University of Virginia Library

CHAPTER III

HISTORICAL ANTECEDENTS OF THE DECLARATION:
THEORY OF THE BRITISH
EMPIRE

When the controversy with Great Britain
began in 1764, the preconceptions of the Natural
Rights philosophy lay quiescent in colonial
minds, ready to be drawn upon in case of need,
but never yet having been called forth in the
service of any concrete issue. With a possible
exception here and there, the colonists had
never even contemplated the idea of independence.
They were, on the contrary, proud to be
counted British subjects and citizens within the
empire, the burdens of which, such as they were,
had never rested heavily upon them. Each
colony had its own government, consisting of a
governor, appointed by the Crown in most
cases, and a legislature of which the lower
house was in all cases elected by certain defined
classes of people resident in the colony. Before
1764 the British Parliament had in the main
confined its supervision to the regulation of
colonial trade, so that each colony had long

been accustomed to exercise, in respect to all
internal affairs, a pretty full measure of self-government.
Laws passed by the colonial
legislatures were often vetoed by the governors,
or disallowed by the Crown; but the British
government had rarely intervened with regulations
of a positive sort, and it had never, with
some slight and negligible exceptions, laid a
tax on the colonies by act of Parliament.

With this situation the colonies were in the
main well satisfied; and when they thought of
the constitutional relations by which the colonies
were connected with the British empire, they
thought of them as relations which permitted
the colonists, and doubtless would always permit
them, to regulate their own affairs in their
own way: the immunities which they in fact
enjoyed, they thought of as `rights' which they
ought constitutionally to possess. The truth
is, however, that the colonists had not given a
great deal of thought to these matters. They
had thought a good deal about the respective
`rights' of their assemblies as against the `rights'
of their governors; but there had been no great
occasion to ask what were the rights of the
assemblies as against the rights of Parliament.
The Sugar Act suddenly raised this question;
and suddenly called upon to define their rights
as colonies within the empire, called upon to

say what constitutional barriers there were, if
any, against an unlimited Parliamentary control
of the colonies, they could immediately find
at hand no elaborate or very convincing answer.
What most men were thinking was doubtless
well enough expressed by two men who
committed their opinions to writing in this year
of 1764 — Stephen Hopkins, afterwards one of
the signers of the Declaration of Independence,
and Thomas Hutchinson, afterwards a self-exiled
Loyalist.

In a pamphlet entitled The Rights of the Colonies
Examined, Hopkins argued that all colonies,
in ancient and modern times, have always enjoyed
"as much freedom as the mother state,"
and it could hardly be supposed, he thought, that
the British colonies were an exception to that
rule. Until now, at all events, the British Parliament
had understood the rights of the colonies
in this sense. Why then should the ancient
practices be changed?

Hopkins does not really define the rights of
the colonies; he raises questions about them.
Have we not rights? We have always enjoyed
rights and privileges, why should we not continue
to enjoy them? We have been very dutiful.

Thomas Hutchinson, writing to a friend in
England, speaks of the rights claimed by the
colonies a little more precisely, but still in much
the same sense.

Such were the first, tentative steps in the
effort to find a theory that would meet the
emergency — a kind of timid groping about in
the dark in search of the half-forgotten British
Constitution. During the year 1765, as a result
of the discussion which was accompanied by the
passage and the practical nullification of the
Stamp Act, the conception of colonial rights
began to take on a more definite form. Forcible
resistance to the Stamp Act, which few people
anticipated, proved to be singularly easy, because
the act could not take effect without the
use of stamped papers, and the bundles of
stamped papers, when they were once landed,
could be easily destroyed without any one in
particular being held responsible for their destruction.
The colonists therefore found themselves
facing a new emergency. They had to
find good and sufficient reasons for having ventured
to violate, by open and forcible means,
an act of Parliament. They had to have a
definition of colonial rights which would make
the Stamp Act out to be, not merely an inexpedient
measure, but an unconstitutional measure,
a measure which the British Parliament
had no `right' to pass.

To meet this emergency, the colonists seized
upon the well-established tradition that British
liberty had originally been won, and had always

been maintained, by a stubborn and persistent
parliamentary opposition to arbitrary taxation.
This opposition, as a matter of sober historical
fact, had never been more than intermittently
effective until the seventeenth century; but
the parliamentary party of that time, in defense
of their rights, maintained that the parliamentary
control of taxation was as old as
Magna Carta. And so in the eighteenth century
it was commonly accepted as a principle of the
British Constitution that no Englishman could
be legally taxed except by his own consent,
that is, by his representatives in Parliament.
This being so, the colonists reasoned, we, being
British subjects with all the rights of Englishmen
born within the realm, cannot be legally
taxed except with our consent; and therefore,
we cannot be legally taxed by the British Parliament
since we are not represented in it.

