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A Constitutional History of the United States
Chapter V - The Stamp Act
by McLaughlin, Andrew C.
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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.
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