belong to them in their native country."
He further shows that, even if the doctrine of
Blackstone were right upon general principles, it
did not apply to the American colonies.
That we may understand what particular rights
were claimed by the colonists as Englishmen, or
under their charters, and the view taken of these
claims in England, I quote here from* some of the
most careful and notable expressions of the time.
The right that came most to the front in the debate
was, as I have said, the right to be exempt from
taxes not voted by themselves; but it was soon
found that this involved the larger question as to
the power of parliament to legislate in other, or in
deed in any matters, affecting the colonies.
The prevailing English view was that the legis
lative power of parliament extended to all colonial
matters and was supreme. This view was ex
pressed in a declarative act in these unambiguous
and sweeping sentences: "All his majesty's colo
nies and plantations in America have been, are, and
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of right ought to be, subordinate to and dependent
upon the imperial crown and parliament of Great
Britain, who have full power and authority to make
laws and statutes of sufficient validity to bind the
colonies and people of America, subjects to the
crown of Great Britain, in all cases whatsoever."
But there were not a few liberal and learned En
glish statesmen who took a different view and boldly
opposed the oppressive measures of the ministry.
The power of the parliament to tax the colonies
was denied by some of these.
About 1680 the Marquis of Halifax, a member
of the privy council, in opposing arbitrary measures
against the colonies, declared that "he could not
agree to live under a king who' should have it in
his power to take when he pleased the money
which he (Halifax) had in his pocket."
Mr. Burke, in his speech on the taxation of
America in 1774, says, speaking of the contest for
liberty in England: "They took infinite pains to
inculcate, as a fundamental principle, that in all
monarchies the people must in effect themselves me
diately or immediately possess the power of grant
ing their own money, or no shadow of liberty could
subsist. The colonies draw from you, as with their
life-blood, these ideas and principles. Their love of
liberty, as with you, is fixed and attached on this
specific point of taxing. Liberty might be safe or
might be endangered in twenty other particulars,
AMERICAN COLONIES AND GREAT BRITAIN 7!
without their being much pleased or alarmed. Here
they felt its pulse; and, as they found that beat,
they thought themselves sick or sound. I do not
say whether they were right or wrong in applying
your general argument to their own case. It is not
easy, indeed, to make a monopoly of theorems and
corollaries. The fact is, that they did thus apply
those general arguments; and your mode of gov
erning them, whether through lenity or indolence,
through wisdom or mistake, confirmed them in the
imagination that they, as well as you, had an in
terest in these common principles."
Among other circumstances which had brought
the colonists to the views of liberty held by them,
Mr. Burke speaks of the effect of education, and
says that in no country, perhaps, in the world was
the law so generally studied.
The Earl of Chatham, speaking on the bill de
claring the sovereignty of Great Britain over the
colonies, said: "My position is this I repeat it
I will maintain it to my last hour taxation and
representation are inseparable; this position is found
ed on the laws of nature; it is itself an eternal law
of nature; for whatever is a man's own is abso
lutely his own; no man has a right to take it from
him without his consent, either expressed by him
self or representative; whoever attempts to do it at
tempts an injury; whoever does it commits a rob
bery; he throws down and destroys the distinction
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between liberty and slavery. Taxation and repre
sentation are coeval with and essential to this con
stitution." In the same speech he recites the fact
that the palatinate of Chester had resisted a tax
upon the ground of non-representation; and, upon
their petition, the king had allowed their plea. "In
short, my lord," said he, "from the whole of our
history, from the earliest period, you will find that
taxation and representation were always united."
Pitt, in his speech in the house of lords, in De
cember, 1/75, said: "Let the sacredness of their
property remain inviolate; let it be taxable only by
their own consent, given in their provincial assem
blies, else it will cease to be property." And again,
in the same speech, he said: "Let this distinction
then remain forever ascertained. Taxation is theirs,
commercial regulation is ours. As an American,
I would recognize to England her supreme right of
regulating commerce and navigation. As an En
glishman by birth and principle, I recognize to the
Americans their supreme, unalienable right to their
property; a right which they are justified in the de
fense of, to the extremity."
