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CHAPTER XI

IMPERIAL UNITY, 1768

S a result of the consideration given to the question of the relationship between Great Britain and the Colonies prior to 1768, two distinct views of the unity of the British Empire were beginning to be held, according to one of which the Empire was a permanent Union of States, in which the Imperial State governed the others according to its mere will, except in so far as it had agreed not to govern them at all; and according to the other, a temporary Union of States which might be converted, at the option of Great Britain, into a Unitary State-that is, an aggregation of lands and persons under the British Government. Of the first view Governor Bernard was the principal exponent. In a letter of January 28, 1768, published in his Select Letters on the Trade and Government of America, he used the expression "Imperial State" to describe Great Britain and the expression. "dependent States" to describe the Colonies, and used language which showed that he regarded the relationship as a permanent one. In this letter he said:

When the dispute has been carried so far as to involve in it matters of the highest importance to the Imperial Sovereignty; when it has produced questions which the Sovereign State cannot give up, and the dependent States insist upon as the terms of a reconciliation; when the Imperial State has so far given way as to let the dependent States flatter themselves that their pretensions are admissible; whatever terms of reconciliation time, accident or design may produce, if they

are deficient in settling the true relation of Great Britain to her Colonies and ascertaining the bounds of the Sovereignty of the one, and the dependence of the other, conciliation will be no more than a suspension of animosity; the seeds of which will be left in the ground ready to start up again whenever there shall be a new occasion for the Americans to assert their independence of the authority of Parliament; that is, whenever the Parliament shall make ordinances which the Americans shall think not for their interest to obey.

Ex-Governor Pownall, in the fourth edition of his book The Administration of the Colonies, in 1768, took the position that, whether or not the Colonies had ever been related to Great Britain as States, nevertheless, when Parliament elected to tax them, they were thereby incorporated into the British Realm and their inhabitants merged with the inhabitants of Great Britain. He criticised the language of the Declaratory Act of 1766, in which the British Government had taken the position that the Colonies and their inhabitants were dependent upon the Imperial Crown of Great Britain, because, as he claimed, it contained an admission that the Colonies were outside the Realm. He reasoned that in the expression "the Imperial Crown of Great Britain," it was necessarily implied that the State of Great Britain was the Sovereign of the dependencies and their inhabitants, and that, since the State of Great Britain, as Sovereign, necessarily acted through its whole Government, consisting of King, Lords, and Commons, that whole Government constituted the Imperial Crown. If so, he argued that, since the powers of the whole British Government must be determined by the powers of the British State, as King or Sovereign of the Colonies and their inhabitants, and since the powers of the British State, as Sovereign, over the Colonies, must be conditioned and limited in the same way that the powers of any natural person, as Sovereign, would be conditioned and limited, this theory

inevitably led to a conditioned and limited power of Parliament over the Colonies. He said:

At this day the constitution and rights of the Colonies, in the actual exercise of them, are unsettled; the relation in which they stand connected with the Realm and with the King, is disputed; and Parliament, as well as Ministers, are balancing in opinion what is the true, legal, and constitutional mode of administration by which those Colonies are to be governed. Whether the Colonies be demesnes of the Crown, without the Realm, or parts and parcels of the Realm, whether these foreign dominions of the King be as yet annexed to the Realm of England, whether the colonists be subjects of the King in his foreign dominions, or whether they be subjects of, and owe allegiance to the Realm, has been at various times, and is at this day called into dispute. This question is now no longer of curiosity and theory; it is brought actually into issue. It is now by deeds and overt acts discussed, and must be decided.

