power by legal and authoritative commandments. Adams tells us that he declared that the people "must be all consulted, and we must realize the theories of the wisest writers, and invite the people to erect the whole building with their own hands, upon the broadest foundation." [7] The principles of political philosophy were to be put to the test.
What then was necessary if the theories of "the wisest writers" were to be actualized with an exactness they themselves could not have conceived? It was necessary (1) to bring into political action the main body of the people; (2) to produce an organ representing the people, the duty of which would be to describe the government and to define, if need be, the limits of its power; (3) to give the people, the original of power, the opportunity of passing definitely upon the proposed constitution and of bestowing upon the government the legal right to govern; (4) so to proceed that the body drawing up the constitution should be sharply distinguished from the legislature — the legislature acting as a temporary revolutionary government and the legislature to be reëstablished under the new system; this was necessary because there must be no obscuring the derivative power of government as distinguished from the inherent power of the people. The body that drafted the constitution must not, therefore, legislate in the ordinary sense of the word. If the convention should not only draft a constitution but also act as a legislative body, then legislation and the constitution might appear to be on the same plane; the convention must not act as if it were a government; it must in all respects consider itself as a body representing the people for the specific purpose of preparing a government. If the constitution emanated from the convention and was not formally ratified by the people, the derivative character of the government might not stand forth so adequately and conclusively that even the blind could see. Only by the most careful observance of process in accord with elementary principles could it be made perfectly evident that to secure life, liberty, and the pursuit of happiness governments are instituted among men and derive their just powers from the consent of the governed.[8]
The constitutional convention is a familiar American institution, so familiar, in fact, that we find difficulty in realizing its fundamental character. Use of the process of representation for gathering a body of people with authority to draft a constitution appears so simple that we naturally think of the representative convention, the primary body subject only to the people themselves, as if the men of the Revolution created it without engaging in serious perplexity. But of course such was not the case; there was perplexity as well as failure in some cases to adopt methods plainly demonstrating the theory of popular government. But the statesmen of the day had the advantages of experience with representation as a working system and did not need to rely on theory alone. Even the provincial congresses and gatherings which had assumed control in the various colonies, though generally very irregularly constituted and irregularly chosen, were at the worst ostensibly representative; and thus the idea of a body based on systematic representation rather naturally adapted itself, under the wise guidance of Congress, to the existing practices.
In Massachusetts, after much discussion, the method which was followed showed so perfectly the theory of popular power and the nature of a constitution, that the work of that state merits our special attention although the constitution was the last of the strictly Revolutionary constitutions.[9] In May, 1777, the body which, formed on the analogy of the old charter, was the revolutionary but also the actual government of the state, recommended that the towns at the coming election empower their representatives to take part as members of a constituent convention for making a constitution which should be submitted to the towns for adoption and be instituted by the General Court, if approved by two-thirds of the freemen of the state over twenty-one years of age.[10] Upon the authorization of the towns thus secured, the assembly resolved itself into a convention, drew up a constitution and submitted it to the people (March 4, 1778). It was not accepted. There were several objections to it; especially noteworthy was the objection based on the absence of a bill of rights.[11]
If one wishes to see the literalness with which the men of those days took the theories of the origin of government in compact and the original possession of power by the people, he should read the Essex Result, the product of a convention of Essex County but largely the work of Theophilus Parsons.[12] "Over the class of unalienable rights", the Result declared, "the supreme power hath no controul, and they ought to be clearly defined and ascertained in a BILL OF RIGHTS, previous to the ratification of any constitution. The bill of rights should also contain the equivalent every man receives, as a consideration for the rights he has surrendered." [13]
After the defeat of the constitution in 1778, steps were taken to prepare another and to follow methods in all respects theoretically correct. The temporary government asked the voters to vote on two questions: did they desire a new constitution, and if so, would they empower their representatives to summon a convention for the sole purpose of framing one? As two-thirds of the towns were favorable, the towns were then called upon to select delegates who should form a constitution to be established by the vote of two-thirds of the free male inhabitants twenty-one years old, acting in town-meetings called for that purpose.[14] The convention thus provided for met (September, 1779), framed a bill of rights and a constitution, submitted its handiwork to the people, then adjourned and awaited the popular verdict. In due time the convention once again assembled, canvassed the votes, decided that the constitution was adopted, and arranged for the inauguration of the new government.[15] The process was perfect; no one could doubt that the people were the source of governmental authority, that their will was superior to the government which was their creature, or that the government and the state were not the same.
This constitution of 1780 was carefully worked out with patient thought and under able, scholarly guidance. It conclusively ended the struggle, centuries old, of enmity between government and the people; the old enemy, government, was made the servant of the politically-organized people.[16] The question for the future was whether the people possessing power would wisely use it and develop laws and political processes suitable to new needs.
The methods of Massachusetts have been here presented in some detail because of the precision with which the work was done. We must content ourselves with a summary of the action of other states. The Virginia constitution, which was drawn up before the adoption of the Declaration of Independence, was framed by a convention acting as the temporary revolutionary government but not expressly authorized to undertake the task of constitution-making. This was true also of South Carolina (1776) and New Jersey. The congresses or conventions of all the other states were expressly authorized to act, but these bodies were not chosen for the single purpose of framing constitutions. When constitutions were put into operation without being submitted to the people, there was a good deal of objection in a number of the states to the establishment of a constitution without direct popular sanction.[17]
A word on the subject of submission of the constitution to the people is appropriate here, though we must look into the decades after the Revolution for the development of the practice. Only gradually was the principle of submission taken up by the various states; the first state outside of New England to take this step was New York, in 1821. By the time of the Civil War, the practice seemed to be fairly well established. In a later period, however, various constitutions were drawn up and established without popular ratification. For example, the Mississippi constitution of 1890, the first of a series of constitutions drawn up by southern conventions, the purpose of which was to get rid of certain inconveniences of the constitutions forced upon the states during Reconstruction,[18] was not submitted.
The Revolutionary constitutions were framed in time of war, and the strange fact is, not that they failed in some particulars to carry out the perfect theoretical procedure, but that they so nearly approached it. Although in a number of the states there was a confusion of legislation and constitution-making, a confusion that necessarily obscured in some degree the fundamental distinction between ordinary legislation and the constitution as the supreme will of the state, the necessity of popular authorization seems to have been pretty fully recognized and the nature of a constitution, if not the full qualities of a convention, was in a general way clearly presented.
Although in the whole process of constitution-making there was a fairly complete recognition of the principles of popular government and of Revolutionary doctrines — more plainly so in some states than in others — there was not much in the way of sentimental theorizing unaffected by experience; and the institutions which were actually established were in large measure essentially those to which the people were accustomed. The constitutions provided for a governor and generally for a bicameral legislature. Pennsylvania and Georgia established unicameral legislatures, but soon fell into line with the practice of the other states.[19] The old colonial council was reëstablished in some cases; in some of the states a board of censors was provided for. Suffrage was limited in various ways, so variously in fact that no generalization is possible; and there were also sundry qualifications for holding important offices — not only property qualifications but religious and theological as well.[20]
These early constitutions show a general distrust of the executive and, relatively, a confidence in the legislative — another direct product of colonial experiences. Some decades had to pass before executive authority was widened. Compared with modern constitutions, the early documents were brief. Their brevity can be easily accounted for: the people trusted in the ordinary rectitude and good sense of the legislature; they had not as yet learned the need of embodying in the constitution detailed directions and explicit restrictions; they had not gained that confidence in themselves which at a later day led them to place in their constitutions various provisions not of a fundamental character, but rather in the nature of statutory enactments. Life was comparatively simple and comparatively free from social and economic problems; the later development of constitutions mirrors the increasing complexity of the social and economic order.
Some of the early constitutions did not contain provisions for amendment, and the omission is not easily explained; certainly, if the right of revolution were to be legalized, there should be legal means for altering the form and the foundation of government. The failure to make such provision is probably attributable to haste and partly to the attention given by the framers to the fundamental character of their work; they did not realize how quickly and how often the need of change would arise.[21]
Including Vermont, which began to assume and assert statehood in the period under review, eight states adopted bills of rights (New Hampshire, Vermont, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, and North Carolina).[22] They accept the theory that government rests on consent and exists for the protection of rights. The Virginia bill of rights, largely the work of George Mason, contains the same philosophy as the Declaration of Independence and it was passed in the state before the Declaration was passed. It announces the doctrine of "inherent" rights of the people and the doctrine that all power is derived power. It then outlines in a masterly way the principles upon which free government rests. Associated with the announcement of the fundamental principle that power springs from the people and that the people have the right to alter and abolish government are certain other declarations of secondary rather than primary importance; they are of service in maintaining the more elementary and fundamental rights. The announcement of religious liberty in the Virginia bill is especially significant as an indication of the liberalizing effect of the Revolutionary movement. The first and most elementary principle of bills of rights is that men possessed rights before government was formed. Though it is now an elementary principle of constitutional law that the legislature of a state in the union has all power not forbidden either expressly or by implication, no man in appearing before a court of justice needs to set forth the essentials of individual liberty as a grant made to him by government; human rights are supposed to have existed before the establishment of government or state.
One well-known principle of the American constitutions is the separation of the powers of government. The legislative, executive, and judicial branches of government are distinct, and each branch is possessed of its peculiar and particular authority. We have carried that principle to an extent not known to the modern states of Europe; it is applicable to both our state and national governments; countless questions involving the interpretation and the application of the principle have come before the courts for decision. When the federal Constitution was framed, it seems to have been taken for granted as an elementary doctrine that separation of powers was one of the main safeguards of liberty. The idea was associated with the need of checks and balances which would keep each department within its proper sphere. Not all of the early state constitutions [23] plainly provided for separation, nor did the federal Constitution explicitly do so, but only by fairly conclusive implication.
The origin of this principle is not easily determined. Like many others, it is in some respects of hoary antiquity. The influence of Locke is probable.[24] In this matter, as in others, the Americans carried doctrine to the logical ultimate. The most influential writer was Montesquieu, whose Esprit des Lois was known in Revolutionary days. John Adams, a lover of checks and balances, seems to have been affected by James Harrington.[25] But American experience strengthened, if it did not create, the principle. Men do not commonly — if they are wise, and the early American statesmen cannot be denied the attribute of wisdom — enthusiastically adopt a disembodied idea from beyond the field of practical acquaintanceship. The colonists had not lived under a system in which separation of the powers was fully recognized; but they had been engaged in a series of debates and disputes concerning the extent of the authority of different branches of government. It is true that in some instances, perhaps commonly, they were really desirous of asserting the supremacy of the legislative branch, but the idea of separation and distinction was in some instances brought fairly clearly to light.[26]
Associated with the doctrine of separation of powers is the principle that granted power cannot be delegated. And this principle brought up in the course of time a good many constitutional problems. Important as the principle of separation is, constitutions do not provide for complete isolation of the departments of government. For example, the fact that a bill requires the signature of the executive, unless it is passed over his veto, gives him a participation in legislation; and executive influence over legislation has greatly increased in the passing decades.
If it be asked why people were so unwise — and the question is often asked — as to hamper government by division of authority and by checks and balances, the answer is simple: such was the kind of government the leaders and probably men in general wanted. Who are a free people? Those who live under a government so constitutionally checked as to make life, liberty, and property secure. That would have been the explicit answer of the Revolutionary days. In some ways the most marked development of the idea of popular government from that time to this has been the development of the belief that governments, strongly directed by popular opinion, should be competent and active — a change from the belief that governments should not do things to the belief that they should do things.
[1] The letter, in the form of a resolution, was presented to Congress June 2. An essential paragraph is as follows: "We are happy in having an opportunity of laying our distressed state before the representative body of the continent, and humbly hope you will favour us with your most explicit advice respecting the taking up and exercising the powers of civil government, wch we think absolutely necessary for the Salvation of our country and we shall readily submit to such a general plan as you may direct for the colonies, or make it our great study to establish such a form of government here, as shall not only most promote our advantage but the union and interest of all America." Journals, II, p. 77. This was a very wise and shrewd approach. It took for granted that the matter was of continental concern; it was becomingly submissive to the opinion of Congress, and it indicated the desirability of a general plan for "America". But the general plan had to wait, for not all the colonies were so far along the road to independence as was Massachusetts.
[2] Laid before Congress October 18, 1775. Answered November 3, 1775.
[3] November 4, 1775.
[4] December 4, 1775.
[5] "Resolved, That it be recommended to the provincial Convention of New Hampshire, to call a full and free representation of the people, and that the representatives, if they think it necessary, establish such a form of government, as, in their judgment, will best produce the happiness of the people, and most effectually secure peace and good order in the province, during the continuance of the present dispute between G[reat] Britain and the colonies."
[6] In the above sentences the resolution of May 10 and the preamble adopted on May 15 to accompany the resolution are abbreviated and woven together. We can see in these resolutions the basis of the conversation reported by John Adams: "Mr. Duane called it to me, a machine for the fabrication of independence. I said, smiling. I thought it was independence itself, but we must have it with more formality yet." John Adams, Works (C. F. Adams, ed.), III, p. 46.
[7] Ibid., III, p. 16.
[8] These ideas and the elements of the process flowed naturally and inevitably from the whole theory of the compact-origin of government as set forth by "the wisest writers" and announced over and over again during the preceding century by the New England preachers. How well Adams and others knew written pronouncements concerning a constitutional convention which were put forth in England in the middle of the seventeenth century, we do not know. They knew the theory, and some of them probably knew Sir Henry Vane's Healing Question. They may not have known an interesting document of that earlier century which very distinctly presented the fundamental character of a constitutional convention. I refer to a plan drawn up in 1648: "That some persons be chosen by the Army to represent the whole Body; and that the well-affected in every County (if it may be) chuse some persons to represent them: And those to meet at the Head-Quarters.
"That those persons ought not to exercise any Legislative power, but onely to draw up the foundations of a just Government, and to propound them to the well-affected people in every County to be agreed to: Which Agreement ought to be above Law; and therefore the bounds, limits, and extent of the peoples Legislative Deputies in Parliament, contained in the Agreement to be drawn up into a formall contract, to be mutually signed by the well-affected people and their said Deputies upon the dayes of their Election respectively...." Legal Fundamentall Liberties, p. 34. Quoted in Pease, op. cit., p. 261. Notice the character of the body to meet at headquarters and the popular ratification by signing. It appears that deputies elected to Parliament under this fundamental instrument were, when elected, to sign, a provision similar to our provision requiring officers elected as well as others to take oath to abide by the Constitution.
[9] In New Hampshire, where the general methods of operation were likely to resemble those of Massachusetts, a constitution was adopted in 1776 by a body not chosen for that special task and that alone. In 1778 a convention properly constituted drafted a constitution which was defeated by popular vote. Other conventions met and framed constitutions which met with a like fate. One was finally approved in 1783.
[10] H. A. Cushing, History of the Transition From Provincial to Commonwealth Government in Massachusetts (Columbia University Studies in History, etc., VII, no. 1), p. 207.
[11] There is probably no need of attempting to decide exactly when and where the idea of the character of the full-fledged constitutional convention came to light. We have already noticed the appearance of the idea in England over a hundred years before the American states acted. The origin of the institution, perfectly envisaged, has been attributed to Concord, Massachusetts, by R. S. Hoar ("When Concord Invented the Constitutional Convention," Boston Transcript, July 3, 1917). The resolutions of the town-meeting (October 21, 1776) are full of interest: they declare the legislative is no body proper to form a constitution — "first Because we conceive that Constitution in its proper Idea intends a system of principals established to secure the subject in the Possession of, and enjoyment of their Rights & Privileges against any encrouchment [sic] of the Governing Part. Secondly Because the same Body that forms a Constitution have of Consequence a power to alter it — thirdly Because a Constitution alterable by the Supreme Legislative is no security at all to the subject against the encrouchment [sic] of the Governing part on any or on all their Rights and Privileges." It is quite plain that such principles underlie the great body of American constitutionalism. Edward Rutledge suggested a special congress of new members to draw up articles of confederation (August 19?, 1776). Letters of Members of the Continental Congress (E. C. Burnett, ed.), II, p. 56. It would seem, however, that the reason was chiefly grounded on the fact that Congress was busy.
[12] Cushing, op. cit., pp. 221-226. Concord cast 111 votes against the constitution and none in its favor. Hoar, op. cit.
[13] Result of the Convention of Delegates Holden at Ipswich in the County of Essex, p. 15.
[14] Cushing, op. cit., pp. 227-229. It cannot be said that there is anything sacred in the proportion of two-thirds.
[15] As to the difficulty in determining the full meaning and effect of the returns from the towns, see S. E. Morison, "The Struggle Over the Adoption of the Constitution of Massachusetts, 1780", Mass. Hist. Society Proceedings, L, p. 396 ff. (October, 1916-June, 1917). He says, "'... the plain people of the state, in town meeting assembled, were able to point out the principal flaws that time and experience would find in the constitution drafted by John Adams, and adopted by a Convention that included among its members Samuel Adams, James Bowdoin, Theophilus Parsons, John Lowell, George Cabot, and Robert Treat Paine.' "
[16] This statement may appear an exaggeration in light of the fact that there were qualifications for voting, qualifications for holding office, religious provisions, and other matters in the constitution that needed to be altered in later years; the constitution of 1780 was not altogether in accord with twentieth-century democracy. But nevertheless, one does not mistake in seeing in this constitution and the method of its adoption the logical end of a long epoch; men had found a manner of creating a government and making it subject to their will; they had found a method not only of granting power but of preserving liberty. As far as political liberty was concerned, the government was in the people's hands.
