History of the Constitution: The Aftermath of American Revolution. Charles Howard McIlwain
who are often more legalists than legists have, as it seems to me, been overfond of applying to the larger questions of constitutional development a too narrow and rigid interpretation based on superficial analogies drawn from other branches of law, such as the law of property or of contract. The technicalities of the law of estoppel and of prescription and the statutory provisions extinguishing a civil remedy by lapse of time are thus used sometimes rather loosely and without discrimination to prove a whole people’s forfeiture by non-user of its former right of opposition to unconstitutional grievances.
Such a commentator might be reminded that as early as the Twelve Tables prescription in a stolen article was forbidden; that neither provincial lands, nor res sacrae or religiosae were prescriptible at Roman law; that the adverse possession requisite for valid prescription even where it was applicable must be nec vi, nec clam, nec precario; that extinctive prescription was excluded by minority and other disabilities; and that even the law of slavery was tempered by the jus postliminii. He should be urged to note that the limitation of civil actions is not extended in our law to prosecutions for crime; and might be asked on what general reasoning he is warranted in restricting the principle of the maxim nullum tempus occurrit regi, under which this is justified, merely to a king instead of extending it generally to a people as well.
But after all it was public policy that first created prescription and public policy also imposed restrictions upon its operation, and technical considerations of the sort mentioned above whether used intelligently or not—and they have not always been used intelligently—have really little place in a discussion involving questions of the rights of subjects against rulers. Even conservatism might be expected to have some limits. Molyneux denied the fact of the conquest of Ireland, but he also denied that a right of permanent domination can ever be legitimately based on conquest. As Otis put it, “There can be no prescription old enough to supersede the law of nature.”
This is no question to be decided on mere legal analogy and that an uncritical one. I can see little legal, constitutional, or political ground for the assertion that the American colonists were forever estopped from resisting the application to them of an authority which they had come to believe to be unwarranted by precedent, merely because for a time the laxity of that application had led them and their ancestors to pay slight attention to the subject. And it certainly is a strange assumption, that the colonists in proclaiming William and Mary must inevitably have accepted and for all time all the unforeseen constitutional consequences that an oligarchical parliament might later choose to deduce from the transactions of 1688 and 1689. How many Americans, presumably, were acquainted with the form of the? English coronation oath in 1689?
The last question, it is true, belongs to political theory rather than to constitutional interpretation, and in part turns on the mere question of fact whether or not there was an actual conscious acquiescence in America in the Revolution and in all its constitutional implications later accepted in England; but other questions go much further than this. Samuel Adams’s contention, implied if not expressed, that the colonies are not concluded by the action of the realm alone really touches one of the deepest problems in English constitutional history. He brought into question, though not for the first time in the Empire, the validity of the famous pronouncement of Parliament of May 19, 1649, that “the people of England and of all the dominions and territories thereunto belonging are ... a Commonwealth.”
Upon the whole matter it has apparently become the orthodox view among American historians that the English were right and the Americans wrong, that however wrong-headed, impolitic, or even oppressive Parliament’s treatment of America may have been, on purely constitutional grounds the English case is the better; that the letter of the law was on their side. We are here not concerned either with policy or with ethics. On its constitutional side this question narrows down to the simple issue as to whether the American or the English interpretation of the British constitution is the one more properly deducible from the precedents furnished by the development of that constitution in the whole period of its growth up to the time of the struggle. The Americans denied the authority under English constitutional law of the Parliament at Westminster to bind Englishmen beyond the realm. They also asserted that parts of that law were wholly beyond Parliament’s reach, were “fundamental,” and that any act of Parliament in contravention of these parts was void. English statesmen asserted in reply that there was nothing beyond the power of the English Parliament, whether in the Realm or “in the Dominions thereunto belonging.” These are purely constitutional issues. I am concerned here with no other. They are questions to be decided entirely on the basis of precedents. I propose to examine these precedents, but at the risk of contradiction, for the sake of clearness, I shall anticipate the discussion to express my belief that this question of “right” or “wrong” if kept within strict constitutional lines is susceptible of some answer; and, contrary; to the view that now seems current among American historians, that that answer must on the whole be more favorable to the claims of the American colonists than to those of the British statesmen who opposed them in Parliament.
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