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Part Two The Colonial Era: Before 1776, V Colonial Era: Federalism

Mark A. Graber, Howard Gillman

From: The Complete American Constitutionalism, Volume One: Introduction and The Colonial Era

Howard Gillman, Mark A. Graber, Keith E. Whittington

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

(p. 231) Colonial Era: Federalism

Major Developments

  • •  Political theorists develop the concept of a federal union

  • •  England and Scotland provide an example of a federal union

  • •  Americans debate the existence and nature of the federal union between Great Britain and the colonies

The relationship between Great Britain and the colonies raised federalism issues that have echoed down through American history. Some issues concerned the relationships between central governments and the peripheries. In the imperial context prior to 1776, this question concerned how much control the British government should have over public policy in the North American colonies. Parliament in the Colonial Era claimed the same absolute authority over the colonies that Parliament had established over Great Britain. Most Whigs and Tories in London agreed that the Parliament or the king in Parliament could dictate any policy to the colonies. Parliament might decide local rule was best, but this was a decision for Parliament to make and not a constitutional entitlement Americans enjoyed of right. The colonists insisted that constitutional limits existed on parliamentary authority to govern North America. Some areas of public policy and particular governmental powers, in their view, were under the exclusive control of local colonial governments. Other areas were appropriate subjects for parliamentary regulation.

Americans who insisted that colonial legislators have some degree of autonomy faced the difficult task of drawing a line between the scope of British and colonial authority. Different models existed for conceptualizing the existing relationships between the colonies and Great Britain and the directions those relationships might take. Scotland and England in 1707 had formed an incorporating union in which each polity had surrendered its national autonomy. Such political theorists as Samuel von Pufendorf introduced the notion of a federal union, in which different nations agreed to waive part of their sovereignty in order to cooperate on such matters as war and peace. None of these models quite fit the (p. 232) colonial situation. The result was that all attempts to map political relationships threatened to give way in one direction or the other—either to absolute British domination or to colonial independence.

Federalism questions concerning the relationship between the colonies came to the forefront as efforts to develop a mutually satisfactory relationship between Great Britain and the colonies failed. The colonies needed to present a united front in their struggles against Great Britain, but the nature of that unity was unclear. The thirteen colonies might be a common nation, entirely independent sovereignties, or something in-between. The Articles of Association adopted by the First Continental Congress left that relationship unclear.

A.  The Status of States (Colonies) in the Federal Union (British Empire)

Seventeenth- and eighteenth-century political theory provided three models for conceptualizing the relationship between the colonies and Great Britain.

  • •  The colonies were part of the British Empire.

  • •  The colonies and Great Britain were part of a federal union.

  • •  The colonies and Great Britain might form an incorporating union.

British authorities and American loyalists maintained that the colonies were part of the British Empire. This position entailed that Parliament had the same absolute sovereignty over the colonies as Parliament had over every other foot of the British Empire. Parliament might choose to establish subordinate legislatures in the colonies, but whatever powers those legislatures exercised were at the sufferance of Parliament. Francis Bernard, a royal governor and champion of this view, declared that “All external Legislatures must be subject to, and dependent on, the Imperial Legislature: otherwise there would be an Empire in an Empire.”

Such prominent colonists as Richard Bland and James Wilson insisted that the colonies and Great Britain had formed a federal union. Samuel von Pufendorf in his influential Of the Law of Nature and Nations (1672) defined a federal union as one in which independent nations “submit only some certain parts of the sovereignty to mutual Direction.” Bland and Wilson adopted this model when maintaining that the first settlers in the Americas had founded independent nations and had subsequently formed a federal union with Great Britain. Bland thought the federal union between Great Britain and the colonies allocated to Parliament the power to manage trade, foreign affairs, and military matters, while colonial legislatures retained exclusive authority over all domestic matters. Wilson maintained that a federal union allocated to Parliament the power to made laws for Great Britain and to colonial legislatures the power to made laws for the colonies, but provided that both American and British subjects retain allegiance to the Crown, which managed common affairs. Wilson declared, “Allegiance to the king and obedience to the parliament are founded on very different principles. The former is founded on protection: the latter, on representation.”

(p. 233) A few commentators thought this dispute between Britain and the colonies could be mediated by the formation of an incorporating union in which Americans enjoyed representation in Parliament. During the 1760s and 1770s, Francis Bernard and others made occasional proposals to form a more incorporating union between Great Britain and the colonies. None received serious attention.

Francis Bernard, The Principles of Law and Polity, Applied to the American Colonies (1764)1

Sir Francis Bernard was the royal governor of New Jersey from 1758 to 1760 and then the royal governor of Massachusetts from 1760 to 1769. While in office, Bernard vigorously defended absolute parliamentary sovereignty over the colonies. Working from the conventional understanding that sovereignty is absolute and indivisible, he concluded that the colonists could not plausibly claim that Parliament enjoyed absolute sovereignty over some matters but not over others. Bernard nevertheless believed that, as a practical matter, Americans should enjoy representation in Parliament. He urged Parliament to establish an American nobility and rejigger colonial boundaries so as to better secure effective government in the colonies.

The Principles of Law and Polity, Applied to the American Colonies is Bernard’s most influential statement on absolute parliamentary sovereignty. The pamphlet influenced both parliamentary supporters of American taxation and the American revolutionaries. Many revolutionaries, most notably John Adams, couched their arguments against parliamentary sovereignty as criticisms of Bernard’s basic principles. Consider when reading the excerpt below whether Bernard’s proposals on a more incorporating union might have been acceptable to the colonies. There were clear theoretical differences between his views and those of John Adams, but perhaps the practical differences were less than meets the eye.

1. The Kingdom of Great Britain is imperial; that is, Sovereign, and not subordinate to or dependent upon any earthly power.

2. In all imperial states there resides somewhere or other an absolute power, which we will call the Sovereignty.

3. The Sovereignty of Great Britain is in the King in Parliament, that is, in the King, acting with the advice and consent of the Lords and the Commons (by their Representatives), assembled in the Parliament of Great Britain.

4. The King in Parliament has the sole right of legislation, and the supreme superintendency of the government; and, in this plenitude of power, is absolute, uncontrolable, and accountable to none; and therefore, in a political sense, can do no wrong.

5. The Execution of the government is in the King alone, to be exercised according to the laws of the country, written and unwritten.

(p. 234) 6. The exercise of this right is the King’s Prerogative; and, whilst it is regulated by the laws, the King can do no wrong in such exercise.

7. The laws are either unwritten, that is rules of government immemorially admitted and approved; or written, that is, ordinances of the Parliament.

8. The privileges of the people are the right of having conjunctively, by their representatives, one third part of the sovereign legislative power, and of enjoying separately the protection and benefit of the laws.…

9. The King in Parliament, is the sole and absolute Sovereign of the whole British Empire.

10. No members of the British Empire, other than the Parliament of Great Britain, can have a right to interfere in the exercise of this Sovereignty, but by being admitted into the Parliament, as Wales, Chester, and Durham have been, and Ireland may be.

11. Such a union is not necessary to the generality of the British external dominions; but it may be expedient with most of them.

12. The external British dominions, without such a union, are subordinate to and dependent upon the Kingdom of Great Britain, and must derive from thence all their powers of legislation and jurisdiction.

13. Legislation is not necessary to an external and dependent government; jurisdiction is necessary and essential to it. Therefore,

14. A separate Legislation is not an absolute right of British subjects residing out of the seat of Empire.…

15. Where it is granted or allowed, it must be exercised in subordination to the Sovereign power from whom it is derived.

16. No grant of the power of Legislation to a dependent government, whether it comes from the King alone, or from the Parliament, can preclude the Parliament of Great Britain from interfering in such dependent government, at such time and in such manner as they shall think fit.…


19. In places to which the ordinary administration of justice does not extend, the King has a right to make extraordinary provision for it, so that such provision being conformable to the laws as the case will permit. Nevertheless,

20. It is the right of the Parliament, by its supreme power of legislation and superintendency, to adjust and settle finally the powers and modes of jurisdiction. Therefore,

21. The new jurisdictions established by the King, until they are confirmed by Parliament, are only temporary provisions.


29. The rule that a British subject shall not be bound by laws, or liable to taxes, but what he has consented to by his representatives, must be confined to the inhabitants of Great Britain only; and is not strictly true even there.

30. The Parliament of Great Britain, as well from its rights of Sovereignty as from occasional exigencies, has a right to make laws for, and impose taxes upon, its subjects in its external dominions, although they are not represented in such Parliament.


32. The Parliament of Great Britain has a right and a duty to take care to provide for the defence of the American colonies; especially as such colonies are unable to defend themselves.

33. The Parliament of Great Britain has a right and a duty to take care that provision be made for a sufficient support of the American governments. Because,

(p. 235) 34. The support of the Government is one of the principal conditions upon which a colony is allowed the power of Legislation.…


36. The Colonies ought, so far as they are able, to pay the charge of the support of their own Governments, and of their own defence.

37. The defence of the American Colonies being now almost wholly a sea service, is connected with the defence of trade. Therefore,

38. Duties upon imports and exports, make the most proper funds for the expenses of such defence. And

39. It being the proper business of the Parliament of Great Britain, to establish and determine the necessary regulations and restrictions of the trade of their external dominions; and the duties upon the American imports and exports being interwoven with the regulations and restrictions of trade; the imposition of such Duties is the proper business of the Parliament.


44. Although the right of the Parliament of Great Britain, to raise taxes in any parts of the British Empire, is not to be disputed; yet it would be most advisable to leave to the Provincial Legislatures the raising the internal taxes.


46. It will be more agreeable to the people, that the necessary internal taxes should be raised by the Provincial Legislatures; as they will be most able to consult the particular convenience of their respective provinces. Whereas,

47. It may be difficult to form a general Parliamentary tax, so as to make it equally suitable to all Provinces.

48. It would make it more agreeable to the people/though the sum to be raised was prescribed, to leave the method of taxation to their own Legislature.

49. If the Provincial Legislatures should refuse to raise the sums required for the support of Government, or should insist upon doing it by improper means, the Parliament might then take the business into their own hands.


52. The establishment of a certain, sufficient, and independent Civil List, is not only expedient, but necessary to the welfare of the American Colonies.


54. The People of the Colonies ought not to object to such an appointment, because the support of Government is one of the terms upon which they have received the power of Legislation; and, if the Government is not supported, the Legislation must cease: …


56. The Government ought not to be dependent upon the people; and the particular means used in some of the Colonies to keep their Governments dependent, and the use which has been made of such dependency, afford ample proofs that they ought not to be so.


59. The subjects of the British Empire, residing in its external dominions, are entitled to all the rights and privileges of British subjects, which they are capable of enjoying.

60. There are some rights and privileges which the British subjects, in the external dominions, are not equally capable of enjoying with those residing in Great Britain.

61. The right of having a share in the Imperial Legislature, is one of these incapacities in those external dominions, where a representation is impracticable.

(p. 236) 62. A Representation of the American Colonies in the Imperial Legislature is not impracticable: and therefore,

63. The propriety of a Representation of the American Colonies in the Imperial Legislature, must be determined by expediency only.

64. A Representation of the American Colonies, in the Imperial Legislature, is not necessary to establish the authority of the Parliament over the Colonies. But

65. It may be expedient for quieting disputes concerning such authority, and preventing a separation in future times.

66. The expediency of American Legislatures, does not arise from the want of their having Representatives in the Imperial Legislature.

67. If the American Colonies had Representatives in Parliament, still there would be an occasion for provincial Legislatures, for their domestic economy, and the support of their Governments. But

68. All external Legislatures must be subject to, and dependent on, the Imperial Legislature: otherwise there would be an Empire in an Empire..…

75. Every American Government is capable of having its Constitution altered for the better.

76. The Grants of the powers of Governments to American colonies by charters, cannot be Understood to be intended for other than their infant or growing states.

77. They cannot be intended for their mature state, that is, for perpetuity; because they are in many things unconstitutional and contrary to the very nature of a British Government. Therefore,

78. They must be considered as designed only as temporary means, for settling and bringing forward the peopling the Colonies; which being effected, the cause of the peculiarity of their constitution ceases.

79. If the Charters can be pleaded against the authority of Parliament, they amount to an alienation of the dominions of Great Britain, and are, in effect, acts of dismembering the British Empire, and. will operate as such, if care is not taken to prevent it.