[17] "Jefferson always denied the power of the convention to adopt a permanent frame and intended that his draft, if adopted, should be referred to the people." Lingley, op. cit., p. 174. "Resolutions in New York and North Carolina expressed strongly the demand for a popular voice in the approval of constitutions, but here too it is probably the case that the popular participation was less than might have been desired because of the critical condition of affairs and of the necessity for prompt action. Even under these conditions action was taken in a number of states which amounted to an informal submission of constitutions to the people (Maryland, Pennsylvania, North Carolina, South Carolina, 1778), but the proposed Massachusetts constitution of 1778 is the first instrument of government which was formally submitted to a vote of the people." W. F. Dodd, "Constitutional Convention," Cyclopedia of American Government, I, p. 425.
[18] South Carolina, 1895; Louisiana, 1898; Virginia, 1902. The Delaware constitution of 1897 was not submitted, and the Kentucky constitution of 1891 was altered by the convention after it had been ratified. See W. F. Dodd, The Revision and Amendment of State Constitutions, pp. 67-68. The author, after a careful examination of precedents, points out that the "more usual procedure" (not universal practice) includes three popular votes: (1) the vote of the people authorizing a convention; (2) the election by the people of delegates; (3) the submission of the constitution for adoption or rejection. Ibid., p. 71. It should be noticed, however, that he brings out the fact that constitutions are "elaborated by constitutional conventions chosen for this express purpose, and distinct both in organization and election from the ordinary legislative bodies." Ibid., pp. 70-71. Amendments not formulated by conventions are frequently made by popular vote.
[19] Pennsylvania in 1790. Georgia in 1789.
[20] Something is said about this in a later chapter of this work.
[21] "The absence of provision for alteration in the constitutions of 1776-77, should not be taken as an indication that their framers thought the regular legislatures competent to alter or establish constitutions, but rather that they did not consider the matter at all." Dodd, The Revision and Amendment of State Constitutions, p. 27.
[22] For the Delaware bill of rights, see Am. Hist. Rev., III, p. 641 ff. For illustrations of the prevalence of compact thinking, see the preamble of the Massachusetts Constitution, 1780, the preamble of the New Jersey constitution, 1776, and the Maryland declaration of rights, 1776.
[23] "Of the twelve commonwealths which, prior to 1787, had adopted constitutions, six had inserted ... a general distributing clause...." William Bondy, The Separation of Governmental Powers (Columbia University Studies in History, etc., V, no. 2), p. 19. Most states now have distributing clauses, and in all the general principle is recognized.
[24] Locke spoke of three powers — legislative, executive, and federative — but did not emphasize the necessity of separation on the lines known to our constitutions.
[25] See H. F. Russell Smith, Harrington and His Oceana a Study of a 17th Century Utopia and Its Influence in America, especially pp. 63-66, 192-194.
[26] "Indeed, the doctrine of the separation and balance of powers was proclaimed in Massachusetts before the Esprit des Lois saw the light. In 1742 the house of representatives in Massachusetts rejected the demands of Governor Shirley for a permanent salary on the ground that it 'would greatly tend to lessen the just weight of the other two branches of the government, which ought ever to be maintained and preserved; especially since the governor has so great authority and check upon them.'" W. S. Carpenter, "The Separation of Powers in the Eighteenth Century," Am. Pol. Sci. Rev., XXII, p. 37.
CHAPTER XII
THE ARTICLES OF CONFEDERATION
When Lee introduced into Congress the resolution for independence (June 7, 1776), it was accompanied by a resolution that steps be taken for the formation of a confederation of the states. The need of organization had long been in the minds of certain leaders, and Franklin the year before had brought in a plan based in some degree on the Albany Plan of 1754.[1] With his plan nothing of importance was done, though it evidently had influence on later proceedings; but after independence was declared, Congress began debating at length articles brought in by a committee [2] and commonly called the Dickinson draft. Pressure upon Congress, as well as some inherent difficulties in the problem, delayed the completion of the task, and consequently not until November, 1777, were the Articles finally adopted by Congress and submitted to the states.
With the announcement of independence, the problem of imperial organization crossed the ocean; it was no longer the problem of organizing the British empire or of ascertaining its constitutional structure, but of organizing America. Nevertheless, in many respects the problem was the old one; reduced to the lowest terms, it was at least the problem of arranging some practicable scheme in which the states would work together for common ends. For there was need of coherence in the war; and as time was soon to show, coherence in peace was quite as necessary and possibly more difficult to maintain. What were the elements in the task, if we take for granted that complete unification, complete absorption of the states into a unitary system, was impossible? The most troublesome problems were again the familiar ones; and central among them was the pivotal question of supply, of finding means of assurance that the states would furnish properly the men and the money for the general needs of the union. If they were to retain a large share of self-government, and of course that was inevitable, what authority should be allowed to the body representing them all? Everybody cried, as he had done twenty years before, that union was absolutely necessary; but when it came to plans of union, there was still distraction.[3]
It is possible that, if a system of union could have been decided upon immediately after independence was announced, the Articles of union would have contained no announcement of state sovereignty. In neither the Dickinson draft (July 12, 1776) nor the draft presented to Congress by the committee of the whole (August 20) was the sovereignty of the states specified; the articles submitted on the latter day declared: "Each State reserves to itself the sole and exclusive regulation and government of its internal police, in all matters that shall not interfere with the articles of this Confederation." [4] The opening paragraphs, it is true, might be construed to signify that nothing was contemplated but a working union of sovereign states. Such glimpses as we can get of the work of construction in the succeeding months, especially in 1777, appear to indicate that, when the Articles were made distinctly to conform to the idea of a coöperative system of sovereignties, the change was the product of a developing sense of separate independence or of growing suspicion. The finished Articles, as submitted to the state legislatures for adoption, announced in plain language the retention of sovereignty by the states.[5]
There were three points on which differences of opinion especially centered: (1) whether the states should have equal voting power in the Congress of the Confederation or should vote in proportion to their population or wealth or some such indication of importance and strength; (2) what should be the basis for determining how much each state should pay into the common coffers; (3) whether the states claiming vast stretches of western lands should continue to hold them in their possession; and this included the subordinate question — whether or not Congress should be given authority to limit the dimensions of the states.[6]
The debates on the first two questions are of interest to us because they brought out a number of the crucial problems that vexed the men who labored to form a union a decade later; [7] the larger states wished proportional representation; the smaller states wished equal representation. Were the states to be unequally taxed but to have equal voting power in Congress? The debate appears to have been earnest and searching. The outcome of the discussion was the provision that each state should have one vote in Congress, thus securing the complete equality of the states in voting power; but charges of war and all other expenses were to be supplied by the states in proportion to the value of land within each state granted to or surveyed for any person, and the improvements on such land. In other words, equality of the states was accepted as the basis of voting power in Congress, inequality was accepted as the basis for contributions to the treasury. This arrangement was sure to be distasteful to many, and in the long run it proved unsatisfactory. Franklin said in the course of the debates, as John Adams noted them: "Let the smaller Colonies give equal money and men, and then have an equal vote. But if they have an equal vote without bearing equal burthens, a confederation upon such iniquitous principles will never last long." [8]
The western land question presented special difficulty. A suitable solution of the problem was of immense importance. The Congress was engaged in a peculiarly difficult task; under any circumstances, the establishment of a union of states, each cherishing its own interests, must present serious obstacles. And if a union could be formed, what were the prospects that it would endure? In the days when the Confederation was under debate, the critical question was whether a union could be formed at all; and the difficulty of finding an affirmative answer seemed to turn in considerable measure on the dread of the landless states that the landed states would become wealthy and powerful and would overawe and mayhap impoverish their lesser neighbors. But if land were surrendered, it must be governed by somebody; so here again the states, seeking to form a union, were confronted by an essential part of the problem of imperial organization — the problem of imperial expansion. Some of the states claimed that their sea-to-sea charters gave them territory in the west; and New York made assertions of ownership of a considerable region. Other states were within definite limits; Rhode Island, New Jersey, Delaware, and Maryland were comparatively small in area. It is not strange that they should look with jealousy upon their neighbors claiming vast territory, the source of both wealth and power.
It seems remarkable now that the ownership of the transmontane region should have been so hotly contested during those perilous days when the real question was whether the British army would not beat down resistance and the rebellion against the mother country totally fail. But discussed it was; for this western question was a perplexing one, involving much more than merely fixing the western limits of the states. With the question of boundaries went the control of land purchases and the fixing of a land policy as well as direction and control of settlements that might be made beyond the mountains. From the beginning of colonial history, the frontier policy had been for each colony a matter of difficulty, and it was not so easy as it might now seem to cast aside traditions and at once transfer the whole — policy, hopes, plans, government, and lands — into the hands of a central authority as yet untried and indeed unformed. It was characteristic of American optimism, probably, to begin the counting of chickens before they had emerged from the shells.
The problem of the west was an old one, and, like so many others, was associated with the experiences of the old empire. The Albany Plan of Union had proposed a solution. The plan which Franklin presented to Congress in 1775 declared that purchases from the Indians should be made for the general advantage and benefit of the united colonies. The Dickinson draft of a confederation, presented in July, 1776, included even more definite proposals, but they were not included in the draft of the Articles submitted by the committee of the whole the next month. Among the states without large landed possessions, Maryland was the most critical of a system of union which would leave some of the states in possession of western territory. When the Congress was discussing the Articles in the autumn of 1777 — for little had been done during many months preceding — a proposal was offered for which Maryland alone voted (New Jersey's vote was divided): "That the United States, in Congress assembled, shall have the sole and exclusive right and power to ascertain and fix the western boundary of such states as claim to the Mississippi or South Sea, and lay out the land beyond the boundary, so ascertained, into separate and independent states, from time to time, as the numbers and circumstances of the people thereof may require".
The principle of the resolution is significant: the western settlements were not to be held in permanent subordination, but were to become in the course of time independent states, presumably members of the union with equal rights. The proposal, however, was unacceptable, at least as far as it contemplated giving at once to Congress the power to fix boundaries for the large landholding states. Instead of adopting the resolution, Congress added to that paragraph of the Articles which provided for the adjudication of controversies between states the following brief but peremptory statement: "provided, also, that no State shall be deprived of territory for the benefit of the United States." [9]
The Articles were adopted by the Congress, November 15, 1777, and two days later they went forth to the states. Some of the states accepted them fairly promptly, and their delegates signed the Articles Under authorization of their respective states. Various amendments were proposed, but the most important dealt with the necessity of settling the western question and especially securing for the use of the United States the crown lands from which revenue could be obtained for paying the debts incurred for the common cause.[10] Maryland renewed her request for power in Congress to ascertain and restrict the boundaries of the large landholding states, and this was supported by Rhode Island, New Jersey, Pennsylvania, and Delaware — none of them having claims to territory in the west. By midsummer of 1778 most of the states had given their assent to the Articles. New Jersey took the step later in the year and was followed by Delaware in May, 1779. Maryland was still obdurate.
The months went by. A union of all the states was highly desirable, not to say imperative; delay was dangerous. Some concession or compromise was necessary. New York, whose claims seemed rather more nebulous than those of the states which asserted rights under sea-to-sea charters, passed a legislative act (February 19, 1780) empowering her delegates "to limit and restrict" her western boundaries. Congress now (September 6, 1780) declared this act was calculated to "accelerate the federal alliance"; the states with western land claims were asked to remove the only obstacle to a final ratification of the Articles. October 10, 1780, Congress passed a momentous resolution: all unappropriated lands ceded to the United States should be disposed of for the common benefit of the United States, "and be settled and formed into distinct republican states, which shall become members of the federal union, and have the same rights of sovereignty, freedom and independence, as the other states". Early in the following year Virginia consented to cede her territory northwest of the Ohio River. She laid down certain conditions and these raised some difficulties which do not need consideration here. Maryland could now feel fairly certain that her chief purpose was attained, and her delegates were authorized to sign the Articles. When this was done (March 1, 1781), the Confederation was complete.
Of great consequence was the final organization of the union, defective though it proved to be; and important also was the spirit of conciliation and national sentiment on which the union rested. Of some consequence, too, was the fact that the thirteen commonwealths, bound in "perpetual" union, jointly possessed a large, unsettled region; such possession probably helped in the development of a sense of common interest and common responsibilities. But of supreme importance was the discovery of the principle of expansion, of nation-building. The principle announced by Congress in 1780 was carried into effect by the famous Ordinance of 1787. Passed in the last months of the dying Confederation, the Ordinance is to-day a lasting memorial, a proof that the Americans had learned a great lesson from their own history. In the building of an empire — though for the time the empire was a confederation of sovereignties — the new settlements should not be permanently treated as dependents unfit to associate on terms of equality with the older members of the union.
It is unnecessary to recount the steps by which the various cessions of western lands were made by the states. In the course of time, those steps were taken. It is significant, however, that the Articles did not contain a provision authorizing the Congress of the Confederation to hold and manage the common territory thus granted or to lay down laws and ordinances for the government of the western settlements. Such powers may, perhaps, be inferred from the general acquiescence in the fact of possession and the circumstances under which the Articles were adopted.
A further view of the Articles is necessary. In Congress and in the states, there appears to have been less discussion concerning the powers delegated to Congress than one might have supposed. Taught by experience in the old empire, by the necessity of carrying on the war, and by earlier plans or discussions of union, the delegates in Congress were enabled to work out the distribution of powers between the central authority and the states with some approach to precision. The powers granted to Congress bear a general resemblance to those exercised by the Crown and Parliament in the old colonial system in which the colonies had grown to maturity; and if one compares the Articles with the Constitution adopted at Philadelphia in 1787, he will find a considerable similarity in the scheme of distribution.[11] Time was to show the defects of the system; but the actual merits of the system agreed upon are noteworthy. No power to lay taxes was bestowed on Congress, and no power to regulate commerce, the two things about which there had been so much dispute in the preceding decade. These omissions were largely instrumental in bringing into existence the Constitutional Convention of 1787.
Without the consent of Congress, the states were expressly forbidden to send an embassy to a foreign state, receive an embassy, enter into any agreement with a foreign power, form any treaty of combination among themselves, maintain ships of war or troops in time of peace — though a militia must be provided and sufficiently armed — , or engage in war unless actually invaded or in immediate danger of Indian attack. All charges of war and other expenses incurred for the common defense and general welfare were to be defrayed out of a common treasury supplied by the several states. To Congress was given, among other powers, the general powers of determining on war and peace, carrying on foreign affairs, though with some restrictions, regulating the alloy and value of coin, fixing the standard of weights and measures, regulating the trade and managing all the affairs with the Indians "not members of any of the States", establishing and regulating post offices from one state to another, appointing important army officers and all naval officers, borrowing money, building and equipping a navy, and making requisitions upon the states for troops. For doing the most important things, the vote of nine states in Congress was required, practically a three-fourths vote of the thirteen, a restriction certain to make effective action difficult. No alteration of the Articles could be made unless it be agreed to in Congress and confirmed by the legislatures of all the states. A "committee of the states" could, in the recess of Congress, exercise powers intrusted to it by Congress with the consent of nine states, provided that no power for which the voice of nine states was necessary should be delegated to the committee. One of the delegates could be appointed "to preside" — the predecessor, in fact, of the president of the United States, who does not preside at all.
While the Articles granted to Congress considerable authority, its powers were qualified, in some respects carefully, for the protection of the states' rights. Although Congress was given power to enter into treaties, the states were not totally forbidden to lay imposts, but they were forbidden to levy such duties as might interfere with "stipulations in treaties entered into by the United States ... in pursuance of any treaties already proposed by Congress to the courts of France and Spain." Congress could make no treaty of commerce whereby the states should be restrained from imposing such imposts on foreigners as their own people were subjected to; and apparently the states could freely prohibit the exportation or importation of any kind of goods. The failure to grant Congress complete power to regulate commerce rendered it difficult or impossible to make a commercial treaty with a foreign nation and to have assurance that the states would comply with its provisions. The years that followed disclosed the fact that the want of authority to make treaties which would bind the states was one of the cardinal defects of the system.
This "firm league of friendship", which was declared to be "perpetual", contained significant provisions for mutual friendship and coöperation among the states. While, it appears, the states were separate sovereignties, or possibly it is more correct to say, because they were separate sovereignties, the Articles contained explicit provisions concerning the rights of the "free inhabitants" of one state within the limits of another state. Such persons were declared to be "entitled to all privileges and immunities of free citizens in the several states", to have free ingress and egress to and from the respective states, and to enjoy privileges of trade and commerce. Extradition was provided for, and full faith and credit were to be given in each state to the records, acts, and judicial proceedings of every other.
The importance of these provisions for interstate relationships is this: (1) they proposed a substantial basis for a league of friendship that might in reality be perpetual; without such conditions of reciprocal consideration and recognition of common rights and interests, no league could endure. (2) They appear in similar though not identical words in the Constitution of the United States. This latter fact makes it especially important to notice that the provisions in the Articles, later transferred to the Constitution and made law, are based on the supposition that the states stand in relation of one to the other as distinct sovereignties. Extradition, for example, is in general an international matter and based on treaty provisions; no nation is bound, by any principle of "good neighborhood", to turn over to another nation, on demand or request, a fugitive from justice. The Articles embrace this international provision; it is included in the Constitution as a legal obligation.[12] The quasi-international relationship of the states of the union is most plainly illustrated by the fact that the writs issued in one state do not run in another.
