colonies, in conjunction with those that were in
force in England at the first settlement of the colo
nies, and lay down that as the measure of our obe
dience, alleging that we are not bound to observe
any late acts of parliament in England except such
only where the reason of the law is the same here
that it is in England. But, this leaving too great
a latitude to the judge, some others hold that no
late act of the parliament of England do bind the
plantations, but those only wherein the plantations
are particularly named. Thus are we left in the
dark in one of the most considerable points of our
rights; and, the case being so doubtful, we are too
often obliged to depend upon the crooked cord of
a judge's discretion in matters of the greatest mo
ment and value."
Perhaps the following is a fair summary of the
colonial view, just prior to the revolution, as to
the force of English statute law in the colonies :
First, the general statutes enacted before the insti
tution of any government in the respective colonies
were of continued obligation there, so far as they
were applicable. This upon the principle that such
laws were enacted by parliaments in which the col-
AMERICAN COLONIES AND GREAT BRITAIN 87
onists, being then residents of England, were rep
resented.
Second, that no later act of parliament had any
inherent validity in the colonies; but that the su
preme legislative power was vested in the colonial
legislature.
Certainly this is the view of the declaration of
independence. The debate that preceded the formu
lation and general adoption of this view was long
and heated. Particular acts of parliament were im
peached on narrow grounds; but there was no hold
ing ground short of the full denial of the power of
parliament to legislate for the colonies. The par
liament was not a representative body as to the colo
nies; and a system which recognized the right of
parliament to legislate for the colonies was not a
representative system of government. A just colo
nial system that should preserve by suitable limita
tions the imperial and general powers of parliament
and reconcile them with free institutions in the col
onies was not possible to that generation of English
men; and a system of parliamentary government
without representation and without agreed limita
tions was impossible to that generation of Ameri
cans.
It will be noticed that very many of the griev
ances, catalogued in the declaration of independence,
do not involve questions affecting the constitutional
or charter rights of the colonies, but rather bad and
88 VIEWS OF AN EX-PRESIDENT
vindictive administration, and so a violation of nat
ural rights. The English government in the colo
nies, as administered, subverted the true purposes
of government, namely, to secure to the people the
enjoyment of life, liberty, and the pursuit of happi
ness. It was not unlawful for the king to refuse
his assent to laws, or to prorogue an assembly, or
perhaps to fix another than the usual place for its
assembling. But when these things were done, not
in the exercise of a just discretion, but vexatiously
to deprive the people of their rights or to coerce
them into a surrender of them to punish them for
things lawfully done the executive power was
abused. This power was not to be directed by whim
or malice; but like all other forms of government,
for the public welfare. Protection was the condi
tion of allegiance; when the existing government did
not protect, the natural right became the supreme
law. The resistance made by the colonies to the
stamp tax, the tea tax, and other assertions of the
powers of parliament, naturally brought on a con
flict with the king and his governors, and this con
flict marched in the familiar and inevitable lines
edict and proclamation, thundered against the town
meeting and the assembly. The solitary and power
less civil governor was reinforced by ships and sol
diers, and the town meeting became a training
band it only remained that these should meet and
war was flagrant.
AMERICAN COLONIES AND GREAT BRITAIN 89
But there were some other constitutional rights
that were invaded. The right to transport persons
accused of crime to England for trial was asserted
by the crown. The English cabinet issued orders
directing Governor Barnard, of Massachusetts, to
prosecute an inquiry into the conduct of some of
the popular leaders in Massachusetts with a view to
transporting them to be tried for their lives, under
the pretended authority of a statute of Henry VIII.
