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Satisfactory however as the Revolution was nationally, its effect on the Empire was anomalous; for while it marked the consummation of England's struggle for liberty it resulted in a depreciation of the status of the colonists. Hitherto the relationship of colonist and Englishman towards the Crown had been similar, but this was changed by the Revolution. The development of responsible government enabled the people at home to control the national policy through Parliament, whereas in the rest of the Empire relations between the colonial executives and the colonial Assemblies continued irresponsible. Commercial subordination had been for the colonies the legacy of the Restoration; the sequel of the Revolution was their political subordination. There was something illogical and incongruous in the fact that Englishmen should deny to their oversea kinsmen the kind of liberty which they had claimed and won for themselves, but in truth there were few who were really acquainted with the facts of the situation.

The natural outcome of the commercial origin of the colonies was that they were never thought of as political entities, "but as areas of occupied and cultivated land belonging to Great Britain".1 England had not advanced to the majesty of that imperial ideal in which nation-building forms the chief care of the statesman. Commerce continued to tyrannise over every other consideration, and its capacity for mischief was vastly enhanced by the fact that since 1660 it had become more and more intimately connected with politics. Such pride as was displayed in the Empire near the end of the seventeenth century was that of a man whose investments were turning out well.

It is necessary to remember, however, that the Revolution temporarily harmonised relations between the mother country and the colonies by substituting a constitutional for an autocratic monarchy. Moreover, in point of fact, the American colonists enjoyed more freedom in the direction of their local affairs than did the people of England. But there was the potentiality of tyranny in the power of intervening in the internal affairs of the colonies which the English definition of the colonial position gave to the mother country. Theory and practice no longer conformed and tended less and less to do so as the years rolled on. For though legally the colonies were no better than English municipal corporations or county councils, they politically belonged to a higher grade. They were exercising powers which were beyond the competence of any mere local body, and they claimed that their Assemblies were to be compared with the English Parliament. Thus in 1700 Sir William Beeston wrote that the Jamaica Assembly believed that "what the House of Commons could do in England they could do here, and that during their sitting, all power and authority was only in their hands". It 1 Andrews, C. M., The Colonial Background of the American Revolution, p. 122. 2 Cal. St. Pap. Col. 1701, no. 749.

APPLICATION OF ENGLISH LAW TO THE COLONIES 615

was, Benjamin Franklin claimed, "an undoubted right of Englishmen not to be taxed but by their own consent, given through their representatives".1 The American Colonies, as Governor Bernard wrote, “believed themselves to be perfect States, no otherwise dependent upon Great Britain than by having the same King". They could legislate on any subject provided that they did not pass any act which was incompatible with the laws of the parent State affecting the colonies, whereas English local organisations were not merely prohibited from passing measures inconsistent with the national law, but were forbidden to legislate except in so far as they had been empowered by the national Government to do so. Moreover it was not as easy to specify in the case of the colonies as in that of local corporations the particular laws of England that were binding on the colonies. The Plantations lay so far from the mother country that they inevitably came to be entrusted with the regulation of their own internal affairs. So while every Act of Parliament bound every local body in the kingdom there were few Acts of that Legislature which applied to the oversea communities save as regards the structure or powers of their governments. The rules affecting the applicability of English law to the colonies were so ill-defined that colonial courts were given a large discretion in deciding to what extent English law prevailed in the colonies.

The whole system indeed of colonial law was in urgent need of investigation, as was realised by Charles Davenant at the beginning of the eighteenth century. By a clause in the first Virginia charter it had been laid down that colonists were entitled to the privileges of Englishmen, but so far as this conveyed a right to live under the laws of England the concession was impracticable. Conditions at the circumference of the Empire differed so greatly from those at the centre that laws suitable for the mother country might not be convenient for the colonies. It was therefore a sound opinion of Richard West, Counsel of the Board of Trade, given in 1720, which stated: "Let an Englishman go where he will, he carries as much of law and liberty with him, as the nature of things will bear". This opinion was later confirmed by a judgment of Lord Mansfield, who remarked: “It is absurd that in the colonies they should carry all the laws of England with them. They carry such only as are applicable to their situation. I remember it has been determined in this council. There was a question whether the statute of charitable uses operated on the island of Nevis. It was determined it did not; and no laws but such as were applicable to their condition, unless expressly enacted".4

In England the leading jurists were agreed that the only laws which could be said with certainty to apply to the colonies were those 1 Franklin, B., Works (ed. Sparks), m, 60.

2 Bernard, F., Select Letters on the Trade and Government of America (1774), p. 32.
Chalmers, G., Opinions (1814), I, 195.

Howell, T. B., State Trials (1814), xx, 289.

in which there was a definite reference to them. The opinion of Richard West, to which allusion has already been made, summed up the position thus: "The common law of England is the common law of the Plantations, and all statutes in affirmance of the common law passed in England antecedent to the settlement of any colony, are in force in that colony, unless there is some private act to the contrary; though no statutes made since those settlements are there in force, unless the colonies are particularly mentioned". In the same manner colonies were not affected by an Act of Parliament passed after their foundation, unless they were mentioned in it or unless it was adopted by their Assemblies or was accepted and acted on by them. But there was no authoritative pronouncement to be had on these points, and in fact different portions of the common and statute law of England were in force in different settlements, while such alterations as were made either in common or in statute law after the foundation of a colony were not received in that colony. Accordingly it followed that most of the new laws affecting a colony were passed by its own local government, so that each colony tended to acquire a peculiar system of law of its own which signally distinguished it from any of the local English bodies which were regarded as its legal equivalent. Of these differences many English lawyers must have been aware, but the tendency of even the most liberal legal mind is rather to stand by the forms which the legal phraseology covers than to change the latter in the light of the facts. Thus on the eve of the American Revolution Lord Mansfield explained that the colonial governments in America were all on the same footing as our great corporations in London.1 In fact though not in law, in practice though not in principle, there had grown up a vital distinction between the colonial governments and the local English bodies with which they were formally graded, which showed the need of a fresh legal definition of the relationship between the colonies and the parent State.

