The Constitution of the United States | Page 9

the letters and still fewer newspapers, which were
carried by post riders often through an almost trackless wilderness.
Obviously, a working government could not easily be constituted
between peoples of different religions, races, and economic interests,
who, for the most part, never met each other face to face and with
whom frequent communication was impossible.
The differences between the colonies and the mother-country with
respect to internal taxation slowly developed into an issue of
constitutionalism rather than of legislative policy. As in England, the
immediate question affected the power of the Crown to give to the
customs inspectors the power to make general searches and seizures, to
enforce the navigation laws. In 1761 James Otis, of Massachusetts,
made a fateful speech before the colonial legislature, in which,
asserting the illegality of the search warrants on the ground that they
violated the constitutional rights of Englishmen to protection in their
own homes, he asserted that Acts of Parliament which violated the
sanctity of the home were void and that, more specifically, they
violated the charter granted to Massachusetts. Asserting the doctrine
which at that time was the doctrine of the English common law, as
stated by Coke and three other Chief Justices, he said:
"To say the parliament is absolute and arbitrary is a contradiction. The
Parliament cannot make two and two five. Omnipotency cannot do it....
Parliaments are in all cases to declare what is for the good of the whole;
but it is not the declaration of parliament that makes it so: there must be

in every instance a higher authority, viz., GOD. Should an Act of
Parliament be against any of His natural laws, which are immutably
true, their declaration would be contrary to eternal truth, equity and
justice, and consequently void; and so it would be adjudged by the
Parliament itself, when convinced of their mistake."
It is a curious fact that in the reaction from the tyranny of the Stuarts
your country abandoned this principle of the common law by
substituting for the omnipotence of the Crown the omnipotence of
Parliament, while in my country the somewhat vague and unworkable
principle of the common law, which gave the judiciary the power to
invalidate an act of the legislature, when against natural reason and
justice, was developed into the great principle, without which
institutions in an heterogeneous and widely scattered democracy would
be unworkable, namely that the powers of government are strictly
defined, and that neither the executive, the legislative, nor the judicial
departments of the government can go beyond the precise limits
established by the fundamental law. Like the common law, the
Constitution was thus the result of a slow evolution. Mr. Gladstone, in
his oft-quoted remark, gave an erroneous impression when he said:
"As the British Constitution is the most subtle organism which has
proceeded from progressive history, so the American Constitution is
the most wonderful work ever struck off, at a given time by the brain
and purpose of man."
This assumes that the Constitution sprang, like Minerva, armed
cap-à-pie, from the brain of the American people, whereas it was as
much the result of a slow, laborious, and painful evolution as was the
British Constitution. Probably Gladstone so understood the
development of the American Constitution and recognized that its
framing was only the culmination of an evolution of many years.
When the constitutional struggle between the colonies and the
Parliament became acute, the necessity of a union for a common
defence became imperative. As early as July, 1773, Franklin
recommended the "convening of a General Congress" so that the
colonies would act together. His suggestion was introduced in the

Virginia House of Burgesses in May, 1774, and as a result there met in
Philadelphia on September 5 of that year the first Continental Congress,
styled by themselves: "The Delegates appointed by the Good People of
these Colonies." Nothing was further from their purpose than to form a
central government or to separate from England. This Congress only
met as a conference of representatives of the colonies to defend what
they conceived to be their constitutional rights.
Before the second Continental Congress met in the following year, the
accidental clash at Lexington and Concord had taken place, and as the
Congress again re-convened a momentous change had taken place,
which was, in fact, the beginning of the American Commonwealth. The
Congress became by force of circumstances a provisional government,
and as such it might well have claimed plenary powers to meet an
immediate exigency. So indisposed were they to separate from England
or to substitute for its rule that of a new government, that the
Continental Congress, when it then involuntarily took over the
government of America, failed to exercise any adequate power. It
remained simply a conference without real power. Each colony had one
vote