More important than all else is the provision, already referred to (which became constitutional law with the adoption of the Constitution), concerning the rights and privileges of the free citizens of each state in the several states. This provision rests on the supposition of state sovereignty — in the Constitution on partial or quasi-sovereignty. The rights of the "nationals" of one state when sojourning in another state are similar to those generally recognized by the principles of international comity. Thus, again, because the states of the American union passed through a period in which they were, or thought they were, separate sovereignties, interstate relations, as far as rights of individuals are concerned, are, under the Constitution as it stands to-day, in some important respects not unlike the relations between separate national states of the world. Certain fundamental civil rights and privileges which are commonly recognized by the civilized nations of the world at large and are accorded to their own citizens are also accorded to foreigners sojourning within their limits. A citizen of America going to Britain or France expects to find, and he does find, the same degree of protection to his person and property as that enjoyed by citizens of those nations; he may, for example, make use of the courts of a foreign nation for the assertion and maintenance of his rights. And in these respects the Constitution of the United States makes such protection and such privileges legally obligatory upon the states of the union in their treatment of citizens of the several states. No nation, no national state, enforces the penal laws of another. The same principle is true of the members of the American union. In civil matters, however, every civilized nation does recognize in its courts the rights of an individual which are based upon the law or spring from the law of a foreign state. The same general principles obtain in interstate law of the American union. Some of these principles of international comity are made legally obligatory by our constitutional system. Full faith and credit are by constitutional provision accorded in each state to the public acts, records, and proceedings of every other state.[13] But in the world at large the same recognition is commonly given (and given on the same principles) by one nation to the acts and judicial proceedings of another nation. Furthermore, the general principles of jurisprudence — within the field of what is called private international law or the "conflict of laws" — are recognized and applied when questions arise concerning the rights of a citizen of one state suing or sued in the courts of another, or concerning the rights which are based on the law of a state not the state of the forum. A right established under the law of Ohio, for example, will be recognized as a right when a suit is instituted for its protection in Great Britain.[14] The principles applied in a foreign state are similar to those which will be applied in a court of an American state in passing upon the rights of litigants, when the rights so claimed spring from the law of a member of the American union. "The judiciary power of every government", said Hamilton, "looks beyond its own local or municipal laws, and in civil cases, lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe." [15] In making this statement, Hamilton was explaining the relationship between the federal and state courts, but he was also stating a general principle of jurisprudence. The thing to be emphasized here is the application of these principles to the interstate law of the American union in which the members stand in a quasi-international relationship.[16]
Among the duties assigned to Congress by the Articles of Confederation was that of acting as the last resort on appeal in disputes between two or more states. Under any conditions such disputes might arise, and in fact they did arise. If, as the Articles stated, the states were sovereign, and if there were no method for peaceful settlement, disputes might have to be settled by war, the time-worn method of trial by battle. The supervising authority of the Privy Council of the old empire, familiar to the men of America, may have had direct influence on the framers of the Articles; if so, it is one more evidence of the effects of the old colonial system. For carrying out this duty, Congress was authorized to act when any state should apply for a hearing. The states in disagreement might under the supervision of Congress appoint, by joint consent, commissioners or judges for hearing and deciding the controversy; but if such a method failed, because the states could not agree upon the tribunal, Congress was authorized to appoint, by a formal and cumbersome method, commissioners or judges with power to reach a "final and conclusive" decision. This provision for peaceful settlement of controversies between sovereign states was one of the most important provisions in the Articles; it at least proposed some method other than war. It foreshadowed one of the signally significant provisions of the third article of the Constitution of the United States.[17]
This fortunate and wise provision in the Articles was not allowed to lie idle. Pennsylvania and Connecticut had long indulged in acrimonious controversy over Connecticut's claim to territory in what is now northern Pennsylvania. On the petition of Pennsylvania, a court was set up at Trenton which in 1782 unanimously decided that the state of Connecticut had no right to the lands in controversy.
During the larger portion of the war and before the Articles went into effect, appeals of prize cases were passed upon by committees of Congress. The Articles gave Congress express authority to appoint courts for the trial of piracies and felonies committed on the high seas and to establish courts for determining appeals in all cases of captures. The states were making admiralty decisions in their own courts; and an appellate tribunal, if established under the authority granted by the Articles, was to have jurisdiction of cases appealed from the states. In 1780 Congress resolved to establish a court "for the trial of all appeals from the Courts of Admiralty in these United States". Judges were appointed. This Court in its day was the highest Court in the country, and the only appellate tribunal with jurisdiction over the whole United States.[18] Between the middle of September, 1776, and May, 1787, there were, it would appear, 109 cases which were referred to the Congress committee or brought directly to the Court of Appeals. Of this number fifty-six were lodged with the Court.[19] As a basis or a precedent for the Supreme Court of the United States and for the admiralty jurisdiction of the federal judiciary, the old Court of Appeals was doubtless of influence.
"Each State", said the Articles of Confederation, "retains its sovereignty, freedom and independence...." Were, then, the states sovereign? Did they have any sovereignty to be retained? Few questions in the world's history have been so thoroughly debated; debated chiefly by public men in practical political discussion, but discussed also by historians. The reason for the emphasis upon this question is not attributable to historical curiosity, but rather to the fact that it appeared to be of supreme consequence in any endeavor to decide whether the states, after the Constitution was established, were or were not sovereign. If the states were not sovereign in the years before the adoption of the federal Constitution, no one could reasonably assert their possession of sovereignty after adoption; but if they were sovereign before such adoption, then one may find the starting-point for an argument in behalf of state sovereignty afterwards.
A treatise on constitutional history may be expected to examine this problem and reach conclusions, but in any presentation of the subject there are difficulties to be met. Even if we should decide upon a definition of "sovereignty", we might be still faced with the difficulty of deciding where sovereignty actually resides at a given time; and this difficulty is especially evident in the period of the Confederation. In the course of American history men have differed, and still differ, in their opinions concerning the nature of sovereignty; they have not always known wherein their differences lay. They have often engaged in disputes concerning the question whether at a given time the states were or were not sovereign; this fact is for the historian of more real significance than is any rigid verdict which he may reach for his own edification or for the doubtful gratification of his readers.
In any attempt to decide where at a given moment sovereignty resides in any nation, the investigator is engaged in an historical task; he is using historical data; but his conclusion is within the field of law. Though he be a mere historian, he is under no obligation to withhold from his readers his own conclusion which is a necessary product of his historical study. To give a very simple, concrete example, he may assert or assume the obvious, viz.: that the United States has been a sovereign state since 1865, one of the sovereign national states of the world; the fundamental principle of its legal structure is that it is a single, legally-competent and self-contained body politic; as an historian, he is profoundly interested in discovering how this legal structure came to be and in showing the difficulties encountered in creating or maintaining it. In studying the course of American history, the historian will find his chief task not to establish a conclusion concerning which theory of the nature of the United States was right (legally speaking) and which was wrong, but to present actual differences of opinion as they arose and to mark out the presence of conflicting forces and tendencies.
The word "sovereignty" is still often used with little respect for any rigid definition. If we should, in obedience to the definition now commonly found in books on political theory, declare sovereignty to be the supreme and absolute power by which a state is governed or to be the authority to do anything and everything of a political nature, we should still be constrained to inquire whether the men of the Revolution thus used the term and accepted all its implications. And, indeed, as we shall see more fully later on, the historian will find that very many, if not all of the men of those days, did not have this conception of sovereignty. Thus, the history of the very idea of sovereignty enters into any proper discussion. If sovereignty implies the possibility of limited authority, if sovereignty, in other words, can be divided and still remain sovereignty, then a definition connoting completeness is inappropriate and inapplicable, if applied to the words of men of a century and a half ago.
Sovereignty, whatever it may be, is often, if not always, in conflict with actual conditions in the world. The word, certainly when used in the domain of international relations, implies that each member of the family of nations has complete freedom in determining its course of action; and yet, of course, no nation is in reality completely free, but only theoretically free or free legally speaking. One sovereign nation is supposed to be the equal of every other; but again this is a convenient (or inconvenient) supposition or an accepted fiction; one state can be equal with another only in legal competence, and often the facts go far toward invalidating even this presumption of equality. But, whether the above assertions concerning the difference between realities and legal suppositions be accepted or not, sovereignty can most properly be looked upon as authority, the possession of legal right, and not as actual power; one cannot say that a sovereign acts illegally or beyond its legal capacity, if sovereignty connotes unrestrained authority. This is true not only of a sovereign nation but also of the possessor of sovereignty within a given nation. In other words, actual power to do all political acts may be beyond the capacity of the sovereign, though he has the authority.
Though sovereignty is authority and the legal right to act, it is, nevertheless, sometimes necessary to consider actual capacity. It is sometimes necessary to find out from events, from real conditions, where sovereignty rests; in the course of a revolt within a nation, for example, one may wish to discover whether a revolution has taken place and sovereignty has changed its dwelling; or, if a separation of a people into two states is attempted by rebels, it is necessary to discover whether in the course of time they have ceased to be rebels and must be held to have established a new national state. Thus the legal theory as to where sovereignty resides may be damaged or overthrown by consideration of what really is.
Adhering to our belief that sovereignty belongs within the field of law, we may study the years between 1776 and 1788 with the intent to discover where, as America was then organized, sovereignty resided. Accepting for the moment the definition of sovereignty as complete authority, full legal right, can we decide where it rested? The evidence is confusing: at least able and honest men have differed in their conclusions. Even in the Constitutional Convention of 1787, there was a difference of opinion, some men holding that the states did not become sovereign when independence was declared, others seemingly (and one member plainly) asserting that the states did become separate sovereigns.[20]
Now the truth appears to the writer to be just this: it was a time of revolution and of reconstruction; and in consequence there was and is some uncertainty about the nature of the governmental system. The states frequently acted as if they had real authority and not merely nominal sovereignty. In the Articles of Confederation they announced their separate sovereignty, but their actual incapacity to act as independent sovereignties was often at variance with their presumption. The necessities of the situation indicated plainly that safety was in union, in coöperation; and so one may believe, if one chooses to do so, that the reality of interdependence was sufficient to overthrow any legal fiction of independence and separate existence.[21] There were, furthermore, strong ties that bound the states together, forces working through the social and economic order, forces that were powerful and likely to become dominant; certain realities were ignored by declarations concerning separate sovereign existence; and the real problem of the time, a compelling problem, was to bring political forms into accommodation with actual needs and with the dominating fact of interdependence and identity of interests. Again, whatever may be said on this harrowing question, another unavoidable fact is this: there had been union, a greater or less degree of coöperation, even though all the communities had, in contemplation of law, not been absorbed into one body politic. If anyone wishes to assert that the years between 1775 and 1789 were a period of transition, and that the difficulty of deciding upon the residence of sovereignty in the period in question is insurmountable — if anyone wishes to make such an assertion, the writer lays no indictment against him.
But someone may say that all this is avoidance or an apology for not answering the question whether the states were separately sovereign. To this it may be answered, the historian is under no obligation to answer the question. Could he fully present his evidence, his facts, he would be entitled, should it so please him, to leave the verdict to his readers. If, however, one must state an opinion, the writer of these lines is compelled to say that, if one adheres strictly to the conception of sovereignty as implying legal authority, then the only bodies whose doings must be held to be law, because those bodies did them, were the states; they possessed the technical legal authority. If such a conclusion is of value to anyone, he is welcome to it.[22] One cannot very well ignore the word "sovereignty" in the Articles; but one cannot be absolutely sure of the meaning of the word in the minds of men that used it; and one cannot, on the other hand, blind one's eyes to the fact that the states announcing their sovereignty were incompetent to act individually as completely self-reliant members of the family of nations.
In the days of the Revolution and the Confederation, the reigning philosophy was in conflict with the idea that complete unlimited authority could exist anywhere or be possessed by anybody. The conception of the organic or vital character of a body politic was not in accord with "social compact" thinking. Only when in later years men began to think of the state — meaning by the word "state" a body politic, or as we often now say, a nation — as a being possessed of life and will, only when they began to think of the vital source of authority behind all mandates, all agreements, all governments, did they begin to conceive with any clarity and definiteness of a complete and indivisible power. Some things were said in the Constitutional Convention of 1787 which appear consistent with the idea of indivisible sovereignty; but on the whole, it appears just to say, the idea in the minds of the men of that body was that compelling legal authority was to be exercised within given fields; one field was to belong to the national government, one to the states.
[1] Presented to Congress July 21, 1775. For Franklin's use of the New England Confederation and the Albany Plan of Union, see L. K. Mathews, "Benjamin Franklin's Plans for a Colonial Union, 1750-1775," Am. Pol. Sci. Rev., VIII, pp. 393-412.
[2] The committee was appointed June 12, 1776. It reported July 12, and the reported articles were discussed for some time thereafter. The committee of the whole, after discussing the report, submitted the amended scheme to Congress on August 20.
[3] Edward Rutledge wrote to John Jay as early as June 29, 1776: "I have been much engaged lately upon a plan of a Confederation which Dickenson has drawn; it has the Vice of all his Productions to a considerable Degree; I mean the Vice of Refining too much. Unless it's greatly curtailed it never can pass, as it is to be submitted to Men in the respective Provinces who will not be led or rather driven into Measures which may lay the Foundation of their Ruin.... The Idea of destroying all Provincial Distinctions and making every thing of the most minute kind bend to what they call the good of the whole, is in other Terms to say that these Colonies must be subject to the Government of the Eastern Provinces.... I am resolved to vest the Congress with no more Power than that is absolutely necessary...." Letters of Members of the Continental Congress (E. C. Burnett, ed.), I, pp. 517-518 (hereafter referred to as Burnett, Letters).
August 19 (?), 1776, Rutledge wrote to Robert Livingston: "We have done nothing with the Confederation for some Days, and it is of little Consequence if we never see it again; for we have made such a Devil of it already that the Colonies can never agree to it. If my opinion was likely to be taken I would propose that the States should appoint a special Congress to be composed of new Members for this purpose — and that no Person should disclose any part of the present plan. If that was done we might then stand some Chance of a Confederation, at present we stand none at all." Ibid., II, p. 56. This latter statement is interesting in light of what came eleven years later.
[4] The article in the Dickinson draft was slightly longer, but to the same effect.
[5] "Each State retains its sovereignty, freedom and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled."
Of the article regarding sovereignty of the states, Thomas Burke of North Carolina wrote, "It stood originally the third article; and expressed only a reservation of the power of regulating the internal police, and consequently resigned every other power. It appeared to me that this was not what the States expected, and, I thought, it left it in the power of the future Congress or General Council to explain away every right belonging to the States and to make their own power as unlimited as they please. I proposed, therefore, an amendment, which held up the principle, that all sovereign power was in the States separately, and that particular acts of it, which should be expressly enumerated, would be exercised in conjunction, and not otherwise; but that in all things else each State would exercise all the rights and power of sovereignty, uncontrolled. This was at first so little understood that it was some time before it was seconded, and South Carolina first took it up. The opposition was made by Mr. Wilson of Pennsylvania, and Mr. R. H. Lee of Virginia; in the end however the question was carried for my proposition, eleven ayes, one no, and one divided. The no was Virginia; the divided New Hampshire.... In a word, Sir, I am of opinion, the Congress should have power enough to call out and apply the common strength for the common defence: but not for the partial purposes of ambition.... The inequality of the States, and yet the necessity of maintaining their separate independence, will occasion dilemmas almost inextricable." Thomas Burke to the Governor of North Carolina, April 29, 1777, in Burnett, Letters, II, pp. 345-346. Thus Burke clearly stated the gist of the problem of imperial organization.
"Since my last we have made no progress in the business of Confederation. A difficulty occurs, which, I fear, will be insuperable: that is how to secure to each State its separate independence, and give each its proper weight in the public Councils. So unequaled as the States are, it will be nearly impossible to effect this; and after all it is far from improbable that the only Confederation will be a defensive Alliance." Thomas Burke to the Governor of North Carolina, May 23, 1777, in Ibid., II, pp. 370-371.
[6] Burnett, Letters, II, p. xvi.
[7] As showing the interstate and intersectional jealousies, a letter of Richard Henry Lee (May 26, 1777) is especially illustrative: "Our enemies, and our friends too, know that America can only be conquered by disunion. The former, by unremitting art had endeavored to create jealousy and discord between the Southern and Eastern Colonies, and in truth Sir, they had so far prevailed, that it required Constant attention, and a firmness not to be shaken, to prevent the malicious act [art?] of our enemies from succeeding." Richard Henry Lee to the Governor of Virginia, in Ibid., II, p. 374. See also Burke's letter of February 10 (or 16), 1777, to the Governor of North Carolina, in Ibid., II, p. 257; Benjamin Harrison to Robert Morris, January 8, 1777, in Ibid., II, p. 208; Carter Braxton to Landon Carter, April 14, 1776, in Ibid., I, p. 421, a letter of an earlier date but not without significance for later times. From the notes of discussion in Congress taken by Jefferson, and from reports of certain speeches, we find Samuel Chase of Maryland distinctly asserting the cleavage between the larger and the smaller states on the subject of representation. See especially, Journals, VI, p. 1102. John Witherspoon of New Jersey said, "if an equal vote be refused, the smaller states will become vassals to the larger...." Ibid., VI, p. 1103. The problem of taxation and representation was rendered more difficult by the fact that the southern states had large numbers of slaves. One article in the earlier drafts of the Articles (July 12, 1776 and August 20, 1776) provided that all charges of war and other expenses should be defrayed out of a common treasury supplied by the several colonies in proportion to the number of inhabitants, except Indians not paying taxes.