80. To make the Government of a Province the most perfect, it is necessary to regard the Extension as well as the Constitution of it.

81. A Province should be so extended, that the honourable support of the Government should not be burthensome; and so confined, that the assembling the Legislature may not be inconvenient.

82. Where the Legislature can meet without inconvenience, the larger a Province is, the more effectual will be the powers of its Government.

83. The notion which has heretofore prevailed, that the dividing America into many governments, and different anodes of government, will be the means to prevent their uniting to revolt, is ill-founded; since, if the Governments were ever so much consolidated, it will be necessary to have so many distinct States, as to make a union to revolt impracticable. Whereas,

84. The splitting America into many small governments, weakens the governing power, and strengthens that of the people; and thereby makes revolting more probable and more practicable.

85. To prevent revolts in future times … the most effectual means would be, to make the governments large and respectable, and balance the powers of them.

(p. 237) 86. There is no Government in America at present, whose powers are properly balanced; there not being in any of them a real and distinct third Legislative power mediating between the King and the People, which is the peculiar excellence of the British Constitution.

87. The want of such a third Legislative power, adds weight to the popular, and lightens the royal scale; so as to destroy the balance between the royal and popular powers.

88. Although America is not now (and probably will not be for many years to come) ripe enough for an hereditary Nobility; yet it is now capable of a Nobility for life.

89. Nobility appointed by the King for life, and made independent, would probably give strength and stability to the American governments, as effectually as an heredity Nobility does to that of Great Britain.

90. The reformation of the American governments should not be controlled by the present boundaries of the colonies; as they were mostly settled upon partial, occasional, and accidental considerations, without any regard to a whole.

91. To settle the American governments to the greatest possible advantage, it will be necessary to reduce the number of them; in some places to unite and consolidate; in others to separate and transfer; and in general to divide by natural boundaries instead of imaginary lines.

92. If there should be but one form of Government established for all the North American Provinces, it would greatly facilitate the reformation of them: since, if the mode of Government was every where the same, people would be more indifferent under what division they were ranged.


97. This is therefore the proper and critical time to reform the American governments upon a general, constitutional, firm, and durable plan and if it is not done now, it will probably every day grow more difficult, till at last it becomes impracticable,

Francis Bernard to Lord ___, November 23, 1765


.… [T]hough the Parliament of Great Britain does not stand in need of a real or virtual representation to ground its authority over the Colonies, it may now be worth consideration, whether admitting representatives from the Colonies may not be a proper expedient for the present exigencies.… The patchwork government of America will last no longer: the necessity of a parliamentary establishment of the governments of America upon fixed constitutional principles, is brought on with a precipitation which could not have been foreseen but a year ago; and is become more urgent, by the very incidents which make it more difficult. The circumstance of the Americans justifying their disobedience by their not being represented, points out a method to enforce their obedience upon their own principles. Take them at their word; let them send representatives for the present time, and for the present purposes: thirty for the continent, and fifteen for the Islands, would be sufficient. In this Parliament, the Colonies being actually represented, let the affair of the American governments be canvassed to the bottom; and let a general, uniform system of American government be formed and established by Act of Parliament, by which the Americans, according to their own principles, will be bound; and let the relation of America to Great Britain be determined and ascertained by a solemn Recognition: so that the rights of the American (p. 238) governments, and their subordination to that of Great Britain, may no longer be a subject of doubt and disputation.

.… The civil policy of America is composed of temporary expedients, all derived from the Crown only; not one of the American governments has that sanction which none of them ought to be without, a parliamentary establishment. And, until the Parliament shall establish the American governments upon a constitutional bottom, and ascertain the limitations and extensions of their legislatures, it must be expected that the governments will be continually subject to disturbance, whenever the Americans think fit to complain of innovations upon, and infringements of, their rights; that is, whenever anything is required of them which they don’t like.

Ireland … affords instances of every kind of regulation which America wants: which may be brought under these heads: 1. The governments … should be composed of such ample districts as will enable the people to keep up the state of government without feeling the burden of it; 2. There should be one form of government, as like as possible to that of Great Britain …, with a true, middle legislative power, appointed by the King for life, and separate from the Privy Council. 3. There should be a certain and sufficient civil list laid upon perpetual funds, for the support of his Majesty’s officers; so that they may not be too much dependent upon the people: 4. The several American governments should maintain such standing forces, as they be thought necessary to be kept up in America, as their quota of the general armament of the empire, by raising the sums requisite therefor, and paying the same into the King’s Treasury in America, the numbers of men, and proportions of the several governments, to be settled by the Parliament of Great Britain. 5. There should be a solemn recognition of the supremacy of the Parliament of Great Britain over the American governments; which should be the first act of each Legislature after its new establishment, and be the condition of its activity; 6. There should be a general revisal of the laws of America, that they may be reduced, as near as possible, to the standard of England, and the administration of government and law may be rendered as similar thereto as well may be.


Francis Bernard to ___, Esquire, December 14, 1765


.… [I]f the Parliament should undertake so important a work as the new modelling the governments in America, which seems to me to be at this time unavoidable, it appears reasonable that the Colonies should have their Deputies in the House, both to hear and to speak upon the subject relating to them. If they were allowed this liberty (even though they did not accept it, as probably some of them, would not) they could not complain of their rights being disposed of without their being heard, as they do now. For a liberty of sending Representatives would conclude them, whether they sent them or not. And this leads me say, that I do not propose American Representatives as a perpetual establishment, but only as a temporary ordinance. When the business is done, the governments new modelled, their Legislatures established upon constitutional principles and a permanent bottom, and a recognition of the supremacy of the Parliament of Great Britain passed the new Legislatures as a first and conditional Act, there will be no longer occasion for American Representatives; they may return and serve in their own Assemblies, which then may be as separate from that of Great Britain as that of Ireland.

(p. 239) Samuel Von Pufendorf, Of the Different Forms of Government (1672)2

Baron Samuel von Pufendorf was a prominent German statesperson and political thinker during the mid-seventeenth century. His most important work Of the Law of Nature and Nations (1672) influenced enlightenment and colonial thinking on the nature of political regimes and the role of states in the international system. Pufendorf is often credited with developing the concept of a federal union. Of the Law of Nature defines such a union as rooted in an agreement between two or more states not to exercise part of their sovereignty independently. Parties to a federal union might fashion a constitutional order that vested each state with the exclusive authority over purely domestic matters, while creating a separate institution in which all confederation members were represented that was authorized to determine when the federal union as a whole would go to war.

Pufendorf distinguished federal unions from treaties on the basis of whether the member states agreed not to exercise part of their sovereignty. Nevertheless, he insisted that each nation retained the right to determine independently whether remaining in a federal union was in the national interest. The premise became crucial to compact theory in the United States during the nineteenth century.

The other kind of System is, when several states are joined to each other by a perpetual League or Alliance; the chief occasion of which seems to have been, that each particular People loved to be their own Masters, and yet each was not strong enough to make Head against a Common Enemy. The Purpose of such an Agreement usually is, that they shall not exercise some part of the sovereignty there specified, without the General Consent of each other. For the Leagues to which these Systems owe their rise, seem distinguished from others (so frequent amongst different states) chiefly by this consideration; that in the latter, each Confederate people determine themselves by their own judgment to certain mutual Performances, yet so as that, in all other respects, they design not in the least to make the exercise of that part of sovereignty, whence those Performances proceed, dependent on the Consent of their Allies, or to retrench any thing from their full and unlimited Power of governing their own states. Thus we see that ordinary Treaties propose, for the most part, as their Aim, only some particular Advantage of the States thus transacting; their Interests happening at present to fall in with each other: but do not produce any lasting Union, as to the chief Management of Affairs. Whereas in those Leagues we are now speaking of, the contrary is observable; they being carried on with this Design, that the several states shall for ever link their main safety one within the other, and in order to this mutual Defence, shall engage themselves not to exercise certain parts of their Sovereign Power, otherwise than by Common Agreement and Approbation. For the Promises made in the two Cases, here compared, run in very different Terms; in the former thus: “I will join You as a Confederate in this particular War, and the manner of our Attacking the Enemy shall be concerted by our Common Advice:” in the latter thus; “none of us, who have entered into this Alliance, will make use of our Right, as to the Affair of Peace and War, (p. 240) except by the General Consent of the whole Confederacy.” We observed before, that these Unions submit only some certain parts of the sovereignty to mutual Direction. For it seems hardly possible, that the Affairs of different States shall have so close a Connection, as that all, and each of them must look on it as their Interest, to have no part of the chief Government exercised, without the General Concurrence. Or, if there be any Communities thus mutually depending, it had been the wiser Course for them, rather to have incorporated themselves under the same Government, than to rely on the bare Engagement of a League. The most convenient Method therefore seems to be, that the particular States reserve to themselves all those Branches of the Supreme Authority, the Management of which, can have little or no Influence (at least directly) on the Affairs of the rest. The same must be said of such public Business, as either occurs every Day, or else requires so speedy Measures as to prevent a General Debate. But then as to all Affairs, on which the Safety of the Allies hath a joint Dependence, these ought in reason, to be adjusted by common Consultation. And in this Number, War, whether Offensive or Defensive, seems to claim the first place; and after that, Peace, as the Result and Issue of War. To which, we may add Taxes and Subsidies, as they contribute to the mutual support; and Alliances with Foreign States, as they promote the common safety. It falls under the same Head of Duties, that in case any Dispute arise amongst the Confederates themselves, the other Members, who are unconcerned, shall immediately interpose their Mediation, and not suffer the Controversy to come to Blows.… As for other Matters, which seem not so necessary to be transacted in Common, as Negotiations of Traffic, Subsidies for the particular Occasions of any single State, the Constituting of Magistrates, the Enacting of Laws, the Power of Life and Death over the respective Subjects, the Ecclesiastical Authority, and the like; there is no reason but that they may be left to the Pleasure of each distinct Government. Though at the same time, particular states ought so to manage these Privileges, as that they shall cause no Disturbance in the General Union.…

Since, in these Systems, ’tis necessary there should be a Communication of certain Affairs expressed in the League, and since this cannot be done so conveniently by Letters, a determinate Time and Place ought to be settled for the holding Assemblies and one or more Persons appointed, who shall have Power to call the States together, in case of any extraordinary Business, which will not admit of Delay. Though it seems a much more compendious Method, to fix a standing Council, made up of Persons deputed by the several Confederates, who shall dispatch Business of daily Occurrence, or of less Importance, according to the Tenor of their Commission; who, in Matters of greater Consequence, shall make report to the States, and shall publish and execute such Decrees as are returned to them on these occasions; to whom the Ministers of the Confederacy, in Foreign Parts, shall give an immediate account of their Proceedings, and who shall treat with the Ambassadors of other Nations, and conclude Business in the general Name of the Confederates: but who shall determine nothing that exceeds the Bounds of their Commission, unless all the Subjects have been first consulted on the Point.…

