authority of parliament over the british colonies.
before proceeding with a summary statement of events which followed the repeal of the stamp act, i think it proper to state the nature and extent of the authority of parliament over the colonies, as interpreted by legislative bodies and statesmen on both sides of the atlantic. mr. bancroft well remarks:
"it is the glory of england that the rightfulness of the stamp act was in england itself a subject of dispute. it could have been so nowhere else. the king of france taxed the french colonies as a matter of course; the king of spain collected a revenue by his own will in mexico and peru, in cuba and porto rico, and wherever he ruled. the states-general of the netherlands had no constitutional doubt about imposing duties on their outlying colonies. to england exclusively belongs the honour that between her and her colonies the question of right could arise; it is still more to her glory, as well as to her happiness and freedom, that in that contest her success was not possible. her principles, her traditions, her liberty, her constitution, all forbade that arbitrary rule should become her characteristic. the shaft aimed at her new colonial policy was tipped with a feather from her own wing."
in the dispute which took place in 1757 between the legislative assembly of massachusetts and the earl of loudoun as to the extension of the mutiny act to the colonies, and the passing of an act by the local legislature for the billeting of the troops, as similar in its provisions as possible to those of the mutiny act—so that it was accepted by the earl of loudoun—the massachusetts assembly vindicated their motives for [pg 318]denying the application of the mutiny act to the colonies, and for providing quarters for the military by an act of their own, yet recognizing the legitimate authority of parliament, in a message to governor barnard containing the following words:
"we wish to stand perfectly right with his lordship (the earl of loudoun), and it will be a great satisfaction to us if we may be able to remove his misapprehension of the spring and motives of our proceedings. his lordship is pleased to say that we seem willing to enter into a dispute upon the necessity of a provincial law to enforce a british act of parliament.
"we are utterly ignorant as to what part of our conduct could give occasion for this expression. the point in which we were obliged to differ from his lordship was the extent of the provision made by act of parliament for regulating quarters. we thought it did not reach the colonies. had we thought it did reach us, and yet made an act of our own to enforce it, there would have been good grounds for his lordships exception; but being fully persuaded that the provision was never intended for us, what better step could we take than, agreeable to the twentieth section of the articles of war, to regulate quarters as the circumstances of the province require, but still as similar to the provisions made in england as possible? and how can it be inferred from thence that we suppose a provincial act necessary to enforce an act of parliament?
"we are willing, by a due exercise of the powers of civil government (and we have the pleasure of seeing your excellency concur with us), to remove, as much as may be, all pretence of necessity of military government. such measures, we are sure, will never be disapproved by the parliament of great britain, our dependence upon which, we never had a desire or thought of lessening. from the knowledge your excellency has acquired of us, you will be able to do us justice in this regard.
"in our message to your excellency, which you transmitted to his lordship, we declared that the act of parliament, the extent of which was then in dispute, as far as it related to the plantations, had always been observed by us.
"the authority of all acts of parliament which concern the colonies, and extend to them, is ever acknowledged in all the[pg 319] courts of law, and made the rule in all judicial proceedings in the province. there is not a member of the general court, we know no inhabitant within the bounds of the government, that ever questioned this authority.
"to prevent any ill consequences which may arise from an opinion of our holding such principles, we now utterly disavow them, as we should readily have done at any time past if there had been occasion for it; and we pray that his lordship may be acquainted therewith, that we may appear in a true light, and that no impressions may remain to our disadvantage."
this is a full and indefinite recognition of the supreme authority of parliament, even to the providing of accommodation for the soldiers; and such was the recognition of the authority of parliament throughout the colonies. "it was generally allowed," says dr. ramsay, "that as the planting of colonies was not designed to erect an independent government, but to extend an old one, the parent state had a right to restrain their trade in every way which conduced to the common emolument. they for the most part considered the mother country as authorized to name ports and nations to which alone their merchandise should be carried, and with which alone they should trade; but the novel claim of taxing them without their consent was universally reprobated as contrary to their natural, chartered, and constitutional rights. in opposition to it, they not only alleged the general principles of liberty, but ancient usage. during the first hundred and fifty years of their existence they had been left to tax themselves and in their own way." "in the war of 1755, the events of which were fresh in the recollection of every one, the parliament had in no instance attempted to raise either men or money in the colonies by its own authority. as the claim of taxation on one side and the refusal on the other were the very hinges on which the revolution turned they merit a particular discussion."
the only exception to the authority of parliament over the colonies was levying internal taxes. a marked distinction was made between external and internal taxes. it was admitted upon all hands that the parliament had the constitutional right[pg 320] to impose the former, but not the latter. the tory opposition in the british parliament denied the distinction between external and internal taxes, and maintained that if parliament had the right to impose the one they had equally the right to impose the other; but the advocates of american rights maintained the distinction between external and internal taxation; and also dr. franklin, in his evidence at the bar of the house of commons, in february, 1766, which i have quoted at length above, as the best exposition of the colonial side of the questions at issue between england and america. i will here reproduce two questions and answers on the subject now under consideration:
q.—"you say they do not object to the right of parliament, in levying duties on goods, to be paid on their importation; now, is there any kind of difference between a duty on the importation of goods and an excise on their consumption?"
