NATIONAL prejudice and partisanship are disturbing forces which must always be taken into account in passing judgment upon historical writings. Ranke says in one of his works that the English have too frequently written history in the spirit of criminal lawyers. Unfortunately that is true of the writers of all nationalities, the German not excepted.

     No better example of this fault can be found, than the treatment which has usually been accorded the struggle between England and her thirteen American colonies. And it must be confessed that in general American writers have been much more at fault than their English opponents. The spirit of partisanship exhibited on this side the water has been more extreme. Sometimes, even within recent years, it has gone to such lengths as to approach the ridiculous. In many quarters the spirit of hero worship has so exalted the fathers of the country that all their utterances are received as oracles of political wisdom and any criticism of their views or conduct is regarded as something akin to blasphemy. This feeling is an outgrowth and illustration of the strength of public opinion so characteristic of democracies. Owing to its influence the fairest-minded American writers, in dealing with the constitutional relations of the colonies to the mother country, have not passed beyond the standpoint of Justice Story, i.e. they set the arguments used by either side over against each other, and then declare that the question was very difficult to determine. Nothing is easier than to acknowledge English supremacy over Canada or any of the other foreign possessions of the crown, and to act thereon; but by some strange twist of argument the effort is made to persuade us that in the seventeenth and eighteenth centuries the colonies between the Kennebec and Florida were in an entirely different position. Is it not time

to abandon this superstition and treat the question, which was then propounded and solved, according to its merits? In that quarrel, as in all others, there were two parties, and if any one is disposed to assign blame it must be divided between the two. The English leaders were not fools or tyrants, but statesmen with clear conceptions of their rights if not of the means to be taken to secure them. The colonial leaders were not necessarily the mouthpieces of individual liberty or social progress, though they were the advocates of national independence. In this last idea, that of national independence, lies the secret spring of the revolt; that furnishes its sole and sufficient justification. Will those who insist that the cause of liberty was involved with American success, prove to us that the end has justified the means? It would be foolish to assert that the citizen of the United States to-day enjoys a greater degree of liberty than the subject of the crown, either in England or Canada. It would be hazardous to maintain that the progress of liberty in England itself was aided to any important degree by the revolt of the colonies. Lastly, in view of the fact that we have lapsed into a system of political corruption which in some of its aspects rivals the worst that the age of Walpole has to offer, it becomes us to be modest in our claims respecting social progress.

     It is the object of this paper to deal with the constitutional relations existing between England and her colonies, and to show that the supremacy of king and Parliament over them was complete; that control was exercised in every department of governmental activity, judicial, legislative, ecclesiastical, military; that the right of the mother country to this control was uniformly asserted until the fortune of war compelled her to acknowledge America as an independent nation. On the other hand we shall find reasons for the growth of a different doctrine here, and that it was put forth very early in the history of the colonies. It will also appear that the whole struggle was but an episode in the development of the English colonial system and of the law which governs it.

     The history of the development of this question falls naturally

into two periods: first, from the beginning of English colonization in America to the Revolution of 1688; second, from 1688 to the Declaration of Independence. The history of Massachusetts affords the most suggestive facts and opinions in both periods, and so will be chiefly drawn upon in discussing the American side of the question.

     Passing now to the history of the first period, it is to be observed that the leading institution in the English government at that time was the King in Council. When England was at the height of her colonial enterprise the monarchy was more nearly absolute than it had been since the reign of Henry II. During the later middle ages, by a series of royal grants, precedents had been established which looked toward a limitation of the royal power in matters of taxation and supply, general legislation, management of foreign affairs, and the administration of justice. The statutes embodying these limitations were not regarded by either side as a final settlement of the question in dispute. The kings frequently infringed them, and Parliament countenanced the infringements by silence. On the one side the institutions of local self-government were too firmly established to be overthrown, and were slowly evolving a representative system which was destined after many changes to permanently limit the royal power. Opposed to this was the conception of prerogative, which in the name of the general welfare was expanded to suit all needs. But in spite of contests between the baronage and corrupt or weak monarchs, like John, Henry III, Richard II, or of concessions won during a period of disputed succession,—the Lancastrian reigns,—prerogative still carried the day. Never were constitutional forms and limitations less regarded than under the Yorkist monarchs. The Tudors, after reconciling conflicting claims to the throne, ruled with ample prerogative over a weakened baronage and a submissive people. They also rounded out their power by the addition to it of full ecclesiastical supremacy. Outside of this, the realm of royal ordinance was undefined. In all judicial, financial and military affairs it was capable of indefinite expansion. Popular representation and ministerial responsibility had

no existence. But in the seventeenth century, owing to a combination of very strong political and religious forces, the struggle between the King in Parliament and the King in Council was again opened and pushed with vigor. It continued with alternations of success, but on the whole with results favorable to Parliament, till 1688. Then the King in Parliament finally gained the ascendancy, and this result was so secured by statute as never afterwards to be seriously called in question.

     The supremacy of Parliament was established by a series of royal concessions. The parliamentary party viewed these as compromises between Parliament and king. This gave color to the theory of social contract, which was now given new impulse and form by the parliamentarian writers of the sixteenth and seventeenth centuries. Opposed to it during the Tudor and Stuart period was the theory of jure divino kingship, or unlimited expansion of the prerogative. The constitutional results of the revolution of 1688 assumed the form of compact, and seemed thus to give that theory permanent validity for the English race. These facts are to be carefully noted, because they furnish us with the true standpoint from which to view the colonial question.