XX. Yet it may still appear doubtful, whether or not the whole Body of the Associates, or the Majority of them, have not a Power over particular States, or over those whom they exceed in Number, with regard to such Matters as were the first Occasion of the Alliance, and which by the express Terms of the League were appointed to be managed in a Common Assembly, so far as that the few dissenting States shall be bound, though against their Will, to do as the Major Part have determined. Here, in our Opinion, the Negative side of the Question ought to be preferred; if we speak of Regular Systems, and where the (p. 241) particular States reserve to themselves the entire Possession of their former Liberty. In as much as the Liberty of a State, which is nothing else but the Power of finally resolving and determining, according to its own Judgment, all Matters in which its Safety is concerned, cannot be understood, in case the State may, by virtue of the Authority held over it by some other, be compelled to certain Performances against its Will. Nor can any reason to the contrary be drawn from hence, that in the League ’twas agreed not to exercise some particular parts of the sovereignty there expressed, unless by common Consent. For ’tis one thing to say, “I engage not to use my Right unless you are willing,” and another to say, “I give you a Power of compelling me to use my Right, though against my inclination.” Now the first of these Forms is only implied in the League, not the latter. For the clearer Apprehension of which Point, it ought well to be observed, that when the Wills of many Persons are bound to conspire in one, this must arise, either from a compact between them to this Effect, or because one of them hath submitted his Will to the Will of the other. A Union or Concurrence of Wills, grounded on bare compact, doth not, in the least, destroy the Liberty of which we have been now speaking. For they agree beforehand in settling those Affairs, which are reserved to their joint Management; or if any new Business offers itself to their Debates, they desire to be influenced not by Authority, but Argument and Reason. But when I have submitted my Will to the Will of another, and by this means have given him a full Authority over me, I may then be obliged to things, which are very inconsistent with my good liking. Nor doth The Right of the Majority … oppose our judgment in this Case. For, first “the greater part draws the less” only in Bodies already constituted, not in those which are still to be established. And then farther, the Prerogative of the Majority, in a settled Council, to oblige the rest, is really owing to Human compact and Institution, not to Nature; though Natural Reason adviseth the Reception of this Method (as the most convenient) in numerous Assemblies, and where Business of various kinds, and of every Days Occurrence, is to be dispatched. Now in order to this, ’tis necessary that each Member do in such manner submit his Will to the Will of the whole, or of the major Part, as that he, though himself of a contrary opinion, shall be bound absolutely to follow what they determine; which we cannot conceive, unless, at the same time, we suppose the latter to hold a Command or Authority over the former. Besides, in an Assembly of Confederates, there seems to be no Occasion for this Right of the Majority; inasmuch as they are seldom composed of any considerable Number of States, and are chiefly united by the Prospect of General Advantage, which ’tis presumed none in their Wits will obstinately oppose. Yet if any, through a malicious and unreasonable Perverseness, shall refuse to join in the wholesome Counsels of the rest, and, by this means, shall endeavour to betray the Common safety, or Interest; it will be then lawful to apply the same Methods of Redress, as they who live in a Condition of Natural Liberty are allowed to use, against the Violators of Faith and Contracts. Unless it be judged the more eligible Course, utterly to purge the Society of so intractable a Partner….So that we may conclude from the whole, that where ever Business is decided by Plurality of Voices, in such a manner as that the dissenting Parties are likewise bound to stand to the Resolution; there the Regular Form of Systems or Confederacies is deserted, and the Members either break into an irregular Body, or close together in one undivided State.

The Dissolution of these Systems happens, when some of the Confederates voluntarily quit the League, and govern their own States apart; which they are induced to, chiefly by this Motive, that they hope to receive more Advantage by a Separation, than they could expect (p. 242) under a Conjunction, and apprehend their Allies to be rather a Burthen to them than an Assistance.…

On the other hand, these Systems do more closely unite, and are incorporated into the same Civil State, by the, following means. Either if all the Confederates, by a voluntary Submission, put themselves under the Government of some one Person or Council. Or if some one People which hath the Advantage in Strength and Power, shall reduce the rest to the Condition of dependent Provinces.…

Richard Bland, An Enquiry into the Rights of the British Colonies (1766)3

Richard Bland was a prominent Virginia statesperson, an influential pamphleteer and relative of Thomas Jefferson. His work played an important role in elaborating the distinction many colonists made between internal matters, on which colonial legislatures were sovereign, and external matters, on which Parliament was sovereign. Bland insisted that Americans had formed a distinctive political society when they emigrated from England. The society was united in a federal union with England, but that union was limited to such matters as trade and common defense. Parliament, on Bland’s theory, had no power to pass such measures as the Stamp Act, because that was an internal tax.

An Enquiry into the Rights of the British Colonies was Bland’s most influential statement on the distinction between internal and external matters of governance. Bland maintained that all persons had a fundamental right to form new societies, that the colonists had exercised this right when immigrating to “uninhabited” North America, and that, after doing so, these settlers were no longer bound by the parliamentary law, except to the extent that they had subsequently consented to forming a limited federal union with Great Britain. Unlike many American pamphleteers, Bland did not speak of Americans enjoying the rights of Englishpersons. Those were renounced when they emigrated. Instead, the argument in An Enquiry is based on natural law.


I have undertaken to examine, with an honest plainness and freedom, whether the ministry, by imposing taxes upon the colonies by authority of parliament, have pursued a wise and salutary plan of government, or whether they have exerted pernicious and destructive acts of power.


The question is, whether the colonies are represented in the British parliament, or not? You affirm it to be an indubitable fact that they are represented, and from thence you infer a right in the parliament to impose taxes of every kind upon them. You do not insist upon the power, but upon the right of parliament, to impose taxes upon the colonies. This is certainly a very proper distinction; as right and power have very different meanings, and convey very different ideas: for had you told us that the parliament of Great-Britain have power, by the fleets and armies of the kingdom, to impose taxes, and to raise contributions upon the colonies, (p. 243) I should not have presumed to dispute the point with you;. but as you insist upon the right only, I must beg leave to differ from you in opinion, and shall give my reasons for it.


.… I cannot comprehend, how men, who are excluded from voting at the election of members of parliament, can be represented in that assembly; or how those, who are elected, do not sit in the house as representatives of their constituents. These assertions appear to me not only paradoxical, but contrary to the fundamental principles of the English constitution.

To illustrate this important disquisition, I conceive we must recur to the civil constitution of England, and from thence deduce and ascertain the rights and privileges of the people, at the first establishment of the government, and discover the alterations that have been made in them from time to time; and it is from the laws of the kingdom, founded upon the principles of the law of nature, that we are to show the obligation every member of the state is under, to pay obedience to its institutions. From these principles I shall endeavour to prove, that the inhabitants of Britain, who have no vote in the election of members of parliament, are not represented in that assembly, and yet that they owe obedience to the laws of parliament, which, as to them, are constitutional, and not arbitrary. As to the colonies, I shall consider them afterwards.


Men, in a state of nature, are absolutely free and independent of one another, as to sovereign jurisdiction; but when they enter into a society, and by their own consent become members of it, they must submit to the laws of the society according to which they agree to be governed; for, it is evident, by the very act of association, that each member subjects himself to the authority of that body, in whom, by common consent, the legislative power of the state is placed: but though they must submit to the laws, so long as they remain members of the society, yet they retain so much of their natural freedom, as to have a right to retire from the society, to renounce the benefits of it, to enter into another society, and to settle in another country; for their engagements to the society, and their submission to the public authority of the state, do not oblige them to continue in it longer than they find it will conduce to their happiness, which they have a natural right to promote. This natural right remains with every man, and he cannot justly be deprived of it by any civil authority. Every person, therefore, who is denied his share in the legislature of the state to which he had an original right; and every person, who, from his particular circumstances, is excluded from this great privilege, and refuses to exercise his natural right of quitting the country, but remains in it, and continues to exercise the rights of a citizen in all other respects, must be subject to the laws, which by these acts he implicitly or, to use your own phrase, virtually consents to: for men may subject themselves to laws, by consenting to them implicitly; that is, by conforming to them, by adhering to the society, and accepting the benefits of its constitution, as well as explicitly and directly, in their own persons, or by their representatives substituted in their room. Thus, if a man whose property does not entitle him to be an elector of members of parliament, and therefore cannot be represented, or have any share in the legislature, inherits or takes any thing by the laws of the country to which he has no indubitable right in nature, or which, if he has a right to it, he cannot tell how to get or keep, without the aid of the laws, and the advantage of society; then, when he takes this inheritance, or whatever it is, and with it he takes and owns the laws that gave it him. And since the security he has from the laws of the country, in respect of his person and rights, is the equivalent for his submission to them, he cannot accept that security without being obliged, in equity, to pay this submission: nay, his very continuing in the country, shows, that he either likes the constitution, or likes it better, (p. 244) notwithstanding the alteration made in it to his disadvantage, than any other; or at least thinks it better, in his circumstances, to conform to it, than to seek any other; that is, he is content to be comprehended in it.

From hence it is evident, that the obligation of the laws of parliament upon the people of Britain, who have no right to be electors, does not arise from their being virtually represented, but from a quite different principle; a principle of the law of nature, true, certain, and universal, applicable to every sort of government, and not contrary to the common understandings of mankind.


But if those people of Britain who are excluded from being electors, are not represented in parliament, the conclusion is much stronger against the people of the colonies being represented, who are considered by the British government itself, in every instance of parliamentary legislation, as a distinct people. It has been determined by the lords of the privy council, that “acts of parliament made in England, without naming the foreign plantations, will not bind them.” Now what can be the reason of this determination, but that the lords of the privy council are of opinion, the colonies are a distinct people from the inhabitants of Britain, and are not represented in parliament? …


I have observed before, that when subjects are deprived of their civil rights, or are dissatisfied with the place they hold in the community, they have a natural right to quit the society of which they are members, and to retire into another country. Now when men exercise this right, and withdraw themselves from their country, they recover their natural freedom and independence: the jurisdiction and sovereignty of the state they have quitted, ceases; and if they unite, and by common consent take possession of a new country, and form themselves into a political society, they become a sovereign state, independent of the state from which they separated. If then the subjects of England have a natural right to relinquish their country; and by retiring from it, and associating together, to form a new political society and independent state, they must have a right, by compact with the sovereign of the nation, to remove into a new country, and to form a civil establishment upon the terms of the compact. In such a case, the terms of the compact must be obligatory and binding upon the parties; they must be the magna charta, the fundamental principles of government, to this new society; and every infringement of them must be wrong, and may be opposed. It will be necessary, then, to examine, whether any such compact was entered into between the sovereign, and those English subjects who established themselves in America.


From this detail of the charters, and other acts of the crown, under which the first colony in North-America was established, it is evident, that “the colonists were not a few unhappy fugitives who had wandered into a, distant part of the world to enjoy their civil and religious liberties, which they were deprived of at home,” but had a regular government long before the first act of navigation, and were respected as a distinct state, independent, as to their internal government, of the original kingdom, but united with her as to their external polity, in the closest and most intimate league and amity, under the same allegiance, and enjoying the benefits of a reciprocal intercourse.


America was no part of the kingdom of England; it was possessed by a savage people, scattered through the country, who were not subject to the English dominion, nor owed (p. 245) obedience to its laws. This independent country was settled by Englishmen at their own expense, under particular stipulations, with the crown: these stipulations, then, must be the sacred band of union between England and her colonies, and cannot be infringed without injustice. But you object, that “no power can abridge the authority of parliament, which has never exempted any from the submission they owe to it; and no other power can grant such an exemption.”

I will not dispute the authority of the parliament, which is, without doubt, supreme within the body of the kingdom, and cannot be abridged by any other power; but may not the king have prerogatives, which he has a right to exercise, without the consent of parliament? If he has, perhaps that of granting license to his subjects to remove into a new country and to settle therein upon particular conditions, may be one. If he has no such prerogative, I cannot discover how the royal engagements can be made good, that “the freedom and other benefits of the British constitution” shall be secured to those people who shall settle in a new country under such engagements; the freedom, and other benefits of the British constitution, cannot be secured to a people, without they are exempted from being taxed by any authority, but that of their representatives, chosen by themselves. This is an essential part of British freedom; but if the king cannot grant such an exemption, in right of his prerogative, the royal promises cannot be fulfilled; and all charters which have been granted by our former kings, for this purpose, must be deceptions upon the subjects who accepted them, which to say, would be a high reflection upon the honour of the crown. But there was a time, when some parts of England itself were exempt from the laws of parliament: the inhabitants of the county palatine of Chester were not subject to such laws ab antique, because they did not send representatives to parliament, but had their own commune concilium; by whose authority, with the consent of their earl, their laws were made. If this exemption was not derived originally from the crown, it must have arisen from that great principle in the British constitution, by which the freemen in the nation are not subject to any laws, but such as are made by representatives elected by themselves to parliament; so that in either case, it is an instance extremely applicable to the colonies, who contend for no other right, but that of directing their internal government by laws made with their own consent, which has been preserved to them by repeated acts and declarations of the crown.


