History of the Constitution: The Aftermath of American Revolution. Charles Howard McIlwain
itself must be based upon the constitutional precedents to be found in the whole historical development of the English constitution up to the time of the American struggle.
When did the train of constitutional development begin which led in continuous sequence to the first act that may be called revolutionary? Who were the real adversaries in this constitutional struggle, and which of them was constitutionally “right”? These are a few of the questions that occur to one who attempts to make a general survey of this period. The answers they have received are singularly contradictory and frequently unconvincing, and this after all the painstaking research of recent years. The purpose of this brief study is to try if possible to narrow these constitutional questions until they become susceptible of clear and definite treatment, if not of conclusive answers. We shall not be concerned with the intricate network of “causes,” economic, social, or political, tremendous as is the importance of them all. They must be at the background of our minds, not the foreground.
Thus stripped of its constitutional non-essentials the American Revolution seems to have been the outcome of a collision of two mutually incompatible interpretations of the British constitution, one held by the subjects of the British King in America, the other by a majority in the British Parliament. This result was a breach of the constitution not based upon and not warranted by the earlier precedents in the constitution’s growth. On an examination of this constitutional struggle that brought on the Revolution, I find myself unavoidably at variance with many of the views that seem at the present day to be becoming canonical, especially among American historians.
The struggle popularly called the American Revolution, up to its latest constitutional phase, was a contest solely between the Americans and Parliament. The Crown was not involved. No question of prerogative was at issue. If the King was at all implicated, it was the King in Parliament only and as a constituent part thereof, not the King in Council. The struggle did not touch the prerogative till after George III's Proclamation of Rebellion of August 23, 1775, and in fact can hardly be safely dated earlier than the formal declaration of the Virginia Convention on June 29, 1776, that “the government of this country, as formerly exercised under the crown of Great Britain, is totally dissolved” or Congress’s resolution of May 15, 1776, recommending to the various colonies the adoption of popular constitutions, with its famous preamble which declares that “it appears absolutely irreconcileable to reason and good Conscience, for the people of these colonies now to take the oaths and affirmations necessary for the support of any government under the crown of Great Britain, and it is necessary that the exercise of every kind of authority under the said crown should be totally suppressed, and all the powers of government exerted, under the authority of the people of the colonies.”
There can be no doubt of the revolutionary character of these declarations. Possibly some of the previous acts of the Congress and the colonies might be considered revolutionary, though it seems better to regard them up to that time as rebellious rather than revolutionary. A deliberate intent to establish permanent governments independent of the Crown must have existed before mere rebellion turned into revolution. Up to May, 1776, then, the American claims were aimed solely at the power of Parliament. About that time they first began to be directed against the Crown. As soon as they were so directed their revolutionary character becomes obvious. No American would then have denied that they were revolutionary, and no historian can now do so. This last phase of the controversy, this defiance of prerogative, however, began very late; in fact, not until many months after the constitutional struggle had turned into the civil war which we call from its final outcome the War of Independence. There might be a difference of opinion as to the relative merits of the American and the English claims of “right” in this final phase of the contest; but since it is admittedly a mere “right of revolution” that would be asserted or denied in such a discussion, it concerns the rights of man rather than the British constitution and has little place in a treatment strictly constitutional.
But what of the earlier phase, by far the larger phase, when American opposition is aimed solely at Parliament? Is that too revolutionary? Or is it merely constitutional? Did the American Revolution begin about 1761 or only with the attack on the Crown in 1776? This is a question harder to answer, and the answer must depend on matters purely constitutional, not political, as in the case of the defiance of the Crown after 1776.
For the period between 1761 and 1776 the non-revolutionary or revolutionary character of the resistance of the Americans must be judged upon the basis of the soundness or unsoundness of their constitutional claims. For those who believed that the parliamentary acts of which they complained were but parts of a settled plan to deprive them of legal rights by unconstitutional means, it might even seem a question whether the revolutionary acts were not up to 1776 all on the side of a Parliament that had assumed and exercised a power for which there was no warrant in English constitutional precedent. Long before that, they might plausibly have argued, the “unconstitutional” acts of the British Parliament itself had assumed a character nothing less than revolutionary, though it might be difficult to fix the exact point of time when they could first be said to be revolutionary as well as unconstitutional. On the latter supposition why might not the American Revolution properly enough be said to begin as early as May, 1649, with the Act that established the Commonwealth, with supreme authority in the Parliament of the English people over “the dominions thereunto belonging,” apparently the first formal assertion by a Parliament of its authority beyond the realm?
It is conceded by historians of all shades of opinion that the English Revolution of 1688-9 was a real revolution. The unprecedented events of those years definitely placed the power of Parliament above the royal prerogative and gave to the modern limited monarchy in England its unique constitutional character. All admit this. What was in 1689 revolutionary was accepted in England as subsequently constitutional and legitimate for the realm and “the dominions thereunto belonging,” on the theory of Locke that a people can change its constitution through the right of revolution. Englishmen in England had acquiesced in it. But what of “the dominions thereunto belonging”? Acts originally admittedly revolutionary could there only become legitimate by acquiescence and consent too. Had the “dominions” consented when they acclaimed the new sovereigns sworn under the new coronation oath to govern “according to the statutes in Parliament agreed on”? Or was the consent of the dominions immaterial when the realm alone had legitimated the new regime? Were the dominions concluded by the acts of Englishmen in the realm alone? Samuel Adams and Governor Hutchinson in 1773 seemed to see this constitutional issue more clearly than many subsequent historians. It was Adams’s primary contention that what was revolutionary in 1688 remained revolutionary until assented to, that it had not been consciously assented to in America, and that therefore it was revolutionary in 1773 for the dominions as it had been in the realm in 1688. One of Hutchinson's main contentions was that America had given its assent as fully as England had when the usurping William and Mary had been proclaimed in the colonies. Adams was demanding that the stream of precedents for parliamentary control of the colonies should be followed up further towards its source, that the revolution of 1688 should be allowed to break the continuous validity of precedent only if it was acquiesced in by all those affected; in short, that revolution only becomes a basis for legitimate government when accepted by a people, and that one people cannot accept for another. His views imply that England and the colonies are not “one people.” To his mind America had not accepted, and on true political principles England could not accept for her. Hence the power of Parliament, new and revolutionary in England in 1688, was for the dominions revolutionary still in 1773. He held that the issue should in 1773 still be settled on the lines of the constitution as it existed before 1689, and that that constitution gave no ground for the powers “usurped” by Parliament in the eighteenth century. In reality this was a collision of the older interpretation of the English Constitution, continuing in America, but superseded after 1689, if not 1649, in England, with the post-revolutionary interpretation as held in England. The relative merits of these two views depend on the question whether the colonies were bound to push their precedents back no further than the middle of the seventeenth century. This in turn depends upon whether they had consciously accepted the new basis for themselves after the accession of William and Mary or were concluded by the act of the people of England alone, entirely regardless of their own wishes and views.
A final decision upon the whole question