In 1772 royal instructions were issued to the gov
ernor of Rhode Island to organize a commission to
inquire into the facts connected with the burning of
the royal schooner "Gaspee." The governor was di
rected by the commission to arrest the parties and
to send them with the witnesses upon a naval ves
sel to England for trial. The colonial assembly,
upon the appeal of the governor and Chief Justice
Hopkins, referred the matter to the discretion of
the chief justice, who declared that he would not
give an order to arrest any person for transporta
tion to England for trial. The commission, in its
report, condemned the conduct of the commander of
the "Gaspee," and after much passion had been ex
cited by this high-handed invasion of the right of
trial, the- matter was dropped. The result of these
attempts was widespread excitement and indignation
in the colonies; The Virginia house of burgesses,
on the sixteenth of May, 1769, passed a resolution de
claring that "all trials for treason, misprision of
QO VIEWS OF AN EX-PRESIDENT
treason, or for any felony or crime whatsoever, com
mitted and done in his majesty's said colony and
dominion, by any person or persons residing therein,
ought of right to be had and conducted in and be
fore his majesty's courts, held within his said col
ony, according to the fixed and known course of
proceeding," and that the "sending such person or
persons to places beyond the sea t be tried is highly
derogatory of the rights of British subjects, as
thereby the inestimable privilege of being tried by a
jury from the vicinage, as well as the liberty of
summoning and producing witnesses on such trial,
will be taken away from the party accused. "
In 1770 the privy council inaugurated a series of
royal instructions which ruthlessly disregarded not
only the usages of the colonies but directly set at
naught the provisions of the colonial charters. They
proceeded upon the theory that these royal instruc
tions had the force of law and practically asserted
an unlimited and arbitrary power in the crown.
In 1772 Governor Hutchinson, of Massachusetts,
under instructions from the crown, refused to re
ceive his salary from the legislature, and the judges'
salaries were also ordered to be paid out of the
crown treasury. This was regarded as making these
officers dependents of the crown and freeing them
from that restraint which the power to vote their
salaries in the general court imposed. This "in
definite, imperious and mysterious," as Mr. Frothing-
AMERICAN COLONIES AND GREAT BRITAIN gi
ham calls it, assertion of the royal prerogative seemed
to put every right in jeopardy.
The passage of laws vesting the nomination of
the council in Massachusetts in the crown, investing
the governor with the power to appoint and remove
judges of the inferior courts and other minor officers,
and the governor and council with power to ap
point sheriffs who were to select the juries, forbid
ding town meetings except for the choice of officers,
without the permission of the governor, and pro
viding for the transportation of offenders and wit
nesses to other colonies or to England for trial, was
a complete and undeniable expression of the pur
pose of the English government to overthrow not
only local government, but liberty, in the colonies.
It was said, even in the house of lords, that
these acts invested "the governor and council with
powers with which the British constitution had not
trusted his majesty and his privy council'*; and
that "the lives, liberties and properties of the sub
ject were put into their hands without control."
EARLY ATTEMPTS AT UNION AND THE
UNION DE FACTO
FOURTH LECTURE
DeliTered at Stanford University, April .2, 1894
I desire to call your attention first to some of
the efforts that were made to effect a union of the
English colonies in America, upon the basis of a
continued allegiance to the British crown.
The first American confederation was of certain
of the New England colonies, and took form in
1643. At that time New York, a Dutch province,
intervened between New England and the middle
and southern English colonies, while Canada, a
French possession on the north, was a special
menace to New England. Serious disputes as to
settlements and boundaries had arisen with the
Dutch; and the purpose of the French to restrict,
if not to subdue, the English colonies, was not con
cealed. The Indians, especially the Narragansetts, a
near and strong tribe, had become unfriendly and
were threatening the settlements. The dangers were
92
EARLY ATTEMPTS AT UNION Q3
common and imminent, and the conditions out of
which they grew lasting. Not one campaign, but
many; not the foreseen, but the unforeseen also,
must be provided for. England was wasted by civil
-war; and the king was thinking of his crown, not
of his provinces. His military resources were over
taxed in the defense of his prerogative at home and
of his life. Neither English money nor English
troops, neither English direction nor leadership was
available to the New England colonies. The feder
ation was as natural and reasonable as a block house
in a frontier village. The articles of union were
subscribed by the representatives of Massachusetts,
New Plymouth, Connecticut and New Haven.