     It naturally follows from what has been said that the administration of colonial affairs previous to 1688 was in the hands of the King in Council. Such was the fact. The enterprises of discovery were fitted out under the patronage of the crown; the territories discovered or visited were taken possession of in its name; and grants of land, of rights of government and trade, were made to actual settlers by the kings. Every colonial charter is a proof of this. As the king was by the theory of English law feudal proprietor of England, so he became proprietor of colonial territory, though that territory was granted out in socage, one of the freest forms of English tenure. Certain superficial distinctions were introduced in the form of colonial governments, as royal, proprietary, and charter; but they all emanated from the crown. Its supremacy extended around and beneath them all. The fact that they were established by

grant is proof of this, even though there had been no subsequent acts to enforce the control. They were colonies of the English crown; their inhabitants were its subjects. The true doctrine of sovereignty and allegiance necessitates this conclusion.¹

     Coming now to the actual development of colonial administration, we find these views substantiated. Naturally the English of three centuries ago did not realize the full significance of their work across sea. Only a man here and there saw dimly that England was expanding into a great maritime empire. Knowledge of the geography of the new world increased very slowly. There was much indifference and ignorance both as to the true method and objects of colonization and as to the possibilities of wealth and power which might come to England through colonial expansion. This explains the carelessness shown in fixing the boundaries of colonial grants, and the liberal hand with which rights of government were bestowed in some of the early charters. Civil strife in the reign of Charles I, and the disorders of the Commonwealth furnish additional reasons for the neglect of colonial affairs at that time. In fact nothing like a systematic administration of the colonies was attempted till after the Restoration. By that time their commercial and military importance was coming to be realized. Lord Clarendon was the first English statesman to take a comprehensive view of the subject and to devise measures accordingly. He, however, like his predecessors, and those who followed him till after the great revolution, worked through the Privy Council, or a committee of the same, with the Board of Trade. Parliament passed few statutes affecting the colonies. Yet, not to mention others, there were five such of very great importance which fall within this period: the Act of Supremacy (1 Eliz. cap. 1), and the four Navigation acts. In all these the colonies were expressly mentioned. But the

relative position of crown and Parliament is illustrated by the fact that when in 1624 the Council was proceeding to annul the third Virginia charter, the House tried to interfere but was warned off—because the business concerned only the king and his advisers.

     Moreover there was no lack of precedents for the extension not only of common law but of royal ordinances and statute law outside of the original realm of England. The French possessions had been governed by royal commission and Parliament had been known to tax them.¹ This was not inconsistent with the retention by those communities of their customary law. The same was true of the palatine jurisdictions, which had received the degree of independence they were allowed to enjoy through grants from William the Conqueror. Still better precedents were those of Wales and Ireland. Royal ordinances and decrees of the king’s court had been enforced in these dependencies from the time of their conquest. All doubt of the right of England to extend her statute law over them was removed in the case of Wales by the acts 27, 34, and 37 Henry VIII; and in the case of Ireland by the Poynings acts, to Henry VII.²

     Such in outline was the status of English colonial law previous to 1688. It was in the process of formation and adaptation to the new empire. There were ample precedents for the exercise of the rights of British sovereignty in America, but those rights had not yet been called into the fullest operation. Their legitimacy however was in general fully acknowledged by the colonists. They had been allowed great liberty in establishing their governments, erecting courts, levying taxes,

organizing and calling out their militia for defence against the Indians. Colonial society had been allowed to develop freely in all lines and the product was far different from anything which existed in the mother country. It was democratic rather than aristocratic; it was also extremely particularistic, and too remote from England to feel much interest in the general concerns of the empire. In this divergence of social organization and interests, as between the colonies and the mother country, lay the germ which might develop into resistance on the part of the plantations, if at any time England should attempt to enforce her rightful supremacy over them. But as yet there was too little of the spirit of union among the colonists to make possible any combined action. Also those dynasties whose government had been most arbitrary in England, the Tudors and Stuarts, had, till the reign of James II, treated the colonies with great leniency.

     But the statements just made do not cover the whole ground. They describe the attitude of the colonies in general toward the mother country, but they do not describe the special conditions which prevailed in New England. If we wish to know how the theory of colonial independence originated, we must look in that direction. The American revolution cannot be explained without reference to the political character and tendencies of Puritanism. New England comprised within itself all the literary activity worth mentioning, and all the systematic thought on government and religion, which existed in the colonies. Massachusetts in these respects led New England, and her spirit was intensely Puritan. So far as theories respecting politics and religion were a cause, the alienation and final separation of the colonies from the crown was produced by Puritanism. Here was played the last act of the great historic drama which absorbed the attention of England during the seventeenth century.

     It has often been remarked that the settlers of Massachusetts came to this continent with a very distinct purpose in view. They belonged to a persecuted sect and party in England. They were opponents of the English church, and also parliamentarians

as opposed to the absolutist policy of the monarchs. In this, as in all other events during that century, religious and political movements and ideas went hand in hand. Revolt against ecclesiastical authority necessarily extended over into the realm of politics. Puritanism then was a political as well a religious movement. On the one hand its doctrines contained a strong democratic leaven; on the other they contained principles which might lead to the separation of church and state. How the former tendency worked itself out in New England is familiar; how the latter failed of accomplishment there is equally well known. The Puritans of Massachusetts were not opposed to the union of church and state or to the employment of the secular power to enforce religious conformity. The ecclesiastical and temporal jurisdictions were never more closely blended than in that colony during the seventeenth century, and a peculiarly exasperating form of despotism was the result. What they were opposed to was every other form of state church except their own. They came to Massachusetts in order to realize there their own ideals of government and religion. They believed that they had reached ultimate truths on both subjects, and that human progress was vitally involved in the success of their experiment. They would tolerate no opposition or divergence of opinion.