Thus stated, the argument was open to attack
at two points: it could be affirmed that Parliament
had as a matter of fact taxed the colonies
in the past without any opposition on their
part; and it could be said that the colonies were
represented in Parliament in the same sense that
Englishmen were. Soame Jenyns, in a pamphlet
widely read in England,[2] pointed out that

many English communities, such as Manchester
and Sheffield, were taxed without being privileged
to send representatives to Parliament, so
that the colonies were represented as much or
as little as these English communities; either
Manchester is not represented in Parliament, in
which case Parliament can and does tax Englishmen
without their consent, or else Boston is
represented in Parliament, in which case she has
no grievance. In other words, it was held that
relatively few Englishmen had a right to vote
for their representatives in Parliament; that
they were nevertheless `virtually represented'
by the members of Parliament chosen by those
who had a right to vote; and that accordingly
the people residing in the colonies were also
`virtually represented' in Parliament in the same
way as the non-electors residing in Great Britain.

This argument was most effectively answered
by Daniel Dulany, of Maryland, in a pamphlet
entitled Considerations on the Propriety of Imposing
Taxes in the British Colonies for the
Purpose of Raising a Revenue by Act of Parliament.
The people of the colonies, says
Dulany, are in a very different situation from
the non-electors residing in Great Britain, because
in the latter case the interests of

The situation of the colonists was manifestly
different. If every inhabitant of America possessed
the necessary freehold "not one could
vote, but upon the supposition of his becoming
a resident of Great Britain." Besides, the
colonists already pay taxes levied by their own
legislatures, and therefore they would not be
exempt from taxation if not taxed by the
British Parliament, as the non-electors in Great
Britain would be. Most important of all,

Dulany's refutation of the doctrine of `virtual
representation' was complete — almost too
complete. The inference from it was, either
that the colonies should be permitted to send
representatives to the Parliament, or that the
Parliament had no right of taxing the colonies
in any way whatever. Sending representatives
to Parliament was a perfectly possible thing to
do; but the colonists commonly rejected this
solution, because it was obvious that sending a
few representatives to England would serve
only to justify parliamentary taxation without
doing anything to prevent it. But, on the
other hand, could the colonists stand uncompromisingly
on the ground that Parliament had
no right to tax them in any way whatever?
The Sugar Act was a tax. The Parliament had
for over a century imposed trade duties. These
were in some sense taxes; and at this early

date almost no one was ready to deny that
Parliament had the right to impose taxes of
this sort. In face of this difficulty, certain
writers drew a distinction between `internal'
and `external' taxes, denying the right of Parliament
to lay the former but admitting, by
implication at least, its right to impose the
latter. This was no doubt a dangerous admission,
and many were inclined to avoid the
difficulty by ignoring it. That, for example,
is substantially what the Stamp Act Congress
did in framing its resolutions of protest against
the Stamp Act and the Sugar Act. Expressly
affirming that the colonists owed the same allegiance
to the Crown of Great Britain as subjects
residing in England, the Resolutions declared
that "no taxes . . . can be constitutionally
imposed upon them but by their respective
legislatures"; but without explicitly drawing a
distinction between `internal' and `external'
taxes, the wording of the Resolutions is such
as to imply that distinction; the Stamp Act
is mentioned as "imposing taxes" which have
"a manifest tendency to subvert the rights and
liberties of the colonies," while the Sugar Act
is only vaguely referred to as among "several
late acts" which imposed "duties" that "will
be extremely burthensome and grievous."[3]

Thus at the time of the repeal of the Stamp
Act in 1766, the colonies did not deny that the
British Parliament possessed of right a general
legislative jurisdiction over them; they maintained
only that this jurisdiction did not include
the right of laying taxes upon them without
their consent; and that at least direct internal
taxes, such as the Stamp Tax, were not only
contrary to custom but were a violation of
constitutional rights.

The repeal of the Stamp Act was greeted with
general rejoicing and thanksgiving, and was
accepted for the most part as an admission by
the British government of the validity of the
colonial contention. It is true, the Parliament
categorically refused to admit, in principle, any
such thing; on the contrary, the same day the
king signed the Repeal bill he signed also the
Declaratory Act, which affirmed that the king
and Parliament "had, hath, and of right ought
to have, full power and authority to make . . .
laws and statutes . . . to bind the colonies and
people of America . . . in all cases whatsoever."[4]
But the colonists were not, for the
moment, over sensitive to the assertion of
abstract rights, being well content to have won
a practical victory. They felt that the Parliament,
having repealed the Stamp Act, would

be unlikely to pass a new one, or any similar
measure laying direct or internal taxes. And
if the Parliament in practice held to their distinction
between internal and external taxes,
what more could they ask, this being the
ground on which they had elected, somewhat
uncertainly and apprehensively to be sure, to
stand in defense of their rights?