Rhode Island, with Connecticut and New Haven,
had three years before united in a joint letter to the
general court of Massachusetts, suggesting a con
federation; but poor little Rhode Island, upon the
spiteful objection of Massachusetts, was not allowed
to enter the confederation that was formed. These
articles of union are of great interest; but we have
time to notice only a few of their most important
provisions. A common name was assumed: "The
United Colonies of New England." The things that
are not said in these articles are quite as noticeable
as the things that are said. No reference whatever
is made to the crown, save by this recital in the
preamble :
"And seeing by these sad distractions in England,
94 VIEWS OF AN EX-PRESIDENT
which they have heard of, and by which they know
we are hindered from that humble way of seeking"
advice or reaping those comfortable fruits of pro
tection which at other times we might well expect."
Neither the taking effect of the articles nor the
continuance of the confederation is made depend
ent upon the consent of the king. The confedera
tion was not limited to the exigency described in
the preamble, but was expressly declared to be per
petual. It was "for mutual help and strength in all
our future concernments." The league was described
as "a firm and perpetual" one; and, in the twelfth
and last article, it is called "this perpetual confeder
ation." It was instituted for "offense and defense,
mutual advice and succor, upon all just occasions;
both for preserving and propagating the truth and
liberties of the gospel, and for their own mutual
safety and welfare." If any one of the colonies
should be invaded "by any enemy whomsoever" the
other members of the confederation were required
forthwith to send aid to the "confederate in dan
ger." The expenses of the confederation were ap
portioned. Its affairs were to be managed by two
commissioners from each colony, who were to bring
from their respective general courts full power "to
hear, examine, weigh and determine all affairs of
our war or peace, leagues, aids, charges and num
bers of men for war, division and spoils and what
soever is gotten by conquest, receiving of more
EARLY ATTEMPTS AT UNION 95
confederates for plantations into combination with
any of the confederates, and all things of like na
ture which are the proper concomitants of conse
quence of such a confederation, for amity, offense
and defense." There was to be no intermeddling
with the government of any of the jurisdictions,
which by the third article is preserved entirely to
themselves. Six of the eight commissioners were
empowered to determine any matter presented; but
if six did not agree, then the matter was to be re
ferred to the general courts of the confederated col
onies. The commissioners were to meet once every
year; provision was made for extraordinary sessions
and the places of meeting designated. No colony
was allowed to declare or undertake a war, except
upon sudden exigency, without the consent of the
commissioners or of six of them.
But the purposes of the confederation were not,
as I have said, limited by the occasion which sug
gested it, viz., the unfriendly and hostile attitude of
their neighbors. The commission was required by
the eighth article "to frame and establish agree
ments and orders in general cases of a civil nature
wherein all the plantations are interested for pre
serving peace among themselves and preventing as
much as may be all occasions of war or difference
with others, as about the free and speedy passage
of justice in every jurisdiction, to all the confeder
ates equally as their own, receiving those that re-
96 VIEWS OF AN EX-PRESIDENT
move from one plantation to another without due
certificates." Provision was also made for the ren
dition of servants and of prisoners fleeing from
one jurisdiction into another. The annexation, by
royal decree, of New Haven to Connecticut extin
guished one of the parties to this compact of gov
ernment; but the agreement was revised and con
tinued as a league of three colonies, with occasional
meetings of the commissioners, until 1684, when the
charter of Massachusetts was annulled. The united
colonies, through the commissioners, exercised the
sovereign power of war and peace, conducted ne
gotiations with the Indians, the French and the
Dutch, adjusted a boundary dispute between New
Haven and New Netherland, and exercised the
highest powers of government; and by this early
experiment confirmed the opinion of the necessity
and usefulness of a union of the colonies. The
powers of the commissioners under this confedera
tion were quite similar to the powers of the con
gress under the later confederation of the thirteen
colonies. Both were leagues of friendship insti
tuted for the general welfare and defense. The
provision that no colony should engage in war, with
out the consent of the others, except upon an exi
gency, was quite like the article of the later con