I acknowledge the parliament is the sovereign legislative power of the British nation, and that by a full exertion of their power, they can deprive the colonists of the freedom, and other benefits of the British constitution, which have been secured to them by our kings; they can abrogate all their civil rights and liberties; but by what right is it, that the parliament can exercise such a power over the colonists, who have as natural a right to the liberties and privileges of Englishmen as if they were actually resident within the kingdom? The colonies are subordinate to the authority of parliament; subordinate I mean in degree, but not absolutely so: for if by a vote of the British senate, the colonists were to be delivered up to the rule of a French or Turkish tyranny, they may refuse obedience to such a vote, and may oppose the execution of it by force. Great is the power of parliament, but, great as it is, it cannot, constitutionally, deprive the people of their natural rights; nor, in virtue of the same principle, can it deprive them of their civil rights, which are founded in compact, without their own consent. There is, I confess, a considerable difference between these two cases, as to the right of resistance: in the first, if the colonists should be dismembered from the nation, by act of parliament, and abandoned to another power, they have a natural right (p. 246) to defend their liberties by open force, and may lawfully resist; and, if they are able, repel the power to whose authority they are abandoned. But in the other, if they are deprived of their civil rights, if great and manifest oppressions are imposed upon them by the state on which they are dependent, their remedy is to lay their complaints at the foot of the throne, and to suffer patiently, rather than disturb the public peace, which nothing but a denial of justice can excuse them in breaking. But if this justice should be denied, if the most humble and dutiful representations should be rejected, nay, not even deigned to be received, what is to be done? To such a question, Thucydides would make the Corinthians reply, that if “a decent and condescending behaviour is shown on the part of the colonies it would be base in the mother-state to press too far on such moderation.” And he would make the Corcyreans answer, that “every colony, whilst used in a proper manner, ought to pay honour and regard to its mother state “but, when treated with injury and violence, is become an alien. They were not sent out to be the slaves, but to be “the equals of those that remain behind.”

James Wilson, On the Legislative Authority of the British Parliament (1774)4

James Wilson was a very important legal and political thinker in the Americas during the late eighteenth century. Wilson signed the Declaration of Independence, participated actively in the convention that drafted the Constitution of the United States, led the ratification fight in Pennsylvania, and was an original member of the United States Supreme Court. Wilson’s writings developed the position American revolutionaries took on the eve of the American Revolution that the colonies were subject only to the English king and not at all to Parliament. Wilson’s analysis of the federal union between the colonies and Great Britain either replaced or refined the distinction between internal and external regulation that many colonists, most notably Richard Bland, elaborated during the 1760s in response to the Stamp Act.

On the Legislative Authority of the British Parliament sets out Wilson’s theory that the Crown was the only institution authorized to make policy for the North American colonies. Parliament had no authority over the colonies, in Wilson’s view, because parliamentary authority was based on representation and Americans were not represented in Parliament. The king retained authority over the colonies because the king promised to protect the colonies when they were first established. This premise soon provided the justification for independence. If the king withdrew protection, as the Declaration of Independence claimed, then Wilson’s analysis of the foundations of royal authority over the colonies provided legitimate grounds for Americans to withdraw their allegiance to the Crown and Great Britain.

(p. 247) No question can be more important to Great Britain, and to the colonies, than this—does the legislative authority of the British parliament extend over them?


.… [T]he principles on which we have founded our opposition to the late acts of parliament, are the principles of justice and freedom, and of the British constitution.… All men are, by nature, equal and free: no one has a right to any authority over another without his consent: all lawful government is founded on the consent of those who are subject to it: such consent was given with a view to ensure and to increase the happiness of the governed, above what they could enjoy in an independent and unconnected state of nature. The consequence is, that the happiness of the society is the first law of every government.


Let me now be permitted to ask—Will it ensure and increase the happiness of the American colonies, that the parliament of Great Britain should possess a supreme, irresistible, uncontrolled authority over them? Is such an authority consistent with their liberty? Have they any security that it will be employed only for their good? Such a security is absolutely necessary. Parliaments are not infallible: they are not always just. The members, of whom they are composed, are human; and, therefore, they may err; they are influenced by interest; and, therefore, they may deviate from their duty. The acts of the body must depend upon the opinions and dispositions of the members: the acts of the body may, then, be the result of error and of vice. It is no breach of decency to suppose all this: the British constitution supposes it: “it supposes that parliaments may betray their trust, and provides, as far as human wisdom can provide, that they may not be able to do so long, without a sufficient control.” Without provisions for this purpose, the temple of British liberty, like a structure of ice, would instantly dissolve before the fire of oppression and despotism sway.

It will be very material to consider the several securities, which the inhabitants of Great Britain have, that their liberty will not be destroyed by the legislature, in whose hands it is entrusted. If it shall appear, that the same securities are not enjoyed by the colonists; the undeniable consequence will be, that the colonists are not under the same obligations to entrust their liberties into the hands of the same legislature: for the colonists are entitled to all the privileges of Britons.…


.… The members of the House of Commons … elected by the people, are the magistrates of the people; and are bound, by the ties of gratitude for the honour and confidence conferred on them, to consult the interests of their constituents. The power of elections has ever been regarded as a point of the last consequence to all free governments. The independent exercise of that power is justly deemed the strongest bulwark of the British liberties. As such, it has always been an object of great attention in the legislature; and is expressly stipulated with the prince in the bill of rights. All those are excluded from voting, whose poverty is such, that they cannot live independent, and must therefore be subject to the undue influence of their superiors. Such are supposed to have no will of their own: and it is judged improper that they should vote in the representation of a free state.


It has been adopted as a general maxim, that the crown will take advantage of every opportunity of extending its prerogative, in opposition to the privileges of the people; that it is the interest of those who have pensions or offices at will from the crown, to concur in all its measures; that mankind in general will prefer their private interest to the good of their country; (p. 248) and that, consequently, those who enjoy such pensions or offices are unfit to represent a free nation, and to have the care of their liberties committed to their hands, All such officers or pensioners are declared incapable of being elected members of the house of commons.

.… The interest of the representatives is the same with that of their constituents. Every measure, that is prejudicial to the nation, must be prejudicial to them and their posterity. They cannot betray their electors, without, at the same time, injuring themselves.…

Every social and generous affection concurs with their interest, in animating the representatives of the commons of Great Britain to an honest and faithful discharge of their important trust. In each patriotic effort, the heartfelt satisfaction of having acted a worthy part vibrates in delightful unison with the applause of their countrymen, who never fail to express their warmest acknowledgements to the friends and benefactors of their country.… These must be very strong checks upon the conduct of every man, who is not utterly lost to all sense of praise and blame. Few will expose themselves to the just abhorrence of those among whom they live, and to the excruciating sensations which such abhorrence must produce.

.… [T]heir constituents have still a farther security for their liberties in the frequent election of parliaments.… The constitution is thus frequently renewed, and drawn back, as it were, to its first principles; which is the most effectual method of perpetuating the liberties of a state.… The representatives are reminded whose creatures they are; and to whom they are accountable for the use of that power, which is delegated unto them. The first maxims of jurisprudence are ever kept in view —that all power is derived from the people—that their happiness is the end of government.


One of the most ancient maxims of the English law is, that no freeman can be taxed at pleasure. But taxes on freemen were absolutely necessary to defray the extraordinary charges of government. The consent of the freemen was, therefore, of necessity to be obtained. Numerous as they were, they could not assemble to give their consent in their proper persons; and for this reason, it was directed by the constitution, that they should give it by their representatives, chosen by and out of themselves. Hence the indisputable and peculiar privilege of the house of commons to grant taxes.

This is the source of that mild but powerful influence, which the commons of Great Britain possess over the crown. In this consists their security, that prerogative, intended for their benefit, will never be exerted for their ruin. By calmly and constitutionally refusing supplies, or by granting them only on certain conditions, they have corrected the extravagancies of some princes, and have tempered the headstrong nature of others; they have checked the progress of arbitrary power, and have supported, with honor to themselves, and with advantage to the nation, the character of grand inquisitors of the realm.


Can the Americans … be blamed by their brethren in Britain for claiming still to enjoy those rights? But can they enjoy them, if they are bound by the acts of a British parliament? Upon what principle does the British parliament found their power? Is it founded on the prerogative of the king? His prerogative does not extend to make laws to bind any of his subjects. Does it reside in the house of lords? The peers are a collective, and not a representative body. If it resides any where, then, it must reside in the house of commons.

(p. 249) If the Americans are bound neither by the assent of the king, nor by the votes of the lords, to obey acts of the British parliament, the sole reason why they are bound is, because the representatives of the commons of Great Britain have given their suffrages in favor of those acts. But are the representatives of the commons of Great Britain the representatives of the Americans? Are they elected by the Americans? Are they such as the Americans, if they had the power of election, would probably elect? Do they know the interest of the Americans? Does their own interest prompt them to pursue the interest of the Americans? If they do not pursue it, have the Americans power to punish them? Can the Americans remove unfaithful members at every new election? Can members, whom the Americans do not elect; with whom the Americans are not connected in interest; whom the Americans cannot remove; over whom the Americans have no influence—can such members be styled, with any propriety, the magistrates of the Americans?


[F]rom what source does this mighty, this uncontrolled authority of the house of commons flow? … Have they a natural right to make laws, by which we may be deprived of our properties, of our liberties, of our lives? By what tide do they claim to be our masters? What act of ours has rendered us subject to those, to whom we were formerly equal? Is British freedom denominated from the soil, or from the people of Britain? If from the latter, do they lose it by quitting the soil?


The members of parliament, their families, their friends, their posterity must be subject, as well as others, to the laws. Their interest, and that of their families, friends, and posterity, cannot be different from the interest of the rest of the nation. A regard to the former will, therefore, direct to such measures as must promote the latter. But is this the case with respect to America? Are the legislators of Great Britain subject to the laws which are made for the colonies? Is their interest the same with that of the colonies? … We have experienced what an easy matter it is for a minister, with an ordinary share of art, to persuade the parliament and the people, that taxes laid on the colonies will ease the burthens of the mother country; which, if the matter is considered in a proper light, is, in fact, to persuade them, that the stream of national riches will be increased by closing up the fountain, from which they flow.


What has been already advanced will suffice to show, that it is repugnant to the essential maxims of jurisprudence, to the ultimate end of all governments, to the genius of the British constitution, and to the liberty and happiness of the colonies, that they should be bound by the legislative authority of the parliament of Great Britain.…


.… Allegiance to the king and obedience to the parliament are founded on very different principles. The former is founded on protection: the latter, on representation. An inattention to this difference has produced, I apprehend, much uncertainty and confusion in our ideas concerning the connection, which ought to subsist between Great Britain and the American colonies.


There is another, and a much more reasonable meaning, which may be intended by the dependence of the colonies on Great Britain. The phrase may be used to denote the obedience and loyalty, which the colonists owe to the kings of Great Britain.…

(p. 250) Those who launched into the unknown deep, in quest of new countries and habitations, still considered themselves as subjects of the English monarchs, and behaved suitably to that character; but it no where appears, that they still considered themselves as represented in an English parliament, or that they thought the authority of the English parliament extended over them. They took possession of the country in the king’s name: they treated, or made war with the Indians by his authority: they held the lands under his grants, and paid him the rents reserved upon them: they established governments under the sanction of his prerogative, or by virtue of his charters:—no application for those purposes was made to the parliament: no ratification of the charters or letters patent was solicited from that assembly, as is usual in England with regard to grants and franchises of much less importance.


The colonists ought to be dependent on the king, because they have hitherto enjoyed, and still continue to enjoy, his protection. Allegiance is the faith and obedience, which every subject owes to his prince. This obedience is founded on the protection derived from government: for protection and allegiance are the reciprocal bonds, which connect the prince and his subjects.… An Englishman, who removes to foreign countries, however distant from England, owes the same allegiance to his king there which he owed him at home; and will owe it twenty years hence as much as he owes it now. Wherever he is, he is still liable to the punishment annexed by law to crimes against his allegiance; and still entitled to the advantages promised by law to the duties of it: it is not cancelled; and it is not forfeited.…


From this dependence, abstracted from every other source, arises a strict connection between the inhabitants of Great Britain and those of America. They are fellow subjects; they are under allegiance to the same prince; and this union of allegiance naturally produces a union of hearts. It is also productive of a union of measures through the whole British dominions. To the king is entrusted the direction and management of the great machine of government. He therefore is fittest to adjust the different wheels, and to regulate their motions in such a manner as to cooperate in the same general designs. He makes war: he concludes peace: he forms alliances: he regulates domestic trade by his prerogative, and directs foreign commerce by his treaties with those nations, with whom it is carried on. He names the officers of government; so that he can check every jarring movement in the administration. He has a negative on the different legislatures throughout his dominions, so that he can prevent any repugnancy in their different laws.

The connection and harmony between Great Britain and us, which it is her interest and ours mutually to cultivate, and on which her prosperity, as well as ours, so materially depends, will be better preserved by the operation of the legal prerogatives of the crown, than by the exertion of an unlimited authority by parliament.

