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The Background of American Federalism

Published online by Cambridge University Press:  02 September 2013

Andrew C. McLaughlin
Andrew C. McLaughlin
Affiliation:
University of Chicago
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Extract

The purpose of this paper is to make plain two facts: first, that the essential qualities of American federal organization were largely the product of the practices of the old British empire as it existed before 1764; second, that the discussions of the generation from the French and Indian war to the adoption of the federal Constitution, and, more particularly, the discussions in the ten or twelve years before independence, were over the problem of imperial organization. The center of this problem was the difficulty of recognizing federalism; and, though there was great difficulty in grasping the principle, the idea of federalism went over from the old empire, through discussion into the Constitution of the United States. By federalism is meant, of course, that system of political order in which powers of government are separated and distinguished and in which these powers are distributed among governments, each government having its quota of authority and each its distinct sphere of activity.

We all remember very well that, until about thirty years ago, it was common to think of the United States Constitution as if it were “stricken off in a given time by the brain and purpose of man.” About that time there began a careful study of the background of constitutional provisions and especially of the specific make-up of the institutions provided for by the instrument.

Type
Research Article
Information
American Political Science Review , Volume 12 , Issue 2 , May 1918 , pp. 215 - 240
Copyright
Copyright © American Political Science Association 1918

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References

1 This paper is limited to the subject stated above. It does not pretend to assert or deny economic influences. It confines itself to the intellectual problem of imperial order. Only one other subject vies with this in importance—the problem of making real the rights of the individual under government.

2 The first of these studies, as far as I know, was Johnston's, Alexander “First Century of the Constitution” in the New Princeton Review, IV, (1887), 175.Google Scholar

3 One of the books which does in some degree recognize the nature of the Revolutionary discussion is Holland, Imperium et Libertas.

4 So successful has been the empire of opportunism, of operation and coöperation based on understandings, not on fixed law, that we find ourselves looking with some misgiving on discussions now in progress at Westminster, lest, through well intentioned effort to reach definiteness, fluidity be changed to rigidity.

5 Working out the principle of federalism in military affairs was a big problem in the French and Indian war, in the decade before independence, in the Revolution, in the Federal Convention, in the War of 1812, in the Civil War, in the Congress of 1916, in the War of 1917.

6 I have left out of consideration the question of the absorption by the colonies of common law and the acceptance of legislation modifying commonlaw, especially criminal law. It is a big and complicated question. Limited space does not permit the treatment. I content myself with a general picture of the make-up of the empire, which I believe is substantially correct. It is also noteworthy that there was in the empire national or imperial and local citizenship, and that naturalization by colonial authorities was after 1740 under imperial law.

7 The reader may object that Congress can now provide for standards of weights and measures, patents, and copyrights. He might point out, possibly with justice, that coining money and regulating the value thereof did not belong in the old empire to the central authority; but I leave the old practice to justify my assertion and refer again in passing to the act against paper money. The bankruptcy power, as a part of the general power of our central government, probably can be traced back with certainty at least to colonial conditions, and the Bubble Act and its extension to the colonies must not be forgotten.

8 This statement needs modification; for Burke, rejecting legalism, still displayed statesmanship of the highest order. He resented any attempt to fossilize or ossify the empire and sought to hold out the idea of parliamentary duty rather than legal power. In these latter days it would be stupid to declare that one must grasp and apply legal federalism if he is to deal with the elements of a composite empire; Burke's principles of duty and of freedom have been proved to be the cement of the British empire. But, withal, it is quite plain that the statesmen of the Revolution on both sides thought there was need of fixing legal authority; and those incapable of seeing the principle of distributed authority—federalism—were in a bad way.

9 Writings, ed. by Smyth, A. H., III, p. 242.Google Scholar

10 It is worth noticing that at a later time Franklin himself after reading a considerable portion of Dickinson's Farmer's Letters is evidently at a loss; and he at a comparatively early day, about 1768, found no middle ground between complete independence of the colonies and complete power of Parliament. Speaking of the Farmer's Letters Franklin wrote: “I have read them as far as No. 8‥ ‥ I am not yet master of the idea they and the New England writers have of the relation between Britain and her colonies. I know not what the Boston people mean by the ‘subordination’ they acknowledge in their Assembly to Parliament, while they deny its powers to make laws for them, nor what bound the Farmer sets to the power he acknowledges in Parliament to ‘regulate the trade of the colonies’ it being difficult to draw lines between duties for regulation and those for revenue; and if the Parliament is to be the judge, it seems to me that establishing such principles of distinction will amount to little.” Quoted in note in Memoirs of the Historical Society of Penn., XIV, 281.