federation upon the same subject. The New En
gland league has a suggestion also of the provision
of the federal constitution that the citizens of each
EARLY ATTEMPTS AT UNION: 97
state shall be entitled to all the privileges and im
munities of the citizens of the several states, and
of the provisions for the rendition of criminals and
fugitives from labor. The provision that no mem
bers should be admitted to the confederation, nor
any other plantation be received by any of the
united colonies, nor any two of the colonies united
in one jurisdiction without the consent of the rest,
is quite suggestive of section 3 of article IV of the
constitution, which provides that new states may be
admitted by congress, but that no new states shall
be formed within the jurisdiction of any other
state nor by the conjunction of two states or parts
of states without the consent of congress. An equal
voice was given to the colonies, in the joint meet
ings, though they differed so widely in population
and wealth, Massachusetts having fifteen thousand
out of an aggregate population of twenty-four thou
sand. This plan of representation was followed in
the congress of 1774, passed into the articles of con
federation and continued to be used until the adop
tion of the national constitution. The contest that
afterward became so threatening between the larger
and the smaller colonies had its earliest mani
festation in this earliest confederation. The efforts
of Massachusetts to exert more than the prescribed
influence in the New England confederation was
sharply resented by the smaller colonies.
The confederacy was not unnaturally, and in
98 VIEWS OF AN EX-PRESIDENT
spite of the loyal protestations of the colonial au
thorities regarded by the crown as a movement
full of danger to the royal authority. The commis
sioners of Charles II arraigned the confederation as
illegal, holding that there was no right conferred
upon any of the colonies by charter "to incorpo
rate with the other colonies, nor to exercise any
power by that association"; both of these powers be
longing to the king's prerogative. The answer of
the Massachusetts general court declared that this
charge was "contrary to the light of reason that al
lows all whose journey's end is the same and whose
way lies together to combine for their mutual help
in all things common and just, without the least
suspicion of taking upon them any usurped au
thority."
Mr. Frothingham says of this confederation:
"The powers reserved to each jurisdiction proved
impracticable, and the provisions to promote the
common welfare were crude. Notwithstanding
these vital defects, the service which the confed
eracy rendered was never forgotten: It was re
ferred to in every period of the colonial age; and
in seasons of peril there was a call for its revival.
The embodiment of the idea of union was imper
fect; but the principle of the equality of distinct
jurisdictions, the inviolability of their local govern
ments, and the aim of providing one system of law,
EARLY ATTEMPTS AT UNION 99
securing to the people of all the colonies their
rights, became fundamentals of a republican polity."
It is probable at least that is the view most gen
erally taken by the historians that in forming this
union no thought of independency or of a separa
tion from the English crown was in the minds of
its promoters. The suggestions they followed were,
as I have said, the natural outgrowth of conditions;
and that these conditions were pregnant of further
suggestions of a larger union and of separation from
the crown was yet to be unfolded. Yet it is true,
as was said by John Quincy Adams, in his dis
course on the New England confederacy, delivered
in 1843, that the confederation was "the exercise of
sovereign power in its highest attributes." There
was no declaration against the king in the articles,
but he was wholly left out of them.
Upon the accession of Charles II to the throne,
the advantage of a union of the English colonies
in America from a royal standpoint was recog
nized. The hostile environment of the colonies
menaced England through them. A union of forces
and of resources was needed by the colonists for
the protection of their lives and property ; by the
king for the defense of his dominions. The advan
tage of taking the direction of the movement was
apparent; and, in 1660, Charles organized a com
mission for the purpose of bringing the scattered
colonies into a "more certain civil and uniform gov-
IOO VIEWS OF AN EX-PRESIDENT
ernment." James II, pursuing the same line, planned
to unite the colonists between the Delaware *and the
St. Lawrence under one royal governor and a sin
gle legislative council to be appointed by the king,
but was deposed before the plan was executed: These
incidents and others of a later date of the same char
acter are worthy of note as admissions by the crown
of the advantage of a union of the colonies under
one resident executive and one council or congress.