[8] July 30, 1776. Journals, VI, p. 1079.
[9] For Maryland's position, see H. B. Adams, Maryland's Influence Upon Land Cessions to the United States (Johns Hopkins University Studies in Hist. and Pol. Science, third series, III, no. 1). The whole western question and the land cessions are ably discussed by B. A. Hinsdale, The Old Northwest. Burnett, Letters, II, contains valuable material.
[10] Rhode Island asked that all lands which before the war were the property of the Crown should be considered as the property of the United States, reserving to the states, however, within whose limits such crown lands might be, the jurisdiction thereof. New Jersey's wish was similar to that of Rhode Island. Journals, XI, pp. 639, 650.
[11] Reference has already been made to the Albany Plan of 1754, to Franklin's evident study of the New England Confederation of 1643, which did not expire until 1684, as well as to the actual practice of the old empire.
[12] The courts have not held that the federal authorities are under obligation to compel or to seek to compel rendition of a fugitive by one state to another at the latter's request.
[13] See Constitution, Art. IV, sec. I.
[14] A somewhat unique relationship in such matters exists between France and America, but it serves as an exception to prove the rule.
[15] The Federalist (1818 ed.), no. LXXXII, p. 446. See also John Marshall's speech in the Virginia convention, June 20, 1788. The Debates in the Several State Conventions, on the Adoption of the Federal Constitution (Jonathan Elliot, ed.), 1866 ed., III, p. 556. Hereafter referred to as Elliot, Debates.
[16] An illustration of the quasi-international relationship follows. In 1829, Justice Washington, giving the opinion and decision of the federal Supreme Court, said: "For all national purposes embraced by the Federal Constitution, the States and the citizens thereof are one, united under the same sovereign authority, and governed by the same laws. In all other respects the States are necessarily foreign to and independent of each other. Their constitutions and forms of government being, although republican, altogether different, as are their laws and institutions. This sentiment was expressed with great force by the President of the Court of Appeals of Virginia, in the case of Warder v. Arrell (2 Wash., 298); where he states that in cases of contracts, the laws of a foreign country where the contract was made must govern; and then adds as follows: 'The same principle applies, though with no greater force, to the different States of America; for though they form a confederated government, yet the several States retain their individual sovereignties, and, with respect to their municipal regulations, are to each other foreign.'" Buckner v. Finley, 2 Peters 586, 590-591. In this case the question was whether a bill of exchange drawn in Maryland upon a drawee in Louisiana was a "foreign bill". The Supreme Court decided that it was.
[17] For an interesting discussion of this subject, see R. G. Caldwell, "The Settlement of Inter-state Disputes," Am. Jour, of Int. Law, XIV, p. 38 ff.; A. H. Snow, The Development of the American Doctrine of Jurisdiction of Courts Over States, Publications of the American Society for Judicial Settlement of International Disputes no. 4 (May, 1911); also other pamphlets issued by the same society. Concerning the authority of the Privy Council, Caldwell has this to say: "It is safe to say that from the authority of this administrative body is derived the quasi-international authority of every federal court in the world, except the German Bundesrath whose power to settle the disputes of the members of the German Empire has a wholly distinct origin in the Diets of the Confederation and of the Holy Roman Empire." Op. cit., p. 39. He also mentions nine chief cases coming somewhat formally before the Privy Council in colonial days. Ibid. Only one of these, Penn v. Lord Baltimore, "came before an ordinary court in a fashion at all comparable to a modern case between two States in the Supreme Court of the United States." Ibid., p. 41. "These early settlements were evidently not in any sense international arbitrations, but had all the paternal character of administrative determinations both in their nature and results." But this "habit of looking to this common administrative court ... became a real though reluctant habit until almost the moment of war." Ibid., p. 41. Six disputes came before Congress before the Constitution was adopted. See Ibid., pp. 53-54 and J. C. B. Davis, "Federal Courts Prior to the Adoption of the Constitution," in an appendix to 131 U. S. Supreme Court Reports. In two of these controversies a court was agreed upon but it did not sit and render a decision in either case. But in the Pennsylvania-Connecticut case the court did sit and it rendered a decision. Since the adoption of the Constitution forty-five interstate controversies have come before the federal Supreme Court (to 1932). This statement is based upon data afforded by Professor Caldwell, in a personal letter, March 18, 1932.
[18] Davis, op. cit., pp. XXV-XXVI. The difficulty arising from the fact that the duty or the power to carry out the Court's decisions rested with state authorities is commented on by Davis. Ibid., p. XXIX. Cf. also, J. F. Jameson, "The Predecessor of the Supreme Court," Essays in the Constitutional History of the United States (J. F. Jameson, ed.), p. 1 ff.
[19] Davis, op. cit., p. XXXIV.
[20] See the statements of Luther Martin, James Wilson, Alexander Hamilton, and Rufus King, June 19; of Martin, June 20. Charles C. Pinckney, who had been a member of the Federal Convention, speaking to the South Carolina legislature, January 18, 1788, declared that the "separate independence and individual sovereignty of the several states were never thought of by the enlightened band of patriots who framed this Declaration [of Independence].... Let us, then, consider all attempts to weaken this Union, by maintaining that each state is separately and individually independent, as a species of political heresy...." Elliot, Debates (1863 ed.), IV, p. 301.
Among the many discussions of this subject the following may be especially useful: A. W. Small, The Beginnings of American Nationality (Johns Hopkins University Studies in Hist, and Pol. Science, eighth series, VIII, nos. 1-2); C. H. Van Tyne, "Sovereignty in the American Revolution," Am. Hist. Rev., XII, p. 529 ff.; A. H. Stephens, A Constitutional View of the Late War Between the States, I (the classic argument for continued state sovereignty, written by the Vice-President of the southern Confederacy); J. C. Calhoun, Works (R. K. Crallé, ed.), I; J. I. C. Hare, American Constitutional Law, I (opening discussion); Alexander Johnston, "Declaration of Independence," Cyclopaedia of Political Science (J. J. Lalor, ed.), I, p. 743 ff.; Alexander Johnston, "State Sovereignty," in Ibid., III, p. 788 ff.; and E. S. Corwin, National Supremacy.
[21] This is what Alexander Johnston means when he says, "... calling themselves sovereign did not make them so." "State Sovereignty," loc. cit., p. 791. If this sentence is at all reconcilable with the idea that sovereignty is legal authority, not full power to exercise it, we shall have to construe it as meaning that the states were so far incapable of acting as separate full-governing bodies that the assumption that they possessed sovereignty was invalidated.
[22] What will one do with a statement like this, which plainly declares that by the Confederation the people became one people? "AGAIN, the formation and completion of that social compact among these States, which is usually stiled the Confederation, is another instance of the great things our God has done for us. This is that which gives us a national existance and character.... By this event, the Thirteen United States ... became ONE PEOPLE." More than once the states together are spoken of by this author as constituting a "nation". John Rodgers, The Divine Goodness displayed, in the American Revolution (New York, 1784), p. 28 ff.
CHAPTER XIII
THE TRIBULATIONS OF THE CONFEDERATE PERIOD. THE CHIEF PROBLEM OF THE TIME
The vicissitudes of the years from the adoption of the Articles to the formation of the federal Constitution deserve more attention than can be given in these pages. Almost everything points in only one direction — toward the need of a competent central government and the necessity of finding a system of union which could maintain itself. Elaborate presentation of details is therefore for our purposes not required. The whole story is one of gradually increasing ineptitude; of a central government which could less and less function as it was supposed to function; of a general system which was creaking in every joint and beginning to hobble at every step. The men who came to Philadelphia in the spring of 1787 had learned the lessons taught by the failings of the Confederation.
One source of the difficulty was the Revolution itself. For the Revolution involved war; it started as a revolt against authority. It had deeply affected the old social order, and although, as we have pointed out, the philosophy on which the movement was founded had within it elements of stability and sobriety, the war left, as war always does, the combatants in a state of mental disquietude; social and economic foundations had been shaken; the full hopes of the conflict could not in the twinkling of an eye be gathered into reality. If a war is fought for liberty, why is it necessary to forge chains of perpetual union and obedience to government? Tom Paine's philosophy, which was permeated by the real spirit of real revolution, had gone beyond the limits of the older doctrines on which the social and political order was supposed to rest; for that ardent propagandist was not fond of picturing the state of nature as a place from which men had emerged for their own greater comfort and security; if his most widely trumpeted sayings are to be taken at their face value, all things which had grown up since the age of primeval bliss and serenity could have no real sanction for their existence, not even the sanction and support of time — "Government like dress, is the badge of lost innocence; the palaces of kings are built on the ruins of the bowers of paradise." Just how far this new state of nature and all the emanations of this tragic philosophy influenced the average man of those days, no one can say; but their presence is plain enough.
Furthermore, there was the age-old feeling that government is inevitably the enemy of man and not his servant. We cannot neglect the effect of the long struggle in history to curb government lest it act the tyrant. Government in America was not as yet securely in the hands of the people-at-large (if there be any such security anywhere at any time), but a long step forward had been taken. "It takes time", however, as John Jay remarked, "to make sovereigns of subjects" — a wise saying. It took time for the people to realize that the government was their own.
Interstate jealousy did not fail to add to the complexities of the situation.[1] The contest for local rights under the old imperial system had strengthened the sense of state reality; men were conscious of their states; the states were in a sense their own creation. It was difficult, after the strain of war had gone, to feel acutely the reality of America and the dependence of its members one upon another; and as the days went by disorganization rather than integration seemed to be gathering headway, until the more serious patriots and watchers of the night feared for the safety of their country. States with commodious harbors had an advantage over their neighbors, and they did not shrink from using it. Madison, speaking of this condition, declared that at one time "New Jersey, placed between Phila . & N. York, was likened to a Cask tapped at both ends: and N. Carolina between Virga . & S. Carolina to a patient bleeding at both Arms." [2] The experience of those years brought clearly home to thinking men the need of some general regulation of commerce.
The industrial and commercial conditions after the war were in considerable confusion. Readjustments were necessary, especially for the resuscitation of the New England shipping industry. Some improvement came fairly quickly, and there is evidence that by 1786 the clouds of depression were beginning to lift. But it was hard to make much headway, especially as Britain was not ready to treat her former colonies as if they deserved particular favors or consideration; they had made their own beds, now let them lie there — a condition of retirement not suited to the restless spirit of the New England skippers whose ships were soon plowing the seas, even on to the Orient as well as to the ports of continental Europe. Commercial treaties were desirable, and some steps were taken in that direction; but it was hard to do anything effectively as long as the individual states could not be relied on to fulfill their obligations. Foreign nations naturally queried whether America was one or many, or, perhaps, one to-day and thirteen to-morrow.
The treaty of peace was not carried out. Britain still held the western posts from Lake Champlain to Mackinaw and thus retained control of the northern fur trade and influence over the Indians. Spain holding the mouth of the Mississippi was unwilling to allow free navigation through her territory. Trouble was brewing because of American treatment of the loyalists and because the stipulation in the treaty, that there should be no lawful impediment to the collection of debts due British creditors, received no particular attention. John Jay declared in 1786 that the treaty had been constantly violated by one state or another from the time of its signing and ratification. The Barbary powers, eager to take advantage of a helpless country, to seize American seamen, and to hold them for ransom, entered upon the game with lusty vigor. A nation which was not yet a nation in terms of law and political authority could do nothing to resist scorn and humiliation.
The pivotal problem, the immediate and unrelenting problem, was how to get revenue for the pressing needs of the Confederation. Financial affairs were in a pitiful shape and conditions daily grew worse. At the end of active hostilities the situation was bad enough. "Imagine", wrote Robert Morris who had charge of the newly-created office of superintendent of finance, "the situation of a man who is to direct the finances of a country almost without revenue (for such you will perceive this to be) surrounded by creditors whose distresses, while they increase their clamors, render it more difficult to appease them; an army ready to disband or mutiny; a government whose sole authority consists in the power of framing recommendations." [3] Conditions did not improve; gloom deepened into darkness. The continental paper money ere long became a joke; and the returns from requisitions upon the states soon were lamentably inadequate. A committee of Congress reported in 1786 that the amount received in fourteen months was not sufficient for the "bare maintenance of the federal government on the most economical establishment, and in time of profound peace." [4] The sums due for interest on the domestic and foreign debts were piling up to staggering heights and even the principal of the debts — for, strange as it may seem, Congress had succeeded in borrowing — was increasing ominously. Morris had by this time resigned; he did not wish to be a "minister of injustice." Congress was at its wit's end. "... the crisis has arrived," a committee announced, "when the people of these United States, by whose will, and for whose benefit the federal government was instituted, must decide whether they will support their rank as a nation, by maintaining the public faith at home and abroad; or whether, for want of a timely exertion in establishing a general revenue, and thereby giving strength to the confederacy, they will hazard not only the existence of the union, but of those great and invaluable privileges for which they have so arduously and so honourably contended."[5]
At the very beginning, indeed before the Articles had been signed by the delegates from Maryland, Congress submitted to the states an amendment (February 3, 1781) vesting in Congress a power to levy a duty of five per cent. on imported goods, with a few exceptions, and a like duty on "prizes and prize goods". The monies arising from the duties were to be used for discharging the principal and interest of the public debts. The amendment was not adopted, one state, Rhode Island, failing to ratify. Two years later a similar attempt to obtain revenue was made. In an amendment proposed at this time, certain commodities were designated with various rates of duties; on all other goods a five per cent. duty was provided for; the proceeds were to be applied to the discharge of the debts, but the duties were not to be continued for more than twenty-five years. The states were also recommended to take steps for appropriating annually for a like term of years the sum of $1,500,000, the amount to be apportioned among the states. This amendment met the same fate as its predecessor.
In 1784, an amendment was submitted to the states which, if it had been ratified, would have given Congress certain powers over the regulation or restraint of foreign commerce. "Unless the United States in Congress assembled", it was declared, "shall be vested with powers competent to the protection of commerce, they can never command reciprocal advantages in trade; and without these our foreign commerce must decline & eventually be annihilated...." The amendment was ratified by only two states.
Within the individual states, paper money added to the confusion and made recovery of economic stability difficult. Some of the states refused to be drawn down into the whirlpool; but seven of the thirteen had entered upon the scheme. The wise and proper way to get out of debt was to resort to the printing-press; for what forsooth did free government exist? "Choose such men", said one voice crying from the wilderness of poverty and debt, "as will make a bank of paper money, big enough to pay all our debts, which will sink itself (that will be so much clear gain to the state)".[6] Without question, the debtor was in a bad way; but associated with this sort of appeal for relief were all the uneasy spirits whose attitudes of mind, when minds they used, were inimical to steady economic well-being and to stable and competent government. Whether one approves or disapproves the content and the agitation of the whole controversy, the fact remains that conditions were fraught with peril, a peril enhanced by the poverty of debtors and by the mental and spiritual disquietude which, as we all know, are the fruits of war and the companions of the ensuing peace.
Social unrest passed beyond the grumbling stage in Massachusetts where Shays's rebellion broke out and aroused the anxieties of the conservatives from one end of the continent to the other. Its chiefest interest to us lies in the fact that it unquestionably had the effect of prompting men of mind as well as men of property to strengthen the union and to create self-respecting government. "There are combustibles in every State," Washington wrote in 1786, "which a spark might set fire to." "Good God!" he exclaimed, lamenting the disorder, "Who, besides a Tory, could have foreseen, or a Briton predicted them?" John Marshall, writing to James Wilkinson early in 1787, said, "I fear, and there is no opinion more degrading to the dignity of man, that these have truth on their side who say that man is incapable of governing himself. I fear we may live to see another revolution." [7]
After this hurried view of the conditions during the so-called "critical period", we may now turn to a consideration of the political system to discover what the leaders of the time believed to be the trouble and especially to see what remedies they proposed. We have already seen that Congress had proposed amendments to the Articles authorizing the collection of customs duties to be used by Congress for defraying the debts of the union, and we have seen that in each case the amendment failed of ratification. These proposals showed the necessity of congressional income, not dependent on state caprice; a conspicuous defect in the Articles was the absence of congressional authority to obtain necessary funds; the old trouble of the taxing power in an imperial system remained. At sundry times the rights and authority of Congress and the character of the Confederation were discussed in Congress and beyond its doors. The proposals and announcements disclose the compelling nature of a serious problem and they bring before us the question of national existence as that question appeared to leading statesmen of the time.[8]
Almost immediately after Maryland's delegates had signed the Articles, a committee of Congress reported that by article thirteen a general and implied power was vested in Congress to carry all the Articles into effect against any state refusing or neglecting to abide by them; that no particular provision had been made for that purpose, and that therefore an amendment should be added fully authorizing Congress to use "the force of the United States" to compel a "State or States to fulfil their federal engagements...." At that early date the need of compulsion was seen by a congressional committee including James Madison who presented the report. This report, sent to a grand committee, resulted in a full presentation (August 22, 1781) of what were believed to be requisites for "execution" of the Confederation; it was also recommended that certain additional powers should be given to Congress, notably the authority "To distrain the property of a state delinquent in its assigned proportion of men and money." Thus again, the central problem of imperial organization — how to secure supplies for the maintenance of the system — came up for solution, and the proposed solution was the use of force, or at least the seizure of property. These proposed amendments were not presented to the states for ratification.
