Preface

Chapter I. Introductory—The Problem

Chapter II. The Precedents—The Ream and the Dominions

Chapter III. The Precedents—Natural and Fundamental Law, Taxation and Virtual Representation, the Charters

Chapter IV. Conclusion

Table of Contents

This little book was finished before Political Ideas of the American Revolution, by Professor Randolph Greenfield Adams (Durham, N. G, 1922), came into my hands, hence this is my only opportunity of expressing my pleasure at the corroboration of the views set forth here by the work of another student who has reached the same general conclusion from another starting point and by a wholly different path. Professor Adams’s point of view is political; that of this essay is constitutional. I have dealt mainly with precedents; he was largely concerned with contemporary American statements of the imperial problem of the eighteenth century, and the fullness and adequacy of his treatment of the latter make me very glad I decided originally not to take them up in detail. As it happens, therefore, we have traversed ground almost entirely different, and our minor deductions vary widely; but, I take it, our main conclusions are practically identical: that the central problem of the American Revolution was the true constitution of the Empire.

I am aware, of course, that by some it is regarded as wholly idle to discuss the constitutional issues involved in the American Revolution from any point of view. Independence was inevitable if not foreordained. Had it not occurred when it did and as it did, it must have come sooner or later in some way or other. The forces of nationalism were making it inevitable long before 1774 and it is a waste of time to try to discover the particular constitutional issues on which the actual breach happened to be made. In answer to such a view, while conscious of the great importance of the nationalistic forces in our history, I can only say in general that for the “inevitable” character of historical events as a theory I have not the very highest regard; and, more specifically, that of nationalistic characteristics in the thirteen colonies making independence “inevitable” in 1774, I can see few that do not seem equally discoverable in Upper Canada about 1837. “Inevitable” results in history, like exclusively racial explanations of it, are about the last resort of the despairing historian.

Discussions with my colleagues, Professor Wilbur C. Abbott and Dr. Frederick Merk on the topics treated here have been of great service in clarifying my ideas about them, and in addition I am greatly indebted to Dr. Merk and to my wife for valuable suggestions as to the form and manner of treatment to be followed.

Cambridge, Mass.

C. H. McIlwain.

Table of Contents

The American Revolution began and ended with the political act or acts by which British sovereignty over the thirteen English colonies in North America was definitely repudiated. All else was nothing but cause or effect of this act. Of the causes, some were economic, some social, others constitutional. But the Revolution itself was none of these; not social, nor economic, nor even constitutional; it was a political act, and such an act cannot be both constitutional and revolutionary; the terms are mutually exclusive. So long as American opposition to alleged grievances was constitutional it was in no sense revolutionary. The moment it became revolutionary it ceased to be constitutional. When was that moment reached? The Americans stoutly insisted during the whole of their contest with Parliament to the summer of 1776 that their resistance was a constitutional resistance to unconstitutional acts. If their claim was justified the American Revolution can hardly be said to have occurred much before May, 1776. For it was the basis of the contemporary American contention that Parliament could constitutionally pass no act affecting the internal polity of the colonies, and hence no colonial opposition to such acts could be revolutionary. Only when the opposition was turned against an authority that was constitutional could this opposition be truly revolutionary; and for the Americans there was but one such authority, not the Parliament but the Crown. For them, therefore, the struggle continued to be merely a constitutional struggle for the recovery of legal rights and the redress of illegal wrongs up to the point where the power of the Crown was touched. The basis of their contention was a clear-cut distinction between the King in Parliament and the King out of Parliament, and so late as October 26, 1774, they solemnly assured George III that they wished “not a diminution of the prerogative.”

On the other hand it can scarcely be expected that English statesmen who had declared in the solemn form of a statute that the English Parliament “had, hath, and of right ought to have” sufficient power and authority to bind the American colonies, subjects of the Crown of Great Britain in all cases whatsoever, would regard American opposition to Parliament’s practical application of this power in such statutes as the Massachusetts Government Act as a merely “constitutional” opposition, or their resistance to its enforcement as anything less than revolutionary. For these English statesmen, the Revolution of 1688-9 had ended the older sharp distinction between the King in Parliament and the King out of Parliament. Prerogative had become for them only such part of the ancient discretionary right of the Crown as Parliament saw fit to leave untouched. All rights of the Crown in the dominions, as well as in the Realm, were now completely under the control of Parliament, since William and Mary had sworn in their coronation oath to govern the Kingdom “and the dominions thereunto belonging according to the statutes in Parliament agreed on.”