A few quotations now setting forth the Ameri
can view chiefly from the resolves of congress
and the colonial assemblies will enable us to have
a clear comprehension of the great issue that was
about to be set down for trial.
As early as 1680 we have a voice from New Jer-
AMERICAN COLONIES AND GREAT BRITAIN 73
sey declaring that "it was a fundamental in their
constitution and government that the king of En
gland could not justly take his subject's goods with
out their consent."
Among the declarations of the continental con
gress of 1765 was this: "That all supplies to the
crown, being free gifts of the people, it is un
reasonable and inconsistent with the principles and
spirit of the British constitution, for the people of
Great Britain to grant to his majesty the property
of the colonists."
In the address of this congress to the house of
commons it is said "that the parliament, adhering
strictly to the principle of the constitution, have
never hitherto taxed any but those who were therein
actually represented; for this reason we humbly ap
prehend, they never have taxed Ireland, nor any
other of the subjects without the realm." In this
congress there was much discussion as to the basis
or origin of the rights claimed by the colonies, and
in the course of the discussion Christopher Gads-
den said : "A confirmation of our essential and
.common rights as Englishmen may be pleaded from
charters safely enough; but any further dependence
on them may be fatal. We should stand upon the
broad common ground of those natural rights that
we all feel and know as men and as descendants
of Englishmen. I wish the charters may not en
snare us at last by drawing different colonies to
74 VIEWS OF AN EX-PRESIDENT
act differently in this great cause. Whenever that
is the case, all will be over with the whole. There
ought to be no New England man, no New Yorker,
known on the continent; but all of us Americans."
How wisely, how nobly spoken! And this voice
was from South Carolina "All of us Americans."
The way was long from provincial narrowness and
jealousy to a broad nationalism; from a local citi
zenship, of which the world took no notice, to a
national citizenship that boldly challenged the world's
deference. But in 1865 just one hundred years
after the speaking of these immortal words the
hope of the eloquent South Carolinian bursts into
the dawn; and to-day, as never before, we are "all
of us Americans."
Among the resolutions adopted by the congress
of 1774 (October 14), was the following: "Re
solved, 4, that the foundation of English liberty,
and of all free government, is a right in the peo
ple to participate in their legislative council; and,
as the English colonists are not represented, and
from their local and other circumstances, can not
properly be represented in the British parliament,
they are entitled to a free and exclusive power of
legislation in their several provincial legislatures,
where their right of representation can alone be pre
served, in all cases of taxation and internal polity,
subject only to the negative of their sovereign, in
such manner as has heretofore been used and accus-
AMERICAN COLONIES AND GREAT BRITAIN 75
tomed. But, from the necessity of the case, and a
regard to the mutual interest of both countries, we
cheerfully consent to the operation of such acts of
the British parliament as are bona fide, restrained
to the regulation of our external commerce, for the
purpose of securing the commercial advantages of
the whole empire to the mother country, and the
commercial benefits of its respective members, ex
cluding every idea of taxation internal or external
for raising a revenue on the subjects in America
without their consent/'
It seems that the committee was hopelessly di
vided on the question of the powers of parliament
and that the terms used in the fourth resolution, as
adopted, were accepted as a compromise, not of
opinions but of phrases; a practice quite familiar
in modern political conventions. Mr. John Adams
suggested the declaration that, from "the necessity
of the case" the colonists "consented" to the opera
tion of laws regulating external commerce, exclud
ing "every idea of taxation internal or external for
raising a revenue on the subjects in America with
out their consent." The one side could argue that
this was a consent to the rightfulness of such laws,
and the other that the laws derived their rightful-
ness from the consent; while the denial of every
idea of taxation left the one side free to say, in a
particular case, that taxation was not the idea, but
only an incident of the law; and the other to argue
76 VIEWS OF AN EX-PRESIDENT
that where taxation resulted it must have been in
tended.
