HKB
charter granted to Massachusetts. Asserting the doctrine which at that time was the doctrine of the English common law, as stated by Coke and three other Chief Justices, he said:
"To say the parliament is absolute and arbitrary is a contradiction. The Parliament cannot make two and two five. Omnipotency cannot do it.... Parliaments are in all cases to declare what is for the good of the whole; but it is not the declaration of parliament that makes it so: there must be in every instance a higher authority, viz., GOD. Should an Act of Parliament be against any of His natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void; and so it would be adjudged by the Parliament itself, when convinced of their mistake."
It is a curious fact that in the reaction from the tyranny of the Stuarts your country abandoned this principle of the common law by substituting for the omnipotence of the Crown the omnipotence of Parliament, while in my country the somewhat vague and unworkable principle of the common law, which gave the judiciary the power to invalidate an act of the legislature, when against natural reason and justice, was developed into the great principle, without which institutions in an heterogeneous and widely scattered democracy would be unworkable, namely that the powers of government are strictly defined, and that neither the executive, the legislative, nor the judicial departments of the government can go beyond the precise limits established by the fundamental law. Like the common law, the Constitution was thus the result of a slow evolution. Mr. Gladstone, in his oft-quoted remark, gave an erroneous impression when he said:
"As the British Constitution is the most subtle organism which has proceeded from progressive history, so the American Constitution is the most wonderful work ever struck off, at a given time by the brain and purpose of man."
This assumes that the Constitution sprang, like Minerva, armed cap-à-pie, from the brain of the American people, whereas it was as much the result of a slow, laborious, and painful evolution as was the British Constitution. Probably Gladstone so understood the development of the American Constitution and recognized that its framing was only the culmination of an evolution of many years.
When the constitutional struggle between the colonies and the Parliament became acute, the necessity of a union for a common defence became imperative. As early as July, 1773, Franklin recommended the "convening of a General Congress" so that the colonies would act together. His suggestion was introduced in the Virginia House of Burgesses in May, 1774, and as a result there met in Philadelphia on September 5 of that year the first Continental Congress, styled by themselves: "The Delegates appointed by the Good People of these Colonies." Nothing was further from their purpose than to form a central government or to separate from England. This Congress only met as a conference of representatives of the colonies to defend what they conceived to be their constitutional rights.