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merce, even by the imposition of duties, provided these duties were imposed for the purpose of regulation, had been at all times admitted. But these colonies, however they might acknowledge the supremacy of Parliament in other respects, denied the right of that body to tax them internally." If there were any exceptions to the general accuracy of this statement, they seem to have been too few and fugitive to impair the general result.1 In the charter of Pennsylvania, an express reservation was made of the power of taxation by an act of Parliament, though this was argued not to be a sufficient foundation for the exercise of it.2
§ 190. Perhaps the best general summary of the rights and liberties asserted by all the colonies is contained in the celebrated declaration drawn up by the Congress of the Nine Colonies assembled at New York, in October, 1765.3 That declaration asserted that the colonists "owe the same allegiance to the crown of Great Britain that is owing from his subjects born within the realm, and all due subordination to that august body, the Parliament of Great Britain." That the colonists" are entitled to all the inherent rights and liberties of his [the king's] natural-born subjects within the kingdom of Great Britain." "That it is inseparably essential to the freedom of a people, and the undoubted right of Englishmen that no taxes be imposed on them, but with their own consent, given personally, or by their representatives." That the people of the "colonies are not, and from their local circumstances cannot be, represented in the House of Commons of Great Britain. That the only representatives of these colonies are persons chosen therein by themselves; and that no taxes ever have been, or can be, constitutionally imposed upon them, but by their respective legislatures. That all supplies of the crown being free gifts from the people, it is unreasonable and inconsistent with the principles and spirit of the British Constitution for the people of Great Britain to grant to his Majesty the property of the colonies. And that the trial by jury is the inherent and invaluable right of every British subject in these colonies." 4
§ 191. We here observe that the superintending authority of
1 1 Pitk. Hist. 92, 96, 98, 162 to 212; App. No. 4, 448, 450, 453.
2 1 Chalmers's Annals, 638, 658; 2 American Tracts, Rights of Parlia. Vind. 25, 26; 3 Amer. Tracts, App. 51; Id. Franklin's Exam. 46.
* The nine States were Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, and South Carolina.
* Marsh. Hist. Colonies, ch. 13, pp. 360, 470, 471; 1 Pitk. Hist. 178, 179, 180, 446.
Parliament is admitted in general terms; and that absolute independence of it is not even suggested, although in subsequent clauses certain grievances, by the Stamp Act, and by certain acts levying duties and restraining trade in the colonies, are disapproved of in very strong language. In the report of the committee of the same body, on the subject of colonial rights, drawn up with great ability, it was stated: "It is acknowledged that the Parliament, collectively considered, as consisting of king, lords, and commons, are the supreme legislature of the whole empire; and, as such, have an undoubted jurisdiction over the whole colonies, so far as is consistent with our essential rights, of which also they are and must be the final judges; and even the applications and petitions to the king and Parliament, to implore relief in our present difficulties, will be an ample recognition of our subjection to, and dependence upon, the legislature."2 And they contended that there is a vast difference between the exercise of parliamentary jurisdiction in general acts for the amendment of the common law, or even in general regulations of trade and commerce through the empire, and the actual exercise of that jurisdiction in levying external and internal duties and taxes on the colonists, while they neither are, nor can be, represented in Parliament.” 3 And in the petition of the same body to the House of Commons, there is the following declaration: "We most sincerely recognize our allegiance to the crown, and acknowledge all due subordination to the Parliament of Great Britain, and shall always retain the most grateful sense of their assistance and protection." But it is added, there is "a material distinction in reason and sound policy between the necessary exercise of parliamentary jurisdiction in general acts for the amendment of the common law, and the regulation of trade and commerce through the whole empire, and the exercise of that jurisdiction by imposing taxes on the colonies"; 5 thus admitting the former to be rightful, while denying the latter.6
§ 192. But after the passage of the Stamp Act, in 1765, many of the colonies began to examine this subject with more care, and to entertain very different opinions as to parliamentary authority.
1 Marsh. Hist. Colon. p. 471, note 4.
2 Pitk. Hist. 448, 450.
4 4 Amer. Museum, 89.
8 1 Pitk. Hist. 453, 454.
5 4 Amer. Museum, 89, 90.
6 The celebrated declaration of the rights of the colonies, by Congress, in 1774 (hereafter cited), contains a summary not essentially different. 1 Journ. of Congress, 27 to 31.
The doctrines maintained in debate in Parliament, as well as the alarming extent to which a practical application of those doctrines might lead, in drying up the resources and prostrating the strength and prosperity of the colonies, drove them to a more close and narrow survey of the foundation of parliamentary supremacy. Doubts were soon infused into their minds, and from doubts they passed by an easy transition to a denial, first, of the power of taxation, and next, of all authority whatever to bind them by its laws.1 One of the most distinguished of our writers 2 during the contest admits that he entered upon the inquiry" with a view and expectation of being able to trace some constitutional line between those cases in which we ought, and those in which we ought not, to acknowledge the power of Parliament over us. In the prosecution of his inquiries, he became fully convinced that such a line does not exist; and that there can be no medium between acknowledging and denying that power in all cases.'
§ 193. If other colonies did not immediately arrive at the same conclusion, it was easy to foresee that the struggle would ultimately be maintained upon the general ground; and that a common interest and a common desire of security, if not of independence, would gradually bring all the colonies to feel the absolute necessity of adhering to it, as their truest and safest defence. In 1773, Massachusetts found no difficulty in contending in the broadest terms for an unlimited independence of Parliament; and in a bold and decided tone denied all its power of legislation over them. A distinction was taken between subjection to Parliament, and allegiance to the crown. The latter was admitted; but the former was resolutely opposed. It is remarkable that the Declaration of Independence, which sets forth our grievances in such warm and glowing colors, does not once mention Parliament, or allude to our connection with it; but treats the acts of oppression therein referred to as acts of the king, in combination "with others" for the overthrow of our liberties.5
1 1 Jefferson's Corresp. 6, 7, 12, 104 to 116.