a.—"yes, a very material one; an excise, for the reasons i have just mentioned, they think you can have no right to levy within their country. but the sea is yours; you maintain by your fleets the safety of navigation in it, and keep it clear of pirates; you may have therefore a natural and equitable right to some toll or duty on merchandise carried through that part of your dominions, towards defraying the expense you are at in ships to maintain the safety of that carriage."
q.—"does this reasoning hold in the case of a duty laid on the produce of their lands exported? and would they not then object to make a duty?"
a.—"if it tended to make the produce so much dearer abroad as to lessen the demand for it, to be sure they would object to such a duty; not to your right of levying it, but they would complain of it as a burden, and petition you to lighten it."
it will be observed that in these words of dr. franklin there is the fullest recognition of the right of parliament to impose duties on all articles imported into, or exported from, the colonies; the only exception was the levying direct or internal taxes for the purposes of revenue, the right to impose which was held, and we think justly held, to belong to the representative legislatures elected by the colonists themselves. such also were the views of the two great statesmen, pitt and burke, who with such matchless eloquence advocated the rights of the colonies—whose speeches have become household words in america, and are found in all their school books. mr. pitt, in a speech which i have quoted at length in a previous chapter, said expressly:
"let the sovereign authority of this country over the colonies be asserted in as strong terms as can be devised, and be made to extend to every point of legislation whatsoever, that we may bind their trade, confine their manufactures, and exercise every power except that of taking their money out of their pockets without their consent."
mr. pitt therefore advocated the repeal of the stamp act with all his fiery eloquence and energy, saying that he rejoiced that the colonists had resisted that act—not by riots or force of arms, but by every constitutional mode of resistance, in the expression of public opinion against an unjust and oppressive measure. mr. pitt's speech has been quoted by american writers, and inserted in american school books, to justify the resistance of america to england in the revolution which was declared in 1776; but his speech was delivered, and the act against which it was delivered was repealed, ten years before. the united empire loyalists were as much opposed to the stamp act as any other colonists, and rejoiced as heartily at its repeal.
edmund burke was the appointed agent of the province of new york, and no member of the house of commons equalled him in the eloquent and elaborate advocacy of the popular rights of the colonies. extracts from his speeches have been circulated in every form, and in unnumbered repetition in american periodicals and school books; but what he said as to the authority of parliament over the colonies has not found so wide a circulation in america. in advocating the repeal of the stamp act, in his celebrated speech on american taxation, mr. burke said:
"what is to become of the declaratory act, asserting the entireness of british legislative authority, if we abandon the practice of taxation? for my part, i look upon the rights stated in that act exactly in the manner in which i viewed them on its very first proposition, and which i have often taken the liberty, with great humility, to lay before you. i look, i say, on the imperial rights of great britain, and the privileges which the colonists ought to enjoy under those rights, to be just the most reconcilable things in the world. the parliament of great britain sits at the head of her extensive empire in two capacities: one, as the local legislature of this island, providing for all things at home, immediately, and by no other instrument than the executive power; the other, and i think her nobler capacity, is what i call her imperial character, in which, as from the throne of heaven, she superintends all the several inferior legislatures, and guides and controls them all, without annihilating any. as all these provincial legislatures are only co-ordinate with each other, they ought all to be subordinate to her, else they can neither preserve mutual peace, nor hope for mutual justice, nor effectually afford mutual assistance. it is necessary to coerce the negligent, to restrain the violent, and to aid the weak and deficient, by the overruling plenitude of its power. she is never to intrude into the place of the others while they are equal to the common ends of their institution. but in order to enable parliament to answer all these ends of provident and beneficent superintendence, her powers must be boundless. the gentlemen who think the powers of parliament limited, may please themselves to talk of requisitions. but suppose the requisitions are not obeyed? what! shall there be no reserved power in the empire to supply a deficiency which may weaken, divide, and dissipate the whole? we are engaged in war; the secretary of state calls upon the colonies to contribute; some would do it; i think most would cheerfully furnish whatever is demanded. one or two, suppose, hang back, and, easing themselves, let the stress of the draft be on the others—surely it is proper that some authority might legally say, 'tax yourselves for the common supply, or parliament will do it for you.' this backwardness was, as i am told, actually the case of pennsylvania, for some short time towards the beginning of the last war, owing to some internal dissensions in the colony. but whether the act were so, or otherwise, the case is equally to be provided for by a competent sovereign power. but then this ought to be no ordinary power, nor ever used in the first instance. this is what i meant when i have said at various times that i consider the power of taxing in parliament as an instrument of empire, and not as a means of supply."
footnotes:
history of the united states, vol. v., chap, xx., pp. 366, 367.
hutchinson's history of massachusetts bay, vol. iii., chap. i, pp. 65, 66.
colonial history, vol. i., pp. 327, 328.
speech on american taxation.