This sentiment was expressed in 1696 by the lords
of trade and plantations thus: "We humbly con
ceive that the strength of the English there [in
America] can not be made use of with that advan
tage it ought for the preservation of those colonies,
unless they be united."
In 1677 a joint conference was held at Albany
by Virginia, Maryland and New York with the
Seneca Indians; and in 1684 another congress, in
which Massachusetts participated with the colonies
named, was held at the same place with the Five
Nations of Indians. In 1690 the general court of
Massachusetts, moved by the massacre at Schenec-
tady, invited "New York, Virginia and Maryland,
and parts adjacent" to meet the New England
colonies in a conference to organize the common de
fense. Only Massachusetts, Plymouth, Connecticut
and New York were represented in the conference
which was held in New York. Plans of defense
were discussed covering the northern frontier, and
EARLY ATTEMPTS AT UNION IOI
an organization of the military forces, to be contrib
uted by each, was agreed upon. Mr. Bancroft and
other historians characterize this assemblage as the
first American congress.
About the same time William Penn appeared be
fore the lords of trade and plantations with a sug
gestion of a plan of union of the colonies which
was afterward presented by him in writing, and
embraced the following provisions: First, that the
several colonies, by appointed deputies, should
meet once a year in time of war and once in two
years in time of peace, to debate and resolve meas
ures for their "better understanding and the public
tranquillity and safety," and particularly to adjust
matters of difference between province and province
relating to debtors or fugitives from justice fleeing
one province to the other, disputes as to commerce
and matters relating to the defense of the provinces
against public enemies; that this conference or con
gress should be presided over by the king's com
missioner, and that in time of war, the king's high
commissioner should be commander-in-chief of the
forces organized for defense.
A memorial by the general court of Massachu
setts to the king, in 1696, proposed that the royal
governor of Massachusetts should also be the civil
governor of New York and New Hampshire, and
general of all the forces of Massachusetts, New
York, New Hampshire, Connecticut, Rhode Island
IO2 VIEWS OF AN EX-PRESIDENT
and the Jerseys. This project was naturally resist
ed by the agents of Connecticut, New Hampshire
and New York. But a distinguished writer says:
"This line of recommendation had so much weight
with the lords of trade, and harmonized so com
pletely with their views and designs that a remod
eling of the internal affairs of the colonies and
unity became at length the corner-stone of their
policy."
In reporting upon the matters submitted the lords
of trade said: "We now humbly crave leave to add
that the distinct proprieties, charters and different
forms of government in several of those neighboring
colonies, make all other union except under such a
military head (in our opinion) at present impracti
cable."
The recommendation submitted was that the king
should appoint a suitable person to be governor of
the provinces of New York, Massachusetts Bay and
New Hampshire and that he should be also captain
general of all the king's forces in the colonies
named, as also in Connecticut, Rhode Island and
the Jerseys, the chief residence of the governor to
be at New York. The report concluded as fol
lows: "And, in the last place, we are also humbly
of the opinion that the general assemblies of all
those neighboring colonies, by the prudent conduct
of such a captain general, may be made to under
stand their own true interests and thereby induced
EARLY ATTEMPTS AT UNION 103
to enact such laws in their respective governments
as shall be necessary to enable the said captain gen
eral to execute your majesty's commissions so as
shall be most for your majesty's service, their own
defense and general advantage."
Lord Bellomont was accordingly commissioned
captain general over the provinces of Massachu
setts, New Hampshire, New Jersey and New York.
Many plans of union were, during these protract
ed discussions, propounded in pamphlet and me
morial; and in the course of the discussion, some
of those elements of division which afterward ap
peared so threateningly in the continental congress
and in the constitutional convention are disclosed
especially that of the basis of representation in any
general congress or council, and a jealousy as to
the place of its assemblage.
The lords of trade in 1721, in a report to the
king on colonial affairs, adopted the suggestion
that all of the provinces from Nova Scotia to South