It presently appeared that their rights could
not be defended on this ground. In 1767 Parliament
passed the Townshend Acts. Townshend
himself thought the distinction between
`internal' and `external' taxes "perfect nonsense";
but since the colonists had made a
point of it he thought it wise to humor them by
laying only `external' taxes. Certain duties, to
be collected in American ports, were accordingly
laid upon the importation of various kinds of
glass, lead, paper, and tea.[5] The measure was
avowedly a tax measure, and it was estimated
that the duties might bring in some £40,000
of revenue if efficiently collected; and that these
and other duties might be efficiently collected
Customs Commissioners were appointed and
sent to Boston. Here was an emergency which
the colonists had not anticipated. The Commissioners
were as great a nuisance as the
Stamp Collectors, and more effective, since they

did not resign as the Stamp Collectors had done,
under pressure, but called in British troops to
support them, and actually collected the customs
duties, something relatively unknown
before. Under the circumstances, the colonists
were disposed to agree with Townshend that
the distinction between `internal' and `external'
taxes was "perfect nonsense." After all, a tax
was a tax; and the essence of the whole matter
was that Parliament had no constitutional power
to "take money out of their pockets," as Pitt
said, without their consent, by any kind of
tax whatever.

A more skilful dialectic was required to maintain
this ground than to maintain the old one. It
was a somewhat stubborn fact that Parliament
had for more than a hundred years passed laws
regulating colonial trade, and for regulating
trade had imposed duties, some of which had
brought into the Exchequer a certain revenue.
The Americans could not well say at this late
date that Parliament had no right to lay duties
in regulation of trade. Must they then submit
to the Townshend duties? Or was it possible
to make a clear distinction between duties
laid for the regulation of trade and duties laid
for bringing in a revenue? John Dickinson,
in a series of widely read and very influential
essays, entitled Letters from a Farmer in Penn-

sylvania to the Inhabitants of the British Colonies,
attempted to make this distinction. Arguing
at length in the old manner that Parliament
had no right to tax the colonies without their
consent, he maintained that the sole question
in respect to the Townshend duties was whether
they were duties laid for revenue or for regulation
of trade. A difficulty arose from the fact that
any duties laid on trade might be both and were
likely to be both. Well, said Dickinson, we must
determine this question by the `intention' of
the framers of the law. Did the British Parliament
pass the Townshend Act primarily with
the `intention' of raising a revenue, or primarily
with the intention of regulating trade? Clearly
the former, since the intention of raising a
revenue was explicitly avowed in the act itself.
Hence the Townshend duties were taxes, and as
such unconstitutional.

The Townshend Act presented no difficulty
on this score; but Dickinson was aware that his
method might be difficult to apply in case, as
might well be in the future, Parliament should
lay duties on trade with the real intention of
raising a revenue while openly professing the
intention of regulating trade. How then? "It
will be difficult for any person but the makers
of the laws to determine which of them are
made for regulation of trade, and which for

raising a revenue." True enough! Well, in
that case, since "names will not change the
nature of things," the intention of the makers
must be inferred from the nature of the law;
and Dickinson hoped, for his part, that his
countrymen "would never, to their latest existence,
want understanding sufficient to discover
the intentions of those who rule over them."
To derive the nature of an act from the intention
of its framers, and the intention of its framers
from the nature of the act, was no doubt what
logicians would call reasoning in a circle; but
whatever the technical defects of the argument
might be, the colonists could, and did, lay firm
hold of the general conclusion that Americans
have "the same right that all states have, of
judging when their privileges are invaded."

Meantime, it appeared that their privileges
were being invaded in other, and perhaps even
more vital, ways than by parliamentary taxation.
In 1768, after the Massachusetts Assembly
had sent a circular letter to the other colonial
assemblies asking for concerted action in defense
of their liberties, the Earl of Hillsborough,
speaking in the name of the king, categorically
directed the Assembly "to rescind the resolution
which gave birth to the circular letter
from the Speaker, and to declare their disapprobation
of, and dissent to, that rash and

hasty proceeding."[6] At an earlier date, Governor
Colden of New York had been instructed
to suspend the meetings of the Assembly of
that province until it should have made provision,
according to the terms of the Quartering
Act, for the support of British troops stationed
there.[7] These were measures of ominous import.
Of what value was it to safeguard the right of
being taxed exclusively in their own assemblies,
if the British government could by administrative
order abolish their assemblies? If the British
government could abolish colonial assemblies,
it could destroy every vestige of colonial self-government.
Clearly, therefore, the question
which was now coming to include all others was
the question of preserving the legislative independence
of the colonies.

To meet this emergency, a theory which denied
the jurisdiction of the British government
in this or that particular matter, such as the
taxing power, was inadequate; what was needed
was a theory which would define the respective
jurisdictions of the British and colonial governments
in terms of some general principle.
Dickinson had said that the colonies were
"as much dependent on Great Britain as one

free people could be on another." This might
seem to be as indefinite as anything could well
be; but the assumption on which it rests was
to be the foundation upon which the colonists
built up their theory from this time on. That
assumption was that the Americans were one
`people,' the English another, and each a
`free' people. No doubt an Englishman might
have said that this was begging the question;
the precise question at issue, he might have
maintained, is whether the Americans are a
`free' people. We maintain that they are subject
to the British Parliament. The Parliament
has always exercised jurisdiction over them in
fact; and to prove this we point you to any
number of statutes duly passed and recorded
and submitted to. If positive law is any test,
the colonies are not a `free' people, but a subject
people; and any privileges which they may have
are privileges granted or permitted by the
British Parliament.