11 This interpretation of Otis is of course strengthened by the fact of his belief in the representation of the colonists in Parliament and his reliance on the right of a court to declare an unjust act void; but, after all, Otis did distinguish between powers, and did believe in the constitutional restraints on Parliament.

12 Considerations on the Propriety of Imposing Taxes in the British Colonies for the purpose of raising a revenue, by act of Parliament, (London, 1766), p. 16. Tyler says that there was an American edition of 1765. This I have not seen.

13 Ibid., p. 17. See for an early statement of federalism, Maury, Ann, Memoirs of a Huguenot Family, 425–426Google Scholar; letter of Maury to Fontaine, December 31, 1765. Portions of Patrick Henry's resolutions of 1765 have the federal argument.

14 Considerations on the Propriety of Imposing Taxes in the British Colonies, etc., (London, 1766), p. 46.

15 See also Hopkins, Stephen, Grievances of the American Colonies Candidly Examined, p. 19.Google Scholar

16 “Mr. Otis, their champion, scouts such a distinction.” Parl. Hist., XVI, col. 167.

17 For a sharp statement of Dickinson's position of empire consistent with colonial freedom—freedom of the colonies—see the early parts of Letter II of the Farmer's Letters.

18 The distinction between regulation of commerce and taxation never, I think, entirely disappeared from the colonial mind, though after about 1772 some leaders came to the point of openly asserting complete freedom from parliamentary control. See for the distinction Letter from the Massachusetts House to Dennis de Berdt, (London, 1770), p. 16. It is possible that this letter was written earlier than 1770. I have been unable to find it in the Mass. State Papers.

19 Special exceptions should of course be made. Pownall, Thomas, in his Administration of the Colonies (London 1764 and later amplified editions)Google Scholar, struggles to find expression. Of course there were others. Vide, , for example, Johnstone's Speech on ‥‥ recommitting the address, etc., (London, 1776).Google Scholar

20 Pitt's statement distinguishing taxation from legislation is omitted from this discussion in the text. See for partial support of position above Grenville, Speech of January 14, 1766. Parl. Hist., XVI, 101. See also Ibid., 167.

21 Except Hutchinson's speeches of 1773.

22 In a pamphlet attributed to Phelps, , The Rights of the colonies and the extent of the legislative authority of Great Britain briefly stated and considered, (1769), pp. 11 and 12Google Scholar, we find: “The colonies, therefore, must either acknowledge the legislative power of Great Britain in its full extent, or set themselves up as independent states; I say in its full extent, because if there be any reserve in their obedience, which they can legally claim, they must have a power within themselves superior to that of the mother country; for her obedience to the legislature is without limitation.” Winsor says Phelps was Under-Secretary to Sandwich, Lord. Narr. and Crit. Hist., VI, 85.Google Scholar

23 See for example Hosmer, J. K., Life of Thomas Hutchinson, 134.Google Scholar

24 “Every advantage that could arise from commerce they have offered us without reserve; and their language to us has been—‘Restrict us, as much as you please in acquiring property by regulating our trade to your advantage; but claim not the disposal of that property after it has been acquired—Be satisfied with the authority you exercised over us before the present Reign.’” Additional Observations on the nature and value of Civil Liberty, and the War with America, by Richard Price.

“And when men are driven for want of argument, they fly to this as their last resource—‘acts of parliament (say their advocates) are sacred, and should be implicitly submitted to—for if the supreme power does not lodge somewhere operatively, and effectually, there must be an end of all legislation.’” Lord Chatham's Speech on the 20th of January, 1775. Taken by a member, page 9, (1775).

25 “If, intemperately, unwisely, fatally, you sophisticate and poison the very source of government by urging subtle deductions and consequences odious to those you govern from the unlimited and illimitable nature of sovereignty, you will teach them by those means to call that sovereignty itself in question. When you drive him hard the boar will turn upon the hunters. If that sovereignty and their freedom cannot be reconciled, which will they take? They will cast your sovereignty in your face, nobody will be argued into slavery.” Burke, Speech on American Taxation, Works, vol. II, p. 73. See also Ibid., pp. 141–142, for Burke's wishing to see the colonies admitted to an interest in the constitution, an evidence that he too recognized in some measure the need of formal statement.

26 An illustration of the same thing may be seen in an American source:

“Moreover, when we consider that Parliamentary taxations are not as to their present value, a matter of moment, either to the mother country, or the colonies; that the contention between us, ia upon the points of principle and precedent; that it is not the quantum, but the manner of exacting our unconstitutional impost, which is the bone of contention, our public jealousies must necessarily be increased.

“When the taxation was more general, there was some colour for the assertion in the Revenue Act, that it was intended for the safety and defence of the colonies. But it is not only true, that this cannot be asserted of the paltry duty on tea; we know, we were assured by our enemies, that when the other articles charged by the Revenue Acts were exempted by the partial repeal, the duty on tea was left as a standing memorial of the right of Parliament to tax Americans.” Force, , Archives, Fourth Series, I, 256Google Scholar note—copied from the New York Gazetteer, May 12, 1774.