     In order to maintain her peculiar system, Massachusetts had to be on her guard against all interference from outside. Hence governmental control over opinions and acts was carried to an extreme. The papal inquisition never showed a keener scent for heresy or more vigor in punishing it than this Puritan oligarchy during the first two generations after the establishment of the colony. Roger Williams, the Antinomians, the Presbyterians, the Gortonites, the Anabaptists, the Quakers, together with divers persons whose course of life offended the moral sense of the community, experienced in rapid succession the quality of Puritan justice.

     But it is not necessary here to enlarge upon Puritan intolerance and narrowness. Suffice it to say that the government of Massachusetts and that of England were at the time about

equally intolerant. They differed in their belief only as to what opinions should be prohibited and what encouraged. We are concerned with the constitutional question which arose out of this.

     The Massachusetts charter was brought over to this country. A few years later the Plymouth company was dissolved, and representation of the colony in England, except by such agents as she might send, ceased. The terms of the charter were very liberal; but like all the others it was a royal grant, and expressly stated that the inhabitants of the colony were to be subjects of England and were to enjoy all the liberties and immunities of such, as if they were in the realm of England. The oaths of supremacy and allegiance were to be administered to all who should go to the colony. The company was made a “body corporate and politic” and was given ample powers of government; but its laws, statutes, and ordinances were not to be contrary to the laws of England. The admission of freemen was left in the hands of the corporation.

     How did the Puritan oligarchy make use of this charter for serving the purposes of their government? In a word, they interpreted the expression “body corporate and politic” to mean an independent state, and virtually abandoned all legal connection with England except an empty acknowledgment of allegiance. The oath of allegiance was not administered, but instead an oath of fidelity to the government of Massachusetts. An ecclesiastical system wholly different from that of England was established. Only those were admitted to political rights, made freemen, who were members of a Congregational church. All free inhabitants however were taxed for the support of the ministry and forced to attend the services of their established church. The free exercise of Anglican worship was denied. Thus, although the Act of Supremacy extended to the colonies, the English ecclesiastical system was wholly ignored. The colony also exercised full legislative and judicial powers, and denied the right of appeal both practically and theoretically. The proof of this is most direct and convincing. To illustrate: in 1646 the General Court refused to permit the appeal of Dr.

Child¹ and others who, as Presbyterians, desired to lay before Parliament the wrongs they suffered in Massachusetts. Not only was the right denied, but the petitioners were prevented by force from carrying their case to England. The same course was pursued in reference to appeals in ordinary judicial cases. During the discussion of the affair just mentioned it was boldly affirmed in the General Court that subjects were bound by English laws only so long as they lived in England; that neither statutes nor royal ordinances were in force beyond the seas. A little later than this both the magistrates and the elders were called upon to give their views on the legal relations between the colony and England. Both agreed² that by their charter they “had absolute power of government”; that their government was perfect and sufficient in all its parts, not needing the help of any superior to make it complete. They acknowledged that they had received the charter from England, and “depended upon that state for protection and immunities as freeborn Englishmen”; but the duties which were correlative to those immunities, and which are necessary to a true conception of allegiance, were not mentioned. This position was consistently maintained by the Puritans of Massachusetts as long as they remained in power. In their correspondence with the home government and its officials between 1664 and 1684 the right of appeal was always denied. Its exercise was never allowed.³ If we add to this the further statements that Massachusetts coined money; strove to enlarge the bounds of her patent, not only without consulting the king, but in defiance of his absolute prohibition; taxed English imports; and, without the consent of the home government, entered the New England confederation, some notion can be formed of the degree of independence claimed and exercised by that colony.

     The exercise of this independence however did not make it legal. It only illustrates the fact that the roots of the American revolution extend back into the times of which we are speaking.

     Its theory originated in the minds of the Puritan leaders who came over in the Arabella, and during the successive migrations by which Massachusetts and Connecticut were settled. It was reduced to practice there, assuming the form of substantial colonial independence, in order that a place of refuge for Puritanism might be secured. This thought runs through all the important public documents of Massachusetts. The chief object of dread at that time was not the financial, but the ecclesiastical supremacy of the crown. But the denial of the legality of royal control in one of its departments led logically and necessarily to its denial in all. And so we find the leaders of Massachusetts ready to resist, by force of arms if necessary, all interference with their so-called charter rights. Thus previous to 1640 the elements of colonial revolt were present, and it only required an interference on the part of the mother country to call them into activity.

     It was to be expected that England would interfere to bring Massachusetts within the bounds of constitutional dependence. Complaint against the colony, on the part of Gorges and of those who had been banished by the Puritans, began very early. These lead to quo warranto proceedings for the recall of the charter in 1635. But civil strife at home compelled the government of Charles I to abandon the project. Then came the period of the Commonwealth, when the views of the English government were so fully in harmony with those of the New England leaders that the practical independence of the colony was ignored. Parliament in 1641 set aside the previous quo warranto and confirmed charter rights. In 1648 it agreed not to encourage appeals. But here, it will be noted, there was no renunciation of parliamentary rights.