This resolution has an especial significance in two
particulars first, it declares that the colonies could
not be properly represented in the British parlia
ment; and second, it expresses a consent to the gen
eral regulations of commerce by the parliament,
provided every idea of revenue was excluded. The
last was a compromise view a concession in the
interests of peace; but the binding force of parlia
mentary navigation acts was distinctly put upon the
consent of the colonies.
In a declaration by the congress of 1775 justify
ing resistance after enumerating some of the colo
nial grievances it is said: "But why should we
enumerate our injuries in detail? By one statute
it is declared that parliament can 'of right make
laws to bind us in all cases whatsoever/ What is
to defend us against so enormous, so unlimited a
power? Not a single man, of those who assume it,
is chosen by us; or is subject to our control or in
fluence; but on the contrary, they are all of them
exempt from the operation of such laws, and an
American revenue, if not diverted from the ostensi
ble purposes for which it is raised, would actually
lighten their own burdens in proportion as they in
crease ours."
The colonists would not be bound by acts of par
liament because they were not represented there; but
AMERICAN COLONIES AND GREAT BRITAIN 77
would they have accepted representation in parlia
ment as a basis of settlement? I think not. The
letter of appointment and instruction from the as
sembly of Massachusetts to the delegates of the col
ony to the congress of 1765, which assembled in
New York, contained these paragraphs: "If it
should be said that we are in any manner repre
sented in parliament you must by no means concede
to it; it is an opinion which this house can not see
the least reason to adopt. Further, the house think
that such a representation of the colonies as British
subjects are to enjoy, would be attended with the
greatest difficulty, if it is not absolutely impracti
cable, and therefore, you are not to urge or consent
to any proposal for any representation, if such be
made in the congress."
In speaking of the English opposition to the sug
gestion that the difficulties between the mother coun
try and the colonies might be obviated by admit
ting representatives of the colonies in parliament,
Doctor Franklin said: "But the pride of this peo
ple can not bear the thought of it, and therefore it
will be delayed. Every man in England seems to
consider himself as a piece of a sovereign over Amer
ica, seems to jostle himself into the throne with the
king and talk of 'our subjects in the colonies.' '
They would not be taxed by parliament, because
they were not represented in parliament, and they
did not seek representation in parliament because it
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could not in the nature of things be adequate. It
would have been delusive no better practically than
the then prevailing system of maintaining colonial
agents in London. The colonial members in the
house of commons could not defeat, and their pres
ence there could only give sanction to hostile legisla
tion. Taxes might have been voted without the
consent of a single representative of the communi
ties from which the levies were to be raised, and
by the votes of those whose burdens would have
been lightened by the legislation. The grants would
still have been by the people of Great Britain of
the property of the colonists. The argument of
the colonists stated in full was: We can not law
fully be taxed by a body in which we have no repre
sentation. We are not represented in the English
parliament; therefore we can not be taxed by par
liament. We can not in the nature of things have
any real representation in the parliament therefore
we will be taxed only by our colonial assemblies.
Our forefathers were wise, but very practical men;
not mere casuists or philosophers. They saw that
an admission of the power of the parliament to tax
them involved the destruction of their liberties and
the confiscation of their property and with an alert
ness and courage that was admirable they resisted.