B.  State (Colonial) Sovereign Immunity and Commandeering

Whether colonial governments enjoyed sovereign immunity is unclear. Several colonial charters allowed persons to sue the colonial government in colonial courts. The first charter of Massachusetts declared that the colonial government had the “lawful authority … to sue, and be sued; implead, and to be impleaded; answer, and to be answered, unto all Manner of (p. 251) Courts and Places that now are.”5 No colonial charter asserted that colonial governments were immune from suits by private citizens. This issue, however, does not appear to have been either litigated or contested outside of the courts. The best inference from the lack of evidence may be that the colonists before 1776 had no occasion to consider the constitutional status of sovereign immunity in the New World.

Royal authorities preferred assigning royal officials rather than colonial legislatures the responsibility for carrying out royal policies. Such measures as the Stamp Act and the Intolerable Acts were implemented by administrators appointed by the royal governor or the king’s ministers. The Declaration of Independence complained that King George III had “erected a multitude of new offices, and sent hither swarms of offices to harass our people, and eat out their substance.” Whether Jefferson and other American revolutionaries would have been satisfied had the Crown commandeered colonial legislatures to execute hated royal edicts, assuming a faithful implementation, is doubtful.

C.  Preemption

Privy Council review provided North American colonists with an early version of what later became known as preemption. That Council declared null and void colonial laws that violated basic constitutional norms and laws that, while constitutional on their face, were inconsistent with existing English laws. A colonial tax on horses was not unconstitutional per se, but would be declared null and void by the Privy Council if Parliament had decreed that horses should not be taxed or if the tax interfered with a parliamentary policy encouraging people to ride horses.

The main difference between Privy Council review and later Supreme Court practice in preemption cases is that the Supreme Court has over time developed an elaborate set of doctrinal tools for determining when a state law unduly interferes with federal law. Supreme Court opinions discuss express preemption (the federal statute declares no states will be allowed to pass certain regulation), conflict preemption (the state statute is inconsistent with or interferes with a federal statute), and field preemption (the federal statute was designed to be the only regulation of a particular subject matter). The Privy Council more often simply announced a conflict between English and colonial law without providing a doctrinal justification that might provide a standard of law to guide future colonial legislation and appeals.

D.  Relationships among States (Colonies)

The colonial effort to establish the correct constitutional relationship between Great Britain and the colonies soon compelled the colonists to think about the best constitutional relationships between the colonies. General agreement existed that the colonies should (p. 252) present a united front in their effort to confront unconstitutional exercises of parliamentary power, but the nature of that unity was controversial. James Hodges, an early seventeenth century Scottish nationalist, suggested that such a union might take two forms: an incorporating union or a federal union.

The Title of an Incorporating Union denotes that Kind, whereby distinct and independent Kingdoms and Dominions parting with the Distinction, and Independency do so united themselves with another Kingdom, as to be embodied with it, and to become a particular Part, Province, or District of the Kingdom with which they do so United, being subject to the Laws and Government thereof.


A confederate or Federal Union is that, whereby Distinct, Free, and Independent Kingdoms, Dominions or States, do Unite their separate Interests into one common Interest, for the mutual benefit of both, so far as relates to certain Conditions and Articles agreed upon betwixt them, retaining in the mean time their several Independencies, National Distinctions, and the different Laws, Customs, and Government of each.

The recent past gave the colonists examples of both unions. Much to Hodges’s distress, England and Scotland in 1707 agreed to form an incorporating union. Both regimes surrendered their sovereignty and formed a new sovereign nation. The first New England colonies in the mid-seventeenth century formed a short-lived federal union. They created a common institution for deciding questions of war and peace, while each retained authority over purely domestic matters. The Articles of Association that the First Continental Congress approved did not clearly specify whether the colonies were forming a federal union, an incorporating union, or some other form of relationship.

James Hodges, The Rights and Interests of the Two British Monarchies (1703)6

James Hodges was a Presbyterian minister and Scottish nationalist who opposed the unification of Scotland and England. His pamphlet, The Rights and Interests of the Two British Monarchies, enthusiastically endorsed a confederate or federal union between England and Scotland. Such a union maintained English and Scottish sovereignty, while recognizing that the nations had common interests that ought to be resolved by common institutions. What Hodges opposed was “an Incorporating Union” in which the sovereignty of each member was surrendered to the whole. The Rights and Interests describes the nature of the two different forms of union, discusses the advantages of a federal union, and elaborates the disadvantages of an incorporating union.

Hodges’s pamphlet and the debates over the unification of England and Scotland were well-known to American Revolutionaries. His analysis of the union between Scotland and England provided models for Americans to describe their relationship with (p. 253) England in 1770 (a federal union in which each member had sovereignty over internal affairs), for Americans to consider when thinking about the relationship between the colonies and, after the Revolution, for Americans to consider when establishing the relationship between the newly established states and the national government.7


Though in the sense of the word Union, as relating to the Amicable Conjunction or Confederations of Kingdoms and States, is very large; yet this general Denomination may in all its Applications be reduced to these Two particular Heads, to wit, An Incorporating, or a Federal Union.

The Title of an Incorporating Union denotes that Kind, whereby distinct and independent Kingdoms and Dominions parting with the Distinction, and Independency do so unite themselves with another Kingdom, as to be embodied with it, and to become a particular Part, Province, or District of the Kingdom with which they do so Unite, being subject to the Laws and Government thereof.


Concerning all which Kingdoms and Governments, who, being formerly distinct, and governed by their own Laws and Customs, have afterward so incorporated themselves into One; this is to be noted, that having thereby resigned their proper Liberties, and Independency, as free States, they, being once Incorporated, are wholly divested of all separate Claims of Right, and can never plead any distinct Immunities, or Privileges, contrary to the Will, Resolutions, and free Determinations of the One Government, to which they have subjected themselves, and all their Public Affairs, by the irrevocable consent of an Incorporating Union, depriving them of all Capacity to contradict the Governing Power, to which they have effectually submitted all those their separate Rights, without reserve.


A confederate or Federal Union is that, whereby Distinct, Free, and Independent Kingdoms, Dominions or States, do Unite their separate Interests into one common Interest, for the mutual benefit of both, so far as relates to certain Conditions and Articles agreed upon betwixt them, retaining in the mean time their several Independencies, National Distinctions, and the different Laws, Customs, and Government of each.

.… And amongst ourselves in Britain, there hath been a Union of the Two Kingdoms of England and Scotland, under one King, for about a hundred Years past; though each Kingdom have all the while, retained their distinct Government, Laws, Customs, Settlements, Constitutions Civil and Ecclesiastic, their Independency of one another, and their proper National Rights and Liberties, except so far as they have been Innovated by the unfaithfulness or bad conduct of their own State Ministers, after the same manner is if no such Union under one Monarch had ever been.


.… I shall … offer some Fundamental Rules for the reasonableness of [the] Constitution [of the Federal Union between England and Scotland], and certainty of its Continuance.…

(p. 254) That it be so Bottomed on the sensible Interest and Benefit of Both, that neither Nation have any Reason to be jealous of the Advantages, which the other is to gain thereby.

That it be gone about, and concluded with Universal Consent, and that it be not the Business of a Party, or of one Part divided from another in their Opinion, concerning the Nature or Managing of it in either Kingdom.

That Scotland, as the weaker Kingdom, be left in a Condition to plead the Observation of its Articles, as a Free State.


That it be Bottomed on the sensible Interest and Benefit of both, cannot be contradicted, seeing Interest is the only sure Basis of all National Transactions, and the only Rule, by which they measure all their Councils and Actings, what they are to do, what they are to hold, and what they are to alter.

We see daily Experience That all Governments do enact such Laws, as for the time they judge agreeable to their Interest; and when they find it otherways, repeal or alter them.…


And therefore it is contradictory to the unalterable Measures of all Government to suppose, that any Transaction and Settlement of Union can be lasting, unless founded in the perpetual Continuation of sensible Interest and Benefit: And as contradictory to the same Measures, to suppose that the sensible interests and Benefits are felt, and Designs or Endeavors will be there promoted to the prejudice thereof.

So that the same Reason, which makes Interest the Bottom of a well ordered and lasting Union, doth at the same time remove all grounds of Jealousy, and hazard of a Rapture.

Hence it appears, That all Matter of Trick, or taking Advantage one Nation of the other, and all Pleadings and Reasonings in Treaties tending thereto, are never to have any better effect, than the Building of a Union on a sandy Foundation, which can stand no longer than the first Storm blows giving an Opportunity for a Breach on either side, where Injury or Disappointment as to Interest and Benefit, is Discovered, and sensibly felt.


And this Fundamental Rule makes a Federal Union to be absolutely necessary, if there is any Union at all; because it is simply impossible, that an Incorporating Union can ever be so contrived as to consist with the Interest of both Nations.…

As for the Second Rule, that it must not be the Business of any particular Party making one or more Branches of a National Division, but being a Matter of general Concern, it must be prosecuted and agreed upon, with the most Universal Consent that possibly can be procured.

A union that is the Business of a Part distinguished, either from a Majority or any considerable Part of the Whole, must always at best be but a defective and partial Union, contracting such an Original Distemper in its Conception and Birth, as must at length either produce some irregular Ferment in the Body Politics, or at least a lingering Consumption tending by degrees to its own Dissolution.

It seems to be a very ominous Quality, sadly threatening the happy Success of a Union, when it is founded in Circumstances so opposite to its Nature, as Division, Dissatisfaction and Contradiction; by which means it must always carry the Seeds of its own Ruin in its own Bosom.…

An Incorporating Union can never be founded in solid Right, if it want the Consent of one Free-born Subject. Neither can it ever go farther, though all Consent, than the present Age, (p. 255) if the succeeding think fit to pursue their just Claim of Right.… But ever a Federal Union, though it may be settled by Right in the consent of a Majority, yet in Prudence all care imaginable ought to be taken to settle it in as general a concurrence as possible; being all Men must acknowledge. That the strongest Bond in its Conjunction, as well as the best Security of its Continuance, do chiefly consist in the generality of the Satisfaction, which in its Original Structure it is able to give to all, who are concerned in it.

As to the Third Rule, that Scotland as the weaker Kingdom, be left in a Capacity to plead the Observation of the Articles to be agreed upon, as a Free State.

If Scotland does not remain a Free State, after the Union, it is altogether in vain to make much work … about Articles of Agreement before it; seeing at the very instant of its being concluded, they are all immediately swallowed up by the greater Power, and subjected to the free and unrestrainable Judgment of the Majority in the Government, with which they Unite.


Concerning which it is to be considered, that the solid Substance and Essence of a Happy Union, and the Influences and Consequences of it as such, do consist in these Mutual Advantages, which both Nations are to gain by it; to wit,

The Advancement of the Public Good and Interest of Each; with special respect to:

A perpetual good Understanding, freedom from Jealousies of one another, lasting Peace, and a satisfying Security against all Alliances, or confederating with one another’s Enemies, and against all Wars, Bloodshed, Violence, or any manner of Disturbance from one another.

Also the Mutual Benefits, which each may gain by Freedom and Communication of Trade.

With Mutual Defence and Assisting one another, according to the Proportions agreed on, in asserting and supporting the proper and Independent Rights of one another’s Constitution Civil and Ecclesiastic, against all Encroachments by Foreign Enemies or Intestine Rebellions.


And nothing can hinder, but the two British Monarchies may be so knit together by a Federal Union cemented with the strong Bond of Interest and Benefit, as may secure to them not only peace, but all the other Essential Advantages before mentioned, if they shall be so happy, as to concur in taking those Methods of Settlement which are proper for so great an End, and are in their Power, and suffer not themselves to be diverted therefrom by the false Insinuations of some, who either through Mistake, or a bad Design, may happen to endeavor their being United after such a manner, and on such Terms, as neither the One nor the Other can ever find themselves happy in.


Act of Union between England and Scotland (1707)

The Acts of Union between Scotland and England that Parliament passed in 1706 and 1707 established the most important example of an incorporating union in the eighteenth century. Scotland and England were united by the Crown in 1603, when King James VI of Scotland also became King James I of England. After a century of wrangling, both the Scottish Parliament and the English Parliament agreed to combine and form the Parliament of Great Britain. In sharp contrast to previous leagues or federal unions, little if anything remained of independent Scottish or English sovereignty after (p. 256) the Act of Union in 1707. The Act of Union gave Scotland certain trade privileges and the right to representation in Parliament, but whether any distinctively Scottish institution remained that could monitor compliance was doubtful. For this reason, many Scottish nationalists bitterly opposed union.