     We have seen that from the Restoration dates the beginning of a more comprehensive colonial policy. The strong Anglican views of Clarendon led naturally to an assertion of royal control over Massachusetts. The adoption of some plan to secure this end was both just and statesmanlike; the wrongs of the disfranchised and oppressed portions of the inhabitants had long been waiting for redress. The colonial leaders, Endicott,

Leverett and others, saw the storm approaching and prepared to resist it. They made certain minor reforms, and drew up a statement of the privileges of the colony in which the right of appeal was virtually denied.¹ No move however was made toward administering the oath of allegiance to Charles II, or admitting Episcopalians to freedom of worship, or extending the franchise till it should be granted to the larger freeholders of the colony. Hence it was resolved to send the commission of 1664 to New England that it might obtain the aid of those colonies in the expulsion of the Dutch, heal disputes, and correct the abuses which had arisen in their governments. The selection of commissioners was in some respects unfortunate, but their instructions were mild and reasonable.² Real charter rights were in no respect to be infringed. Appeals were not to be heard, except in cases where the proceedings of colonial courts had been “expressly contrary to the rules prescribed by the charter.” The commissioners were also to ascertain, among other things, whether the oath of allegiance had been generally taken, whether justice was administered in the king’s name, and whether the Anglican form of worship was tolerated. They were also to see if treaties had been kept and the Navigation acts observed. Boundary disputes were to be referred to the Council for settlement.

     These instructions, which in no respect exceeded the rightful powers of the home government, were observed by the commissioners. But the commission failed to accomplish its object in Massachusetts, because the General Court refused to acknowledge the right of appeal, or by the slightest act to countenance submission to the demands of England. A sham oath of allegiance was administered which virtually ignored royal jurisdiction. So the case was then understood to stand by both parties to the controver[s]y.

     Soon after, Clarendon was removed from office; and when the struggle between England and Massachusetts was resumed Danby was minister. By that time (1675) England had entered

on the policy of commercial restrictions. The merchants complained that the Navigation acts were evaded by Massachusetts. The Committee of Trade and Plantations resolved to send out Edward Randolph as the bearer of a letter to the colony charging it with failure to obey the Navigation acts, and with usurping the territorial rights of the Gorges and Mason heirs. With this began the last stage in the contest of which we are speaking. The prominence given to the question of commercial supremacy shows that we are approaching a new period in the development of English colonial policy. There were also indications of the growth of a new spirit in Massachusetts. But throughout the struggle of the next eight years the colonial authorities never departed from the constitutional doctrine they had before avowed. They asserted that there had been no serious violations of the laws of trade, and this was probably true. Amendment was promised, and an order was issued by the General Court that the acts should be obeyed throughout the colony.¹ This was followed a few months later by the remarkable statement that the colonists were not bound by said laws, because they were not represented in Parliament; that they could be enforced only after the Court had granted its sanction.² Royal customs officers were appointed, and met with no opposition in the discharge of their duties. Massachusetts also bought out the claims of the Gorges heirs, while those of Mason were set at rest for the time by an adverse decision of the law officers of the crown. The question was thus reduced to substantially the same form it had before, viz. whether or not the colony should be allowed still to assert a practical independence by refusing to administer the oath of allegiance, by enforcing laws repugnant to those of England, and by denying the right of appeal. The question of the right to coin money was also involved, but was not of primary importance.

     In 1678 the General Court, moved by the threatening aspect

of affairs in England, caused the oath of allegiance to be taken by all the people of the colony.¹ Promise was also made that the statute book should be purged of laws inconsistent with those of England. When however it came to an acknowledgment of the right of appeal, to the enlargement of the franchise, to the toleration of Episcopalians,—matters which involved the supremacy of the Puritan faith,—the fathers of Massachusetts were as obstinate as ever. On these points their agents were told to plead lack of instructions. These were the peculiar “liberties” of the colony, the sacrifice of which would be followed by the ruin of the political fabric which had been so carefully reared. They would not accept such laws as “would make them renounce the cause of their first coming.”² This position they maintained to the end.

     Meantime the law officers of the crown reported that cause existed which would justify the recall of the Massachusetts charter. In accordance with this, the Committee of Trade and Plantations recommended that proceedings be instituted. Delays followed, but the urgency of Randolph and the growth of absolute government in England slowly prepared the way for the crisis. New Hampshire was taken from the control of Massachusetts and organized as a royal province. Under the influence of repeated and threatening messages from the king, the General Court repealed a few unimportant statutes, and a second time sent agents to England. But up to the very last the agents were instructed to consent to no infringement of the liberties of the colony in matters of religion, or the admission of freemen, or appeals.³ Although at the end some of the magistrates were ready to yield the disputed points and there was a growing party throughout the colony which favored submission, the deputies forced the maintenance of the original position. Under these circumstances the home government could do no less than resort to extreme measures. Quo warranto proceedings were instituted and a judgment in Chancery rendered vacating the Massachusetts charter, October 23, 1684.

The decree was issued and carried into execution the following year.¹ There were three charges in the decree of forfeiture: 1. That the government of the colony had levied a capitation tax on both freemen and non-freemen, and import duties on ships and merchandise entering the colony. 2. That money had been coined. 3. That the General Court had forbidden the taking of oaths, or the subscribing of articles and covenants which it had not approved. At the same time it had caused the oath of fidelity to be administered contrary to the express will of the king.²

     Thus fell the first Massachusetts charter. With this event closes the first stage in the development of the idea of colonial independence. The struggle between the Puritans of Massachusetts and the crown is the most significant fact in American history previous to 1760. The Puritans were defeated; the authority of England was reasserted. The government of the province lapsed entirely into the hands of the crown, and thus the way was opened for the union of the Northern colonies under one administrative system, which was soon carried out by the commissions to Governor Andros. Religious liberty was now recognized, land titles were overhauled, taxes were levied by the officers of the crown. The defeat of the Puritans was due not simply to an exertion of royal prerogative, but to defection within their own ranks. Their religious and political system was too unnatural to last. Its overthrow was necessary to the social progress of the community. Human nature was bound to assert itself sooner or later. Therefore as we approach the close of the seventeenth century, we find the works of the Puritan leaders full of mournful reflections on the degeneracy of the times.³ This means that society was bursting the bonds within which the elders and the magistrates had sought to confine

it for all time. But for our purpose the important result is that the Puritans left behind them an armory full of precedents and arguments in favor of colonial independence. They had constructed the American theory on that subject. That was the chief permanent result of their experiment. They had from first to last adhered to the theory which expediency taught them to adopt. They taught the colonists how to resist the exercise of the ecclesiastical and judicial supremacy of the crown. If now at any time in the future the Americans should consider themselves aggrieved by the acts of the English government, the Puritan spirit and theory would be likely to appear. Such was the aspect of affairs at the close of the first period of colonial history.