Men interested in public affairs were actively discussing the nature and the defects of the union. Pelatiah Webster, an able publicist, issued A Dissertation on the Political Union and Constitution of the Thirteen United States in which he pointed out the necessity of vesting the power of taxation in what he called "The supreme authority"; this authority should have sufficient power to enforce obedience to treaties and alliances. "No laws of any State whatever," he declared, "which do not carry in them a force which extends to their effectual and final execution, can afford a certain or sufficient security to the subject". With this in mind, he proposed naively that every person, "whether in public or private character, who shall, by public vote or other overt act, disobey the supreme authority, shall be amendable [sic] to Congress," and shall be haled before that body to be fined or imprisoned, "on due conviction".[9] Hamilton in 1783 drafted resolutions "Intended to be submitted to Congress, but abandoned for want of support." He enumerated at length the defects of the Confederation, and made a severe arraignment of the system. The first defect consisted in "confining the power of the Federal Government within too narrow limits". The whole discussion or criticism is extremely interesting to anyone wishing to study the nature of Hamilton's political thinking as well as the critical problem of the time. He plainly objected not only to the inconsistencies of the Articles, but to the impracticability of their effective operation. In 1785, Noah Webster, in his Sketches of American Policy, announced a doctrine which by that time must have been fairly familiar, at least to those willing to think: "... in all the affairs that respect the whole, Congress must have the same power to enact laws and compel obedience throughout the continent, as the legislatures of the several states have in their respective jurisdictions." [10]
Of most significance, however, is the report (August, 1786) of a grand committee of Congress of which Charles Pinckney of South Carolina was chairman.[11] It is important because Pinckney was an influential member of the Convention which met a few months later and drew up the Constitution of the United States. Early in 1786 Congress, in the manifesto mentioned on a previous page, had in a most solemn manner exposed the deplorable and perilous condition of the union. "Oh! my country!" said Jeremy Belknap, "To what an alarming situation are we reduced, that Congress must say to us, as Joshua did to Israel, 'Behold, I set before you life and death.' " [12]
The report of the committee is a sad commentary on the moribund Confederation, for if the proposed remedies had been administered, the result might well have been sudden demise in the place of lingering death. Congress was to be given the power to regulate interstate and foreign trade, with the consent of nine states, and the power of levying additional requisitions in the way of punishment upon any state not promptly complying with requisitions for men or money. If the delinquent and disobedient state should persist in its conduct, while the majority had lived up to their obligations, then Congress should have power to levy and collect taxes and in the last extremity compel the local officers in the delinquent state to do their duty; should such a step prove ineffective, then Congress might itself appoint assessors and collectors. If there were further opposition to congressional authority, the conduct on the part of the state should be considered "an open violation of the federal compact." All this is an exposition of a desperate condition, for the ultimate remedy must be no remedy at all, but only a solemn declaration that a disobedient state had broken its promises; and yet the amendments contained provisions for compulsion upon the states by using every conceivable means of coercion short of sending troops into the state — if perchance the troops could be found ready to seize the property of citizens. The committee also proposed as amendments to the Articles that Congress be granted the power to institute a federal judiciary and to provide for securing the attendance of delegates in Congress; if such delegates did not attend, or if they withdrew, they should under certain circumstances be "proceeded against", provided punishment should extend no further than disqualifications to be delegates or to hold any office under the United States or any state.
Nothing could more amply demonstrate the feebleness and distraction of Congress and the necessity for energetic reform, if the union was to last many days. The cumbersome methods proposed for getting money, the practical admission of a continuing and probably inescapable refusal of the states to comply with reasonable requests to defray the absolutely necessary common expenses, and above all, the more pitiful suggestion of measures which might induce members from the states to come to Congress and attend to business, were a confession of masterly incapacity.
Another source of anxiety was the light-hearted way in which treaties were regarded by the states. John Jay, the Secretary for Foreign Affairs, on whose shoulders rested much of the wearying responsibility of the time, persuaded himself, or tried to, that treaties, when once made, were binding on the states and were part of the "laws of the land" — a significant expression. "Your secretary considers the thirteen independent sovereign states as having, by express delegation of power, formed and vested in Congress a perfect though limited sovereignty for the general and national purposes specified in the confederation. In this sovereignty they cannot severally participate (except by their delegates) or have concurrent jurisdiction.... When therefore a treaty is constitutionally made, ratified and published by Congress, it immediately becomes binding on the whole nation, and superadded to the laws of the land, without the intervention, consent or fiat of state legislatures." [13] In March, 1787, resolutions were passed by Congress declaring treaties "constitutionally made" were "part of the law of the land"; the states were called upon to repeal acts violating the treaty with Britain and to direct the state courts to adjudge cases in accord with the treaty, "any thing in the ... acts to the contrary ... notwithstanding." [14]
But what was the very center of the difficulty? What was the chief problem of the time? The trouble and confusion were manifestly caused by the failure of the states to abide by their obligations. The problem was to find a method, if union was to subsist at all, for overcoming the difficulty, to find therefore some arrangement, some scheme or plan of organization wherein there would be reasonable assurance that the states would fulfill their obligations and play their part under established articles of union and not make mockery of union by willful disregard or negligent delay. That was the chief problem of the day. The need of granting certain powers to Congress was plain; in other words, the distribution of powers between the center and the parts was imperfectly provided for in the Confederation. The distribution of powers, however, did not constitute the radical difficulty. If additional "powers" were granted Congress, could there be any assurance that the old trouble would not immediately arise? To the men of 1786 — such men as were anxious for national stability — the real remedy appeared to be some application of force, the coercion of recalcitrant states, something more than the grant of naked authority to the central organ of union. The problem of imperial order had been reduced in some respects to fairly simple terms; if the task of distinguishing between powers was no longer especially troublesome, the question remaining was perplexing: could the states be held together in a firm and effective union and what arrangement could be made for securing or assuring obedience to their obligations as members of the union? Plainly enough the men of the time — the men of course who really thought — were troubled and perplexed; but few of them could even then see much further than the need of compulsion — the use of force against disobedient states.[15]
But the year of gloom was not allowed to pass utterly without hope or light. Virginia and Maryland had been discussing troublesome questions concerning the navigation of the Potomac. But if two states could consult upon matters of mutual interest, why not more than two? Out of these conferences, therefore, came the Annapolis convention in the autumn of 1786. Five states were represented, and a report was drawn up proposing a convention "to meet at Philadelphia on the second Monday in May next, to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the federal government adequate to the exigencies of the Union...." The proposal, submitted to the states, was sent to Congress which (February 21, 1787) passed a resolution in substantial accord with the recommendation from the Annapolis gathering. A method was thus found for stabilizing the union and for saving it from complete disintegration, saving the new-born United States from becoming "one of the most contemptible nations on the face of the earth." [16] Eager nationalists were anxiously at work during the months that followed; and when May came, the prospect of effective results appeared bright; at least there was ground for hope.
[1] "Il règne dans la formation de ces Etats un vice radical qui s'opposera toujours à une union parfaite, c'est que les Etats n'ont ré-ellement aucun intérêt pressant d'etre sous un seul chef." Otto, French charge d'affaires, to comte de Montmorin, April 10, 1787. See The Records of the Federal Convention of 1787 (Max Farrand, ed.), III, p. 16.
[2] See Madison's preface to the debates in the Federal Convention, Documentary History of the Constitution, III, p. 7. The preface was written at a later time but Madison's general description of conditions is valuable. See also a letter from Madison to Jefferson, March 18, 1786, in Charles Warren, The Making of the Constitution, p. 16.
[3] Letter from Morris to Franklin, January 11, 1783, in The Revolutionary Diplomatic Correspondence of the United States (Francis Wharton, ed.), VI, p. 203.
[4] February 15, 1786. Journals of Congress (1823 ed.), IV, pp. 619-620.
[5] February 15, 1786. Ibid., IV, p. 620.
[6] New Haven Gazette, March 22, 1787. Quoted in O. G. Libby, Geographical Distribution of the Vote of the Thirteen States on the Federal Constitution, 1787-8 (Bulletin of the University of Wisconsin, Economics, Political Science, and History Series, I, no. 1), p. 58.
[7] Letter from Marshall to Wilkinson, January 5, 1787, in Am. Hist. Rev., XII, p. 348. This coincidence of Washington's and Marshall's sentiments is instructive, if one would understand the later career of each. Marshall seems never to have forgotten the privations of Valley Forge or the menace of Shays's rebellion.
[8] A very useful collection of proposals of this kind is Proposals to Amend the Articles of Confederation, 1781-1789 (American History Leaflets, A. B. Hart and Edward Channing, eds., no. 28).
[9] This plan of Webster contained much more than is indicated in the text above; but the declaration concerning the necessity of force is the thing I wish to stand out clearly. Some other statements, however, are interesting as indications of his idea of sovereignty: "A number of sovereign States uniting into one Commonwealth, and appointing a supreme power to manage the affairs of the union, do necessarily and unavoidably part with and transfer over to such supreme power, so much of their own sovereignity [sic], as is necessary to render the ends of the union effectual.... In like manner, every member of civil society parts with many of his natural rights, that he may enjoy the rest in greater security under the protection of society." Italics of the original omitted. Thus Webster thinks a commonwealth can be made by the uniting of sovereign states; but these sovereign states may give up only a portion of their sovereignty (in other words, sovereignty is divisible); and the "supreme power" is evidently only supreme in the powers thus granted.
[10] A sentiment of almost exactly the same character came from Washington — one of those indications of the clearness with which he could sum up a situation without mincing phrases: "I do not conceive we can exist long as a nation without having lodged some where a power, which will pervade the whole Union in as energetic a manner as the authority of the State governments extends over the several States." George Washington, Writings (W. C. Ford, ed.), XI, pp. 53-54. The emphasis of Webster's document was on the need of effective power. To each state, in his opinion, might be left its "sovereign right of directing its own internal affairs; but give to Congress the sole right of conducting the general affairs of the continent." He thus advocated by the division of sovereignty an organization with effective force at the center.
[11] George Bancroft, History of the Formation of the Constitution, II, pp. 373-377.
[12] Letter of March 9, 1786, in Mass. Hist. Society Collections, fifth series, II, part 1, p. 431.
[13] Secret Journals of the Acts and Proceedings of Congress, IV, pp. 203-204. Cf. Constitution, Art. VI, para. 2. A committee report to the Congress of the Confederation, discussed March 26, 1784, contained the following provision: " 'That these United States be considered in all such treaties, and in every case arising under them, as one nation, upon the principles of the federal constitution' ". A motion was made to strike out this instruction. On the question, shall it stand, the vote stood: New Hampshire, Massachusetts, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, aye; Rhode Island, Connecticut, no. Secret Journals of the Acts and Proceedings of Congress, III, pp. 452-454.
[14] Journals of Congress (1823 ed.), IV, pp. 730, 737.
[15] Perhaps some of them did. Washington's statement quoted in note 10 (ante) may possibly be so interpreted. Noah Webster appears to me to have been nearest a grasp of a solution of the problem. But the way in which that solution was finally found is a most interesting study; and the study awaits us on the succeeding pages of this work. If the rule of apportioning requisitions were made "plain and easy," and if "refusal were then to follow demand," Richard Henry Lee declared, "I see clearly, that no form of government whatever, short of force, will answer...." "Do you not think, sir, that it ought to be declared, by the new system, that any State act of legislation that shall contravene, or oppose, the authorized acts of Congress, or interfere with the expressed rights of that body, shall be ipso facto void, and of no force whatsoever?" Letter from Lee to George Mason, May 15, 1787, in K. M. Rowland, The Life of George Mason, II, pp. 105, 107. Jefferson wrote to Madison from Paris, June 20, 1787, suggesting appeals from state courts to a federal court. Jefferson, Works (federal ed.), V, p. 285. See also a letter from Richard Henry Lee to Madison, November 26, 1784, in The Letters of Richard Henry Lee (J. C. Ballagh, ed.), II, p. 307.
[16] Letter from William Grayson to Madison, March 22, 1786. Quoted in George Bancroft, History of the Formation of the Constitution, I, p. 258.
CHAPTER XIV
THE FEDERAL CONVENTION I: DETERMINATION TO FOUND A NATIONAL GOVERNMENT
Seventy-four delegates were appointed to the Convention;[1] nineteen for one reason or another did not attend; thirty-nine signed the document which resulted from nearly four months of discussion. Rhode Island did not deign to participate, and the delegates from New Hampshire did not come until July 23, after the Convention had decided some of its most difficult problems. The early and, indeed, the conspicuously troublesome questions were therefore passed upon by delegations from eleven states. Many of the members had had political experience. Even at that time, when men were not affected as we are likely to be by tradition, there was a general acknowledgment of the ability and rectitude of the delegates. America, in a crisis, had chosen her best.
One fact is very evident in the Convention's work — results were reached by debate, by interchange of opinion, by deliberate but earnest consideration of problems. There was little or no declamation for its own sake. Conclusions were the product of discussion; and the reader of the debates can to-day see the gradual unfolding of principles and institutional forms as the weeks went by. This means, of course, that no faction worked its will and no leader dominated the rest. Not one delegate envisaged in advance the whole system and all the fundamental principles on which it rested. For once at least in the course of history, opinions were formed and changed as the result of argument.
The most conspicuous, and perhaps the most influential, member of the Convention was Washington. He had hesitated to accept the appointment, but had finally done so; his presence gave prestige to the Convention and calmed apprehensions of people who feared a plot or some ruthless attack upon their liberties. He was no great student of political theory or of history, but he had grasped the essentials of the problem of national organization as few others had done. "... my wish is," he wrote Madison, before the Convention met, "that the convention may adopt no temporizing expedients, but probe the defects of the constitution to the bottom, and provide a radical cure, whether they are agreed to or not." America, then in the process of construction, was his country. Though he spoke but once on the floor, of his position on certain essential and critical questions there is no doubt. He allied himself with the national party and appears to have supported Madison's views in particular.[2]
The leader on the floor and in some ways the most effective man in the Convention was Madison. For a considerable time his mind had been absorbed with the problem of national reorganization; he came prepared for his work. Without eloquence, as the word is commonly used, he could speak with cogency and skill. No one saw more clearly into the complexities of the problem or the general nature of the solutions that must be reached. He had examined the ancient leagues and pondered the lessons of their history. He had analyzed the defects of the Confederation and found no sanction, no compelling power. "A sanction", he said, "is essential to the idea of law, as coercion is to that of Government." He believed in the need of framing a new constitution, not merely amending the Articles, and in a letter to Washington, written a month before the Convention met, he used these especially significant words: "Conceiving that an individual independence of the States is utterly irreconcileable with their aggregate sovereignty, and that a consolidation of the whole into one simple republic would be as inexpedient as it is unattainable, I have sought for middle ground, which may at once support a due supremacy of the national authority, and not exclude the local authorities wherever they can be subordinately useful." In a letter to Jefferson, then in Europe, he spoke of the expediency of laying "the foundation of the new system in such a ratification by the people themselves of the several States as will render it clearly paramount to their Legislative authorities." [3] In letters to others [4] he outlined with a remarkable approach to accuracy the main features of the Constitution as it finally came from the hands of the framers.
In the Pennsylvania delegation were two men who labored ably for union and competent government. James Wilson, a Scotchman by birth who had studied in the universities of his native country, had a remarkably clear, critical mind; he was strongly national in his sympathies and stands beside Madison as one of the two strongest thinkers in the Convention. On more than one occasion he marked out with special clarity the nature of the Convention's task and the general principles on which the new system should rest. Gouverneur Morris, eloquent, active-minded, at times caustic and aggressive, played a prominent role. He, too, toiled valiantly for an effective national government. Madison in later years spoke of the "brilliancy of his genius" and of his readiness to surrender hastily-formed opinions. To him Madison also ascribed the "finish given to the style and arrangement of the Constitution" in its final form; but there is evidence of Wilson's participation in this task of final revision, and perhaps his share was even greater than that of Morris.[5]
The New York delegation was composed of three men; two of them, Yates and Lansing, were anxious to guard the states against encroachment. They were associated in their beliefs and fears with Governor Clinton of New York and the group who were charged, not unjustly, with setting up an "idol of State Sovereignty".[6] A third member was Alexander Hamilton, an able advocate of efficient government and a coherent union. Seven years before the Convention met he had spoken of the necessity of "a solid coercive union",[7] and somewhat later he said, "there is something ... diminutive and contemptible in the prospect of a number of petty States, with the appearance only of union, jarring, jealous, and perverse, without any determined direction, fluctuating and unhappy at home, weak and insignificant by their dissensions in the eyes of other nations." [8] His views in certain respects were so extreme — some of them perhaps put forth in the Convention chiefly to arouse discussion — that they had little if any effect. A proof of his amazing genius is seen in his defense of the Constitution when it was finished and presented to the states for ratification, and especially in the articles of supreme power and intelligence which he contributed to The Federalist; but his work in the Convention itself was not significant.[9] His colleagues in the New York delegation disagreed with him; with the apparent exception of one day he was absent for six weeks (June 29 to August 13); when he returned, his colleagues had left the Convention (July 10), and the vote of the state was not cast.