On this ground it was indeed difficult to meet
the British contention. In order to maintain
the rights of a free people, the colonists were
accordingly forced to change the question; and
from this time on we find them less disposed to
ask, What are the rights which we possess as
British subjects? and more disposed to ask,
What are the rights which we possess as members

of the human race? This latter question
was one which Samuel Adams had been thinking
about since the year 1743 when, upon receiving
the degree of Master of Arts from Harvard
College, he argued the thesis, "Whether it be
lawful to resist the Supreme Magistrate if the
Commonwealth cannot otherwise be preserved."
In the present crisis, therefore, he was able to
formulate a theory (best stated in a letter to
Dennys De Berdt, January 12, 1769) designed
to show that the colonies were `subordinate'
but not `subject' to the British Parliament.[8]
Adams' theory of `subordination' may be taken
as the first reasoned elaboration of Dickinson's
general proposition that America is "as dependent
on Great Britain as one free people can
be on another."

For a major premise, Samuel Adams turned as
a matter of course to the current philosophy
of Natural Rights, familiar doctrine to him, and
often enough expounded in newspaper articles
or at the Caucus Club; and in bringing it in
to solve a practical issue, he doubtless felt that
he was only grounding the discussion upon
commonly accepted axioms of political thinking.
The delimitation of colonial and parliamentary
jurisdictions, Adams achieved by subordinating
all legislative authority to an authority higher

than any positive law, an authority which no
legislature could "overleap without destroying
its own foundation." This higher authority was
the British Constitution. The British Constitution,
Adams said, "is fixed," having its
foundation in "the law of God and nature."
In the British empire there are many legislatures,
all deriving their authority from, and finding
their limitations in, the Constitution. Parliament
has certainly a supreme or superintending
legislative authority in the empire, as the
colonial assemblies have a `subordinate' in the
sense of a local, legislative authority; but
neither the Parliament nor any colonial assembly
can rightly extend its jurisdiction beyond the
limits fixed by the Constitution. And therefore,
since the Constitution is founded "in the law of
God and nature," and since it is "an essential
natural right that a man shall quietly enjoy and
have the sole disposal of his property," the
Americans must enjoy this right equally with
Englishmen, and Parliament must be bound to
respect this right in the colonies as well as in
England; from which it followed that the consent
of the colonies must be sought exclusively
in their own assemblies, it being manifestly impossible
for that consent to be "constitutionally
had in Parliament."

Obviously, according to this reasoning, the

authority of the British Parliament over the
colonies would ultimately always have to stop
where the "essential natural rights" of the
colonies began. Adams had found at least one
of these rights — the right which every man had
of "quietly enjoying and having the sole disposal
of his property." But perhaps there were other
essential natural rights. What were they? Was
there any sure way of finding out? Above all, in
case there should be, as might well happen,
between Britons and Americans any serious
difference of opinion on this point, which opinion
should prevail? Admitting that the British Parliament
had a supreme or supervising jurisdiction
in the empire, it might well be argued
that in case of conflict the `supreme' rather than
the `subordinate' jurisdiction should decide.
Some authority would have to determine, in
concrete cases, what were and what were not
essential natural rights. If this authority were
the British Parliament, the essential natural
rights were likely to be few indeed; while if
the colonial assemblies were to have this authority,
the list of essential natural rights was likely
in the end to be a long one.

Few men could go more directly to the heart
of a question, once he gave his mind to it, than
that shrewd old friend of the Human Race,
Dr. Benjamin Franklin. Since 1764 he had

been giving his mind more or less continuously
to this question of colonial rights, and, without
making much noise about it, had advanced farther
than most men along the road that led to
independence. In 1765 it did not appear to
him that the Stamp Act was a measure beyond
the constitutional jurisdiction of the British
Parliament. An inexpedient measure it was
certainly, highly burdensome to the colonies,
and prejudicial to the true interests of Great
Britain; but the only advice Franklin could
give his countrymen at that time was to submit
to the law as a legally valid act, while protesting
against it as in effect an unwise one.

In the meantime Franklin had been reading
and reflecting upon all that had been written,
pro and con, about the respective rights and
prerogatives of British and colonial legislatures.
Among other things, he had read and reflected
upon the writings of John Dickinson and Samuel
Adams. The reasoning of these men seemed to
him ingenious and interesting, but not altogether
free from over refinement, a quality
which was likely to prove a defect in the handling
of practical questions. In the year 1768
he formulated the result of his reflections on
the whole matter thus:

Here at last was a clear-cut alternative —
that Parliament had a power of making all laws

for the colonies, or else that it had a power of
making no laws for them. Which should it
be? If it must be one or the other, the arguments
for the latter contention would naturally seem
to the colonists to be more numerous and weighty
than for the former. From this time on Franklin
at least assumed that the empire was composed
of separate states all subject to the king,
but each possessed of its own legislature outside
the jurisdiction of the British Parliament.
By 1770, Franklin felt that this was a position
which should be taken for granted, and no
longer argued.