The Act of Union is the first example of federalism in which the entire sovereignty is vested in the national government. Pufendorf maintained that federal unions require states to waive or forebear from exercising only a part of their sovereignty. The New England Confederation, anticipating this model, vested the common authority with only limited powers. The Parliament of the new nation of Great Britain, by comparison, enjoyed absolute sovereignty over the former nations of England and Scotland. Whether the resulting division of power constituted a form of federalism was debated in both Scotland and, later, in the newly independent United States.

ACT Ratifying and Approving Treaty of the Two Kingdoms of SCOTLAND and ENGLAND


I. THAT the two Kingdoms of Scotland and England shall upon the first day of May next ensuing the date hereof, and for ever after, be united into One Kingdom by the Name of GREAT BRITAIN.

II. THAT the Succession of the Monarchy to the United Kingdom of Great Britain, and of the Dominions thereto belonging, after Her Most Sacred Majesty, and in Default of Issue of Her Majesty, be, remain, and continue to the Most Excellent Princess Sophia, Electoress and Dutchess Dowager of Hanover, and the Heirs of her Body being Protestants, upon whom the Crown of England is settled by an Act of Parliament made in England in the twelfth Year of the Reign of his late Majesty King William the Third, Intituled, An Act for the further Limitation of the Crown, and better securing the Rights and Liberties of the Subject: And that all Papists, and Persons marrying Papists, shall be excluded from, and forever incapable to inherit, possess, or enjoy the Imperial Crown of Great Britain, and the Dominions thereunto belonging, or any Part thereof.…

III. THAT the United Kingdom of Great Britain be Represented by one and the same Parliament to be stiled The Parliament of Great Britain.

IV. THAT all the Subjects of the United Kingdom of Great Britain shall, from and after the Union, have full Freedom and Intercourse of Trade and Navigation to and from any Port or Place within the said United Kingdom and the Dominions and Plantations thereunto belonging; and that there be a Communication of all other Rights, Privileges, and Advantages, which do or may belong to the Subjects of each Kingdom; except where it is otherwise expressly agreed in these Articles.

V. THAT all Ships or Vessels belonging to Her Majesties Subjects of Scotland, at the Time of Ratifying the Treaty of Union of the two Kingdoms in the Parliament of Scotland, though foreign built, be deemed, and pass as Ships of the Build of Great Britain.…

VI. THAT all parts of the United Kingdom for ever, from and after the Union, shall have the same Allowances, Encouragements, and Drawbacks, and be under the same Prohibitions, Restrictions, and Regulations of Trade, and liable to the same Customs and Duties on Import and Export; and that the Allowances, Encouragements, and Drawbacks, (p. 257) Prohibitions, Restrictions, and Regulations of Trade, and the Customs and Duties on Import and Export, settled in England when the Union commences, shall, from and after the Union, take Place throughout the whole United Kingdom; excepting and reserving the Duties upon Export and Import of such particular Commodities, from which any Persons, the Subjects of either Kingdom, are specially liberated and exempted by their private Rights, which, after the Union, are to remain safe and entire to them in all Respects, as before the same.…

VII. THAT all parts of the United Kingdom be for ever, from and after the Union, liable to the same Excise upon all exciseable Liquors, excepting only that the thirty-four Gallons English Barrel of Beer or Ale amounting to twelve Gallons Scots present Measure.…

VIII. THAT from and after the Union, all foreign Salt which shall be imported into Scotland, shall be charged at the Importation there, with the same Duties as the like Salt is now charged with being Imported into England, and to be levied and secured in the same Manner.… But Scotland shall, for the Space of seven Years from the said Union, be exempted from paying in Scotland, for Salt made there, the Duty or Excise now payable for Salt made in England.…

IX. THAT whenever the sum of One million nine hundred ninety seven thousand seven hundred and sixty three pounds eight shillings and four pence half penny, shall be enacted by the Parliament of Great Britain to be raised in that part of the United Kingdom now called England, on Land and other Things usually charged in Acts of Parliament there, for granting an Aid to the Crown by a Land Tax; that part of the United Kingdom now called Scotland, shall be charged by the same Act, with a further Sum of forty-eight thousand Pounds, free of all Charges, as the Quota of Scotland, to such Tax, and to proportionally for any greater or lesser Sum raised in England by any Tax on Land, and other Things usually charged together with the Land; and that such Quota for Scotland, in the Cases aforesaid, be raised and collected in the same Manner as the Cess now is in Scotland, but subject to such Regulations in the manner of collecting, as shall be made by the Parliament of Great Britain.


XI. THAT during the continuance of the Duties payable in England on Windows and Lights, which determines on the first day of August One thousand seven hundred and ten, Scotland shall not be charged with the same Duties.

XII. THAT during the continuance of the Duties payable in England on Coals, Culm and Cynders, which determine the thirtieth day of September One thousand seven hundred and ten, Scotland shall not be charged therewith for Coals, Culm and Cynders consumed there; but shall be charged with the same Duties as in England for Coals, Culm and Cynders not consumed in Scotland.

XIII. THAT during the continuance of the Duties payable in England upon Malt, which determine the twenty-fourth day of June One thousand seven hundred and seven, Scotland shall not be charged with that Dutie.

XIV. THAT the Kingdom of Scotland not be charged with any other Duties laid on by the Parliament of England before the Union, except these consented to in this Treaty; in regard it is agreed, That all necessary Provision shall be made by the Parliament of Scotland for the publick Charge and Service of that Kingdom, for the Year One thousand seven hundred and seven. Provided nevertheless, That if the Parliament of England shall think fit to lay any further Impositions by way of Customs, or such Excises which by virtue of this Treaty, Scotland is to be treated equally with England, in such Case Scotland shall be lyable to the same Customs and Excises, and have an Equivalent to be settled by the Parliament (p. 258) of Great Britain; with this further Provision, That any Malt to be made and consumed in that part of the United Kingdom now called Scotland, shall not be charged with any imposition on Malt, during this present War.…


XVI. THAT from and after the Union, the Coin shall be of the same Standard and Value throughout the United Kingdom, as now in England, and a Mint shall be continued in Scotland; under the same Rules as the Mint in England, and the present Officers of the Mint continued, subject to such Regulations and Alterations as Her Majesty, her Heirs or Successors, or the Parliament of Great Britain shall think fit.

XVII. THAT from and after the Union, the same Weights and Measures shall be used throughout the United Kingdom, as are now established in England, and Standards of Weights and Measures shall be kept by those Burghs in Scotland, to whom the keeping the Standards of Weights and Measures, now in Use there, does of special Right belong: All which Standards shall be sent down to such respective Burghs, from the Standards kept in the Exchequer at Westminster, subject nevertheless to such Regulations as the Parliament of Great Britain shall think fit.

XVIII. THAT the Laws concerning Regulation of Trade, Customs, and such Excises to which Scotland is, by virtue of this Treaty, to be lyable, be the same in Scotland, from and after the Union, as in England; and that all other Laws in Use within the Kingdom of Scotland, do after the Union, and notwithstanding thereof, remain in the same Force as before, (except such as are contrary to, or inconsistent with this Treaty) but alterable by the Parliament of Great Britain; with this Difference betwixt the Laws concerning publick Right, Policy, and Civil Government, and those which concern private Right, that the Laws which concern publick Right, Policy, and Civil Government, may be made the same throughout the whole United Kingdom; but that no Alteration be made in Laws which concern private Right, except for evident Utility of the Subjects within Scotland.

XIX. THAT the Court of Session, or College of Justice, do after the Union, and notwithstanding thereof, remain in all time coming within Scotland, as it is now constituted by the Laws of that Kingdom, and with the same Authority and Privileges as before the Union, subject nevertheless to such Regulations for the better Administration of Justice, as shall be made by the Parliament of Great Britain.… And that the Court of Justiciary do also after the Union, and notwithstanding thereof, remain in all time coming within Scotland, as it is now constituted by the Laws of that Kingdom, and with the same Authority and Privileges as before the Union, subject nevertheless to such Regulations as shall be made by the Parliament of Great Britain, and without Prejudice of other Rights of Justiciary; and that all Admiralty Jurisdictions be under the Lord High Admiral or Commissioners for the Admiralty of Great Britain for the time being, and that the Court of Admiralty now established in Scotland be continued, and that all Reviews, Reductions, or Suspensions of the Sentences in Maritime Cases, competent to the Jurisdiction of that Court, remain in the same Manner after the Union, as now in Scotland, until the Parliament of Great Britain shall make such Regulations and Alterations, as shall be judged expedient for the whole United Kingdom, so as there be always continued in Scotland a Court of Admiralty, such as in England, for Determination of all Maritime Cases relating to private Rights in Scotland competent to the Jurisdiction of the Admiralty Court, subject nevertheless to such Regulations and Alterations as shall be thought proper to be made by the Parliament of Great Britain; … and that no Causes in Scotland be cognoscible by the Courts of Chancery, (p. 259) Queens-Bench, Common-Pleas, or any other Court in Westminster-hall; and that the said Courts, or any other of the like Nature, after the Union, shall have no Power to cognosce, review, or alter the Acts or Sentences of the Judicatures within Scotland, or stop the Execution of the same; and that there be a Court of Exchequer in Scotland after the Union, for deciding Questions concerning the Revenues of Customs and Excises there, having the same Power and Authority in such Cases, as the Court of Exchequer has in England; … and that after the Union, the Queen’s Majesty, and her royal Successors, may continue a Privy Council in Scotland, for preserving of publick Peace and Order, until the Parliament of Great Britain shall think fit to alter it, or establish any other effectual method for that end.


XXII. THAT by virtue of this Treaty, of the Peers of Scotland, at the Time of the Union, sixteen shall be the Number to sit and vote in the House of Lords, and forty-five the Number of the Representatives of Scotland in the House of Commons of the Parliament of Great Britain; and that when Her Majesty, her Heirs or Successors, shall declare her or their Pleasure for holding the first or any subsequent Parliament of Great Britain, until the Parliament of Great Britain shall make further Provision therein.…

XXIII. THAT the aforesaid sixteen Peers of Scotland mentioned in the last preceding Article, to sit in the House of Lords of the Parliament of Great Britain, shall have all Privileges of Parliament, which the Peers of England now have, and which they, or any Peers of Great Britain shall have after the Union, and particularly the Right of sitting upon the Trials of Peers.…


XXV. THAT all Laws and Statutes in either Kingdom, to far as they are contrary to, or inconsistent with the Terms of these Articles, or any of them, shall, from and after the Union cease and become void and shall be so declared to be, by the respective Parliaments of the said Kingdoms.

FOLLOWS the Tenor of the foresaid Act for securing the Protestant Religion and Presbyterian Church Government.