They would not admit the tip of the camel's nose
inside the tent. They maintained with much learn
ing, and with convincing force, that the parliament
AMERICAN COLONIES AND GREAT BRITAIN 79
could not do this or that and this or that in
cluded pretty much every act that affected them in
juriously; but they made no schedule of the things
parliament might do. They at once boldly joined
issue with the parliamentary declaration that it was
authorized "to bind the colonies and people of Amer
ica in all cases whatsoever." Possibly there were
cases in which parliament might legislate for them
in an indirect way; but they would not attempt
general definitions; they would deal only with par
ticulars with the concrete and not with the ab
stract they would see the proposed statute and ad
mit or exclude it. Just what the powers of parlia
ment over the colonies were was a hard question,
and is still a hard question for the student of con
stitutional history. ' There seems to have been no
safe middle ground found between the admission
of full powers on the one hand, and a total denial
of any on the other. Satisfactory English prece
dents were wanting. That taxes were grants to be
freely voted by those who were to pay them,
through their representatives, was an established
principle. But how far general laws, such as laws
regulating navigation and other general interests of
the whole kingdom, might be made for the colo
nies by the parliament in which they were not rep
resented was not clear. It turned upon the ques
tion, how far the principle that all laws derive their
sanction from the consent of the governed, was a
8O VIEWS OF AN EX-PRESIDENT
part of the English constitution, and upon the fur
ther question, whether the right of Englishmen to
have a voice in the making of the laws that were to
govern them was possessed by the colonists.
Mr. Story says: "In respect to the political re
lations of the colonies with the parent country, it
is not easy to state the exact limits of the depen
dency which was admitted, and the extent of sov
ereignty which might be lawfully exercised over
them, either by the crown or by parliament."
Of the authority of parliament, he says: "In re
gard to the authority of parliament to enact laws
which should be binding upon them, there was quite
as much obscurity and still more jealousy spreading
over the whole subject. * * * No acts of par
liament, however, were understood to bind the colo
nies unless expressly named therein.
"But it was by, no means an uncommon opinion
in some of the colonies, especially in the proprie
tary and charter governments, that no act of parlia
ment whatsoever could bind them without their own
consent."
Mr. Story says that after the passage of the stamp
act the subject was re-examined in the colonies,
especially in connection with the declaration by par
liament of an absolute power of legislation; and
that many of the leading minds "passed by an easy
transition to a denial, first, of the power of tax-
AMERICAN COLONIES AND GREAT BRITAIN 8 1
ation, and next, of all authority whatever to bind
them by its laws."
He quotes James Wilson, of Pennsylvania, as
saying that he entered upon the inquiry "with a
view and expectation of being able to trace some
constitutional line between those cases in which we
ought and those in which we ought not to acknowl
edge the power of parliament over us" ; but that in
the prosecution of his inquiries he became convinced
that such a line did not exist and that there could
be "no medium between acknowledging and deny
ing that power in all cases."
When Governor Hutchinson, in 1773, said in an
address to the general court of Massachusetts that
he "knew of no line that should be drawn between
the supreme authority of parliament and the total
independence of the colony," it was answered by
the general court that parliament was not supreme
and that "the drawing the line between the supreme
authority of parliament and total independence was
a profound question and not to be proposed without
their consent in a general congress."
The governor undertook and with some success
to point out the many illustrations in the legisla
tion of the colony of the recognition of the validity
and force of acts of parliament. Among these he
mentions the settlement of the crown upon William
and Mary by an act of parliament, and the accom-
82 VIEWS OF AN EX-PRESIDENT
panying act of parliament by which oaths of alle
giance to King James were discharged and pro
vision made for oaths to King William and Queen
Mary.
The assembly, replying to this address of the gov
ernor, argued that the words of limitation in the
charter, upon the legislative power of the colonies
namely, that the laws made should not be re
pugnant to the laws of England had relation to
the great charter and other laws of England by
which the lives, the liberties, and property of En
glishmen were secured, and not to the general legis
lation of parliament. The right to be represented
in the legislative body was asserted as a fundament
al principle of the English constitution, and one
that the parliament could not impair or disregard.
