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