The Constitution of the United States | Page 9

to give to the customs inspectors the power to make general searches and seizures, to enforce the navigation laws. In 1761 James Otis, of Massachusetts, made a fateful speech before the colonial legislature, in which, asserting the illegality of the search warrants on the ground that they violated the constitutional rights of Englishmen to protection in their own homes, he asserted that Acts of Parliament which violated the sanctity of the home were void and that, more specifically, they violated the charter granted to Massachusetts. Asserting the doctrine which at that time was the doctrine of the English common law, as stated by Coke and three other Chief Justices, he said:
"To say the parliament is absolute and arbitrary is a contradiction. The Parliament cannot make two and two five. Omnipotency cannot do it.... Parliaments are in all cases to declare what is for the good of the whole; but it is not the declaration of parliament that makes it so: there must be in every instance a higher authority, viz., GOD. Should an Act of Parliament be against any of His natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void; and so it would be adjudged by the Parliament itself, when convinced of their mistake."
It is a curious fact that in the reaction from the tyranny of the Stuarts your country abandoned this principle of the common law by substituting for the omnipotence of the Crown the omnipotence of Parliament, while in my country the somewhat vague and unworkable principle of the common law, which gave the judiciary the power to invalidate an act of the legislature, when against natural reason and justice, was developed into the great principle, without which institutions in an heterogeneous and widely scattered democracy would be unworkable, namely that the powers of government are strictly defined, and that neither the executive, the legislative, nor the judicial departments of the government can go beyond the precise limits established by the fundamental law. Like the common law, the Constitution was thus the result of a slow evolution. Mr. Gladstone, in his oft-quoted remark, gave an erroneous impression when he said:
"As the British Constitution is the most subtle organism which has proceeded from progressive history, so the American Constitution is the most wonderful work ever struck off, at a given time by the brain and purpose of man."
This assumes that the Constitution sprang, like Minerva, armed cap-à-pie, from the brain of the American people, whereas it was as much the result of a slow, laborious, and painful evolution as was the British Constitution. Probably Gladstone so understood the development of the American Constitution and recognized that its framing was only the culmination of an evolution of many years.
When the constitutional struggle between the colonies and the Parliament became acute, the necessity of a union for a common defence became imperative. As early as July, 1773, Franklin recommended the "convening of a General Congress" so that the colonies would act together. His suggestion was introduced in the Virginia House of Burgesses in May, 1774, and as a result there met in Philadelphia on September 5 of that year the first Continental Congress, styled by themselves: "The Delegates appointed by the Good People of these Colonies." Nothing was further from their purpose than to form a central government or to separate from England. This Congress only met as a conference of representatives of the colonies to defend what they conceived to be their constitutional rights.
Before the second Continental Congress met in the following year, the accidental clash at Lexington and Concord had taken place, and as the Congress again re-convened a momentous change had taken place, which was, in fact, the beginning of the American Commonwealth. The Congress became by force of circumstances a provisional government, and as such it might well have claimed plenary powers to meet an immediate exigency. So indisposed were they to separate from England or to substitute for its rule that of a new government, that the Continental Congress, when it then involuntarily took over the government of America, failed to exercise any adequate power. It remained simply a conference without real power. Each colony had one vote and the rule of unanimity prevailed. Even its decisions were largely advisory, for they amounted to little more than recommendations to the constituent States as to what measures should be taken. Each colony complied with the recommendation in its discretion and in its own way. Notwithstanding this fatal lack of authority, the Continental Congress, then actually engaged in civil war, created an army, and, through its committees, entered into negotiations with foreign nations. To support the former, it issued paper money, with the disastrous result that could be readily anticipated. While it had a presiding officer,