What was the foundation of this alleged authority of the king over the colonies? By the public law of all civilized nations in the fifteenth century, the property in unoccupied lands belonged to the crown of the country by which they were discovered;[2] and if, as was generally the case, these lands were inhabited by savages, still the fee was in the crown, subject only to such use as might be made of them by wandering tribes. Such is the law to-day. This title to the English colonies was not in the people of England nor in the state, but in the crown, and descended with it. The crown alone could sell or give away these lands. The crown could make laws for the inhabitants, and repeal them; could appoint their rulers, and remove them. Parliament could do neither. The political relations of the colonists were to the crown, not to the government of England; nor were they in any respect subject to parliamentary legislation.[3] They were not citizens within the realm, nor, except in a qualified sense, of the empire, but subjects of the crown, having only such rights as it granted to them in their charters; and even these charters the crown claimed, and exercised the right to amend or revoke. James I. amended that of Virginia in 1624, and Charles II. revoked that of Massachusetts in 1684. They were regarded merely as charters of incorporated land companies, and, as such, subject to revocation by the king who granted them; and when these companies had developed into municipal governments, they were considered as still subject to alteration or repeal by the sovereign power,[4] although in both cases rights of property were saved to the owners. Strange as this doctrine may seem, it is now substantial law in England and in America.
To all these rights, privileges, and disabilities the emigrants agreed when they purchased lands from the crown; and the rights and duties, whether of the crown or of its subjects, descended to their respective successors. With such rights, though not in all cases with such views in respect to them, the colonists came to America; and such rights, and no more, their children possessed, under the British Constitution, at the time of the American Revolution, in the days of George III.
These claims of the crown every colony resisted as incompatible with its essential rights, and yet they were legal and constitutional prerogatives, admitted by the greatest judges of England, and most necessarily have been admitted in the colonies not only by Hutchinson and Oliver, but by James Otis and John Adams, had they sat as judges. It was on this legal and constitutional ground that the prerogative party stood both in England and in America.
But in England from the time of James I., and in America from the coming of Winthrop, there had been an anti-prerogative party; and as the prerogative party in England and the prerogative party in America were one and the same, so the anti-prerogative party in England and the anti-prerogative party in the colonies were one and the same, having similar views, and, though separated by a thousand leagues, working to the same end. On this question came the first political contest of the Revolution; that of parliamentary supremacy came later. The strength of one side was in legal and constitutional principles, as they were then interpreted by judicial tribunals; that of the other lay in the changes which were taking place in the British Constitution,—in short, in revolution. The revolutionary party succeeded in both countries: in America, by war; in England, by more silent influences which have greatly modified, if not destroyed, the prerogative.
Although the prerogative was a cardinal right in the British Constitution, and freely exercised by popular sovereigns like Elizabeth, it began to be questioned under James I., and resisted under Charles I., who lost his life in its defence, as James II. lost his crown.[5] But the progress of this revolution was not steady, nor did it always hold what it had gained. There came periods of reaction, one of which was in the early days of George III. He was strenuous in maintaining his prerogative, and, by the support of the "King's Friends", probably held it with a firmer hand than any of his predecessors since Elizabeth. The contest about the prerogatives encountered this difficulty: that successful resistance in a particular instance settled no principle, but left all other cases untouched.[6] The extension of the navigation acts to the colonies by Parliament, though assented to by King Charles II., was in derogation of his prerogatives; and so in the time of William III. (1696) was the attempt to transfer certain colonial affairs from the Privy Council, which represented the king, to a proposed Council of Commerce, which would have been the creature of Parliament. In consistency with these proceedings, the king's power over the colonies ought to have been transferred to Parliament; and instead of remaining the king's colonies, they ought to have become a part of the empire, and his authority over them no greater than that over the territory within the four seas. But it was otherwise. The colonists remained the king's subjects. He appointed their governors; he frequently set aside their laws, and over them he exercised his royal prerogatives. One capital point, however, had been gained by the revolutionary party on both sides of the water. Successful invasions of the prerogative had at length created what was called the "spirit of the constitution."[7] The loyalists, however, seemed to be firmly entrenched in their constitutional position, nor did the anti-prerogative party avoid a dilemma: how to escape out of the hands of the king without falling into the hands of Parliament. If, as some claimed when they resisted the royal prerogative, they were British subjects, entitled to the same rights and privileges as native-born subjects within the realm, why then should they, more than other subjects, be free from the burdens imposed by the imperial policy? But when, in pursuance of that policy, Parliament undertook to tax the colonies, then they were forced by the logic of the situation to claim that, though subjects of "the best of kings", they owed no more allegiance to Parliament than the Scotch did before the union.[8]
Probably no one more heartily detested the claims of the prerogative than Franklin; and yet the phase which the controversy had assumed compelled him to take high prerogative ground. Such was his position with regard to the Stamp Act, as is seen in the note below.[9] Andros himself could have asked for nothing better, in 1686; and when Franklin was asked what the king could do, should the colonies refuse just requisitions, he had no other answer than this,—that they would not refuse!
Such is the doctrine of the prerogative which gave rise to constant conflicts between the king and the colonists, from 1660 to 1774, and in every colony was among the political causes which led to the Revolution. But it was an English question as well as an American question,—a party question in both countries, and it was finally settled with the same result in each, though by different means. We must look further for the real controversy between the English people and the American people.
Another cause of the Revolution, but one which, in no strict sense, concerned the political relations between the people of Great Britain and the American colonists, was the attempt of the British merchants to monopolize the trade of the colonies, not for the benefit of the British people, but for their own. This also was a party question, on one side of which were arrayed the adherents of the Mercantile or Protective System, and on the other those of the Economic or Free Trade System. The mercantile class endeavored to subordinate colonial interests to the protective system by navigation laws and acts of trade; and the resistance of the colonists to these acts was a claim for free trade which finally involved them in a war with the mother country.
What were those navigation laws and acts of trade which called forth the invective of James Otis when he argued the Writs of Assistance, and revived in the bosom of the octogenarian John Adams the hearty curse he bestowed upon them in his youth; and on what foundation did they rest?[10]
Nations acquire new territories, and maintain and defend them, to promote their own interests, and not the interests of those who inhabit them; still less the interests of other nationalities. This has been the case in all ages and under all forms of government, to which our own age and nation form no exception. By the right of discovery the British crown became possessed of the territory included in the thirteen American colonies, settled mainly by British subjects. Lands were granted to individuals, or companies, with the expectation that they would build up prosperous communities, to contribute by their products and trade to the wealth of the mother country. On these purely selfish considerations she protected them; and when their trade was grown to be considerable and their markets valuable, the British merchants took measures to secure both, instead of sharing them with other nations, or allowing them to follow the interests of the colonists. Such was the policy of Great Britain at the dictation of the mercantile class; and in the maintenance of that policy, in sixty years between 1714 and 1774, she paid out of her Exchequer the enormous sum of £34,697,142 sterling, a sum greater than the estimated value of the whole real and personal property in the colonies.[11]