Connecticut sent three able men, Roger Sherman, Oliver Ellsworth, and William S. Johnson. In the earlier days they took a stand against the radical or advanced plans and purposes of the nationalist leaders, but they were not narrow-minded men hemmed in by local patriotism or petty state jealousy. William Paterson was the most important delegate from New Jersey. When the great principle of nationalism was under discussion and the leaders of the Convention seemed to be on the verge of carrying out their will without effective opposition, he became the prominent protagonist for the cause of the smaller states and the advocate of the principles of the Confederation. The Maryland delegation was so made up that on certain critical questions the votes of its members were equally divided; Luther Martin, a lawyer of marked ability, an active defender of the states, labored valiantly against what proved to be the Convention's will. From Delaware came John Dickinson, the "Penman of the American Revolution". Of the South Carolina delegates John Rutledge and Charles Pinckney were the more effective men. The latter, then only twenty-nine years of age, had had valuable experience in Congress and had taken particular interest in the establishment of a competent government.[10]
The Convention was summoned to meet on the second Monday of May, which fell on the fourteenth. Only a few of the delegates arrived promptly. While waiting for the arrival of other delegates and the organization of the Convention, the members from Virginia set to work on a plan for new articles of union. Virginia felt especially responsible for the meeting and her representatives thought it best to have definite proposals for presentation.[11] Whatever others might think, they were not content with mere amendments for patching up the Confederation. To James Madison, it is fair to assume, we owe a good part of the first plan that was drawn up for the Convention's deliberations.
Eleven days after the time appointed for meeting, seven states were represented and the Convention was organized (May 25), electing George Washington as the presiding officer. Soon after formal organization, rules of procedure were adopted providing, among other things, that nothing spoken in the house should be printed or otherwise published or communicated without leave, and that no copy be taken of any entry on the journal during the sitting of the house without its leave. This injunction of secrecy was obeyed with a remarkable fidelity. Rumors concerning the Convention's labors circulated occasionally beyond the statehouse walls, but the actual work of the assembly went forward undisturbed by popular clamor and apparently uninfluenced by the curiosity of the public. The reason for this secrecy is obvious; it enabled the members to speak plainly, if they would; it prevented tentative or vaguely-formed proposals from going forth to the press; it precluded the likelihood of prejudice or opposition based on incomplete evidence, and it allowed the Convention to present its conclusions. Though leaders proposed at the beginning to correct and enlarge the Articles of Confederation, the plan they entered upon was so different from that of the Articles that they might well have feared an outcry of protest from the public had their purpose been fully exposed to view.
The journal of the Convention, kept by the Secretary, William Jackson, was meager; in some respects he was an untidy workman. If we had nothing else but this official journal on which to rely, we should to-day be almost as uncertain as were the people of that earlier day concerning the nature of the discussions, and we should have only a dim idea of what went on behind the closed doors and under the seal of secrecy. Fortunately the indefatigable Madison was at hand. Day by day with great patience and with consummate skill he wrote down not only motions and votes, but also the arguments of the various speakers. All of it was done with clarity and precision and — what is more remarkable — with candor and freedom from petty jealousy.
In addition to Madison's Notes we have other sources of information, but they are relatively unimportant. Yates of New York made fairly full notes, but he was not present after July 10. His minutes were published in 1821. Luther Martin, reporting to the Maryland legislature, gave in his Genuine Information an account of what took place and presented his interpretation of the proceedings of the Convention and the purposes of its leaders; this statement was printed, soon afterwards. In later years Madison criticized the statements of both Yates and Martin. Yates, he said, was inaccurate and in some cases did injustice to the arguments and opinions of particular members; and still, when later revising his own manuscripts, he added a few of Yates's statements. Martin's report betrayed "feelings which had a discolouring effect on his statements." The criticisms seem to be essentially just; there is value in the work of both of these men, but no one probably would suspect Martin, an able, determined, and rather truculent advocate, of possessing a high degree of objectivity, the quality which gives Madison's Notes peculiar worth. Within recent years, a few notes and other papers, some of them apparently rather hastily written or prepared as memoranda for debate, have been made available — notes by King of Massachusetts, McHenry of Maryland, Pierce of Georgia, Paterson of New Jersey, Hamilton of New York, and Mason of Virginia —; not one of them adequately covers any considerable portion of the Convention's proceedings; they do, however, throw light on episodes in the Convention's work. To this list should be added certain papers showing the work of the important committee of detail. There are a few other stray papers of no great significance.
Thirty years after the Convention met, John Quincy Adams, then Secretary of State, was assigned the task of preparing for publication the formal official journal — and a task it proved to be. The volume was printed in 1819. Though inaccurate in some respects (most of the inaccuracies being of slight importance), and though extremely brief, it remained for years the only continuous and authoritative statement of the Convention's proceedings. After Madison's death, which occurred in 1836, his papers were purchased by the government and the Notes were printed four years later. We find, therefore, this very important fact: during fifty years of our history, politicians, statesmen, and judges relied (if they relied on any source at all) on entirely insufficient, partial, and in some respects prejudiced accounts of the proceedings and debates. The great decisions of John Marshall, the speeches of Hayne and Webster, the theories and pronouncements of Calhoun, were all made with nothing like the information that might have been gained had Madison's Notes been published. Story's Commentaries appeared in their first edition three years before Madison's death. Important as these facts are, it may be even more interesting to notice how little intelligent use was made of the invaluable information furnished by the Notes after they had appeared in print.[12]
If the Convention's job had been confined to the formation of a thoroughly competent government, theoretically sound and capable; had its problem been only that of establishing a completely centralized system, the difficulties would have been sufficient to tax the intelligence of statesmen. But in this instance the problem to be solved was more subtle and more complex. The members found themselves engaged in the task of constructing a new kind of body politic, neither a centralized system on the one hand nor a league or confederation on the other. Certain minor problems, as we shall see, were perplexing and to them was given much discussion — for example, the method of choosing the executive — , but the really difficult job was to form a strong and infrangible union without destroying the states as integral, and, in many respects, autonomous parts of an integral system. The solution of this problem was the signal contribution of the Convention to the political life of the modern world. To aid them, the members had the practices of the old empire, as we have already seen; they had in addition their own experiences in the Revolution and under the Articles of Confederation; their most immediate source of knowledge was the failure of the Confederation to function; to this failure the delegates in the Convention frequently referred; it furnished the most convincing lesson.
In one matter — the distribution of powers between the states on the one side and the central government on the other — the old empire and the Articles furnished them with lessons of organization. But the principle of union and the method of its maintenance had to be worked out, hammered out, in the processes of debate. Our first and most important work, therefore, is to point out in the course of the succeeding pages how that particular task was done. The great achievement was to solve the problem of imperial order, the problem which Parliament had found itself incapable of solving and which now remained for the Americans themselves, a problem calling for supremely intelligent statesmanship and no longer to be avoided.
The "main business" of the Convention was opened by Randolph, who made an effective speech and presented a plan of union which had been sketched by the Virginia delegates.[13] He pictured the existing situation and especially showed the defects of the Confederation and the necessity of change in certain essential respects. The fourth and fifth defects, as Madison noted them, are peculiarly important — "the foederal government could not defend itself against the incroachments from the states", and "it [presumably the Articles] was not even paramount to the state constitutions, ratified as it was in may [sic] of the states." It is difficult to find any interpretation of this brief statement except one signifying the belief of the Virginia delegation that the new scheme of union was to be based on a constitution, which, as far as it went, was to be superior to the state constitutions.
Though skillfully prepared, the Randolph or Virginia plan, which was soon taken as the basis of the Convention's work, was in some respects only a fairly elaborate outline. It declared the need of correcting and enlarging the Articles of Confederation, and then at once announced "that the rights of suffrage in the National Legislature ought to be proportioned to the Quotas of contribution, or to the number of free inhabitants...." It provided for a bicameral legislature, the members of the first branch to be elected by the people, the members of the second to be chosen by those of the first, out of a number of persons "nominated by the individual Legislatures...." The assignment of powers to the national legislature was stated in general but fairly comprehensive, though indefinite, terms. Its general principle was clear: "the National Legislature ought to be impowered to enjoy the Legislative Rights vested in Congress by the Confederation and moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation...." The plan provided for a national executive and a national judiciary; the executive and a convenient number of the judiciary were to form a "council of revision", empowered to examine every act of the national legislature before it should "operate, and every act of a particular Legislature before a Negative thereon shall be final;" the dissent of this council was to "amount to a rejection," unless the legislature passed the act a second time or the act of a state legislature was "again negatived by [] of the members of each branch."
Other portions of the plan need not be recited; but it is important to notice that the "amendments" made to the Confederation by the Convention were, after approbation of the Congress of the Confederation, to be passed upon by an assembly or assemblies of representatives, "recommended by the several Legislatures to be expressly chosen by the people...." In other words, the work of the Convention was to be presented as offering amendments to the existing system; but it was to stand on the will of the people and not on the authority of the state governments. This plan evidently proposed the establishment of something more than a union of sovereign states acting through a body of delegates to an international conference. The provision for proportional representation from the states was of signal importance. The idea was not new; it was to be found in the Albany Plan; it had been discussed in the Continental Congress; and now because of the fears and forebodings of the small states, it was certain to become a center of controversy. Viewed as a whole, the Randolph plan makes plain the intention of the Virginia delegates not to be content with mere "temporizing expedients".
The proposal to establish a national government with power to do all things which the states were incompetent to do may be considered in itself an answer to what I have called the "chief problem", as conditions appeared to the thoughtful men of the day anxious for union and peace. If such a government could be founded on the popular will, the customary readiness of the states to disregard their obligations might be obviated. But in addition to the distinct establishment of a national system, the Virginia plan contained three explicit answers to the problem: (1) the national legislature was empowered "to negative all laws passed by the several States, contravening", in its opinion, "the articles of Union...." (2) It was empowered "to call forth the force of the Union against any member of the Union failing to fulfill its duty under the articles thereof." (3) The "Legislative Executive and Judiciary powers within the several States ought to be bound by oath to support the articles of Union".
Of these three explicit proposals for means of assuring the obedience of the states to their obligations, only one, the third, found its way into the finished Constitution; there it stands to-day, as it has for a century and more, as a sign of moral and legal obligation to maintain the federal system. The fate of the other two provisions will be presented in subsequent pages. The three together furnish conclusive evidence of the fear of dissolution of the union, and fear that the union would be but a shadow as the old one had proved to be, because the states had refused or neglected to perform their duties.
When Randolph had finished, with an exhortation not to suffer the opportunity of establishing peace and harmony to go by unimproved, his plan was referred to a committee of the whole. A "draught of a federal Government", prepared by Charles Pinckney, was also presented and was likewise referred. Just what this latter plan contained we do not know. What has been frequently printed as the Pinckney plan is certainly not what the ardent young statesman of South Carolina actually laid before the Convention.[14] When John Quincy Adams was editing the Secretary's notes thirty years after the Convention adjourned, he wrote to Pinckney and received from him a document which Adams placed in the edited journal as the Pinckney plan. It is quite inconceivable that Pinckney, or anyone else, could have presented to the Convention at the beginning a series of proposals so closely resembling the finished Constitution as does the pseudo-plan which Adams inserted in the journal. The paper on which the "plan", as Adams received it, was written, bore the watermark of the year 1797, and therefore no great amount of historical criticism is needed to decide the document to be not the original but at the best a copy. Pinckney himself, a year after the adjournment of the Convention, wrote to a correspondent that he had no copy of his plan in his possession. From available authentic materials we can reach reasonably certain conclusions concerning the character of the original plan; it proposed not mere amendments to the Confederation, but the establishment of a real government and one, at least in some particulars, endowed with powers and authority.
The committee of the whole went in session the next day (May 30) and immediately took up the Virginia plan as the basis of deliberation. At the beginning of those deliberations a significant step was taken. There were some members who thought it wise to commit the Convention at the outset to fundamental principles.[15] The first resolution of the Virginia plan, indicating the purpose of the Convention, declared the need of correcting and enlarging the Articles of Confederation. Randolph, on the suggestion of Gouverneur Morris, moved the postponement of this resolution in order that three new resolutions might be considered which would announce in general but explicit terms the intention of the Convention. Postponement was agreed to. The first two of these resolutions were strangely similar; each in substance repeated the other: no union of states "merely federal", no treaty or treaties among the states as individual sovereignties would be sufficient to accomplish the objects "proposed by the articles of Condeferation [sic], namely common defence, security of liberty, and general welfare." These two resolutions were passed over without much discussion; but the third, which indeed stated affirmatively the principle of the earlier two, was taken up for more careful consideration. Though possibly its full import can be seen only when examined by the side of the other two, the meaning of the third resolution is perfectly plain: "that a national Government ought to be established consisting of a supreme Legislative, Executive and Judiciary." [16]
Discussion of the third resolution followed, less however, Madison tells us, "on its general merits than on the force and extent of the particular terms national and supreme." Charles Pinckney asked Randolph whether he meant to abolish the state governments. Randolph replied "that he meant by these general propositions merely to introduce the particular ones which explained the outlines of the system he had in view." The question and answer are significant: just what did the establishment of a supreme national government imply? Did it involve the disappearance or the total absorption of the states? In the weeks following that problem proved to be, as we have already indicated, difficult and perplexing.[17]
"Mr. Gouverneur Morris explained the distinction between a federal and national, supreme, Government; the former being a mere compact resting on the good faith of the parties; the latter having a compleat and compulsive operation." The word "federal", which we now use as synonymous with "national", was then used in its original sense (Latin, foedus, treaty). Mason at once struck at an essential fact; admitting the deficiency of the Confederation in not providing for coercion and punishment of delinquent states, he "argued very cogently that punishment could not in the nature of things be executed on the States collectively, and therefore that such a Government was necessary as could directly operate on individuals, and would punish those only whose guilt required it." By "States collectively" he evidently meant states in their corporate characters as distinguished from the individuals composing them. Sherman was hesitant; acknowledging that the Confederation was defective and that additional powers were necessary, he stated — and the statement is important — that in no case ought the general and particular jurisdictions to be concurrent; he was indisposed to make too great inroads on the existing system, "intimating as one reason, that it would be wrong to lose every amendment, by inserting such as would not be agreed to by the States".
The third resolution, as given above, was adopted; six states voted in the affirmative; one, Connecticut, in the negative; New York was divided. So at the very beginning, the Rubicon was passed. The Convention decided not merely to add powers to the Congress of the Confederation but to frame a government national in scope and character. Long days of discussion followed; but there is not a scintilla of evidence that the Convention turned its back upon the purpose distinctly laid down on the thirtieth of May. State jealousies and anxieties, local pride, and fear of an overawing national authority were still to be dealt with; but the majority adhered to its purpose of establishing a system which would not be a mere league of sovereigns.
Difficulty, however, lay immediately ahead; to vote for an efficient government and even for one founded on national principles was one thing; but if nationalism meant unequal representation of the states in the national legislature, any plan of proportional representation was certain to arouse the amour propre of the small states; the old fears and jealousies would be awakened. There arose therefore not only the question of the independence and sovereignty of the states, but also the natural unwillingness of some of the delegates to favor a plan which would diminish the consequence and prestige of their respective states. A small and weak state wished to hold up its head as the equal of a richer and more powerful neighbor.[18] This dread lest the stronger states oppress the weaker was of long standing; it had shown itself especially in the formation of the Confederation, when states, notably Maryland, had hesitated to sign the Articles because of the power and influence of their larger landholding neighbors; it proved to be of consequence in the Convention's labors. The grouping of the states was not quite the same as it had been ten years before; but in general the same feeling of state pride and the same feeling of foreboding on the part of the less populous or less powerful states rendered the task of forming an effective union a difficult one.
The full meaning and implication of proportional representation were however clearly brought forth in this early discussion, for "Mr. Madison observed that whatever reason might have existed for the equality of suffrage when the Union was a federal one among sovereign States, it must cease when a national Government should be put into the place." But the Delaware delegates were restrained by their commission "from assenting to any change of the rule of suffrage.
[]. " And so the matter was postponed for later consideration. During the next few days the discussion — still in the committee of the whole — was devoted to various points of interest. The Virginia resolutions were taken up one by one and conclusions were reached which, however, had to be debated again and in some respects modified in later days. The subjects debated in these early days we may pass over with only a few words of comment, though some of them were of crucial importance. Wilson made a number of especially able speeches from which we can cull a few significant sentences: "If we are to establish a national Government, that Government ought to flow from the people at large." "Federal liberty is to States, what civil liberty, is to private individuals. And States are not more unwilling to purchase it, by the necessary concession of their political sovereignty, that [sic] the savage is to purchase Civil liberty by the surrender of the personal sovereignty, which he enjoys in a State of nature." Pointing to a principle which proved to be fundamental in the scheme of imperial order ultimately agreed upon in the Convention, he said, "All interference between the general and local Governments should be obviated as much as possible."