2 3 Wilson's Works, 203; Mass. State Papers, 339, 340.
8 1 Wilson's Works, 221, 222, 226, 227, 229, 237, 238; 2 Wilson's Works, 54, 55, 58 to 63; 1 Pitk. Hist. 242, 243, 246, 248, 249, 250; Mass. State Papers, 331, 333, 337, 339, 342 to 351, 352 to 364; 4 Debrett's Parl. Debates, 251, &c., note; Marsh. Hist. ch. 14, p. 412, 483; 1 Jefferson's Corresp. 6, 7, 12, 100, 104 to 116.
4 Mass. State Papers, edit. 1818, p. 342 to 365, 384 to 396; 1 Pitk. Hist. 250, 251, 453, 454.
5 1 Jefferson's Corresp. 6, 7, 12, 100 to 116.
§ 194. The colonies generally did not, however, at this period concur in these doctrines of Massachusetts, and some difficulties arose among them in the discussions on this subject. Even in the Declaration of Rights 1 drawn up by the continental congress in 1774, and presented to the world as their deliberate opinion of colonial privileges, while it was asserted, that they were entitled to a free and exclusive power of legislation in their provincial legislatures, in all cases of taxation and internal policy, they admitted, from the necessity of the case, and a regard to the mutual interests of both countries, that Parliament might pass laws bona fide for the regulation of external commerce, though not to raise a revenue, for the purpose of securing the commercial advantages of the whole empire to the mother country, and the commercial benefits of its respective members. An utter denial of all parliamen11 Pitk. Hist. 235, 286, 340, 344; Journ. of Congress, 1774, p. 28, 29; Marsh. Colon. ch. 14, p. 412, 483. [Botta's American War, b. 4.]
2 As this document is very important, and not easily found, the material clauses will be here extracted. After reciting many acts of grievance, the Declaration proceeds as follows:
"The good people of the several colonies of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Newcastle, Kent and Sussex on Delaware, Maryland, Virginia, North Carolina, and South Carolina, justly alarmed at these arbitrary proceedings of Parliament and administration, have severally elected, constituted, and appointed deputies to meet and sit in general congress, in the city of Philadelphia, in order to obtain such establishment, as that their religion, laws, and liberties may not be subverted: Whereupon the deputies so appointed being now assembled, in a full and free representation of these colonies, taking into their most serious consideration the best means of attaining the ends aforesaid, do in the first place, as Englishmen, their ancestors, in like cases have usually done, for asserting and vindicating their rights and liberties, DECLARE,
"That the inhabitants of the English colonies in North America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts have the following RIGHTS. Resolved, N. C. D. 1. they have never ceded to without their consent.
That they are entitled to life, liberty, and property; and any sovereign power whatever a right to dispose of either
"Resolved, N. C. D. 2. That our ancestors who first settled these colonies were, at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural-born subjects within the realm of England.
"Resolved, N. C. D. 3. That by such emigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them as their local and other circumstances enable them to exercise and enjoy.
'Resolved, 4. That the foundation of English liberty and of all free government is a right in the people to participate in their legislative council; and as the English colonists are not represented, and from their local and other circumstances cannot properly be represented in the British Parliament, they are entitled to a free and ex
tary authority was not generally maintained until after independence was in the full contemplation of most of the colonies.
§ 195. The principal grounds on which Parliament asserted the right to make laws to bind the colonies in all cases whatsoever were, that the colonies were originally established under charters from the crown; that the territories were dependencies of the realm, and the crown could not by its grants exempt them from the supreme legislative power of Parliament, which extended wherever the sovereignty of the crown extended; that the colonists in their
clusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved, 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 interests 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 of its respective members; excluding every idea of taxation, internal or external, for raising a revenue on the subjects in America without their consent.
Resolved, N. C. D. 5. That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.
Resolved, 6. That they are entitled to the benefit of such of the English statutes as existed at the time of their colonization; and which they have, by experience, respectively found to be applicable to their several local and other circumstances.
Resolved, N. C. D. 7. That these, his Majesty's colonies, are likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws.
Resolved, N. C. D. 8. That they have a right peaceably to assemble, consider of their grievances, and petition the king; and that all prosecutions, prohibitory proclamations, and commitments of the same, are illegal.
Resolved, N. C. D. 9. That the keeping a standing army in these colonies, in times of peace, without the consent of the legislature of that colony in which such army is kept, is against law.
Resolved, N. C. D. 10. It is indispensably necessary to good government, and rendered essential by the English Constitution, that the constituent branches of the legislature be independent of each other; that, therefore, the exercise of legislative power in several colonies, by a council appointed, during pleasure, by the crown, is unconstitutional, dangerous, and destructive to the freedom of American legislation. "All and each of which the aforesaid deputies, in behalf of themselves and their constituents, do claim, demand, and insist on, as their indubitable rights and liberties, which cannot be legally taken from them, altered, or abridged by any power whatever, without their own consent, by their representatives in their several provincial legislatures."
The plan of conciliation proposed by the provincial convention of New York in 1775 explicitly admits, "that from the necessity of the case Great Britain should regulate the trade of the whole empire for the general benefit of the whole, but not for the separate benefit of any particular part." 1 Pitk. Hist. ch. 9, p. 344.