Franklin's conclusion was better adapted to
the purposes of controversy than the methods
by which he reached it. His pragmatic mind,
instinctively avoiding speculative theory, sought
in historical precedent the proof of colonial
rights: the Parliamentary legislation for the
colonies since 1660 might be regarded as `usurpation,'
because the `original charters, and
the whole conduct of the Crown and nation'
demonstrated that the colonies were in origin
intended to be independent of Parliamentary

jurisdiction, and were so in fact until the Restoration.
For practical purposes, this was perhaps
an unstable foundation upon which to rest the
whole weight of the colonial contention. The
Restoration was after all a long time ago; and
the contention that early precedent established
the legislative independence of the colonies
might be met by the contention that late precedent
abolished it. Franklin's conclusion was
admirably clean cut, one that the average man
could easily grasp; but the argument on which
it was founded depended upon nice points in
law and history which gave the conclusion at
best something less than the force of a self-evident
truth. If Franklin's conclusion could
be derived from the nature of the universe as
well as from the practices of the British empire,
it would leave little to be desired as a ground on
which to stand in defense of colonial rights.

This fusion of historic and natural rights,
which is so perfectly achieved in the Declaration
of Independence, was gradually and hesitatingly
effected during the years following 1769.
James Wilson's pamphlet, Considerations on
the Nature and Extent of the Legislative Authority
of the British Parliament,[11] is perhaps the best
example of how the force of circumstances and
the exigencies of argument were preparing the

minds of the colonists for the general theory
which Jefferson was later able to take for granted
as the common sense of the matter. Wilson's
pamphlet was not published until 1774, but it
was written earlier — probably in the year 1770.
"The following sheets," the author says, "were
written during the late non-importation agreement;
but the agreement being dissolved [1770]
before they were ready for the press, it was then
judged unseasonable to publish them." Wilson,
like Franklin, found his ideas of colonial rights
expanding with the progress of the controversy;
and the process of expounding those rights led
him to conclusions which he had not anticipated.

Wilson's conclusion is thus the same as Franklin's
— that Parliament has no legislative jurisdiction
over the colonies; but his argument in
support of that conclusion has a wider sweep,
the jurisdiction of Parliament being made to
depend not merely upon what is "consistent with
law," but equally, and indeed fundamentally,
upon what is consistent with "the principles of
liberty, and with the happiness of the colonies."
Those who maintain that the Parliament has
power to bind the colonies in all cases, says
Wilson, are likely to rest their contention upon
the statement of Blackstone, "That there is
and must be in every state a supreme, irresistible,
absolute, uncontrolled authority, in which
the jus summi imperii, or the rights of sovereignty,
reside"; and they argue, with Blackstone,
that in the British Constitution this
supreme authority is vested in the king, lords,
and commons. This principle, particularly
since it was affirmed by Blackstone, no lawyer
(and Wilson was a lawyer) could deny. Wilson
does not deny it; but he maintains that the
importance of the principle "is derived from its
tendency to promote the ultimate end of all
government"; and accordingly, "if the application

of it would, in any instance, destroy,
instead of promoting, that end, it ought, in that
instance, to be rejected; for to admit it, would
be to sacrifice the end to the means, which are
valuable only so far as they advance it."

Thus expeditiously does Wilson shift the issue
from the positive conception of British sovereignty
to the "ultimate end of all government."
What then is the ultimate end of all government?

This reminds us of the Declaration of Independence,
and sounds as if Wilson were making a
summary of Locke. No doubt he was; but it
is significant that he keeps as close to his positive
law moorings as possible. It is evidently
Wilson's aim, or at least it is the effect of his
work, so inextricably to unite the positive law
applicable to British subjects with the natural

law applicable to all men that any apparent
conflict between them must necessarily be
rejected. If, therefore, any one is disposed to
say that Mr. Wilson's assertions about the
law of nature are not to be taken seriously as
against the eminent Blackstone's affirmation
that a "supreme, irresistible, absolute, uncontrolled"
authority is vested in the king, lords,
and commons, Mr. Wilson immediately stops
his mouth by another quotation from the eminent
Blackstone: "the law of nature is superior
in obligation to any other." Do you quote your
Blackstone in support of the sovereignty of the
British Parliament? Well, I accept him, as who
does not; but I in turn quote him in support
of the superior sovereignty of the law of nature.
The inferior sovereignty is obviously limited by
the superior; and accordingly the British Parliament
must be limited by the law of nature,
which affirms that the "happiness of the society
is the first law of every government."

What has to be asked, therefore, in any discussion
of colonial rights, is this:

Thus the power of sovereignty, being limited
by the superior law of nature, which affirms
that the happiness of the governed is the ultimate
end of all government, must be subject
to control by the governed in order that that
ultimate end may be attained. How then is
this control exercised in the British Constitution?