.… Her Majesty, with Advice and Consent of the said Estates of Parliament, doth hereby establish and confirm the said true Protestant Religion, and the Worship, Discipline, and Government of this Church, to continue without any Alteration to the People of this Land in all succeeding Generations, and most especially Her Majesty, with Advice and Content aforesaid, ratifies, approves, and for ever confirms the fifth Act of the first Parliament of King William and Queen Mary, Entitled, Act ratifying the Confession of Faith, and settling Presbyterian Church Government.… And Her Majesty, with Advice and Consent aforesaid, expressly provides and declares, That the foresaid true Protestant Religion contained in the above-mentioned Confession of Faith, with the Form and Purity of Worship presently in use within this Church, and its Presbyterian Church Government and Discipline (that is to say) the Government of the Church by Kirk Sessions, Presbyteries, Provincial Synods, and General Assemblies all established by the foresaid Acts of Parliament, pursuant to the Claim of Right, shall remain and continue unalterable, and that the said Presbyterian Government shall be the only Government of the Church within the Kingdom of Scotland. And further, for the greater Security of the foresaid Protestant Religion, and of the Worship, Discipline, and Government of this Church, as above established, Her Majesty, with Advice and Consent foresaid, statutes and ordains, That the Universities and Colleges of Saint Andrews, Glasgow, Aberdeen, and Edinburgh, as now established by Law, shall continue within this Kingdom forever; and that (p. 260) in all time coming, no Professors, Principals; Regents, Masters, or others, bearing Office in any University, College, or School within this Kingdom, be capable to be admitted, or allowed to continue in the Exercise of their said Functions, but such as shall own and acknowledge the Civil Government in Manner prescribed or to be prescribed by the Acts of Parliament: as also, that before, or at their Admissions, they do and shall acknowledge and profess, and shall subscribe to the foresaid Confession of Faith, as the Confession of their Faith, and that they will practise and confirm themselves to the Worship presently in Use in this Church, and submit themselves to the Government and Discipline thereof and never endeavour directly or indirectly the Prejudice or Subversion of the same, and that before the respective Presbyteries of their Bounds, by whatsoever Gift, Presentation or Provision they may be thereto provided. And further, Her Majesty, with Advice aforesaid, expressly declares, and statutes, That none of the Subjects of this Kingdom shall be liable to, but all and every one of them for ever free of any Oath, Test or Subscription within this Kingdom, contrary to, or inconsistent with the foresaid true Protestant Religion, and Presbyterian Church Government, Worship, and Discipline, as above established: and that the same within the Bounds of this Church and Kingdom, shall never be imposed upon, or required of them, in any Sort.…


The New England Confederation (1643)

The New England Confederation was the first federal union in the American colonies. Concerned about ongoing hostilities with Native American tribes and about preserving religious orthodoxy (heterodox Rhode Island was not part of the Confederation), settlers from what is now Massachusetts and Connecticut agreed to “enter into a firm and perpetual league of friendship” for the purpose of self-defense and advancing the gospel. The resulting Articles of Confederation established an institution for making mutual decisions about war and peace, as well as for resolving other matters that divided the settlements. Local matters were left for the local governments to decide. Although each settlement was given the same representation in the general assembly, contributions were partly based on population.

This first effort at creating a federal union failed. Massachusetts refrained when the Confederation sought to fight the Dutch in the 1650s. The colonial reorganization that took place after the Restoration in 1660 further weakened ties between the colonies, as did Connecticut’s attempt to annex New Haven. The Confederation finally collapsed in 1684. Nevertheless, both the effort and the failure proved models for the American revolutionaries when they sought to form a new federal union in the 1770s.

The Articles of Confederation between the Plantations under the Government of the Massachusetts, the Plantations under the Government of New Plymouth, the Plantations under the Government of Connecticut, and the Government of New Haven with the Plantations in Combination therewith:

Whereas we all came into these parts of America with one and the same end and aim, namely, to advance the Kingdom of our Lord Jesus Christ and to enjoy the liberties of the Gospel in purity with peace; and whereas in our settling (by a wise providence of God) we are (p. 261) further dispersed upon the sea coasts and rivers than was at first intended, so that we can not according to our desire with convenience communicate in one government and jurisdiction; and whereas we live encompassed with people of several nations and strange languages which hereafter may prove injurious to us or our posterity. And forasmuch as the natives have formerly committed sundry Insolence and outrages upon several Plantations of the English and have of late combined themselves against us: and seeing by reason of those sad distractions in England which they have heard of, and by which they know we are hindered from that humble way of seeking advice, or reaping those comfortable fruits of protection, which at other times we might well expect. We therefore do conceive it our bounder duty, without delay to enter into a present Consociation amongst ourselves, for mutual help and strength in all our future concernments: That, as in nation and religion, so in other respects, we be and continue one according to the tenor and true meaning of the ensuing articles: Wherefore it is fully agreed and concluded by and between the parties or Jurisdictions above named, and they jointly and severally do by these presents agree and conclude that they all be and henceforth be called by the name of the United Colonies of New England.

2. The said United Colonies for themselves and their posterities do jointly and severally hereby enter into a firm and perpetual league of friendship and amity for offence and defence, mutual advice and succor upon all just occasions both for preserving and propagating the truth and liberties of the Gospel and for their own mutual safety and welfare.

3. It is further agreed that the Plantations which at present are or hereafter shall be settled within the limits of the Massachusetts shall be forever under the government of Massachusetts and shall have peculiar jurisdiction among themselves in all cases as an entire body, and that Plymouth, Connecticut, and New Haven shall each of them have like peculiar jurisdiction and government within their limits; and in reference to the Plantations which already are settled, or shall hereafter be erected, or shall settle within their limits respectively; provided no other Jurisdiction shall hereafter be taken in as a distinct head or member of this Confederation, nor shall any other Plantation or Jurisdiction in present being, and not already in combination or under the jurisdiction of any of these Confederates, be received by any of them; nor shall any two of the Confederates join in one Jurisdiction without consent of the rest, which consent to be interpreted as is expressed in the sixth article ensuing.

4. It is by these Confederates agreed that the charge of all just wars, whether offensive or defensive, upon what part or member of this Confederation soever they fall, shall both in men, provisions and all other disbursements be borne by all the parts of this Confederation in different proportions according to their different ability in manner following, namely, that the Commissioners for each Jurisdiction from time to time, … bring a true account and number of all their males in every Plantation, … from sixteen years old to threescore, being inhabitants there. And that according to the different numbers…, the service of men and all charges of the war be borne by the poll: each Jurisdiction or Plantation being left to their own just course and custom of rating themselves and people according to their different estates …: and that according to their different charge of each Jurisdiction and Plantation the whole advantage of the war (if it please God so to bless their endeavors) whether it be in lands, goods, or persons, shall be proportionately divided among the said Confederates.

5. It is further agreed, that if any of these Jurisdictions or any Plantation under or in combination with them, be invaded by any enemy whomsoever, upon notice and request of any three magistrates of that Jurisdiction so invaded, the rest of the Confederates without any further (p. 262) meeting or expostulation shall forthwith send aid to the Confederate in danger but in different proportions; namely, the Massachusetts an hundred men sufficiently armed and provided for such a service and journey, and each of the rest, forty-five so armed and provided, or any less number, if less be required according to this proportion.… [B] ut none of the Jurisdictions to exceed these numbers until by a meeting of the Commissioners for this Confederation a greater aid appear necessary. And this proportion to continue till upon knowledge of greater numbers in each Jurisdiction which shall be brought to the next meeting, some other proportion be ordered. But in any such case of sending men for present aid, whether before or after such order or alteration, it is agreed that at the meeting of the Commissioners for this Confederation, the cause of such war or invasion be duly considered: and if it appear that the fault lay in the parties so invaded then that Jurisdiction or Plantation make just satisfaction, both to the invaders whom they have injured, and bear all the charges of the war themselves, without requiring any allowance from the rest of the Confederates towards the same. And further that if any Jurisdiction see any danger of invasion approaching, and there be time for a meeting, that in such a case three magistrates of the Jurisdiction may summon a meeting at such convenient place as themselves shall think meet, to consider and provide against the threatened danger.…

6. It is also agreed, that for the managing and concluding of all affairs and concerning the whole Confederation two Commissioners shall be chosen by and out of each of these four Jurisdictions: namely, two for the Massachusetts, two for Plymouth, two for Connecticut, and two for New Haven, being all in Church-fellowship with us, which shall bring full power from their several General Courts respectively to hear, examine, weigh, and determine all affairs of our war, or peace, leagues, aids, charges, and numbers of men for war, division of spoils and whatsoever is gotten by conquest, receiving of more Confederates for Plantations into combination with any of the Confederates, and all things of like nature, which are the proper concomitants or consequents of such a Confederation for amity, offense, and defence: not intermeddling with the government of any of the Jurisdictions, which by the third article is preserved entirely to themselves. But if these eight Commissioners when they meet shall not all agree yet it [is] concluded that any six of the eight agreeing shall have power to settle and determine the business in question. But if six do not agree, that then such propositions with their reasons so far as they have been debated, be sent and referred to the four General Courts; namely, the Massachusetts, Plymouth, Connecticut, and New Haven; and if at all the said General Courts the business so referred be concluded, then to be prosecuted by the Confederates and all their members. It is further agreed that these eight Commissioners shall meet once every year besides extraordinary meetings (according to the fifth article) to consider, treat, and conclude of all affairs belonging to this Confederation, which meeting shall ever be the first Thursday in September. And that the next meeting after the date of these presents, which shall be accounted the second meeting, shall be at Boston in the Massachusetts, the third at Hartford, the fourth at New Haven, the fifth at Plymouth, the sixth and seventh at Boston; and then Hartford, New Haven, and Plymouth, and so in course successively, if in the meantime some middle place be not found out and agreed on, which may be commodious for all the Jurisdictions.

7. It is further agreed that at each meeting of these eight Commissioners, … they or six of them agreeing as before, may choose their President out of themselves whose office work shall be to take care and direct for order and a comely carrying on of all proceedings in the present (p. 263) meeting: but he shall be invested with no such power or respect, as by which he shall hinder the propounding or progress of any business, or any way cast the scales otherwise than in the precedent article is agreed.

8. It is also agreed that the Commissioners for this Confederation hereafter at their meetings … do endeavor to frame and establish agreements and orders in general cases of a civil nature, wherein all the Plantations are interested, for preserving of peace among themselves, for preventing as much as may be all occasion of war or differences with others, as about the free and speedy passage of justice in every Jurisdiction, to all the Confederates equally as to their own, receiving those that remove from one Plantation to another without due certificate, how all the Jurisdictions may carry it towards the Indians, that they neither grow insolent nor be injured without due satisfaction, lest war break in upon the Confederates through such miscarriages. It is also agreed that if any servant run away from his master into any other of these confederated Jurisdictions, that in such case, upon the certificate of one magistrate in the Jurisdiction out of which the said servant fled, or upon other due proof; the said servant shall be delivered, either to his master, or any other that pursues and brings such certificate or proof. And that upon the escape of any prisoner whatsoever, or fugitive for any criminal cause, whether breaking prison, or getting from the officer, or otherwise escaping, upon the certificate of two magistrates of the Jurisdiction out of which the escape is made, that he was a prisoner, or such an offender at the time of the escape, the magistrates, or some of them of that Jurisdiction where for the present the said prisoner or fugitive abideth, shall forthwith grant such a warrant as the case will bear, for the apprehending of any such person, and the delivery of him into the hands of the officer or other person who pursues him. And if there be help required, for the safe returning of any such offender, then it shall be granted to him that craves the same, he paying the charges thereof.

9. And for that the justest wars may be of dangerous consequence, … it is agreed that neither the Massachusetts, Plymouth, Connecticut, nor New Haven, nor any of the members of them, shall at any time hereafter begin, undertake, or engage themselves, or this Confederation, or any part thereof in any war whatsoever (sudden exigencies, with the necessary consequents thereof excepted), which are also to be moderated as much as the case will permit, without the consent and agreement of the forementioned eight Commissioners, or at least six of them, as in the sixth article is provided: and that no charge be required of any of the Confederates, in case of a defensive war, till the said Commissioners have met, and approved the justice of the war, and have agreed upon the sum of money to be levied.…

10. That in extraordinary occasions, when meetings are summoned by three magistrates of any Jurisdiction, or two as in the fifth article, if any of the Commissioners come not, due warning being given or sent, it is agreed that four of the Commissioners shall have power to direct a war which cannot be delayed, and to send for due proportions of men out of each Jurisdiction, … but not less than six shall determine the justice of the war, or allow the demands or bills of charges, or cause any levies to be made for the same.

11. It is further agreed that if any of the Confederates shall hereafter break any of these present articles, or be any other ways injurious to any one of the other Jurisdictions; such breach of agreement or injury shall be duly considered and ordered by the Commissioners for the other Jurisdictions, that both peace and this present Confederation may be entirely preserved without violation.

(p. 264) First Continental Congress, Rules of Conduct and Articles of Association (1774)8

The First Continental Congress was the first relatively permanent organization of the American colonies. Unlike the Stamp Act Congress, which was largely devoted to protesting a particular law, the First Continental Congress quickly moved to create more enduring and comprehensive relationships among the colonies. Members immediately established rules of conduct for debates and making decisions. Before adjourning, the Congress issued the Articles of Association, which called on all colonies to boycott British goods until the Intolerable Acts were repealed, and developed some institutional means for implementing the boycott. The First Continental Congress then called for a second continental Congress to meet in 1775.

