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CHAPTER IX

THE STAMP ACT CONGRESS, 1765

HE claim of Great Britain of the right to tax the

THE

Colonies was based upon two grounds: First, that Great Britain and the Colonies formed one political organism, and that all parts of the same political organism ought to contribute to its support according to laws established by the Central Legislature and enforced by the Central Executive; and second, that it was unjust to Great Britain that it should expend the money for the common defence and welfare and receive nothing, or only so much as the Colonies chose voluntarily to contribute, for so doing. Both these propositions were met by writers of great ability in the Colonies.

The first in the field was James Otis of Massachusetts, who had already made himself famous by resigning the office of Prosecutor for the Crown when the duties of the office required him to uphold the writs of assistance attempted to be issued by the courts, as general searchwarrants, in aid of the customs officers, and by appearing, in opposition to the Crown, to dispute the constitutionality of the writs.

In 1764, he published a pamphlet entitled The Rights of the Colonies Asserted and Proved, in which he endeavored to prove that the power of Parliament, whether exercised in the Realm or in the Empire, was the same, but that it was conditioned and limited by the principles of natural justice-which merely meant that the courts of the Realm and` of the Colonies should

determine the validity of Acts of Parliament. He said:

The question is not upon the general power of Parliament, but whether it is not circumscribed within some equitable and reasonable bounds. It is hoped that it will not be considered as a new doctrine that even the authority of the Parliament of Great Britain is circumscribed by certain bounds, which, if exceeded, their acts become those of mere power without right, and consequently void.

In support of this proposition, he quoted dicta of Lord Coke and Lord Hobart, which, however, had never been followed by the English courts. Nothing was better settled than that there were no constitutional conditions or limitations upon the power of Parliament when exercised within the Realm of Great Britain, and as he did not differentiate the Realm from the Empire, his argument did not help to elucidate the great question,—which was, how the rights and liberties of the Colonies and of their inhabitants could be preserved consistently with the Colonies remaining in a relationship of dependency on Great Britain as their Imperial State,-but led, by an inevitable tendency, directly to independence, as must every argument based on the proposition that communities which Nature has made dependencies of a state are not dependencies, but integral parts of its body and personality.

Otis's pamphlet was referred to with approval in a remonstrance against the Stamp Act sent by the Massachusetts Legislature to the Board of Trade in 1765, and produced much ill-feeling in England. It was one thing to claim that the powers of Parliament were conditioned and limited in the dependencies because the powers of Great Britain as the Imperial State over its dependencies were conditioned and limited and the powers of Parliament were only those of the Imperial State, and quite

another to say that the powers of Parliament were in all cases conditioned and limited. The first position raised the question of the political personality of the Colonies and their relationship as political persons to the State of Great Britain; the other attacked the Constitution of the State of Great Britain.

Daniel Dulany, of Maryland, in his Considerations on the Propriety of Imposing Taxes on the British Colonies, published in 1765, made a decided advance toward the solution of the problem of constitutional dependency. Taking as fundamental the proposition that Great Britain was the Imperial State, to which the Colonies were constitutionally related as political persons, or States, he endeavored to define the character and extent of the power of Parliament in the Empire-or, what is the same thing, of the power of the Imperial State, acting through Parliament. He was the first to describe the power of the Imperial State as a power of "superintendence," that is, a power limited by the necessity of its interference in each particular case as it arose. He said:

The Colonies are dependent upon Great Britain, and the supreme authority vested in the King, Lords and Commons may justly be exercised to secure or preserve their dependence, whenever necessary for that purpose. This authority results from, and is implied in the idea of the relation subsisting between England and her Colonies; for considering the nature of human affections, the inferior is not to be trusted with providing regulations, to prevent his rising to an equality with his superior. But, though the right of the superior to use the proper means for preserving the subordination of his inferior is admitted, yet it does not necessarily follow that he has a right to seize the property of his inferior when he pleases, or to command him in everything, since, in the degrees of it, there may very well exist a dependence and inferiority, without absolute vassalage and slavery. In what the superior may rightfully control, or compel, and in what the

inferior ought to be at liberty to act without control or compulsion, depends upon the nature of the dependence and the degree of the subordination; and these being ascertained, the measure of obedience and submission and the extent of the authority and superintendence will be settled.

May not then the line be distinctly and justly drawn between such acts as are necessary or proper for preserving or securing the dependence of the Colonies, and such as are not necessary or proper for that very important purpose?

When credit comes to be given to those great men who were responsible for the clause in the Constitution of the United States relating to the government of dependencies, Dulany must receive his share of honor for having suggested the principle which underlies the phrase "and make all needful rules and regulations."

In 1765, Stephen Hopkins, of Rhode Island, a man of great prominence in that Colony, who had filled its highest offices and had been one of its delegates to the Albany Congress of 1754, in his pamphlet The Grievances of the American Colonies Candidly Examined, supplemented the suggestion of Dulany that the power of Parliament in the Empire was limited by the necessity of its interference in each particular case, by suggesting that its power was also conditional upon an expert investigation as a preliminary to all its action. He said:

Although each of the Colonies hath a Legislature within itself, to take care of its interests and provide for its peace and internal government, yet there are many things of a more general nature, quite out of the reach of these particular Legislatures, which it is necessary should be regulated, ordered and governed. One of this kind is, the commerce of the whole British Empire, taken collectively, and that of each Kingdom and Colony in it, as it makes a part of that whole. Indeed, everything that concerns the proper interest and fit govern

ment of the whole Commonwealth, of keeping the peace, and subordination of all the parts towards the whole, and one among another, must be considered in this light. Amongst these general concerns, perhaps money and paper credit, those grand instruments of all commerce, will be found also to have a place. These, with all other matters of a general nature, it is absolutely necessary should have a general power to direct them; some supreme and overruling authority, with power to make laws and form regulations for the good of all, and to compel their execution and observation. It being necessary some such general power should exist somewhere, every man of the least knowledge of the British Constitution will be naturally led to look for and find it in the Parliament of Great Britain. That grand and august legislative body must from the nature of their authority and the necessity of the thing, be justly vested with this power. Hence it becomes the indispensable duty of every good and loyal subject, cheerfully to obey and patiently submit to all the acts, laws, orders and regulations that may be made and passed by Parliament, for directing and governing all these general matters.

Here it may be urged by many and, indeed, with great appearance of reason, that the equity, justice and beneficence of the British Constitution will require that the separate Kingdoms and distinct Colonies, who are to obey and be governed by these general laws and regulations, ought to be represented, some way or other, in Parliament, at least whilst these matters are under consideration. Whether the Colonies will ever be admitted to have representation in Parliament-whether it be consistent with their distant and dependent state-and whether, if it were admitted, it would be to their advantageare questions we will pass by; and observe, that these Colonies ought in justice, and for the very evident good of the whole Commonwealth, to have notice of every new measure about to be passed, by which their rights, liberties or interests may be affected. They ought to have such notice that they may appear and be heard by their Agents, by counsel, or written representation, or by some other equitable and effectual way. The Colonies are at so great a distance from England that

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