     After the revolution of 1688, Parliament assumes more and more the control of American concerns. Statutes on those subjects multiply. The administration of the colonies becomes a branch of the ministerial government of Great Britain. The development of an imperial as distinguished from an insular policy is begun. The interferences of England in colonial affairs became more frequent and the control asserted more extensive than heretofore. There were two important reasons for this. The first is to be found in the dynastic struggles of the eighteenth century. By these the foreign possessions of the countries engaged were imperilled, and a system of imperial defence made necessary. The second cause was the increasing strength of the commercial classes of England in Parliament and their desire to monopolize colonial trade. There were signs of the growth of this spirit before the revolution, and it increased in strength as the maritime supremacy of England became more fully established. It is not necessary here to enter upon the details of English commercial policy toward America. It must be judged according to the economic ideas of the time. The theory upon which it was based, at least in the exaggerated form assumed by it at the time, will find no defenders to-day, unless it be among extreme American protectionists. Under its influence the colonies found Parliament to be a more exacting master than the kings had ever been. Statutes were passed

which interfered in the most minute and arbitrary way with internal and foreign traffic.¹ William III thought he was not transgressing his constitutional right when he instructed the Board of Trade to inquire into all the means of making the colonies most useful and beneficial to England. The act of 1696 consolidating the laws of trade provided that a special oath to enforce the laws should be required from colonial governors; that the appointment of the governors should be subject to royal approval; that the revenue collectors in the colonies should have all the powers possessed by such officers in England; that all colonial statutes in conflict with the acts of trade should be void. Admiralty courts were established throughout America. The laws in reference to the manufacture and transportation of wool, of iron and of hats only need be mentioned. By the statute of 1710 Parliament established an American post office. In 1708 it provided for a system of coinage, and forbade further issues of paper money. These and many other statutes prove that Parliament sufficiently asserted its control over trade during the period in question. The ministers were prevented from going further only by the fear that the interests of the English merchants would thereby suffer. During the wars military supremacy was of course exercised. Judicial and legislative supremacy was also maintained by appeals, and the submitting of colonial statutes to the king for his approval or rejection. Charters were very generally regulated and popular rights curtailed. To say however that these measures were taken by Parliament is far from saying that they were generally obeyed. They were very imperfectly enforced, owing to the distance from England, the large extent of country, and the scattered population. These were obstacles in the way of administration which the devices of that age could not overcome, but they do not affect the constitutionality of the measures adopted by England.

     The attitude of the colonists during this period was one of passive rather than active resistance. Parliamentary restrictions were so far evaded as not to be burdensome. In America, as in England, it was a time of material prosperity and political repose. Only an occasional protest against English laws was offered. Disputes with governors about their salaries occupied much of the attention of colonial assemblies. Also, so long as the French remained in possession of Canada and the Mississippi valley, the colonists saw clearly their need of English protection. Finally, the idea of united action among the colonies had dawned upon only a few leading minds.

     No conditions are so favorable to the growth of individualism as frontier life. Each individual or family is there brought face to face with savage men, and forced to depend on its own resources. Contact with civilized life ceases, and union between settlers or communities becomes almost impossible. Society is atomized. Views of life and policy become narrow and provincial. Self-interest and local attachment become abnormally developed. These conditions prevailed in all the colonies, but in an extreme form along the western border, from New York to Georgia. There the loosest notions concerning individual liberty and local independence prevailed. The circle of the frontiersman’s interests was bounded by his family or immediate neighborhood. If it was broad enough to embrace the colony, he, like Patrick Henry, declared the colony to be his “country.” Such men were not in a position to take broad views of public policy. They were too much isolated. The spirit of co-operation on a large scale had not begun to develop.

     The records show that the burden of opinion in the colonies was jealousy of all government, so far as it operated as a restraint. The interference of government, whether colonial or imperial, was welcomed by the colonists, when it could be used for the advancement of their private or local interests; when larger objects were aimed at, it was if possible ignored or resisted. As the colonist’s conception of his liberty was exaggerated, so was his sensitiveness of encroachment on the part of the higher powers, whether they were governor, Council, or Parliament.

The idea of taxation filled the larger part of his political horizon. Disputes concerning this subject fill a correspondingly large part of the colonial records of the eighteenth century. The average provincial seems to have regarded the state largely as a taxing machine, which took away his money without rendering him an equivalent. Every form of tax was therefore to be viewed with jealousy and avoided if possible. This idea it is most important to bear in mind, because of its influence on the current American notions of the English constitution and the use which was to be made of them in the approaching struggle with the mother country.

