The American Historical Review/Volume 23/American Opinion on the Imperial Review of Provincial Legislation, 1776–1787

by Evarts Boutell Greene

 

American Opinion on the Imperial Review of Provincial Legislation, 1776–1787

There has recently been published in the Columbia University Studies a monograph by Dr. E. B. Russell on The Review of American Colonial Legislation by the King in Council. In the closing chapter of his monograph, Dr. Russell lays some stress on the influence of this veto power as contributing "largely to the final breach between the colonies and the mother country". This view seems on the whole justified by the prominence given to the subject in the Declaration of Independence, where the enumeration of grievances against the British crown begins with the familiar indictment, "He has refused his assent to laws, the most wholesome and necessary for the public good", a charge which is followed up by a number of specifications in the succeeding paragraphs. It should be remembered, however, that in the earlier controversies, as well as in those of the Revolutionary era, the issue was not always clearly defined as between the imperial government on the one side and the whole body of colonists on the other. Sometimes, as for instance in the case of currency and "bank" legislation, a conservative minority in America was disposed to seek imperial protection against a radical majority. In other cases the royal veto was invoked to protect a colony against injurious legislation by one of its neighbors.

Generally speaking, the colonists did not question the legality of this prerogative and even so radical a person as Jefferson recognized its place in the constitution of the empire. His position was clearly set forth in 1774 in his "Summary View of the Rights of British America", where he describes the British Empire as a quasifederal or personal union, having no authorized central legislature, in which the king was "as yet the only mediatory power between the several states".^[1] An important part of this "mediatory power" was the royal veto. The actual exercise of that power the king had "for several ages past" "modestly declined" to continue "in that part of his Empire called Great Britain". The two houses of Parliament had not made a just use of their unfettered legislative authority and the addition of new states to the British Empire "had produced an addition of new, and sometimes opposite interests". "It is now, therefore", he continued, "the great office of his majesty to resume exercise of his negative power, and to prevent the passage of laws by any one legislature of the empire, which might bear injuriously on the rights and interests of another". In short, Jefferson, while condemning the "wanton exercise" of this prerogative, regarded it as a potentially useful part of the imperial, or federal, system.

In the enthusiasm of 1776, Americans were naturally not inclined to emphasize the advantages of the royal veto; but in the conservative reaction which followed the war, the problem of an effective control upon provincial radicalism or particularism was seen in a new light. In the Federal Convention of 1787, the members were fairly well agreed as to the desirability of some check on state laws; but there was sharp difference of opinion whether this check should be political in character as in the form of a congressional veto, or whether the principle of judicial review should be adopted. Though the debate on this issue is familiar to students of the convention, its significance for the interpretation of colonial institutions has hardly been appreciated.

Madison was, of course, one of the most persistent advocates of the congressional veto and in his discussion of the subject he referred several times to the imperial prerogative of disallowing provincial statutes. He was at work on the problem some time before the convention met. In March, 1787, he wrote to Jefferson, then in Paris, urging the necessity of a federal negative upon state laws "in all cases whatsoever", not merely in order to "guard the national rights", but also to prevent the states from oppressing "the minority within themselves by paper money and other unrighteous measures which favor the interest of the majority". There is a definite reference to colonial' experience in the suggestion that there should be "some emanation" of the federal prerogative "within the several states, so far as to enable them to give a temporary sanction to laws of immediate necessity".^[2] This was of course provided for in the imperial system through the action of the royal governor in giving immediate effect to statutes, which nevertheless remained subject to royal disallowance. In a letter to Randolph a few weeks later, Madison referred more explicitly to the British practice, urging that the national government be given "a negative, in all cases whatsoever, on the Legislative acts of the States, as the King of Great Britain heretofore had".^[3] Jefferson did not agree with Madison; on practical grounds rather than as a matter of principle, he expressed his preference for some form of judicial control.^[4] Madison held, however, to his own opinion and found a considerable support in the convention.

On June 8, while the convention was sitting in committee of the whole, Charles Pinckney made a motion to give the national legislature a negative on all state laws "which to them shall appear improper". He argued in support of this motion, that "under the British Govt. the negative of the Crown had been found beneficial, and the States are more one nation now, than the Colonies were then". Madison was apparently more cautious in his approval of the imperial precedent. He renewed the suggestion made in his letter to Randolph of "some emanation of the power from the Natl. Govt. into each State so far as to give a temporary assent at least". "This", he said, "was the practice in Royal Colonies before the Revolution and would not have been inconvenient, if the supreme power of negativing had been faithful to the American interest and had possessed the necessary information".^[5] When the discussion was resumed on July 17, Madison came forward with another speech in support of the congressional veto, again supporting his contention by reference to the royal disallowance of colonial laws:

 

Its utility is sufficiently displayed in the British System. Nothing could maintain the harmony and subordination of the various parts of the empire, but the prerogative by which the Crown stifles in the birth every Act of every part tending to discord or encroachment. It is true the prerogative is sometimes misapplied thro' ignorance or a partiality to one particular part of the empire: but we have not the same reason to fear such misapplications in our System.^[6]

 

This is almost precisely Jefferson's theory of the legitimate function of an imperial veto.

How many of Madison's colleagues shared his comparatively favorable view of the royal veto it is impossible to say. Apparently only one of his opponents in the debate touched on this particular point. This was Lansing, who referred to it in a speech directed against the generally nationalistic features of the Virginia plan. It was intolerable, he said, that a gentleman from Georgia should assume to judge the expediency of a law which was to operate in New Hampshire. "Such a Negative would be more injurious than that of Great Britain heretofore was."^[7]

Madison's final view of the matter is shown in the familiar memorandum on the "Origin of the Constitutional Convention", written shortly before his death, in which he refers to his early proposals, "suggested by the negative in the head of the British Empire, which prevented collisions between the parts and the whole, and between the parts themselves".

 

It was supposed [he adds] that the substitution, of an elective and responsible authority for an hereditary and irresponsible one, would avoid the appearance even of a departure from the principle of Republicanism. But altho' the subject was so viewed in the Convention, and the votes on it were more than once equally divided, it was finally and justly abandoned, as apart from other objections it was not practicable among so many states increasing in number and enacting each of them so many laws.^[8]

 

Though federal control of state legislation was finally secured in another way, the whole debate shows how the sense of responsibility for general interests influenced American ways of thinking about imperial problems. Men like Samuel Adams, or Patrick Henry, clinging persistently to his "darling word requisitions",^[9] might continue to think in the terms of 1776, but the leaders who wrestled with confederation problems during and after the war understood, in some measure at least, the attitude of British administrators when confronted with the stubborn localism of a provincial assembly.

Evarts B. Greene.

 

1. Writings (Ford ed.), I. 427 ff.; cf. Pownall, Administration of the British Empire (ed. 1777), I. 72 ff.
2. Writings (Hunt ed.), II. 326, 327.
3. Writings, II. 338, 339.
4. Jefferson, Writings (Ford ed.), IV. 390–391.
5. Journal, and Madison's Notes, June 8 (Farrand, Records, I.).
6. Madison's Notes, July 17 (Farrand, Records, II. 28). There are brief references to this aspect of the discussion in Curtis, Constitutional History of the United States, I. 345–347; Coxe, Judicial Power and Unconstitutional Legislation, ch. 34; Robinson, "Original and Derived Features of the Constitution", in Annals of the American Academy of Political and Social Science, I. 238; and Bigelow's essay in Cambridge Modern History, vol. VII., ch. VIII.
7. Madison's Notes, June 20 (Farrand, Records, I. 337).
8. Writings (Hunt ed.), II. 409
9. Henry, Patrick Henry, III. 471.