Neither the rules of conduct nor the Articles of Association make clear the precise relationships among the colonies that the First Continental Congress sought to establish. The first provision in the rules of conduct declares “That in determining questions in this Congress, each colony or province shall have one vote.—The Congress not being possessed of, or at present able to procure proper materials for ascertaining the importance of each colony.” The one colony, one vote practice suggests members of the Continental Congress thought they were forming a federal Union. The proviso that another rule might be developed with more information about “the relative importance of each colony” is consistent with a more incorporating union. Abraham Lincoln insisted that the latter was intended. His first inaugural address claimed that the Union “was formed in fact, by the Articles of Association in 1774.” Other political actors and commentators insist no Union was formed on September 5, 1774, that the birthday of the United States is July 4, 1776.

September 5, 1774

The Congress, resuming the consideration of rules of conduct to be observed in debating and determining the questions, that come under consideration,

Resolved, That in determining questions in this Congress, each colony or province shall have one vote.—The Congress not being possessed of, or at present able to procure proper materials for ascertaining the importance of each colony.

Resolved, That no person shall speak more than twice on the same point, without leave of the Congress.

Resolved, That no question shall be determined the day on which it is agitated and debated, if any one of the colonies desire the determination to be postponed to another day.

Resolved, That the door be kept shut during the time of business, and that the members consider themselves under the strongest obligations of honor, to keep the proceedings secret, until the majority shall direct them to be made public.

(p. 265) Resolved, That a committee be appointed to state the rights of the colonies in general, the several instances in which those rights are violated or infringed, and the means most proper to be pursued for obtaining a restoration of them.


Resolved, That a committee be appointed to examine and report the several statutes, which affect the trade and manufactures of the colonies.


Resolved, That the reverend Mr. Duche be desired to open the Congress to-morrow morning with prayers, at the Carpenter’s Hall, at nine o’clock.

October 20, 1774

We, his majesty’s most loyal subjects, the delegates of the several colonies of New-Hampshire, Massachusetts-Bay, Rhode-Island, Connecticut, New York, New-Jersey, Pennsylvania, the three lower counties of New-Castle, Kent and Sussex, on Delaware, Maryland, Virginia, North-Carolina, and South Carolina, deputed to represent them in a continental Congress, held in the city of Philadelphia, on the 5th day of September, 1774, avowing our allegiance to his majesty, our affection and regard for our fellow-subjects in Great-Britain and elsewhere, affected with the deepest anxiety, and most alarming apprehensions, at those grievances and distresses, with which his majesty’s American subjects are oppressed; and having taken under our most serious deliberation, the state of the whole continent, find, that the present unhappy situation of our affairs is occasioned by a ruinous system of colony administration, adopted by the British ministry about the year 1763, evidently calculated for enslaving these colonies, and, with them, the British empire. In prosecution of which system, various acts of parliament have been passed, for raising a revenue in America, for depriving the American subjects, in many instances, of the constitutional trial by jury, exposing their lives to danger, by directing a new and illegal trial beyond the seas, for crimes alleged to have been committed in America: and in prosecution of the same system, several late, cruel, and oppressive acts have been passed, respecting the town of Boston and the Massachusetts-Bay, and also an act for extending the province of Quebec, so as to border on the western frontiers of these colonies, establishing an arbitrary government therein, and discouraging the settlement of British subjects in that wide extended country; thus, by the influence of civil principles and ancient prejudices, to dispose the inhabitants to act with hostility against the free Protestant colonies, whenever a wicked ministry shall choose to direct them.

To obtain redress of these grievances, which threaten destruction to the lives, liberty, and property of his majesty’s subjects, in North America, we are of opinion, that a non-importation, non-consumption, and non-exportation agreement, faithfully adhered to, will prove the most speedy, effectual, and peaceable measure and, therefore, we do, for ourselves, and the inhabitants of the several colonies, whom we represent, firmly agree and associate, under the sacred ties of virtue, honor and love of our country, as follows:

  1. 1.  That from and after the first day of December next, we will not import, into British America, from Great-Britain or Ireland, any goods, wares, or merchandise whatsoever, or from any other place, any such goods, wares, or merchandise, as shall have been exported from Great-Britain or Ireland; nor will we, after that day, import any East-India tea from any part of the world; nor any molasses, syrups, paneles, coffee, or pimento, from the British plantations or from Dominica; nor wines from Madeira, or the Western Islands; nor foreign indigo.

  2. (p. 266) 2.  We will neither import nor purchase, any slave imported after the first day of December next; after which time, we will wholly discontinue the slave trade, and will neither be concerned in it ourselves, nor will we hire our vessels, nor sell our commodities or manufactures to those who are concerned in it.

  3. 3.  As a non-consumption agreement, strictly adhered to, will be an effectual security for the observation of the non-importation, we, as above, solemnly agree and associate, that from this day, we will not purchase or use any tea, imported on account of the East-India company, or any on which a duty hath been or shall be paid; and from and after the first day of March next, we will not purchase or use any East-India tea whatever; nor will we, nor shall any person for or under us, purchase or use any of those goods, wares, or merchandise, we have agreed not to import, which we shall know, or have cause to suspect, were imported after the first day of December, except such as come under the rules and directions of the tenth article hereafter mentioned.

  4. 4.  The earnest desire we have not to injure our fellow-subjects in Great Britain, Ireland, or the West-Indies, induces us to suspend a non-exportation, until the tenth day of September, 1775; at which time, if the said acts and parts of acts of the British parliament herein after mentioned, are not repealed, we will not directly or indirectly, export any merchandise or commodity whatsoever to Great-Britain, Ireland, or the West-Indies, except rice to Europe.

  5. 5.  Such as are merchants, and use the British and Irish trade, will give orders, as soon as possible, to their factors, agents and correspondents, in Great Britain and Ireland, not to ship any goods to them, on any pretence whatsoever, as they cannot be received in America; and if any merchant, residing in Great-Britain or Ireland, shall directly or indirectly ship any goods, wares or merchandise, for America, in order to break the said non-importation agreement, or in any manner contravene the same, on such unworthy conduct being well attested, it ought to be made public; and, on the same being so done, we will not, from thenceforth, have any commercial connection with such merchant…

  6. 6.  That such as are owners of vessels will give positive orders to their captains, or masters, not to receive on board their vessels any goods prohibited by the said non-importation agreement, on pain of immediate dismissal from their service.

  7. 7.  We will use our utmost endeavors to improve the breed of sheep and increase their number to the greatest extent; and to that end, we will kill them as seldom as may be, especially those of the most profitable kind; nor will we export any to the West-Indies or elsewhere; and those of us, who are or may become overstocked with, or can conveniently spare any sheep, will dispose of them to our neighbors, especially to the poorer sort, on moderate terms.

  8. 8.  We will, in our several stations, encourage frugality, economy, and industry, and promote agriculture, arts and the manufactures of this country, especially that of wool; and will discountenance and discourage every species of extravagance and dissipation, especially all horse-racing, and all kinds of gaming, cock-fighting, exhibitions of shows, plays, and other expensive diversions and entertainments; and on the death of any relation or friend, none of us, or any of our families, will go into any further mourning-dress, than a black crape or ribbon on the arm or hat, for gentlemen, and a black ribbon and necklace for ladies, and we will discontinue the giving of gloves and scarves at funerals.

  9. 9.  Such as are venders of goods or merchandise will not take advantage of the scarcity of goods, that may be occasioned by this association, but will sell the same at the rates we have been respectively accustomed to do, for twelve months last past.—And if any vender of goods or merchandise shall sell any such goods on higher terms, or shall, in any manner, or by any (p. 267) device whatsoever violate or depart from this agreement, no person ought, nor will any of us deal with any such person, or his or her factor or agent, at any time thereafter, for any commodity whatever.

  10. 10.  In case any merchant, trader, or other person, shall import any goods or merchandise, after the first day of December, and before the first day of February next, the same ought forthwith, at the election of the owner, to be either re-shipped or delivered up to the committee of the county or town, wherein they shall be imported, to be stored at the risk of the importer, until the nonimportation agreement shall cease, or be sold under the direction of the committee aforesaid; and in the last-mentioned case, the owner or owners of such goods shall be reimbursed out of the sales, the first cost and charges, the profit, if any, to be applied towards relieving and employing such poor inhabitants of the town of Boston, as are immediate sufferers by the Boston port-bill; and a particular account of all goods so returned, stored, or sold, to be inserted in the public papers; and if airy goods or merchandises shall be imported after the said first day of February, the same ought forthwith to be sent back again, without breaking any of the packages thereof.

  11. 11.  That a committee be chosen in every county, city, and town, by those who are qualified to vote for representatives in the legislature, whose business it shall be attentively to observe the conduct of all persons touching this association; and when it shall be made to appear, to the satisfaction of a majority of any such committee, that any person within the limits of their appointment has violated this association, that such majority do forthwith cause the truth of the case to be published in the gazette; to the end, that all such foes to the rights of British-America may be publicly known, and universally contemned as the enemies of American liberty; and thenceforth we respectively will break off all dealings with him or her.

  12. 12.  That the committee of correspondence, in the respective colonies, do frequently inspect the entries of their custom-houses, and inform each other, from time to time, of the true state thereof, and of every other material circumstance that may occur relative to this association.

  13. 13.  That all manufactures of this country be sold at reasonable prices, so that no undue advantage be taken of a future scarcity of goods.

  14. 14.  And we do further agree and resolve, that we will have no trade, commerce, dealings or intercourse whatsoever, with any colony or province, in North-America, which shall not accede to, or which shall hereafter violate this association, but will hold them as unworthy of the rights of freemen, and as inimical to the liberties of their country.

And we do solemnly bind ourselves and our constituents, under the ties aforesaid, to adhere to this association, until such parts of the several acts of parliament passed since the close of the last war, as impose or continue duties our tea, wine, molasses, syrups, paneles, coffee, sugar, pimento, indigo, foreign paper, glass, and painters’ colours, imported into America, and extend the powers of the admiralty courts beyond their ancient limits, deprive the American subject of trial by jury, authorize the judge’s certificate to indemnify the prosecutor from damages, that he might otherwise be liable to, from a trial by his peers, require oppressive security from a claimant of ships or goods seized, before he shall be allowed to defend his property, are repealed.—And until that part of the act … entitled “An act for the better securing his majesty’s dock-yards, magazines, ships, ammunition, and stores,” by which any persons charged with committing any of the offences therein described, in America, may be tried in any shire or (p. 268) county within the realm, is repealed—and until the four acts, passed the last session of parliament, viz. that for stopping the port and blocking up the harbour of Boston—that for altering the charter and government of the Massachusetts-Bay—and that which is entitled “ An act for the better administration of justice, &c.”—and that “for mending the limits of Quebec, &c.” are repealed. And we recommend it to the provincial conventions, and to the committees in the respective colonies to establish such farther regulations as they may think, proper, for carrying into execution this association.

The foregoing association being determined upon by the Congress, was ordered to be subscribed by the several members thereof; and thereupon, we have hereunto set our respective names accordingly.


1.  Excerpt taken from Francis Bernard, Select Letters on the Trade and Government of America and the Principle of Law and Polity, Applied to the American Colonies (London: T. Payne:, 1774).

2.  Excerpt taken from Samuel von Pufendorf, Of the Law of Nature and Nations (translated by Basil Kennet) (Oxford: L. Lichfield, 1710).

3.  Excerpt taken from Richard Bland, “An Enquiry into the Rights of the British Colonies,” The Political Register and Impartial Review of New Books for 1769, Vol. IV (London: Henry Beevor, 1769).

4.  James Wilson, The Works of the Honourable James Wilson, L.L.D., Vol. III, ed. Bird Wilson (Philadelphia: Lorenzon Press, 1804).

5.  John J. Gibbons, “The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation,” 83 Columbia Law Review 1889, 1896 (1983) (quoting The Charter of New England—1620). This paragraph relies heavily on Gibbons’s analysis.

6.  Except taken from James Hodges, The Rights and Interests of the Two British Monarchies, Inquir’ d into, and Clear’d; with a Special Respect to an United or Separate State: Treatise I (Edinburgh: John Reid, 1703).

7.  For more on Hodges and his influence, see Alison LaCroix, The Ideological Origins of American Federalism (Chicago: University of Chicago Press, 2010), 26–28.

8.  Journals of the American Congress from 1774 to 1788, Vol. I (Washington, DC: Way and Gideon, 1823), 7–8, 23–26.