     The political condition of the colonies was for the first time clearly revealed during the French and Indian war. The history of Germany can furnish no more vivid spectacle of the evils of particularism than does that struggle. The Quaker assembly of Pennsylvania allowed the French and Indians to ravage their frontier for two years without taking any effective measures of relief, because they were obstinately bent on maintaining the doctrine that royal and proprietary instructions were unconstitutional. The indifference in Virginia was not so great, but it was such as to draw from Governor Dinwiddie the very just observation: “I fully agree that no expedition can be conducted here with a dependence on these assemblies.”¹ Governor Shirley well described the attitude of the colonies in general toward the war by saying: “They are very much governed by assemblies independent of each other, frequently disunited in their councils, some of them very remote from others, all of them looking upon themselves to be concerned in the common cause in proportion to their nearness to, or remoteness from the present danger.”² The letters of Washington, written from the camp during the years 1754 to 1758, are filled to overflowing with complaints of the apathy and lack of patriotism exhibited by the assemblies, their failure to provide for the organization, disciplining, and provisioning of the troops, and of the intense suffering caused thereby.³ In 1756 the

Virginia House of Burgesses ordered that its troops should not be marched out of the province. Trade with the hostile French and Indians was continued by English settlers and no effective means were taken to stop it. There is abundant evidence that the quality of the soldiery was not the best; but men cannot be severely blamed for deserting or becoming insubordinate when they were left without anything like adequate food, clothing, or shelter. Washington in 1756 was ready to “lament the hour that gave him the command,”¹ and had the danger of the colony been less imminent than it was, would have at once resigned. The condition of anarchy and helplessness revealed by the war was such as to convince all the servants of the crown in America that active parliamentary interference was necessary,² if the colonies were to be defended and retained as an integral part of the British empire. The fact that the British government, within a reasonable time after the close of the war, proceeded to put this suggestion into execution, implies nothing arbitrary or unreasonable. It had the undoubted constitutional right to do so; and so far as could be seen at the time, expediency prompted in the same direction.

     But during the century since the Puritan oligarchy of Massachusetts yielded to the supremacy of the crown, the theory of social contract had been fully developed. It had formulated the needs of the opposition in all the European countries to the system of absolutism. It was the theory of government very generally held by the Puritans in both England and America. Milton used it in opposition to Hobbes and the other defenders of prerogative, in the time of the Commonwealth. Locke, the philosopher of the revolution, was its classical expounder. He was the Rousseau of Anglo-Saxon peoples.

     This theory, as soon as it was understood, would naturally find general acceptance in the colonies. It was consistent with the facts of democracy, and with the objects aimed at by that movement in the eighteenth century. According to it the state originated in the free contract of individuals; i.e., it confounded society and the state. This was not unlike the condition of

things in the colonies. There society was all-important, all-powerful, and the state was correspondingly weak. Individual interest, not organic unity, was the predominant fact. There was little common history or inherited culture to bind men together. At times the bonds which united them seemed ready to break, and society about to be resolved into its original elements. Moreover this theory could, in case of need, be very conveniently applied to the relations between the colonies and the mother country. Numerous indications may be found in the history of the Puritan contest of the previous century that it might and would be so used. Grants issued by the crown might be made to appear as contracts between the people and the king. This, as we have seen, had been done in England. It was to become the theory according to which the colonists would insist that their relations to the mother country should be regulated. The American revolution, as truly as the French, was the outgrowth of the doctrine of natural rights and social contract. By this I mean simply that the doctrine in question formed the theoretical basis of both movements. So far as the American revolution is concerned the proof of this statement is contained in the writings of the patriot leaders at the time, the various state papers that were issued, and the doctrine that was held respecting the right of imperial taxation.

     No man contributed so much to bringing about the revolution as Samuel Adams; and his mind was saturated with the theory of social contract. He made it the basis of all his reasonings. It may be found elaborated in his early essays.¹ The “natural rights and privileges of the British subject” were ever before his mind. In a reply to Governor Bernard, written on behalf of a committee of the Massachusetts legislature in 1765, he says: “They (the colonists) have a just value for those inestimable rights which are derived to all men from nature, and are happily interwoven in the British constitution.”² His Report on the Rights of the Colonies, presented to the town

meeting in Boston in 1772,¹ reads as if it might have come from the pen of Rousseau. It is expressly based on the doctrines of Locke. The following are specimen sentences:

     When men enter into society, it is by voluntary consent; and they have a right to demand and insist upon the performance of such conditions and previous limitations, as form an equitable original compact. Every natural right, not expressly given up, or, from the nature of a social compact, necessarily ceded, remains.

It was not difficult for a man with those views to reach the doctrine of absolute colonial independence.²

     James Otis stood on substantially the same ground, though he was not so thoroughgoing and consistent in his advocacy of the theory as was Adams. His argument to prove the unconstitutionality of parliamentary taxation without representation was that in the state of nature no one could be deprived of his property without his consent.³ Were it otherwise, men would be slaves. Such a proceeding therefore is a breach of the law of nature, and no law of society can make it just. The Stamp act would be void, even if all the charters had been recalled and the colonies brought under the immediate control of the crown. Dickinson of Pennsylvania advocated, in its extreme form, the doctrine that the power of taxation is limited by the consent of the governed.⁴ Jefferson’s belief in the natural rights of the colonists is too well known to need more than a passing notice. Thomas Paine’s Common Sense, published in 1776, was in perfect harmony with contemporary political thought in France. Even Alexander Hamilton was carried away with youthful enthusiasm for the popular doctrine.⁵ In the pamphlets which he issued in 1775, especially the Farmer Refuted, he plants himself firmly upon the theory of natural rights. “It is,” said he, “the unalienable birthright of every Englishman who can be considered as a free agent, to participate in framing

the laws which are to bind him, either as to his life or property.” He believed that the relation between the king and the colonies was one of compact, and therefore that Parliament had no control whatever. The king agreed to furnish protection, and the colonists to yield obedience. He derived all government from compact, and believed it “liable to such limitations as are necessary for the security of the absolute rights of the governed.” These pamphlets are said to have had considerable influence in shaping opinion in New York. But John Adams is the best witness on this point. There is a characteristic frankness about him which is quite satisfactory. He wrote also just before the resort to arms, when theories were taking their final shape. Speaking of the development of the English empire, he said:

     It [the idea of empire] cannot be supplied consistently with reason, justice, policy, morality, or humanity, without the consent of the colonies. . . . If the English Parliament were to govern us, where did they get the right, without our consent, to take the Scottish Parliament into a participation of the government over us? When this was done, was the American share of the democracy of the constitution consulted?¹

In replying to the statement that the colonies became on their settlement part of the English possessions, he asked: “Has there been any such contract between Britain and the colonies?”² But the doctrine appears most clearly in the following passages:

     We have by our express consent contracted to observe the Navigation act, and by our implied consent, by long usage and uninterrupted acquiescence, have submitted to the other acts of trade, however grievous some of them may be. This may be compared to a treaty of commerce, by which these distinct states are cemented together in perpetual league and amity. . . . How then do we, New England men, derive our laws? I say, not from Parliament, not from common law, but from the law of nature, and the compact made with the king in our charters. Our ancestors were entitled to the common law of England when they emigrated, that is, to just so much of it as they pleased to adopt, and no more. They were not bound or obliged to submit to it, unless they chose it .³

The above arguments were fortified by reference to the declarations of the Puritan leaders in 1676. The importance of the

views expressed will be appreciated, when it is remembered that Adams took a leading part in bringing about the Declaration of Independence, in the formation of revolutionary governments in the states, and in securing recognition for the new government abroad.¹

     It thus appears that the most prominent revolutionary leaders were, from an early period in the contest, either pronounced supporters of the doctrine of social contract or strongly influenced by the same. The doctrine flourished on Massachusetts soil better than elsewhere, because the spirit of independence was more deeply rooted and more consciously cherished there than elsewhere. There is no proof that the Massachusetts legislature ever abandoned the doctrine contained in her resolves on the Stamp act, passed in 1765, viz., “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 right of mankind.” The path between this and the “unalienable rights” of the Declaration of Independence is direct. The declaration of rights² issued by the Virginia legis[la]ture illustrates the progress of ideas during the interval. Closely connected with and growing out of this idea was the theory of representation and taxation, as held by the Americans. It assumed two forms. According to one there was no distinction between an external and an internal tax; both, as applied to the colonies, were unconstitutional, because they took money without the subject’s consent. The theory in this form was held by Dickinson. He also argued that all import duties collected in the colonies, so long as the laws of trade were maintained, were in effect taxes, and hence unconstitutional.³ But according to the views of most of the colonists, especially in the earlier stages of the struggle, a radical distinction existed between parliamentary control over internal and that over external taxation. According to this view export and import duties

levied for the regulation of trade were not taxes, and were within the sphere of parliamentary control because they affected the interests of the whole empire. Internal taxes, or taxes proper, could be levied only with the consent of the subjects through their representatives. This theory, in whatever form expressed, is untenable. It is based upon the idea that the right of private property is original, natural, and absolute. “Property,” said Chatham, who held the theory in its second form, “is private, individual, absolute. There is no such thing, no such idea in this constitution, as a supreme power operating upon property.”¹ This theory was given a semblance of truth by the fact that all money bills originated in the House of Commons. But in that body at the time the mass of the people was not represented. There was no democratic element in the constitution. Lord Mansfield said: “The notion that every subject must be represented by a deputy, if he does not vote in Parliament, is merely ideal.”² Parliament took the property of the great majority of the English people without their consent, and had always done so. Political science recognizes no distinction in kind between taxation and the exercise of legislative power in other departments, or between so-called internal and external taxes. An argument which would disprove the constitutionality of the one, overthrows the other also. The fact that Parliament had legislated for the colonies at all proves her right to tax them. The theory of English parliamentary control over the colonies was as fully established and as firmly supported by precedents as any system could be. Lord Mansfield stated it correctly when he said:

     The British legislature, as to power of making laws, represents the whole British empire, and has authority to bind every part and every subject without the least distinction, whether such subjects have the right to vote or not, or whether the law binds places within the realm, or without.

All the decisions of the English courts sustain this view. Both of the English parties were substantially agreed respecting it.

The king, to be sure, was arbitrary, and Parliament was corrupt; but that does not affect the truth of the doctrine they upheld. It was supported by the best political thinkers of the time. The adoption of any other view would have been revolutionary.

     On the other hand, the theory of Chatham and the colonists was based upon an ideal conception of the British constitution which is not yet realized, and upon a radically erroneous view of the right of private property. This was the theory of natural rights applied to property, and of social contract applied to taxation. Extend the doctrines which they advocated respecting finance to the other lines of governmental control, and you have the theory of social contract substantially as stated by Locke. It was characteristic of the English people that that part of the theory which bore on the right of property should be made very prominent. Locke made the great end of government to be the preservation of property. He considered the right of property next in importance to that of freedom. His dictum concerning the power of taxation was: “The legislature cannot take any part of a man’s property without his consent, else there could be no property right.” The colonists took up Locke’s theory and tried between 1765 and 1776 to force the English constitution into conformity with it. Failing in that, they declared their independence and secured it by force of arms. The principle of popular sovereignty, which they had not been able to realize while united to England, they now brought into practical operation. But for a long time the theory of contract threatened to shipwreck the new system. Its final application was to the relations borne by the states to the people. However, the logic of events proved too strong for it. It was forced to give way before the establishment of a new nation with a sovereign power at its head.