The remoteness of the colonies was at once the cause and the explanation of these differences, which were known to the English officials and lawyers connected with colonial administration. Members of the Board of Trade and Plantations, especially, were aware that by the end of the seventeenth century "the centre of gravity of colonial administration had been shifted from England to America"," but instead of acquiescing in this it was their constant object to diminish the powers of the colonial legislatures. Particularly in America the various settlements were so completely equipped with legal systems and institutions that they were capable of carrying on their own government should the bond that tied them to England be broken. All these points of vast significance needed only

1 Parl. Hist. XVI, 195-7.

2 Dickerson, O. M., American Colonial Government, 1696-1765, p. 173.

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investigation to disclose the fact that the Revolution settlement, so satisfactory nationally, was inadequate imperially. But as the idea of growth, familiar enough in the case of individuals, had not yet been thought of as extending to communities, and as there was no open demand from the colonies for a reconsideration of their status in relation to the kingdom, it did not occur to Englishmen that there was any need for an imperial stocktaking.

The great political thinker of the period was John Locke, who was exalted to an especial eminence in the minds of his countrymen because of the ability with which he defended the Revolution. His writings caused him to be associated in a peculiar way with the constitution, as may be seen from the frequency with which his name was quoted by the political pamphleteers of the eighteenth century. The national judgment accepted him as the high priest of a constitution which Englishmen felt was wellnigh perfect. Even a man of so radical a temperament as John Toland (1670-1722) ventured to claim that the English system of government was "the most free and best constituted in all the world".1

Locke's two treatises on Civil Government, in which he set forth the principles of the Revolution, though ostensibly treating of government in general, were inspired by events in his own country. Yet while his reasoning covered adequately the case of Great Britain, it failed to solve the problems of the Empire, though of that Empire few possessed a fuller knowledge than Locke himself. The friend and secretary of Shaftesbury, he had assisted in drawing up the Carolina constitution and knew the difficulties that beset newly formed communities. After the Revolution he became one of the leading officials of the Board of Trade and Plantations and was noted as an authority on economics. But he never seems to have divined that the government of England and the government of the Empire were two different

matters.

This was due to the fact that his works on Civil Government, though abstract in form, were essentially a defence of the Revolution. They were political pamphlets in the guise of general treatises on government, and consequently had only a national application. His researches did not extend beyond England, so that he did not realise that what was primarily a national settlement had inaugurated new problems for the Empire. Had Locke cared to stretch his survey so as to take in the colonies, he would have discovered in America ample material to throw light on the minds and temper of the colonists. The first action of New England, on hearing of the Revolution, had been to overthrow the government of Sir Edmund Andros, an action which indicated in unmistakable fashion the detestation with which the colonists regarded English regulation of their affairs. It was fundamentally a protest, not against the tyranny of Andros or of

1 Harrington, J., Works, ed. Toland (1747), p. viii.

James II, but against the principle of government from a distance. This was the significant lesson to be gleaned from America; but the importance of the proceedings at Boston was not discerned by the leading Englishmen of the Revolution period. This possibly may have been because in the eyes of Englishmen New England counted for little in comparison with the West Indies. But the day of Caribbean supremacy was passing, and the Revolution, by bringing Great Britain to grips with France, was to reveal that the centre of gravity in colonial matters was shifting from the West Indies to the Hudson. Locke could not have gained his high reputation in England as a political thinker by writing merely on government in the abstract; his works owed their peculiar merit to their association with the Revolution. Many Englishmen felt that the constitution had received its final form in 1689, and Locke was appealed to as its most authoritative interpreter. His influence was most actively beneficent in the support which his reasoning lent to the cause of religious toleration. In some respects, however, it was harmful, as his adoption of the doctrine of the separation of powers caused many of his countrymen to oppose the development of Cabinet government. But whereas Englishmen honoured Locke as the foremost defender of their national system of government, Americans valued him as the preacher of general truths. His writings furnished an arsenal of the abstractions that have an irresistible fascination for unsophisticated people and are at the same time difficult to deal with dialectically. Thus it was chiefly as the apostle of liberty that he found favour in American eyes, and during the controversy stirred up by the Stamp Act the colonial pamphleteers underlined their arguments with copious quotations from Locke's works.

Pride of place among the abstractions was held by the idea of natural right, an idea so illusory as to lack the support of any historical argument. Locke did not confine himself to the legitimate sense in which that conception might be employed, namely, that national laws ought to conform to man's innate regard for what is fair and just, but he implied that over and above all national laws there existed a code which all men instinctively recognised and obeyed. Similarly he pressed into his service the equally unhistorical idea of the social compact. It had appeared almost spontaneously in political thought because it seemed to offer a simple and adequate explanation of the relations of men in a political and social organisation, since it laid down an intelligible hypothesis by which law could be reconciled with liberty and freedom with discipline. It proved an effective reply to the theory of the Divine Right of Kings and formed the natural basis of a democratic conception of government. Even the champions of prerogative did not challenge it. It had been accepted by Hooker and it found a place in the works of the most eminent jurists from Grotius to Blackstone.

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