From the uncontroverted and universal idea of the subordination of the Colonies to the Government of the Mother Country, this power, by which the Parliament makes laws that shall be binding on the Colonies, has been constantly exerted by the Government of England, (afterwards Great Britain) and submitted to by the Colonies. The fundamental maxim of the laws of those countries, is, that first, the common law of England, together with such statutes (the ecclesiastical laws and canons excepted) as were enacted before the Colonies had Legislatures of their own; secondly, the laws made by their own Legislatures; together with, thirdly, such Acts of Parliament as by a special clause are extended to America, since that time,- -are the laws of each Province or Colony. The jurisdiction and power of every court established in that country, the duty of every civil officer, the process of every transaction in law and business there, is regulated on this principle. Nay further, every Act of Parliament passed since the establishment of the Colonies, which respects the general police of the Realm, or the rights and liberties of the subjects

of the Realm, although not extended by any special clause to America by Parliament, although without the intervention, or express consent of their own respective Legislatures or Representatives, has been considered, and I may venture to say, adopted as part of the law and constitution of those countries; but by what principle of our Constitution, by what maxim of law, this last practice has been established, is not so easy to ascertain, any more than it will be easy to fix any rule, when the Colonies shall adopt, or when they may refuse those kinds of laws of the Mother Country. This arises, as I have said, from some vague indecisive idea that the Colonies are of, or some parts of the Realm; but how or what parts, or whether any parts at all, has never yet been thoroughly examined.

We have seen what was, in reality, the dependence and subordination of the colonists to the King, while they were supposed to be subject to him in a Seignoral capacity. We have seen what must have been the same subordination, while they were supposed to be subject to the two Houses of Lords and Commons, as Sovereign in the same capacity.

Let us take up the next idea, that while they are not of the body of the Realm, are no parts or parcel of the same, but bodies corporate and politic, distinct from and without the Realm, "they are nevertheless, and of right ought to be subordinate unto, and dependent upon the Imperial Crown of Great Britain, (i. e. the Realm,) and that the King's Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons of Great Britain assembled in Parliament, had, hath, and of right ought to have full power and authority to make laws and statutes of sufficient force and validity to bind the Colonies and people of America, subjects of the Crown of Great Britain, in all cases whatsoever." In this idea we have a very different state of the relation, namely, the Imperial Crown of Great Britain, the King, Lords and Commons, collectively taken, is stated as Sovereign on the one hand, and the colonists as subjects on the other.

There is no doubt, but that in the nature, reason, justice and necessity of the thing, there must be somewhere, within the body politic of every Government, an absolute power.

The political freedom of Great Britain consists in this power's being lodged nowhere but in King, Lords and Commons in Parliament assembled. This power is absolute throughout the Realm, and yet the rights and liberties of the subject are preserved, as the Communitas Populi is the body, of which this Imperium is the soul, reasoning, willing, and acting, in absolute and entire union with it, so as to form one political person.

There can be no doubt but that this power is absolute throughout the dominions of the Realm; yet in the exercise of this power, by the Imperial Crown of Great Britain,-that is, by the King's Majesty, with the Lords and Commons in Parliament assembled,-towards the Colonies, if they are not of this body of the Realm, but are still to be considered as distinct bodies, foreign or extraneous parts, without the Realm and the jurisdiction of this Kingdom, there is surely some attention due to the nature of this absoluteness in this case.

If the people of the Colonies are no part of the people, or of the body, of the Realm of Great Britain, and if they are to be stated in the argument, as subject to the King, not as the head of that compound political person, of which they are in part the body, sed ut caput alterius populi,—as wearing the Imperial Crown of Great Britain, as the head to which the Realm of Great Britain is the body, and of which body the Parliament is the soul, but of which the Colonies are no part,-then this Imperial Supreme Magistrate, the collective power of King, Lords and Commons, may be stated as Sovereign on the one hand, while the people of the Colonies stand as subjects on the other.

Taking the relation of the Colonies to the Mother Country in this view, when the argument is stated in this manner, we surely may say with exactness and truth, that if the colonists, by birthright, by nature or by establishment, ever were entitled to all the rights, privileges, liberties and franchises of an Englishman, the absolute power of this Sovereign must have some bounds; must from its own nature, from the very nature of these rights of its subjects, be limited in its extension and exercise. Upon this state of the case, questions will necessarily arise, which I will not take upon me to decide,