27 Select Letters, p. 33.

28 By “law” I do not mean that there was a demand for a parliamentary act; I mean at the least an evident understanding, at the most a formal acknowledgment of power and the extent of it, a formal recognition of the complete authority of Parliament or, on the other hand, of the width and depth of the actual colonial legal competence.

29 It is plain, too, that Hutchinson, a legal-minded man, also felt in the days of Bernard's governorship, as later, that the constitution must be settled. “I wish to see known established principles, one general rule of subjection, which once acknowledged, any attempts in opposition to them will be more easily crushed.” Letter of April 21, 1766, quoted in Quincy Reports, 443–444. “Our misfortune is the different apprehension of the nature and degree of our dependence. I wish to see it settled, known, and admitted; for while the rules of law are vague and uncertain, especially in such fundamental points, our condition is deplorable in general.” Letter of December 31, 1766, Hosmer's, Hutchinson, p. 121.Google Scholar

Only one other question—and that intimately associated with the first—vied with it in importance: Were there or were there not rooted in the British constitution fundamental principles of individual liberty superior to legislative authority and must they be recognized in the British legislation for colonial affairs?

30 XVI, p. 488.

31 Memoirs of the Historical Society of Penn., XIV, p. 356.

32 Mass. State Papers, p. 340.

33 That is to say, they did not deny the possibility of distribution and a line of distinction between governments in the empire. “And, indeed, it is difficult, if possible, to draw a line of distinction between the universal authority of Parliament over the colonies, and no authority at all.” “If your Excellency expects to have the line of distinction between the supreme authority of Parliament, and the total independence of the colonies drawn by us, we would say it would be an arduous undertaking, and of very great importance to all the other colonies; and therefore, could we conceive of such a line, we should be unwilling to propose it, without their consent in Congress.” Hosmer, , Hutchinson, pp. 382, 395.Google Scholar

34 Hosmer, , Hutchinson, p. 412.Google Scholar It will not do, to argue that they meant, by “subordinate,” subject to the whim and control of Parliament; for that is just what they were arguing against. They denied that supremacy meant complete unlimited power, or that subordination meant unlimited submission. Of course “coordinate” is more nearly expressive of federalism than “subordinate;” but the principle these men had in mind is that of distribution, legal distribution, by which the parts legally control local affairs, a general government regulates and safeguards general affairs.

I omit, to save space, the extended argument, but I must call attention to their assertion of legal possession of constitutional right by the colonies as integral portions of the empire, and also to their declaration, in a delicate manner, that Hutchinson was dealing with theories and disregarding the fact, aud that fact was the distribution of powers not centralization: “What has been here said [i.e. by Hutchinson], concerning supreme authority, has no reference to the manner in which it has been, in fact, exercised; but is wholly confined to its general nature.” Ibid., p. 413. These arguments are also to be found in Mass. State Papers, as well as in the appendix to Hosmer's Hutchinson.

35 An Answer to a Pamphlet entitled “Taxation No Tyranny,” found in Force's, American Archives, Fourth Series, I, 1450Google Scholar, latter part of paragraph on p. 1451.

36 I have not attempted in this paper to cite all the instances of an appreciation of the fact that the discussion was over the possibility of distribution of power in the empire. Let me refer to a letter of Gouverneur Morris to Mr. Penn, May 20, 1774. It speaks of the danger of America's falling “under the worst of all possible dominions … the domination of a riotous mob,” and then proposes “a safe compact” between the colonies and the mother country, “internal taxation i.e. to be left with ourselves,” “the right of regulating trade to be vested in Great Britain.” Of course the compact was to form the legal and binding authority for the exercise of power. Force, , American Archives, Fourth Series, I, 342–343.Google Scholar

Notice also that the Pennsylvania Convention of 1774 speaks of the desirability of agreements with Great Britain; she is to renounce certain claims and America is to accept certain statutes; money is to be given to the king. It also dwells on the compact which has to do largely with trade: “With such parts of the world only as she has appointed us to deal, we shall continue to deal; and such commodities only as she has permitted us to bring from them, we shall continue to bring. The executive and controlling powers of the crown will retain their present full force and operation.” Ibid., 561. Vide, also among other plans, Proposal for a Plan toward a Reconciliation and Reunion, etc., by one of the Public (London, 1778).Google Scholar

I omit in this paper mention of various plans of imperial order. They are important as disclosures of effort to distribute powers on a legal basie.

37 Even the system of admiralty jurisdiction was carried forward through the Articles into the Constitution of the United States.

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