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A Constitutional History of the United States
Chapter VIII - The Intolerable Acts. The Arguments in Denial of Parliamentary Authority
by McLaughlin, Andrew C.
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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.
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