On this interpretation it is obvious that the acts of the Americans had ceased to be constitutional and became revolutionary in character long before they ceased to protest their loyalty to the “best of Kings.” They must be considered so from the first time the power of Parliament constitutionally to bind the colonies was definitely denied. This occurred long before 1776.

The bare statement of these two inconsistent and conflicting views at once suggests the first constitutional problem. When did the first revolutionary act occur? What is the date of the American Revolution? Is it coincident with the first definite breach of the royal prerogative, or should it be found in the earlier repudiation of Parliament’s authority? No answer can possibly be made to this important question one way or the other till the conflicting constitutional views of the Americans and the English Parliament are carefully compared and some conclusion reached on their respective merits; and this conclusion itself must be based upon the constitutional precedents to be found in the whole historical development of the English constitution up to the time of the American struggle.

When did the train of constitutional development begin which led in continuous sequence to the first act that may be called revolutionary? Who were the real adversaries in this constitutional struggle, and which of them was constitutionally “right”? These are a few of the questions that occur to one who attempts to make a general survey of this period. The answers they have received are singularly contradictory and frequently unconvincing, and this after all the painstaking research of recent years. The purpose of this brief study is to try if possible to narrow these constitutional questions until they become susceptible of clear and definite treatment, if not of conclusive answers. We shall not be concerned with the intricate network of “causes,” economic, social, or political, tremendous as is the importance of them all. They must be at the background of our minds, not the foreground.

Thus stripped of its constitutional non-essentials the American Revolution seems to have been the outcome of a collision of two mutually incompatible interpretations of the British constitution, one held by the subjects of the British King in America, the other by a majority in the British Parliament. This result was a breach of the constitution not based upon and not warranted by the earlier precedents in the constitution’s growth. On an examination of this constitutional struggle that brought on the Revolution, I find myself unavoidably at variance with many of the views that seem at the present day to be becoming canonical, especially among American historians.

The struggle popularly called the American Revolution, up to its latest constitutional phase, was a contest solely between the Americans and Parliament. The Crown was not involved. No question of prerogative was at issue. If the King was at all implicated, it was the King in Parliament only and as a constituent part thereof, not the King in Council. The struggle did not touch the prerogative till after George III's Proclamation of Rebellion of August 23, 1775, and in fact can hardly be safely dated earlier than the formal declaration of the Virginia Convention on June 29, 1776, that “the government of this country, as formerly exercised under the crown of Great Britain, is totally dissolved” or Congress’s resolution of May 15, 1776, recommending to the various colonies the adoption of popular constitutions, with its famous preamble which declares that “it appears absolutely irreconcileable to reason and good Conscience, for the people of these colonies now to take the oaths and affirmations necessary for the support of any government under the crown of Great Britain, and it is necessary that the exercise of every kind of authority under the said crown should be totally suppressed, and all the powers of government exerted, under the authority of the people of the colonies.”

There can be no doubt of the revolutionary character of these declarations. Possibly some of the previous acts of the Congress and the colonies might be considered revolutionary, though it seems better to regard them up to that time as rebellious rather than revolutionary. A deliberate intent to establish permanent governments independent of the Crown must have existed before mere rebellion turned into revolution. Up to May, 1776, then, the American claims were aimed solely at the power of Parliament. About that time they first began to be directed against the Crown. As soon as they were so directed their revolutionary character becomes obvious. No American would then have denied that they were revolutionary, and no historian can now do so. This last phase of the controversy, this defiance of prerogative, however, began very late; in fact, not until many months after the constitutional struggle had turned into the civil war which we call from its final outcome the War of Independence. There might be a difference of opinion as to the relative merits of the American and the English claims of “right” in this final phase of the contest; but since it is admittedly a mere “right of revolution” that would be asserted or denied in such a discussion, it concerns the rights of man rather than the British constitution and has little place in a treatment strictly constitutional.