From this point on Mr. Wilson has only to
tread the familiar path of history and positive
law. Once more we follow through the old
argument that Englishmen are virtually and
actually represented in Parliament, while Americans
are not represented there in any sense.
The Parliament accordingly exercises its `supreme,
irresistible, absolute, uncontrolled' sovereign

power over Englishmen with their consent;
and is therefore supreme, absolute, uncontrolled
only in the immediate action, only so to
speak in determining the present direction of
its power, being controlled ultimately by the
British electorate which may, at a subsequent
election, give another direction to the irresistible
power of Parliament by requiring it to
annul its former action. The Americans have
not this power of ultimate control; and if the
Parliament had a legislative power over them
its sovereignty would not only be absolute in
respect to the immediate action, but in respect
to any future action; which is only to say that
its power over them would be arbitrary and despotic, something contrary to the spirit of British
history and the genius of the British Constitution.
In further support of this familiar argument,
Wilson digs up numerous cases out of
"the books of the law," going back to the time
of Richard III, to that famous Calvin's case
(properly cited, as became a lawyer — 4.
Mod. 225. 7. Rep. 22.) in which the highest
British court had decided that the Irish were
not bound by British statutes "because they do
not send knights to Parliament." In the reigns
of William and Mary similar decisions had been
made in respect to Jamaica and Virginia.

Thus Mr. Wilson proved that natural law,

the British Constitution, and the decisions of
British courts with one voice proclaimed the
colonies outside the jurisdiction of Parliament;
from which it followed that the colonies must be
subject only to the jurisdiction of their own
legislatures. If it should be objected that this
was to renounce "all dependence on Great
Britain," his reply was no, the colonies are
dependent on Great Britain in the sense that
they owe "obedience and loyalty . . . to the
kings of Great Britain." The connection between
the inhabitants of Great Britain and
those of America is the connection of fellow
subjects:

Mr. Wilson's theory of the relations of the
colonies to Great Britain was essentially the
same as that which we find in the Declaration
of Independence. Meanwhile, during the years
from 1770 to 1774, the manuscript in which
these views were expressed lay unread in its
author's desk. Wilson may have supposed,
as many men did, that the controversy with
Great Britain was at last happily in the way of
being composed. But in the year 1773, when
the British Parliament conferred upon the
East India Company privileges which gave to
that British corporation a virtual monopoly of
the American tea trade, the old dispute flared
up in a more embittered form. December 16,
1773, the cargo of tea which the East India
Company sent to Boston was dumped into the
harbor by the Boston patriots. To this act of
violence, Parliament replied by passing with

overwhelming majorities the Coercive Acts:[12]
remodelling the Massachusetts Charter; authorizing
the transfer to English courts of cases
involving either a breach of the peace or the
conduct of officials in the performance of their
duties; providing for the quartering of British
troops upon the inhabitants; and closing the
port of Boston until that town should have made
reparation for the destroyed tea. To give these
measures effect, General Gage, the commander
of the military forces in America, was made
governor of Massachusetts. "The die is now
cast," the king wrote to Lord North; "the
colonies must either submit or triumph."

The colonies were not disposed to submit;
but they realized that a crisis had arrived, and
in order to meet it effectively a congress of
deputies from all the colonies was called to
meet in Philadelphia. When the Congress
assembled, September 5, 1774, every one thought
that something ought to be done, and that that
something, whatever it might be, ought to be
supported by every colony, and by every man
who wished to be thought an American patriot.
But as to what that something was that ought
to be done, there was naturally a great diversity
of opinion. The general feeling was that if
the colonies could convince the British people

that they were in dead earnest about their rights,
and without wishing for independence were
thoroughly united in the determination to defend
them, the British government would
back down in this case as it had done before.
Congress was not an association of scholars
assembled to conduct a scientific investigation
into the legal and historical basis of the British
Constitution, but a political body endeavoring
to bring about a certain practical result. This
primary practical aim was to unite the colonies
on measures which would be most likely to
induce the British government to make concessions.
Inevitably, therefore, the resulting
action of Congress, both as to what it did and
as to what it said, was a compromise. Its
Declaration of Rights was necessarily such a
compromise. The Congress, in framing its
declaration, was in the nature of the case less
concerned with the logical coherence and validity
of the statement which it made, than with
making such a statement as would be acceptable
to the greatest number of Americans, and
at the same time best adapted to win concessions
from Great Britain.

If, therefore, the first Continental Congress
did not adopt the theory of British-American
relations which we find in the Declaration of
Independence, it was not because the theory

was a novel one. In 1774 it was familiar doctrine
to all men; and the most radical were
quite ready to take their stand upon it at that
time. Before departing for the Virginia Convention
Jefferson prepared, as he says, "what
I thought might be given, as instruction, to the
Delegates who should be appointed to attend
the general congress." This paper, afterwards
printed as A Summary View of the Rights of
British America,[13] does not formulate or argue
the theory that the colonies are bound to Great
Britain only through the king; it takes it for
granted; the theory is implicit in the statement,
as it is in the Declaration of Independence.
Jefferson would address the remonstrance to
the king, who should be "reminded"

Unhappily the British Parliament, from an
early date, usurped a power of legislating for
the colonies; among other things, restricting
"the exercise of a free trade with all parts of
the world, possessed by the American colonists,
as of natural right"; and these unjust encroachments,
once established, were followed by others,
which in late years had so multiplied as no
longer to be tolerable. Having thus by implication
set forth the theory of the constitution
of the empire, Jefferson goes on to specify the
several acts of the British Parliament which are
obviously, from the point of view of this theory,
unconstitutional.

