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A Constitutional History of the United States
Chapter II - The Old Empire
by McLaughlin, Andrew C.


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.

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