The resolution providing for the adoption of the new Constitution by conventions of the people was not debated at length, but in the course of the discussion Madison presented the necessity for this method of ratification, if the new government was to have substantial authority: "he thought it indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves." [19] The resolution for popular ratification was passed (June 12), six states voting in the affirmative; Connecticut, New York, and New Jersey in the negative. Delaware and Maryland were divided.[20] That ratification by the people would place the Constitution above state laws was clearly presented, and, it would seem, thoroughly understood. Thus by the very force called into operation for establishing the Constitution, the chief problem of the period found a partial answer: the new union arising immediately from the people was no longer to be a submissive and humble suitor dependent on the whims, negligence, and changeful humors of state governments.
But the basis of representation in the national legislature could not be indefinitely postponed; that particularly difficult bridge had to be crossed. Despite opposition which had not, however, reached its most formidable stage, a decision was reached not to follow the old rule of equal votes in the legislature; proportional representation in both branches of the legislature was decided upon. Franklin's assertion, at an earlier time, that a system founded on injustice could not last, was in process of fulfillment. The alignment of the states on this question is significant: on the question of proportional representation "in the first branch", seven states voted in the affirmative — Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia. New York, New Jersey, and Delaware voted in the negative. Maryland was divided. The vote of Connecticut is specially significant because it is plain that as early as this her delegation was ready to accept proportional representation in one house, if equal representation in the other should be granted. Dickinson had expressed belief in the advisability of a similar adjustment.[21] When the question of representation in the second branch came to be voted on, the states were grouped much as before; but Connecticut voted for equal representation, as did Maryland, no longer divided.
Quite plainly, at the end of two weeks of debate the Convention contained two groups differing in opinion on certain pivotal if not absolutely essential matters. On the one side were Massachusetts and Pennsylvania and the four states south of the Potomac. They favored a system involving the principle of nationalism and they defended a method of representation and a mode of ratifying the Constitution which were consistent with the existence of a national government.
Made up of states large in population or area, this group had shown a certain degree of solidarity and unity of purpose. They objected to a system of equality in representation which would allow the inhabitants of a state like Delaware as much power in the government as that of its more powerful neighbors. If all were to be citizens of the United States under a common government, then the number of citizens within a given area should naturally indicate the proportional number of representatives in the national legislature.
The small-state group — Connecticut, New Jersey, Maryland, Delaware, New York — gradually hardening into a fairly efficient opposition was less coherent and less clear in its views than was the other. The vote of Maryland had so far proved to be uncertain. As Hamilton could make no headway against the two other delegates from New York, the vote of that state was frankly against the purpose and designs of the nationalists. Connecticut was open to reason, but its members were determined not to accept a plan of organization which would belittle the states or leave them helpless.[22] New Jersey stood for the principles of the Articles of Confederation.
In the course of the first fortnight many fundamental questions were touched upon — in fact nearly all of the most essential principles and differences of opinion were brought into view, though not fully discussed. On the whole, the nationalists had had their own way. Much remained to be done; but the leaders had some ground for expecting a speedy and successful conclusion of their labors. Unanimity, however, could scarcely have been hoped for. There were differences of opinion which must be reconciled and harmonized to save the Convention from shipwreck.
II: CONTROVERSY AND COMPROMISE; THE ESSENTIALS OF FEDERALISM; COERCION OF LAW AND NOT OF ARMS
The committee of the whole presented to the Convention (June 13) nineteen resolutions, the product of its consideration of the Virginia plan. These resolutions provided for a national government, a bicameral legislature based on proportional representation in both branches, a national executive, a national judiciary to consist of one supreme tribunal, power being given to the national legislature to appoint inferior tribunals, and submission of the Convention's work to assemblies chosen by the people. There were other not unimportant provisions. The whole, though still general in its terms, constituted a substantial scheme for a lasting and workable union. The resolutions included the proposal to grant to the legislature the power to negative state laws "contravening in the opinion of the National Legislature the articles of Union, or any treaties subsisting under the authority of the Union." The proposal of the Virginia plan to bestow upon the national legislature the authority to coerce the delinquent states was not included in the committee's resolutions.
At this juncture, the report of the committee of the whole having been presented, Paterson told the Convention that it was the wish of "several deputations, particularly that of New Jersey," to have further time to consider the committee's report, and "to digest one purely federal, and contradistinguished from the reported plan." The request having been granted, he laid before the Convention (June 15) a set of resolutions which he wished to be substituted for the plan "proposed by Mr. Randolph." The delegates from Connecticut, New York, New Jersey, Delaware, and "perhaps", says Madison, "Mr Martin from Maryland",[23] appear to have participated in the preparation of these resolutions. The defenders of this "federal" scheme of organization — the word "federal" being used to signify a plan of confederate organization — differed, as we have already said, in their main purposes. Dickinson said to Madison: "you see the consequence of pushing things too far. Some of the members from the small States wish for two branches in the General Legislature, and are friends to a good National Government; but we would sooner submit to a foreign power, than submit to be deprived of an equality of suffrage, in both branches of the legislature, and thereby be thrown under the domination of the larger States." [24] He had at an earlier time opposed "consolidation of the States into one great Republic", and had advocated equal representation in one branch of the legislature.[25] Plainly there was no unity or agreement in the small-state group in behalf of the whole scheme of maintaining the essential principle of the Confederation, the political equality and unimpaired sovereignty of its members. Some of the small-state men were ready for national government, provided the states were not destroyed. Could the problem be solved?
The small-state plan proposed to amend the Articles of Confederation by giving additional powers to Congress. It bestowed upon that body authority to regulate foreign and interstate commerce, to levy import and stamp duties, and to make rules and regulations for their collection. In this way it proposed adding to the existing government — if Congress can be called a government — the two essential powers without which any system of union would be weak and probably helpless. Congress, by this plan, was also authorized to resort to the old method of making requisitions upon the states and "to direct the collection thereof" in any state not complying within a specified time; the requisitions were to be in proportion to the whole number of white and other free inhabitants and three-fifths of all other persons except Indians not paying taxes. There was a provision for a federal executive and a judiciary. But even this scheme of bolstering up the old federal union had to face the vexing possibility of a state's disregard of obligations — "the chief problem" once more. What answer did the New Jersey plan contain? It contained a declaration, which will be discussed later, that the acts of Congress and treaties should be "the supreme law of the respective States so far forth as those Acts or Treaties shall relate to the said States or their Citizens, and that the Judiciary of the several States shall be bound thereby in their decisions, any thing in the respective laws of the Individual States to the contrary notwithstanding...." But the plan included another answer — the use of force; coercion, appearing at first in the Virginia plan, but abandoned after brief discussion in the committee of the whole, was embodied in the New Jersey plan: "if any State, or any body of men in any State shall oppose or prevent the carrying into execution such acts or treaties, the federal Executive shall be authorized to call forth the power of the Confederated States, or so much thereof as may be necessary to enforce and compel an obedience to such Acts, or an Observance of such Treaties." Even the small-state party saw that the union could not survive, if reliance were based entirely on the whims or the temperamental inclinations of the several states. Both the national plan, when first presented, and the state sovereignty plan contemplated the use of force to maintain the union.
One may inquire whether even the plan of the small states, purporting only to amend the Articles, really conserved the principle of the Articles and left the Confederation a union of sovereignties. But the mere grant of powers to Congress and even the authority to collect requisitions would not necessarily imply the transformation of the Confederation into something more, something in essence quite different. Furthermore, though the proposal of the particularists authorizing coercion of states is important, it does not imply legal nationalism; the use of armed force against a state as a corporate body was thoroughly consistent with the principle of state sovereignty.
The debates of the next three days (June 16, 18, 19) were crucial and critical. Would the committee of the whole adhere to nationalism or be content with modification of the Confederation? The issue was by no means entirely new. At an earlier session, Paterson had declared the Convention's powers were limited to amendment of the Articles. Referring to the wishes of the people, the commissions under which the delegates acted, and the sentiments of the states, he said: "The idea of a national Government as contradistinguished from a federal one, never entered into the mind of any of them.... We have no power to go beyond the federal scheme, and if we had the people are not ripe for any other.... A confederacy supposes sovereignty in the members composing it and sovereignty supposes equality." To this Wilson had replied, "If New Jersey will not part with her Sovereignty it is in vain to talk of Government." [26] That was the issue in these three eventful days of debate.
The advocates of state sovereignty made an able defense. The Paterson plan, said Lansing, "sustains the sovereignty of the respective States, that of Mr. Randolph distroys it...." And Paterson declared, "If the sovereignty of the States is to be maintained, the Representatives must be drawn immediately from the States, not from the people: and we have no power to vary the idea of equal sovereignty. The only expedient that will cure the difficulty, is that of throwing the States into Hotchpot" — equalizing the states or making one geographic and political whole as the basis of political nationalism. Meeting the assertions of the small-state group, Randolph declared in a powerful and appealing speech, "The true question is whether we shall adhere to the federal plan, or introduce the national plan.... We must resort therefore to a national Legislation over individuals, for which Congress are unfit.... A National Government alone, properly constituted, will answer the purpose; and he begged it to be considered that the present is the last moment for establishing one. After this select experiment, the people will yield to despair." Madison and Wilson subjected the Paterson proposals to searching analysis and criticism, pointing to their radical defects.
The issue was clearly stated. On the question whether the Randolph plan "should be adhered to as preferable" to that of Paterson, seven states voted in the affirmative — Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia. New York, New Jersey, and Delaware voted in the negative; Maryland was again divided. So by a conclusive majority, but in the face of strong opposition, once again the committee of the whole decided in favor of a national system. The vote of the Connecticut delegates shows once more the readiness to favor an effective government, and more than that, a system avowedly national. If they had participated in drafting the state sovereignty plan, they cast aside their own handiwork; as we shall see, however, they were still determined not to allow the states to be overwhelmed. The report of the committee of the whole was now before the Convention, and in the following sessions all its parts and all its principles were vigorously debated.
The day after the critical vote was taken and the nationalists had won a victory, which, as far as principle was concerned, appeared decisive, Ellsworth (June 20), seconded by Gorham of Massachusetts, moved that the first resolution of the plan, which was then before the Convention, be changed so as to read: " 'the Government of the United States ought to consist of a supreme legislative, Executive and Judiciary'." This change, he explained, "would drop the word national, and retain the proper title 'the United States.' ... He wished also the plan of the Convention to go forth as an amendment to the articles of Confederation, since under this idea the authority of the Legislatures could ratify it. If they are unwilling, the people will be so too.... He did not like these [state] conventions.... They were better fitted to pull down than to build up Constitutions." To this proposal Randolph replied that he "did not object to the change of expression, but apprised the gentleman who wished for it that he did not admit it for the reasons assigned; particularly that of getting rid of a reference to the people for ratification." The Ellsworth resolution was thereupon unanimously adopted.[27]
This dropping of the word "national" was in after years cited as positive proof of the Convention's change of heart — proof that the members had decided to abandon the aim of the nationalists and to form a constitution on the basis of state sovereignty. Such an assertion could not, with any show of reason, have been made except on the basis of the published journal (1819) and Yates's minutes, which gave only in the meagerest possible terms the fact of the formal omission of the word so objectionable later to the ardent apostles of state sovereignty. But even these sources of information, when the time and the circumstances are considered, should have led one to doubt the sudden alteration of the Convention's purpose. The national plan had just been accepted by seven states of the eleven present, the vote of one state being divided. To suppose immediate retraction and sudden yielding to the particularistic group is to suppose the impossible; and Madison's Notes, already quoted, prove that there was no such retraction or surrender. Furthermore, the plan of ratification by the people was later adopted, and as a matter of fact, though this is not important, the word "national" was used in debate, but not of course in formal resolutions.
The rejection of the Paterson plan did not entirely discourage the small-state party. At intervals during the next fortnight the vexed subject of proportional representation arose, a subject, it will be remembered, which involved theoretically the surrender, or the diminution, of state sovereignty, but also touched the amour propre of the smaller states. Some members, who were not localists by prejudice and principle, feared lest the states be totally submerged.
The question of representation became connected with the resolution, already passed by the committee of the whole and in accordance with the Virginia plan, to establish a legislature of two branches. Declaring that "the true question here was, whether the Convention would adhere to or depart from the foundation of the present Confederacy", Lansing proposed (June 20) that the powers of legislation be vested in the United States in Congress — that is to say, in a single body similar to the Congress of the Confederation. To this Mason objected, saying that the mind of the people was well-settled in an attachment to republican government and to more than one branch in the legislature. Sherman, however, though supporting Lansing, expressed a willingness to compromise: "If the difficulty on the subject of representation can not be otherwise got over, he would agree to have two branches, and a proportional representation in one of them, provided each State had an equal voice in the other." This proposal was not, as we have seen, original with Sherman, nor was it confined to the Connecticut delegation, though that delegation seems to have been specially interested in it.
Obviously, some of the men fearing the larger states and quite unwilling to see the smaller states totally robbed of equal power in the national councils might be content with something less than complete victory. Lansing's proposal as given above — that legislative power be vested in the United States in Congress — was defeated by the customary majority — the six large states voting against it. Connecticut, New York, New Jersey, and Delaware voted in its favor; Maryland was divided. This vote registered the decision of at least six states not to be content with a unicameral legislature; and on the true question underlying it all — whether the Convention would or would not depart from the fundamental principle of the Confederation — the particularists had once more suffered defeat. But the question still remained whether the Convention, by direct affirmative vote, would decide upon two legislative branches in the proposed national system. The very next day (June 21) the affirmative resolution to establish a legislature of two branches was passed by a vote of seven to three (Maryland again divided). This time Connecticut voted with the large states.
Though much remained to be done and anxious days were ahead, the Convention had now reached a position — as yet perhaps not fully seen by its members — which deserves careful examination. The problem of representation was not fully disposed of. The large-state or national party had been moving victoriously forward. Were its plans to be carried through to the end? And, if carried through, just what did that success imply? The Convention was now approaching the center of the complicated problem of imperial organization. As we have already pointed out several times, the task of forming a national government and of bestowing upon it powers sufficient to guarantee effective life to the system was naturally troublesome and perplexing: but the critical matter was to provide not only for an effective government but also for the preservation of the states as political bodies which would be more than administrative districts.
The problem of establishing a federal republic, as distinguished from one purely national, could not be solved by destroying the states. So thoroughly had the Convention determined upon a national system that before the end of June the question was not whether the states should be united in an integral union but whether they should be placed at the mercy of a central government. At least one member of the Convention saw the real nature of the problem and was able to state it clearly. Probably others were equally aware of the difficulty and recognized its critical character, but Johnson of Connecticut stated it exactly: "On a comparison of the two plans which had been proposed from Virginia and New Jersey, it appeared that the peculiarity which characterized the latter was its being calculated to preserve the individuality of the States. The plan from Virginia did not profess to destroy this individuality altogether, but was charged with such a tendency. One Gentleman alone (Colonel Hamilton) in his animadversions on the plan of New Jersey, boldly and decisively contended for an abolition of the State Governments. Mr. Wilson and the gentleman from Virginia who also were adversaries of the plan of New Jersey held a different language. They wished to leave the States in possession of a considerable, though a subordinate jurisdiction. They had not yet however shewn how this could consist with, or be secured against the general sovereignty and jurisdiction, which they proposed to give to the national Government. If this could be shewn in such a manner as to satisfy the patrons of the New Jersey propositions, that the individuality of the States would not be endangered, many of their objections would no doubt be removed. If this could not be shewn their objections would have their full force. He wished it therefore to be well considered whether in case the States, as was proposed, should retain some portion of sovereignty at least, this portion could be preserved, without allowing them to participate effectually in the General Government, without giving them each a distinct and equal vote for the purpose of defending themselves in the general Councils."[28]
Whatever we may think of Johnson's suggestion of state participation in the general government, he comprehended clearly the problem of preserving the states as political entities.
Wilson and Madison tried to answer Johnson's question. Neither believed the states were in danger. "The General Government", said Wilson, "will be as ready to preserve the rights of the States as the latter are to preserve the rights of individuals...." Madison concluded that "Guards were more necessary against encroachments of the State Governments — on the General Government than of the latter on the former.... Were it practicable for the General Government to extend its care to every requisite object without the coöperation of the State Governments the people would not be less free as members of one great Republic than as members of thirteen small ones." Evidently Madison was still impressed with the danger of dissolution, the product of state heedlessness and willful pride.
The Convention had been in session for a month and the crucial question of representation was not yet disposed of. It was brought up for settlement June 27, on a resolution for proportional representation in the first branch of the national legislature. In opposition, we need to remember, were the proponents of state sovereignty, those not especially addicted to a principle but because of state pride unwilling to surrender equality, and others like Johnson fearing lest the states be totally submerged. So critical did the situation seem to be that after the debate had continued some time, Franklin, asserting his belief "that God governs in the affairs of men", proposed that the Convention henceforth open its sessions with prayers "imploring the assistance of Heaven...." But the members feared "disagreeable animadversions"; the public might believe the calling in of divine guidance due to embarrassments and dissensions. Within the Convention Williamson remarked, however, that "the true cause of the omission could not be mistaken. The Convention had no funds." Could no minister be unearthed in Philadelphia who would pray for his country without price?
