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CHAPTER XV

THE FEDERAL EMPIRE DEFINED, 1774

URING the quiescent period from 1770 to 1774,

the most noteworthy contribution to the thought on the subject of the constitutional relationship between Great Britain and the Colonies was a pamphlet written by James Wilson of Philadelphia (who afterwards became an Associate Justice of the Supreme Court of the United States at its first formation), entitled Considerations on the Nature and Extent of the Legislative Authority of the British Parliament.

In this pamphlet, written when Wilson was twentyeight years of age and a student in the office of John Dickinson, he took the ground that the King was the sole representative of the State of Great Britain, for the administration of its relations with the Colonies, thus denying any power whatever to Parliament in this respect. After arguing that the liberties of the people of America could not, in the nature of things, be derived from the will of the people of England, but were natural rights, and that they could not be derived from the adjudication of the people of England, because they were interested parties and an incompetent and partial tribunal, he concluded, after an examination of the cases and of the methods of administration of the Colonies theretofore practiced, that the dependence of the Colonies was wholly upon the King, and that, in the performance of his functions, the King had legislative powers within a definite sphere. These legislative powers Wilson derived from

the principle of allegiance. As it is now apparent that the whole doctrine of allegiance has nothing to do with the question of constitutional relationship between political communities in the time of peace, and has its sole significance only as bearing on the relations between the State and its inhabitants arising out of war, present or prospective, it is unnecessary to consider what he said on this subject. The closing words of the essay, on the subject of the relationship of the King to the Colonies, were as follows:

This is a The prin

Now we have explained the dependence of the Americans. They are the subjects of the King of Great Britain. They owe him allegiance. They have a right to the benefits which arise from preserving that allegiance inviolate. They are liable to the punishments which await those who break it. dependence, which they have always boasted of. ciples of loyalty are deeply rooted in their hearts; and there they will grow and bring forth fruit, while a drop of vital blood remains to nourish them. Their history is not stained with rebellious and treasonable machinations; an inviolable attachment to their Sovereign, and the warmest zeal for his glory, shine in every page.

From this dependence, abstracted from every other source, arises a strict connection between the inhabitants of Great Britain and those of America. They are fellow-subjects; they are under allegiance to the same Prince; and this union of allegiance naturally produces a union of hearts. It is also productive of a union of measures through the whole British dominions. To the King is intrusted the direction and management of the great machine of government. He therefore is fittest to adjust the different wheels, and to regulate their motions in such a manner as to co-operate in the same general designs. He makes war: he concludes peace: he forms alliances: he regulates domestic trade by his prerogative, and directs foreign commerce by his treaties with those nations, with whom it is carried on. He names the officers of government;

so that he can check every jarring movement in the administration. He has a negative on the different Legislatures throughout his dominions, so that he can prevent any repugnancy in their different laws.

The connection and harmony between Great Britain and us, which it is her interest and ours mutually to cultivate, and on which her prosperity, as well as ours, so materially depends, will be better preserved by the operation of the legal prerogatives of the Crown, than by the exertion of an unlimited authority by Parliament.

To Wilson's essay there was appended, in the printed pamphlets, the following note, which, though not signed, was evidently written by Dickinson, since, in his next published pamphlet, to which reference will hereafter be made, Dickinson showed a decided tendency toward Wilson's view in the modified form suggested by this note, and since Wilson's essay was published almost contemporaneously with Dickinson's pamphlet in which these views were expressed:

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After considering, with all the attention of which I am capable, the foregoing opinion--that all the different members of the British Empire are distinct States, independent of each other, but connected together under the same Sovereign in right of the same Crown-I discover only one objection that can be offered against it. But this objection will, by many, be deemed a fatal one. "How," it will be urged, can the trade of the British Empire be carried on, without some power, extending over the whole, to regulate it? The legislative authority of each part, according to your doctrine, is confined within the local bounds of that part: how, then, can so many interfering interests and claims, as must necessarily meet and contend in the commerce of the whole, be decided and adjusted?''

Dickinson's criticism, it will be perceived, amounted to his asking the question: Granted that the functions of

Great Britain, as the Imperial State, toward the Colonies, are such as can be performed properly only by the expert branch of the British Government, how can these functions be performed except through the medium of legislation, and how can the King legislate?

To this Wilson replied in a note which, in the pamphlets, was printed immediately below Dickinson's. This note was as follows:

Permit me to answer these questions by proposing some others in my turn. How has the trade of Europe-how has the trade of the whole globe, been carried on? Have those widely extended plans been formed by one superintending power? Have they been carried into execution by one superintending power? Have they been formed-have they been carried into execution, with less conformity to the rules of justice and equality, than if they had been under the direction. of one superintending power?

It has been the opinion of some politicians, of no inferior note, that all regulations of trade are useless; that the greatest part of them are hurtful; and that the stream of commerce never flows with so much beauty and advantage, as when it is not diverted from its natural channels. Whether this opinion is well founded or not, let others determine. Thus much may certainly be said, that commerce is not so properly the object of laws, as of treaties and compacts. In this manner, it has been always directed among the several nations of Europe.

But if the commerce of the British Empire must be regulated by a general superintending power, capable of exerting its influence over every part of it, why may not this power be intrusted to the King, as a part of the royal prerogative? By making treaties, which it is his prerogative to make, he directs the trade of Great Britain with the other States of Europe: and his treaties with those States have, when considered with regard to his subjects, all the binding force of laws upon them. (1. Bl. Com. 252.) Where is the absurdity in supposing him vested with the same right to regulate the commerce of the distinct parts of his dominions with one another, which he has

to regulate their commerce with foreign States? If the history of the British Constitution, relating to this subject, be carefully traced, I apprehend we shall discover, that a prerogative in the Crown, to regulate trade, is perfectly consistent with the principles of law. We find many authorities that the King cannot lay impositions on traffic; and that he cannot restrain it altogether, nor confine it to monopolists; but none of the authorities, that I have had an opportunity of consulting, go any farther. Indeed many of them seem to imply a power in the Crown to regulate trade, where that power is exerted for the great end of all prerogative-the public good.

If the power of regulating trade be, as I am apt to believe it to be, vested, by the principles of the Constitution, in the Crown, this good effect will flow from the doctrine; a perpetual distinction will be kept up between that power, and a power of laying impositions on trade. The prerogative will extend to the former; it can, under no pretence, extend to the latter: as it is given, so it is limited, by the law.

Dickinson's criticism thus forced Wilson finally to take the position that the King of Great Britain had, and of right ought to have, under a proper constitution of the British Federal Empire, the right to legislate to the extent necessary to enable the State of Great Britain to fulfil its functions as the Imperial State. This conclusion was strictly logical, so long as Parliament persisted in its claim that its power in the Empire, as well as in the Realm, was unconditioned and unlimited. As that claim could not be allowed by the Colonies, they necessarily had to find an Imperial Legislature somewhere in the whole political organism composed of Great Britain and the Colonies, which could exercise powers of legislation to the extent necessary to effectuate the dispositions regarding the Colonies made by the King in Council, or to admit that they were seeking independence. Such an Imperial Legislature Wilson found in the King in Council.