But what of the earlier phase, by far the larger phase, when American opposition is aimed solely at Parliament? Is that too revolutionary? Or is it merely constitutional? Did the American Revolution begin about 1761 or only with the attack on the Crown in 1776? This is a question harder to answer, and the answer must depend on matters purely constitutional, not political, as in the case of the defiance of the Crown after 1776.

For the period between 1761 and 1776 the non-revolutionary or revolutionary character of the resistance of the Americans must be judged upon the basis of the soundness or unsoundness of their constitutional claims. For those who believed that the parliamentary acts of which they complained were but parts of a settled plan to deprive them of legal rights by unconstitutional means, it might even seem a question whether the revolutionary acts were not up to 1776 all on the side of a Parliament that had assumed and exercised a power for which there was no warrant in English constitutional precedent. Long before that, they might plausibly have argued, the “unconstitutional” acts of the British Parliament itself had assumed a character nothing less than revolutionary, though it might be difficult to fix the exact point of time when they could first be said to be revolutionary as well as unconstitutional. On the latter supposition why might not the American Revolution properly enough be said to begin as early as May, 1649, with the Act that established the Commonwealth, with supreme authority in the Parliament of the English people over “the dominions thereunto belonging,” apparently the first formal assertion by a Parliament of its authority beyond the realm?

It is conceded by historians of all shades of opinion that the English Revolution of 1688-9 was a real revolution. The unprecedented events of those years definitely placed the power of Parliament above the royal prerogative and gave to the modern limited monarchy in England its unique constitutional character. All admit this. What was in 1689 revolutionary was accepted in England as subsequently constitutional and legitimate for the realm and “the dominions thereunto belonging,” on the theory of Locke that a people can change its constitution through the right of revolution. Englishmen in England had acquiesced in it. But what of “the dominions thereunto belonging”? Acts originally admittedly revolutionary could there only become legitimate by acquiescence and consent too. Had the “dominions” consented when they acclaimed the new sovereigns sworn under the new coronation oath to govern “according to the statutes in Parliament agreed on”? Or was the consent of the dominions immaterial when the realm alone had legitimated the new regime? Were the dominions concluded by the acts of Englishmen in the realm alone? Samuel Adams and Governor Hutchinson in 1773 seemed to see this constitutional issue more clearly than many subsequent historians. It was Adams’s primary contention that what was revolutionary in 1688 remained revolutionary until assented to, that it had not been consciously assented to in America, and that therefore it was revolutionary in 1773 for the dominions as it had been in the realm in 1688. One of Hutchinson's main contentions was that America had given its assent as fully as England had when the usurping William and Mary had been proclaimed in the colonies. Adams was demanding that the stream of precedents for parliamentary control of the colonies should be followed up further towards its source, that the revolution of 1688 should be allowed to break the continuous validity of precedent only if it was acquiesced in by all those affected; in short, that revolution only becomes a basis for legitimate government when accepted by a people, and that one people cannot accept for another. His views imply that England and the colonies are not “one people.” To his mind America had not accepted, and on true political principles England could not accept for her. Hence the power of Parliament, new and revolutionary in England in 1688, was for the dominions revolutionary still in 1773. He held that the issue should in 1773 still be settled on the lines of the constitution as it existed before 1689, and that that constitution gave no ground for the powers “usurped” by Parliament in the eighteenth century. In reality this was a collision of the older interpretation of the English Constitution, continuing in America, but superseded after 1689, if not 1649, in England, with the post-revolutionary interpretation as held in England. The relative merits of these two views depend on the question whether the colonies were bound to push their precedents back no further than the middle of the seventeenth century. This in turn depends upon whether they had consciously accepted the new basis for themselves after the accession of William and Mary or were concluded by the act of the people of England alone, entirely regardless of their own wishes and views.

A final decision upon the whole question of America’s acquiescence in all Parliament’s earlier acts affecting her is one to be made only after a careful examination of all the facts, a question which should be examined more minutely than it has been. Here, however, I can only indicate some of its theoretical aspects.