Jefferson, falling ill on the way to the Convention,
forwarded two copies of his paper, one of
which was laid before the assembly by Peyton
Randolph. But "tamer sentiments were preferred,"
Jefferson says, "and, I believe, wisely
preferred; the leap I proposed being too long,
as yet, for the mass of our citizens." Of the

reception of Jefferson's paper in the Virginia
Convention, Edmund Randolph says, in his
MSS History of Virginia:

If the first Continental Congress did not, in
respect to the theory of American rights, occupy
the lofty ground of Mr. Jefferson, neither did
it take the lower ground of Mr. Dickinson; it
seems, on the contrary, to have stood midway
between these two positions, inviting every man
to take which of them he found most comfortable.
What the difficulties were that led
Congress to take this stand we learn in part
from that invaluable Diary of John Adams,
who was a member of the committee appointed
to prepare the Declaration of Rights. In some
brief notes of the debates in the committee[14]
Adams gives us an illuminating glimpse of the
conflicting opinions that had to be reconciled;
and in his Autobiography, written in 1805, we
find the following statement of the way in which
that conflict worked itself out to a practical
conclusion.

In the light of this illuminating passage
(quite possibly inaccurate in some details,
having been written in 1805), we can understand
the Declaration of Rights adopted by the
first Congress. We can understand why the
resolutions avoided theory as much as possible;
why they `declared' more than they argued or
expounded, confining themselves in the main to
stating the specific rights which the colonies
claimed; why in certain cases this statement is
ambiguous, being couched in phrases that could
be taken to mean more or less, according to the
disposition of the reader. The Declaration
states, to begin with,

Every reader could take his choice, according to
disposition laying most stress on the natural law,
or on the principles of the British Constitution
as he understood those principles, or else on the
colonial charters, documents which he might indeed
prefer to call compacts. Having laid this
broad foundation for the rights of the colonies,
the Declaration goes on to declare what these
rights specifically are.

Thus far resolution number four; very carefully
stated, with all possible qualification;
probably satisfactory as it stands to Mr.
Dickinson and many men; but not satisfactory
to Mr. Adams and many others, who do not
wish to admit the legislative authority of the
British Parliament in all cases of external
polity, or to give to it an unlimited power of

regulating colonial trade. What shall be done
about this knotty point? The rest of resolution
four must be the phrasing by which Mr. Adams
was at last able to satisfy every one in part by
satisfying no one fully; a phrasing which admits
the authority of Parliament as of fact, which does
not expressly deny it as of right, but which by
implication leaves it to be supposed that the
exercise of that authority both as of fact and of
right is dependent upon the consent of the
colonies, which at present they give but may in
future withdraw.

Rough sledding this; but once over the difficult
ground, all is smooth enough going the rest of the
way.

Both the objects and the methods of the
first Congress were those also of the second Congress
until the year 1776. In the spring and summer
of 1775, even after the Battle of Lexington
had precipitated a state of war, the belief still
persisted that Great Britain would in the end
back down if the colonies only remained united
and made it clear that even now they desired
reconciliation and not independence. It was
still necessary therefore to satisfy the timid as
well as the aggressive. The timid wished to
rely primarily upon petition and remonstrance
and the non-intercourse measures. One day
Mr. Dickinson, following John Adams out of the
Congress hall, said to him in great heat: "What
is the reason, Mr. Adams, that you New England
men oppose our measures of reconciliation?
There now is Sullivan, in a long harangue, following
you in a determined opposition to our
petition to the king. Look ye! If you don't
concur with us in our pacific system, I and a
number of us will break off from you in New
England, and we will carry on the opposition by
ourselves in our own way." Mr. Adams was at
that moment "in a very happy temper," which
was not always the case, and so, he says, he was
able to reply very coolly. "Mr. Dickinson,
there are many things which I can very cheerfully
sacrifice to harmony, and even to unanimity;

but I am not to be threatened into an
express adoption or approbation of measures
which my judgment reprobates. Congress must
judge, and if they pronounce against me, I must
submit, as, if they determine against you, you
ought to acquiesce."[17]

Congress did decide. It decided to adopt
Mr. Dickinson's petition; and to this measure
Mr. Adams submitted, not without confiding
to James Warren his opinion that "a certain
great Fortune and piddling Genius . . . has
given a silly Cast to our whole Doings."[18] But
the Congress also decided to raise a continental
army for carrying on armed resistance; appointed
George Washington, Esq. Commander
in Chief of that army; and in justification of
these measures published a Declaration of the
Causes and Necessity of Taking up Arms.

This Declaration, taking no account of Mr.
Dickinson's opposition to Mr. Adams' measures
or of Mr. Adams' opposition to Mr. Dickinson's
measures, affirmed that "our union is perfect."
It also proclaimed the object of this perfect
union.