The particular instances cited by the governor of
submission by the colony to particular acts of par
liament they met by the declaration that the acces
sion of William and Mary, while not proclaimed by
an act of the colony, was based upon the universal
consent of the people. They declared that "a purely
voluntary submission to an act, because it is highly
in our favor and for our benefit, is in all equity
and justice to be deemed as not at all proceeding
from the right we include in the legislators, that
thereby obtain an authority over us, and that ever
hereafter we must obey them of duty." That while
"they may have submitted, sub silentio, to some
AMERICAN COLONIES AND GREAT BRITAIN 83
acts of parliament, that they conceived might oper
ate for their benefit, they did not conceive them
selves bound by any of its acts which, they judged,
would operate to the injury even of individuals."
Concluding, they said: "We think your excellency
has not proved, either that the colony is a part of
the politic society of England, or that it has ever
consented that the parliament of England or Great
Britain, should make laws binding upon us, in all
cases, whether made expressly to refer to us or not."
In the notes of Mr. Jefferson on the debate upon
the adoption of the declaration of independence he
represents John Adams, Lee, and others who favored
the adoption, to have held this view of the powers
of parliament: "That, as to the people or parlia
ment of England we had always been independent
of them, their restraints on our trade deriving effect
from our acquiescence only and not from any rights
they had of imposing them, and that so far our
connection had been federal only and was now dis
solved by the commencement of hostilities." The
declaration itself makes no direct reference to par
liament, but, in the schedule of the unlawful acts
of the king, refers to the parliament in these terms :
"He has combined with others to subject us to a
jurisdiction foreign to our constitution, and unac
knowledged by our laws; giving his assent to their
acts of pretended legislation.
It would seem that, if any power to legislate for
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the colonies was possessed by parliament, it would
include the power to establish a system of import
duties, common to them all for this was a subject
that colonial legislation could not adequately deal
with ; and yet the tea tax was generally resisted in the
colonies as an invasion of their liberties.
Mr. Curtis, in his work on the Constitutional His
tory of the United States, speaking of the colonial
congress of 1774, says: "The second question re
lated to the authority which they should allow to
be in parliament; whether they should deny it wholly
or deny it only as to internal affairs; admitting it
as to external trade; and if the latter, to what ex
tent and with what restriction. It was soon felt
that this question of the authority of parliament was
the essence of the whole controversy. Some denied
it altogether. Others denied it as to every species
of taxation; while others admitted it to extend to
the regulation of external trade, but denied it as to
all internal affairs." He adds that in view of the
fact that the right of regulating the trade of the
whole country could not be well exercised by the
separate colonies the alternative was either to set
up an American legislature that could regulate such
trade or to give the power to parliament.
The congress, he says, determined to do the lat
ter, thinking that they could limit the admission by
denying that the power extended to taxation and ad
mitting it only so far as was necessary to regulate the
AMERICAN COLONIES AND GREAT BRITAIN 85
external trade of the colony for the common benefit
of the whole empire. "They grounded this conces
sion," he says, " 'upon the necessities of the case'
and 'upon the mutual interests of both countries' '
meaning by this expression to assert that all legis
lative control over the external and internal trade
of the colonies belonged of right to the colonies
themselves.
It is difficult to conceive of any theory of the re
lation of the colonies to the mother country that
will support the pretentions and resistance of the
colonies throughout, except that which denies in toto
the power of the parliament to legislate for the col
onies. If the relation was as described in the de
bate upon the declaration of independence, from
which I have quoted, and by Franklin a federal
one like that of England and Scotland before the
union then the British parliament had no authority
to legislate for the colonies. Yet it is certain that
many acts of parliament not involving taxation or
revenues were recognized in the colonies as an il
lustration, the act of 1766 forbidding the issue of
legal tender paper by the colonies.
In an essay by a Virginian, published in London
in 1701, the uncertainty of the law in the colonial
age is thus described: "It is a great unhappiness
that no one can tell what is law and what is not in
the plantations. Some hold that the law of England
is chiefly to be respected, and, where that is de-
86 VIEWS OF AN EX-PRESIDENT
ficient, the laws of the several colonies are to take
place; others are of opinion that the laws of the col
onies are to take the first place, and that the law
of England is of force only where they are silent;
others there are who contend for the laws of the