Commentators who are often more legalists than legists have, as it seems to me, been overfond of applying to the larger questions of constitutional development a too narrow and rigid interpretation based on superficial analogies drawn from other branches of law, such as the law of property or of contract. The technicalities of the law of estoppel and of prescription and the statutory provisions extinguishing a civil remedy by lapse of time are thus used sometimes rather loosely and without discrimination to prove a whole people’s forfeiture by non-user of its former right of opposition to unconstitutional grievances.

Such a commentator might be reminded that as early as the Twelve Tables prescription in a stolen article was forbidden; that neither provincial lands, nor res sacrae or religiosae were prescriptible at Roman law; that the adverse possession requisite for valid prescription even where it was applicable must be nec vi, nec clam, nec precario; that extinctive prescription was excluded by minority and other disabilities; and that even the law of slavery was tempered by the jus postliminii. He should be urged to note that the limitation of civil actions is not extended in our law to prosecutions for crime; and might be asked on what general reasoning he is warranted in restricting the principle of the maxim nullum tempus occurrit regi, under which this is justified, merely to a king instead of extending it generally to a people as well.

But after all it was public policy that first created prescription and public policy also imposed restrictions upon its operation, and technical considerations of the sort mentioned above whether used intelligently or not—and they have not always been used intelligently—have really little place in a discussion involving questions of the rights of subjects against rulers. Even conservatism might be expected to have some limits. Molyneux denied the fact of the conquest of Ireland, but he also denied that a right of permanent domination can ever be legitimately based on conquest. As Otis put it, “There can be no prescription old enough to supersede the law of nature.”

This is no question to be decided on mere legal analogy and that an uncritical one. I can see little legal, constitutional, or political ground for the assertion that the American colonists were forever estopped from resisting the application to them of an authority which they had come to believe to be unwarranted by precedent, merely because for a time the laxity of that application had led them and their ancestors to pay slight attention to the subject. And it certainly is a strange assumption, that the colonists in proclaiming William and Mary must inevitably have accepted and for all time all the unforeseen constitutional consequences that an oligarchical parliament might later choose to deduce from the transactions of 1688 and 1689. How many Americans, presumably, were acquainted with the form of the? English coronation oath in 1689?

The last question, it is true, belongs to political theory rather than to constitutional interpretation, and in part turns on the mere question of fact whether or not there was an actual conscious acquiescence in America in the Revolution and in all its constitutional implications later accepted in England; but other questions go much further than this. Samuel Adams’s contention, implied if not expressed, that the colonies are not concluded by the action of the realm alone really touches one of the deepest problems in English constitutional history. He brought into question, though not for the first time in the Empire, the validity of the famous pronouncement of Parliament of May 19, 1649, that “the people of England and of all the dominions and territories thereunto belonging are ... a Commonwealth.”

Upon the whole matter it has apparently become the orthodox view among American historians that the English were right and the Americans wrong, that however wrong-headed, impolitic, or even oppressive Parliament’s treatment of America may have been, on purely constitutional grounds the English case is the better; that the letter of the law was on their side. We are here not concerned either with policy or with ethics. On its constitutional side this question narrows down to the simple issue as to whether the American or the English interpretation of the British constitution is the one more properly deducible from the precedents furnished by the development of that constitution in the whole period of its growth up to the time of the struggle. The Americans denied the authority under English constitutional law of the Parliament at Westminster to bind Englishmen beyond the realm. They also asserted that parts of that law were wholly beyond Parliament’s reach, were “fundamental,” and that any act of Parliament in contravention of these parts was void. English statesmen asserted in reply that there was nothing beyond the power of the English Parliament, whether in the Realm or “in the Dominions thereunto belonging.” These are purely constitutional issues. I am concerned here with no other. They are questions to be decided entirely on the basis of precedents. I propose to examine these precedents, but at the risk of contradiction, for the sake of clearness, I shall anticipate the discussion to express my belief that this question of “right” or “wrong” if kept within strict constitutional lines is susceptible of some answer; and, contrary; to the view that now seems current among American historians, that that answer must on the whole be more favorable to the claims of the American colonists than to those of the British statesmen who opposed them in Parliament.

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