CHAPTER I.

THE PROGRESS OF AMERICAN INDEPENDENCE AND ITS

BASIS IN THE LAW OF ENGLAND.

§ 1. It seems proper in the beginning to pass in review the leading facts and events that occurred previous to the Revolutionary War which show or tend to show the growth and power of the spirit of independence, the influence of those events in that memorable struggle, and also to consider the foundation in law on which the Declaration was placed by its authors and defenders.

In passing I hope to disabuse the public mind in some degree of the degrading error that the rate of taxation, whether burdensome or light, imposed by the British Parliament had any considerable part in producing the Revolutionary War.

I trust that I may also do something in aid of a correct understanding of the theory of representation which was maintained by our ancestors in their contest with the King and Parliament of Great Britain. In pursuing this plan I purpose to note some of the facts in our colonial history calculated to illustrate our legal relations to the mother country, which I assume were relations of equality and not of political inferiority to the people of England.

§ 2. It is an accepted opinion, common if not general, that as long as the British Parliament legislated wisely for the American Colonies the right was not questioned, and that the oppressive character of the Stamp Act and the tax acts from 1764 to 1774 led to the Declaration of Independence. The character of those acts contributed to the formal Declaration of July 4, 1776, but the principles of that Declaration had been before and often asserted. Moreover, the right of

Parliament to legislate for the Colonies had been constantly denied from the first, although the authority of the king had never been questioned until he allied himself with the Parliament and aided that body in establishing its jurisdiction over America. The Declaration was against the king, and one of the facts submitted to a candid world was this: "He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws: giving his assent to their acts of pretended legislation."

§ 3. The common consent of men accords to the Declaration of American Independence the first place among the events which followed the discovery of this continent.

The adventurers from the South of Europe of the fifteenth, sixteenth, and even of the seventeenth centuries sought for fields of gold beneath skies of perpetual summer.

Of hardy enterprise there was but little, and of faith in the organization of great States there was none. Columbus had been a beggar at the foot of thrones for the necessary means for a voyage of discovery, and when the existence of the new world had been demonstrated a century passed before England established a single colony.

Even then the colonists went forth to lay the foundations of an Empire without the benediction of the mother country. It seems to have been the chief object of the king. to secure a portion of the products of the mines to his own use and for this he stipulated in the charters which he granted.

The most erroneous ideas existed concerning the extent and character of this continent. The royal charters were widely spread over vast territories from sea to sea and the early maps illustrate the ignorance of the settlers. At the commencement of the Revolutionary War the territory east of the Alleghanies and the Great Lakes had been explored, but the vast region to the West was unknown.

§ 4. Colonization, as the basis of new and great States, was not the original idea of any European government, and the

Colonies had their origin in the cupidity of rulers, the hope of gain through new channels of commerce and the unquenchable thirst for freedom in political and religious affairs. Of all the Colonies which constituted, finally, the thirteen States of this Union, one only, Georgia, received the aid of the Government.

The others were permitted, not established, oppressed, indeed, rather than encouraged. Massachusetts and Virginia seem to have discerned early the future greatness of America and they laid the foundations of its Empire when they asserted their political principles or resisted oppression. Said Dr. Franklin, in 1760, "I have long been of opinion that the foundations of the future grandeur and stability of the British Empire lie in America; and though like other foundations they are low and little now, they are nevertheless broad and strong enough to support the greatest political structure human wisdom ever yet erected."

It was upon this idea of the future of England and America that Dr. Franklin acted when ten years later he sought to avert a separation through a system of representation in the British Parliament. Independence had a slow growth. For a century before it was declared it was predicted by a few, it was feared by some, but it was not even imagined as a possible event by the masses of England and America. The remote causes of American Independence are to be found in the recognized principles on which the British Government rested and in the origin and nature of the charters granted to the Colonies.

§ 5. In 1764 when the open contest commenced which ended in Independence, England had been a limited constitutional monarchy for five and a half centuries.

In those twenty generations by the labor, blood and sacrifices of her nobles and commons she had established a system or constitution which marked the limits of royal power, prescribed the duties of those in authority and measured and asserted the rights of the subject. Not always to be

sure had the rights of the people been regarded, but even under the most tyrannical of the Tudors and profligate of the Stuarts they were remembered and in some manner asserted. As we shall see in America, so it was in England, oppression was the parent of liberty. Said the New York Mercury of 1764, "History does not furnish an instance of a revolt begun by the people which did not take its rise from oppression."

§ 6. The same year that the English nobles extorted Magna Charta from their monarch a decree was obtained in the fourth Council of Lateran that "all heretics should be delivered over to the civil magistrate to be burned." The year 1215 is marked in the annals of freedom and in the annals of despotism. By the grant of Magna Charta the natural liberties of England obtained a degree of security and a basis was laid for the legal argument of our Fathers in support and defence of the Revolutionary War. Until this epoch the Papal Power had punished heresy with spiritual weapons only, but now it adopted the policy of heathen emperors and introduced a system of persecution which during many years dishonored the annals of the Catholic and Protestant Churches. Happily those days are gone and their like can never again appear. But it might then have been doubted whether the power of Magna Charta for good was equal to that of the decree of the Council for evil. Time has solved the doubt in favor of freedom. Magna Charta is the foundation of the British Constitution and the precedent to which all may safely appeal who inherit, as a birthright, the principles of that Constitution. It is well, however, to observe that the British Constitution, Magna Charta and all, rest upon the theory that every power resided originally in the monarch, and that the grants made to the people are but so many limitations of his prerogatives, while the modern American theory vests all power in the people who by their constitutions delegate such authority to their agents as may be exercised, safely, by them.

The principles of the two systems are opposed to each other, most strictly, but as applied by the people of the two countries they tend to the same result, Popular Liberty.

It is the theory of the American system that the people. retain in their own hands every power which might be used to deprive them of any natural right. Under the British system the people have sought to annul every prerogative which might be used against their liberties.

§ 7. By Magna Charta King John agreed to have a common council of the kingdom to "assess an aid, or to assess a scutage," and the Declaration of Rights of 1688 asserted "that levying money for or to the use of the crown by pretence of prerogative without grant of Parliament for longer time or in any other manner than the same is or shall be granted, is illegal."

These two acts, one a grant of privileges and the other a Declaration of Rights, were acknowledged by the monarchs and asserted by the people at various times and they were the chief security of every British subject against taxation without the consent of his representative. Our ancestors claimed to be British subjects although not living within the Realm. This claim they supported by the language of their charters and by a reference to the relations of the Colonies to the sovereigns and to the Parliament of England for the period of a century and a half. The charter of Massachusetts provided that the inhabitants of the Colony and their children should have and enjoy all the liberties and immunities of free and natural subjects "as if they and every of them were born within the Realm of England.”

Thus sustaining their birthright as British subjects they claimed the benefit of the principle of the British Constitution that there could be no taxation without representation. The ministry and the crown lawyers denied the propriety of a literal interpretation of the pledge contained in the charter and they contended that it was no more of a fiction to assert that America was represented by the English members than