     We have traced the tendency to local and national independence, which began with the Puritans and was sustained by the conditions of colonial life, through to its culmination. The reason why New England became the leader of the movement clearly appears. The process of development through which the colonies passed was a natural, and therefore a necessary

one. It was slow and obscure, and therefore could not be clearly recognized at the time. But that it was nevertheless revolutionary becomes evident when we compare the views and aims of the colonists with the constitution of the British empire. When the two systems came into collision the colonists adopted a theory which was “in the air” at the time, but one under which no government can be successfully carried on. When they came to erect a government of their own, they had to abandon it. It is not claimed that the doctrine of natural rights ever found such general acceptance in America as in France. The character of the people and the absence of a despotic government prevented that. But that the American revolution cannot be explained without assigning it a prominent place is evident.

     It is not intended to convey the impression that the colonists had no grievances. There were causes for complaint, but they were doubtless greatly exaggerated. A mind filled with the democratic theories of the times, and with the loose notions concerning sovereignty and allegiance which then prevailed, could easily imagine that Parliament, unless resisted, would establish a despotic government in America. This feeling was kept alive by popular agitators till it became widespread; but a very respectable minority never sympathized with it. The idea that Parliament was totally corrupt and that the entire system of Anglican liberty would be overthrown if America did not come to the rescue, was industriously promoted. But it would be difficult to show the connection between the revolt of the colonies and the purification of English politics. England has shown that she possessed within herself forces sufficient for her regeneration. The era of reform did not begin till nearly fifty years after the close of the American revolution. Parliament was then forced to abolish rotten boroughs and extend the franchise, not by the growth of a republic in America, but by industrial development and the consequent growth of large cities within her own borders. It is noteworthy also that this process began in England at about the time when the “spoils system” was introduced into American politics. We must conclude then

that the fears entertained by the revolutionary leaders respecting the future of English liberty have not been justified by history.

     The distance between England and America furnished the colonists with their chief cause of complaint; but now it is easy to see that it was also their great protection. An oppressive system of government could not then have been maintained at such a distance, among such a people, and over so large a territory. Natural obstacles alone would have prevented it. Moreover the Americans were too sensitive as to what they considered their rights, especially in whatever concerned the pocket, to tolerate much encroachment.

     But there is no proof that Parliament intended to overthrow the constitutional rights of the colonists. It has not been attempted in the case of any other colony or group of colonies. There was nothing that can be called tyrannical or unconstitutional in the plans of Grenville, Townshend, or Lord North. Severe measures were not resorted to till they were provoked by colonial resistance. The most that we can say of the policy is that it was blundering and vacillating. No one can deny that there was need of the introduction of order into the administration of the colonies. There was nothing unfair in the proposal that they should pay the expenses of their government. The anarchy which had prevailed accounts to a large extent for other and more extreme measures held in reserve by Charles Townshend. Strangely enough the worst grievance of all, viz. the laws of trade, was scarcely mentioned in the controversy. One thought more is necessary for the completion of the argument. England was forced to give up her thirteen American colonies because the time had come for the formation of a new nation. But she did not change her theory of colonial government. The system of colonial law by which the members of the British empire were held together long remained as it had been in 1776. The foundation upon which it rested, viz. the supremacy of the King in Parliament in all lines of administration, remains unimpaired till the present time. No English statesman would accept for a moment the theories

advocated by the Americans before the revolution. The doctrines laid down by Lord Mansfield and his predecessors on the bench have always been regarded as authoritative and final.¹ Sir Vernon Harcourt asserted in 1879:

     As a matter of abstract right, the mother country has never parted with the claim of ultimate, supreme authority for the imperial legislature. If it did so, it would dissolve the imperial tie, and convert the colonies into foreign and independent states.²

During the forties, owing to disturbances in Canada and the adjacent provinces, Earl Grey began the establishment of responsible parliamentary governments in the colonies. That process continued until, by 1880, the system became practically universal. Extensive powers of local government are now in the hands of the colonial governors, ministers, and assemblies, but they have been granted by the Imperial Parliament. Parliament has by statute limited its own prerogative. Important powers have in all cases been reserved. In this there is nothing inconsistent with parliamentary supremacy. In 1865 the legislative supremacy of Parliament was reasserted in the following terms:

     Any colonial law which is or shall be in any respect repugnant to the provisions of any act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such act of Parliament, or having in the colony the force and effect of such act, shall be read subject to such act, order, or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.³

Chief Justice Cockburn decided that, if Parliament exceed its legislatorial capacity, the courts must obey Parliament, however contrary to the international comity such legislation may be.⁴ The colonial governors are appointed by the crown and directly represent imperial interests. Between 1836 and 1864 the governors of the North American colonies reserved 341

bills for reference to the crown. To 47 of these the assent of the crown was refused.¹ The right of appeal, on political questions to the Cabinet and on legal questions to the judicial committee of the Council, is fully recognized. The right of internal taxation has been resigned. The colonies regulate their own commerce, provided they do not infringe treaties. Parliament cares for the general interests of the trade of the empire. Naturalization is also under its control. Parliament finally has charge of foreign affairs, as the making of treaties, war and peace, the imperial army and navy. All this is true even in respect to those dependencies which, like Canada, have been given the largest degree of local independence. All the inhabitants of the colonies are subjects of England, under the protection of the crown and Parliament, and owing to them in return the duties implied in allegiance.

     The forms of colonial government have been changed to meet the needs of the times, but the source of power remains the same. The legal relations which before 1688 were in the process of establishment have now found complete statutory expression. The law of the English empire is universally recognized. The position taken by the home government in the contest with America has been substantially confirmed. This fact ought forever to settle that question, so far as the matter of constitutional right is concerned. The theory as well as the action of the colonists was revolutionary.