Opening the discussion on this salient matter of representation in Congress, Martin, in a speech which lasted three hours on one day and was continued on the day following (June 27, 28), presented "at great length and with great eagerness" the cause of state sovereignty. "... an equal vote in each State was", he said, "essential to the federal idea, and was founded in justice and freedom, not merely in policy ... that the States being equal cannot treat or confederate so as to give up an equality of votes without giving up their liberty...." Hamilton, who was about to leave the Convention (June 29) and not participate in its debates for a considerable time,[29] pleaded for effective union, and pointed out the distinction between the "carrying and non-carrying States", which would hold the largest states apart one from the other rather than give harmony and group activity.[30] Madison made two exceptionally able speeches; and he spoke, as did Hamilton, of the improbability of combination between such states as Virginia, Massachusetts, and Pennsylvania, which, different in manners and religion and in point of the staple productions, "were as dissimilar as any three other States in the Union." These two men were thus presenting the true situation; there was and could be no real antithesis between the small states and their powerful neighbors; the real danger, if danger should ever come, would be caused by differences of economic interests or diversities of manners and attitudes of mind, and not by the wealth or power of the respective states. On the third day of debate (June 29) it was voted that in the first branch of the legislature the rule of suffrage should not be according to that of the Articles of Confederation. The six large states of course voted in the affirmative; the others — Connecticut, New York, New Jersey, Delaware — in the negative; Maryland was again divided. At the opening of that day's session, Johnson had strongly expressed again the opinion to which we have already given special attention; something must be done to save the states from annihilation. And now that proportional representation in the lower house had been decided upon, his colleague, Ellsworth, rose to advocate equal representation in the second chamber. He was not sorry on the whole, he said, that the vote just passed had registered the Convention's decision against that rule of suffrage in the first branch. He hoped it would become the basis of a compromise: "We were partly national; partly federal. The proportional representation in the first branch was conformable to the national principle and would secure the large States against the small. An equality of voices was conformable to the federal principle and was necessary to secure the Small States against the large."
In the Convention we must notice — if repetition may be pardoned — that Johnson was, to all appearances, not greatly interested in the controversy between large states and small, but in the danger that nationalism would entirely submerge the states. Ellsworth, it is true, if we can judge from his argument at this juncture, feared large-state domination; and still, how, in the absence of modern terms of description, could the men then forming a new kind of body politic, which we now call a "federal state" and which the men of the day soon came to call a "confederated republic", have better expressed the nature of that political system than in Ellsworth's words — a system "partly national; partly federal"?[31] Toward the end of a long day (June 30), filled with acute argument and with a fervor verging upon acrimony, Ellsworth declared: "Under a National Government he should participate in the National Security, as remarked by Mr. King but that was all. What he wanted was domestic happiness. The National Government could not descend to the local objects on which this depended. It could only embrace objects of a general nature. He turned his eyes therefore for the preservation of his rights to the State Governments." King's answer to Ellsworth is noteworthy: "In the establishment of Societies the Constitution was to the Legislature what the laws were to individuals. As the fundamental rights of individuals are secured by express provisions in the State Constitutions; why may not a like security be provided for the Rights of States in the National Constitution."
These quotations are given here to demonstrate, as far as a few words can, that in the minds of some of the men — how many we do not know — the aim was not to prevent nationalism, but to assure the existence of the states; in other words, to solve the problem of imperial federalism and not allow nationalism to become consolidation. It is interesting to see Ellsworth, who some ten days previously had moved to change the opening resolution of the committee of the whole's report, so as to omit the word "national", now speaking of a "National Government" and assuming the establishment of such a government. But the idea, possibly the hope, of maintaining state sovereignty, as such, was not entirely dead; Martin, of course, was adamant. Bedford of Delaware "contended that there was no middle way between a perfect consolidation and a mere confederacy of the States." The large states, he declared, dared not dissolve the confederacy, and if they should, the small states would find some foreign ally to take them by the hand.
In the debate on Ellsworth's motion for equal representation in the second branch, Wilson and Madison gave elaborate expositions of their doctrine of nationalism and defended the organization of a government which they believed to be consonant with nationalism. Though not advocating destruction of the states, they were determined to prevent equality of representation in the second legislative chamber as well as in the first; they believed the danger to the small states to be imaginary only; and they thought an equality, which disregarded facts, was unwise. "If the minority of the people of America", said Wilson, "refuse to coalesce with the majority on just and proper principles, if a separation must take place, it could never happen on better grounds.... We talk of States, till we forget what they are composed of." Madison now declared the division of interests did not in fact lie between the large and the small states but between northern and southern. King, ably and eloquently speaking in behalf of the cause of nationalism, declared he was filled with astonishment at the sight of men, who, if they were convinced that every individual was secured in his rights, "should be ready to sacrifice this substantial good to the phantom of State sovereignty".
The vote on the resolution for equality of suffrage in the second branch came at the opening of the session on July second. The result was a tie — five votes to five.[32] Georgia, which had steadily voted with the large-state party, was now divided — Baldwin voting for equal representation, and Houstoun against it. Baldwin was a Connecticut man who had not long before removed to Georgia, and we may well suppose he was influenced by the old, seasoned politicians of the northern state to support their cause and perhaps save the Convention from dissolution and failure. The vote of Maryland, which had been so often tied, was cast by Martin alone because of the tardiness of his colleague Jenifer in coming to the meeting. If Baldwin had continued to vote as he had previously voted, and if Jenifer had been prompt in attendance on that eventful morning, the large-state party would have been successful once more. On this narrow margin did the fateful decision — or evidence of inability to reach decision — depend.[33]
The Convention was now, as Sherman said, "at a full stop...." Evidently the small-state men were beyond persuasion; and if they were defeated, the Convention would be a failure. Concession was inevitable. General Pinckney proposed the appointment of a committee to report a compromise. Madison and Wilson were opposed to the commitment. But Martin warned the Convention that no modifications whatever could "reconcile the Smaller States to the least diminution of their equal Sovereignty." A committee of one from each state was agreed upon. That the result would be a report recommending compromise was foreseen; and the committee was so constituted as to make at least partial victory for the small-state men a foregone conclusion; not one of the steadiest objectors to equality in the Senate was named a member. The Convention adjourned to allow time for the committee's work.
Those were anxious days, though in fact the crisis was actually passed; no committee report could shatter the fundamentals of the national system already agreed upon. The committee's report — constituting the great compromise on the subject which had vexed the Convention for weeks — provided that in the first branch of the legislature each state should be allowed one member for every 40,000 inhabitants; in the second branch, each state should have an equal vote; all bills for raising or appropriating money and for fixing salaries must originate in the first branch and not be altered or amended by the second.
The more strenuous members of the large-state party protested; they were not content. Madison did not regard the power of the lower house to originate money bills as any concession, and he "was not apprehensive that the people of the small States would obstinately refuse to accede to a Government founded on just principles...." Morris made a peculiarly vigorous appeal to the sense of the assembly. He came there, he said, as a representative of America, "in some degree as a Representative of the whole human race; for the whole human race will be affected by the proceedings of this Convention." If the small states should refuse to consent to a system essentially sound, they might, he declared, make "a noise for a time," but eventually they would find ties of interest, kindred, and common habits too strong to be broken. "This Country", he exclaimed, "must be united. If persuasion does not unite it, the sword will." He appears to have had clearly in mind a thought which we have seen Madison expressing before, that groups of like economic and social interests would come to the fore, and that the antithesis between the large and small states was unreal; at all events, the future proved (and is proving to-day) the essential truth of that position.
For more than a week the debate went on; the report of the committee was taken up piecemeal; it was discussed and rediscussed; changes and additions were made, but the essentials of the committee's recommendations, including the crucial clause which gave equal representation in the Senate, stood unaltered. The question of agreeing to the whole report as amended was carried by a vote of five to four (July 16). Pennsylvania, Virginia, South Carolina, and Georgia voted in the negative; Massachusetts was divided. Once again by the narrowest of margins a momentous decision was reached; but the importance of the decision consists not so much in the content of the resolution as in the fact that a decision was reached at all and that the break-up of the Convention was avoided.
The truth is, the nationalists had lost little or nothing, though some of them were for the moment discouraged. Equal representation of the States in the Senate neither injured the large states as such nor destroyed the principle of nationalism; in the long run it probably had no appreciable effect in preserving the states from being compounded into a consolidated republic; it did not protect the smaller states against their larger neighbors. The Senate has at no time stood as a guardian of the weaker members of the union. Nationalism, though endangered by sectionalism, brought into play the loyalties and the coöperation of groups irrespective of the size or material wealth of the particular states. Such nationalism as we now know — a nationalism of patriotism and loyalty — had to grow by degrees; and the development of the central government, produced by the industrial and social changes of the passing decades, was not hindered by the Senate of the United States.
Only one week after the settlement* of the great dispute by the acceptance of compromise, a motion was made that the members of the second branch, the Senate, should vote per capita (July 23). Ellsworth said he always had been in favor of such a provision. But it was a momentous change. Martin pointed out that it meant a departure from "the idea of the States being represented...." Possibly the small-state men — such of them as remained — supposed the senators from any one state would act together on any matter directly affecting the interests of their state; but the resolution was at variance with the idea that the senators came as ambassadors to express the will of their master; and in fact, Gerry, a few days earlier, had suggested per capita voting because it would prevent delays and inconveniences which had been experienced in the old Congress, "and would give a national aspect and Spirit to the management of business."
By the adoption of the great compromise neither party in the Convention was entirely satisfied. Lansing and Yates had left before the crucial vote was taken, reporting to Governor Clinton that the Convention was proceeding along lines beyond the powers of the delegates and that it was impracticable to establish a general government pervading every part of the United States, certain in a short time to "be productive of the destruction of the civil liberty of such citizens who could be effectually coerced by it".[34] Luther Martin remained, though he left before the end to make an attack upon the Convention's work. But others went on with the job. "From the day when every doubt of the right of the smaller states to an equal vote in the senate was quieted, they — so I received it from the lips of Madison, and so it appears from the records — exceeded all others in zeal for granting powers to the general government. Ellsworth became one of its strongest pillars." [35]
It is expedient to mention here a discussion concerning treason which arose a month after the great compromise. There was no doubt about the possibility of treason against the United States, but could there be treason against a state? A clause of the resolution of the committee of detail declared treason to consist "only in levying war against the United States, or any of them; and in adhering to the enemies of the United States, or any of them." Differences of opinion developed, and the nature of the discussion cannot be ascertained with assurance from Madison's treatment. Johnson, who two months before had stated so clearly the necessity of preserving the states, now declared there could be no treason against a particular state. Mason said the United States would have a qualified sovereignty only; the individual states would retain a part. "An Act may be treason against a particular State which is not so against the United States." But Johnson answered, "That case would amount to Treason against the Sovereign, the supreme Sovereign, the United States". The trouble plainly arose in part from the difficulty of determining the nature and extent of the sovereignty which the states retained, if they retained any at all. Ellsworth maintained the existence of divided sovereignty, the United States being sovereign on one side of the line dividing the jurisdictions, the states on the other: "each", he said, "ought to have power to defend their respective Sovereignties." But in the end the decision was to leave out reference to the states and define treason against the United States. Whether or not this conclusion implies and was meant to imply that there can be treason against a state is uncertain; beyond all doubt, however, it recognizes the sovereign character of the union, perhaps on the theory of a sovereignty divided between states and nation.[36]
Thus far we have followed the main line of the Convention's work and have attempted to make clear the struggle over the nature of the union. The contest had centered on the question of representation, because, if the union was to be a national union, people, citizens, should be the basis of representation, not states as corporate bodies. The advocates of state equality and equal representation of the states had met with successive defeats; but those who were anxious to preserve the states, though not averse to a national system, attained their goal, as they believed, by providing equal representation in the Senate.
It had been at least partly taken for granted that the establishment of a national government logically and properly implied the operation of that government directly on individuals. King and Madison had announced (July 14) the principle with especial plainness. There never will be a case, said King, in which the general and national government "will act as a federal Government on the States and not on the individual Citizens." Madison "called for a single instance in which the General Government was not to operate on the people individually." [37] Wilson, moreover, had brought forth with great clearness that there should be little or no contact between the central government and the states: "The same train of ideas which belonged to the relation of the Citizens to their State Governments were applicable to their relations to the General Government and in forming the latter, we ought to proceed, by abstracting as much as possible from the idea of State Governments. With respect to the province and objects of the General Government they should be considered as having no existence." [38]
Quite obviously, if there were to be spheres of authority, there was need of marking out the political domain of each with considerable distinctness. And here, let us notice, is not only a central principle of the American federal state, but the real answer to the anxieties which had burdened the hearts of the small-state men who feared destruction of the states; the answer to their anxieties did not in reality rest on equal representation in the Senate, but on granting to the national government clearly-stated and clearly-recognizable powers. Only on such a principle, could freedom from friction between governments be avoided; and only in this way could the states have reasonable assurance of their continuance as efficient and effective members of an integral union.
Now, it is an interesting fact that this question of exact distribution of powers between the states on the one hand and the central government on the other did not receive much consideration during the first two months. When the Convention turned over to the committee of detail a series of resolutions to be fashioned into a constitution, the statement of distribution was still general and indefinite.[39] Why this delay in making explicit assignment of powers? The delegates were particularly interested in the establishment of a permanent union, and not until that troublesome question was answered were they ready for details. But most important of all was the fact that the assignment of powers did not present an intricate and novel difficulty; the men of those days, though engaged in a task requiring great wisdom and discretion, were not dependent on mere theory concerning this essential matter. Behind them lay the practices of the old empire, the experiences of the Revolution, and the provisions of the Articles of Confederation. Historical facts pointed the way.[40]
The assignment of explicitly enumerated powers was first worked out not in open Convention but by the committee of detail.[41] In its report the powers of Congress were named in eighteen brief paragraphs. The new government was to have prescribed powers. Such was the inevitable presumption, but it was made clear beyond all presuming when, after the ratification of the Constitution, the tenth amendment was adopted. The powers thus granted were stated in broad and rather generous terms, without niggardly precision. The vitality of a federal republic — its continuance as a working system — depends on the accuracy with which powers are distributed; those that can be most effectively administered by the central government, without undue encroachment on local affairs, should be deposited with that government; those powers adapted to local needs and properly subject to local authority should be left to the individual commonwealth. Changes in the social and industrial order, such changes as came in the last half of the nineteenth century and after, may make advisable a reassortment of powers; but the principle of distribution based on the capacity for serving the needs of society must remain, if the federal state is to continue, preserve its essential character, and not be lost in centralized nationalism.
We have seen how, despite fears and jealousies, a national government with extensive powers was decided upon. This was an essential part of the solution of the problem of which the reader has often been reminded — the problem of establishing a system in which the states would abide by their obligations and not destroy the union. But, so far, we have not seen what became of two provisions which were put forth at an early stage as solutions of this problem — the proposals to give the national legislature authority to coerce a recalcitrant state and the authority to negative state laws. Coercion fell by the wayside in the early days of the Convention as the plan of forming a national government operating directly on individuals took shape; as the implications of the plan became apparent, coercion was abandoned.[42 ] Not only did war upon a state, because of the misdeeds of its government, inflict suffering on individual citizens, but it was really a method — a method inherited from barbarism — of settling disputes between nations in the absence of enforceable law.[43] The Constitution in its final form gave Congress the power to call forth the militia to execute the laws of the union, suppress insurrections, and repel invasions, but coercion of delinquent states in their corporate capacity was abandoned because coercion of individual citizens, disobedient to the law, was consistent with real nationalism and consistent too with the prospect of a permanent, smoothly-working union.
The proposal to give the national legislature authority to veto state laws, which, like coercion, was thought to be a proper method for preserving the union and solving "the chief problem", was for a considerable time ably defended by some of the eager nationalists. It was accepted without dissent or debate (May 31 ).[44] But objections arose, and six weeks later (July 17) the matter came up for final decision. Madison still believed the negative as essential "to the efficacy and security of the General Government"; the necessity of such a government proceeded, he said, from the propensity of the states to pursue their particular interests. Gouverneur Morris, on the other hand, said such a power would be "terrible to the States, and not necessary, if sufficient Legislative authority should be given to the General Government." Then Sherman made a most significant statement: the negative, in his opinion, was unnecessary, "as the Courts of the States would not consider as valid any law contravening the Authority of the Union, and which the [national] legislature would wish to be negatived." A law that ought to be negatived, Morris now declared, would be set aside by the judiciary department, and if that security should fail, the law might be repealed by a national law. The principle was, however, firmly grasped and most clearly stated by Sherman, who asserted that the power proposed to be given to Congress involved "a wrong principle, to wit, that a law of a State contrary to the articles of the Union, would if not negatived, be valid and operative." In other words, a state act contrary to the Constitution could not be law; it had no validity.
Immediately after the vote on the power of negativing was taken, Martin rose and presented a resolution which had first appeared in the small-state party plan and was probably his own handiwork.[45] Reference to it has already been made. It deserves repetition here: "that the Legislative acts of the United States made by virtue and in pursuance of the articles of Union, and all treaties made and ratified under the authority of the United States shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said States, or their Citizens and inhabitants — and that the Judiciaries of the several States shall be bound thereby in their decisions, any thing in the respective laws of the individual States to the contrary notwithstanding". The resolution was adopted without dissent (July 17).
A month and more after the adoption of this resolution, it was amended (August 23), and the amendment is of signal interest; it added at the beginning the words "This Constitution". Thus, not only laws and treaties of the United