The hope of reconciliation died slowly. Even
after the king refused to receive the Petition,
even after the British Government issued the
Prohibitory Act, December 22, 1775, which
declared the colonies out of its protection and
proclaimed a blockade of all their ports, many
men still clung to this hope. They clung to it in
desperation, partly because they had so often
and so explicitly declared that separation was
no part of their purpose and utterly abhorrent
to their desire. But besides all this, most
Americans did in fact look forward with apprehension
to a permanent disruption of the British
empire. They had long been proud of the
British empire, of its achievements, of its name
and fame in the world; it was their empire too;
they bore the name and shared the fame.
What Americans clung to with desperation, and

relinquished with regret, was that traditional
but now vanishing conception of themselves as
a people sharing the rich inheritance of English
history and freely contributing to its enlargement
and perpetuation. To surrender this conception
was to renounce the prepossessions that
had given consistence to all their thought, to
suppress the emotions that had sustained and
fortified their lives.

Not desire, but practical difficulties, forced
them to adopt separation from Great Britain
as the object of their efforts. In the winter
of 1776 the trend of opinion was towards independence
as the only alternative to submission.
The first Congress had adopted the non-intercourse
measure in order to force Great Britain
to make concessions; the second Congress had
taken up arms in order to force Great Britain
to make concessions. If Great Britain made
concessions speedily, all would be well; but if
she insisted on making war the colonies would
have to abandon either the war measure or the
non-intercourse measure. As Mr. Zubly kept
repeating in Congress, the colonies must speedily
obtain one of two things — "A reconciliation
with Great Britain or the means of carrying on
the war."[20] They could not carry on war with
one hand, while destroying the trade and prosperity

of the colonies with the other. "We are
between hawk and buzzard," said Livingston;
"we puzzle ourselves between the warlike and
the commercial opposition."[21] To carry on
war they must revive trade; to revive trade they
must obtain protection for it; to obtain this
protection they must have a "treaty with a
foreign power." But "in what character shall
we treat?" asked Mr. Wythe. "As subjects of
Great Britain — as rebels? If we should offer
our trade to the Court of France, would they
take notice of it any more than if Bristol or
Liverpool should offer theirs, while we profess
to be subjects? No. We must declare ourselves
a free people."[22] Without the aid of France the
colonies could not long wage war against Great
Britain; and to obtain the aid of France they
had to make it plain to her that they were
fighting for independence and not reconciliation.
From April 6, 1776, when the Congress opened
the colonial ports to the trade of the world, the
Declaration of Independence was therefore a
foregone conclusion. "As to declarations of
independency," wrote John Adams, "read our
privateering laws and our commercial laws.
What signifies a word?"

From this moment the old policy of compromise
was rapidly abandoned. Those who on

this ground would not support the patriot
cause had to be ignored or suppressed; and now
that independence was the object, it was not
only possible but necessary, in formulating the
rights of the colonies, to adopt a theory of
British-colonial relations in the light of which
the act of separation could be regarded as a
step that the colonies had always had a moral
and legal right to take. Such a theory could
only be found in a close union of the natural
rights philosophy of government with a conception
of the empire as a confederation of
free peoples submitting themselves to the same
king by an original compact voluntarily entered
into, and terminable, in the case of any member,
at the will of the people concerned. Such is
the theory which, suggested by Franklin as
early as 1768, elaborated by Wilson in 1770,
and taken for granted by Jefferson in 1774,
determines the form and character of the
Declaration of Independence and gives to it a
high degree of organic unity.

In the Declaration the natural rights philosophy,
although clearly formulated, is not argued
but is taken for granted; the theory of Britishcolonial
relations is not even formulated, but
lies as it were embedded in the statement of
grievances against the king, a kind of concealed
framework upon which Jefferson built up his

finished structure of concrete oppressions. Expressly
stated, the theory that is implicit in the
Declaration might be put somewhat as follows:

Thus step by step, from 1764 to 1776, the
colonists modified their theory to suit their
needs. They were not altogether unaware of
the fact. "Shall we," cries a Virginian in despair,
"Proteus-like perpetually change our
ground, assume every moment some new strange
shape, to defend, to evade?" This was precisely
what could not be avoided; for the
underlying purpose which conditioned their
action was always the determination to be free.
They felt that they had been free in fact, and
that they ought therefore to be free in law.
"British subjects," said Franklin in 1755, "by
removing to America, cultivating a wilderness,
extending the domain, and increasing the wealth,
commerce, and power of the mother country,
at the hazard of their lives and fortunes, ought
not, and in fact do not thereby lose their native
rights." Profoundly convinced that they deserved
to be free, Americans were primarily
concerned with the moral or rational basis of
their claims. "To what purpose is it to ring
everlasting changes . . . on the cases of Manchester
. . . and Sheffield?" exclaims James
Otis. "If these now so considerable places are
not represented, they ought to be." This
"ought to be" is the fundamental premise of
the whole colonial argument. But the "ought
to be" is not ultimately to be found in positive

law and custom, but only in something outside
of, beyond, above the positive law and custom.
Whenever men become sufficiently dissatisfied
with what is, with the existing regime of positive
law and custom, they will be found reaching out
beyond it for the rational basis of what they
conceive ought to be. This is what the Americans
did in their controversy with Great Britain;
and this rational basis they found in that underlying
preconception which shaped the thought
of their age — the idea of natural law and natural
rights.