1765]

Laws of nature.

Calvin's case

189

men together in social relation. The State itself was nothing but a body of men in social relations, with power given to it, or created with power, to enforce the obligations arising therefrom. In other words, Americans contended that the chief rights of men arose from human nature. Instead of being created by municipal law, these rights themselves gave rise to all laws enforced by the State.

American

This theory of legal right was put as English doctrine. jurists, including loyalists, were in the habit of quoting Calvin's case, of the time of Coke. In that case all the authorities had been examined, and the judges had unanimously resolved, first, that the laws of nature are part of the law of England; secondly, that the laws of nature cannot be changed; thirdly, that protection and government are due to the subject by the laws of nature; fourthly, that neither "ligeance" nor protection is tied to municipal law, but is due by the laws of nature.

Plainly then there was, at the time of the settlement of the colonies, a "law of nature" which was not derived from Parliament, a law which Parliament could not change. Indeed Americans believed that doctrine without regard to Calvin's case; the doctrine did not rest on "musty records"; it was sound in itself. So in effect it was put by all the leaders -by Otis, Hopkins, Samuel Adams, John Adams, and Hamilton. "The sacred rights of mankind," said Hamilton, "are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature by the hand of the Divinity itself, and can never be erased or obscured."

The rights referred to as derived from the laws of nature were generally spoken of, as Hopkins put them, as inherent and indefeasible; they were Blackstone's "absolute rights" of individuals to life, liberty, and property, and his secondary, consequent rights of legislation. The term "birthright" was constantly applied to the first. But the doctrine that these or any other rights of the colonists were beyond the power of Parliament was denied in England and by loyalists in America. cussion began with the rights of individuals.

Dis

Howard, a Rhode Island loyalist and lawyer, said that, in speaking of the rights of free-born Englishmen, personal and political rights were confounded. He put the case, in substance, thus: 1. Political rights are not "natural"; these come from Parliament, and Parliament comes from the constitution of England, which was the common law. These rights, in the case of the colonists, are derived, immediately, from the charters. 2. Personal rights of life, liberty, and property, called "inherent, indefeasible" rights, are not "natural"; these come from the common law. These, too, in the case of the colonists, are derived, immediately, from the charters. 3. All the rights of the colonists therefore are derived immediately from the charters, ultimately from the common law. 4. If then the colonists claim the common law, as they do, as the source of these personal rights, they must accept Parliament also, for Parliament

190

Foundation of civil and political rights

[1765

too was the offspring of the common law. 5. But corporate rights were matters of grace and favour of the donor or founder. 6. Therefore, the rights of the colonists, political and personal alike, were matters of grace and favour.

Otis denied Howard's distinction between personal and political rights; it was "a new invention." The rights of men were natural or civil ("political "), and they might be both, at the same time, for the two divisions were not opposed to each other; which, it may be remarked, meant that all rights were civil, but certain civil rights were "natural." Civil rights were principally three, rights of personal security, personal liberty, and private property; these by Blackstone were called absolute civil or political rights, and these were natural. Now natural, absolute (Howard's "personal") rights, so far from being opposed to civil or political rights, were the very basis of all municipal laws of any great value.

Howard's distinction too had led him to confound the rights of bodies politic or corporate with the civil or political rights of natural persons. Because the rights of bodies corporate, so far as they depended upon charter, were matters of grace and favour of the donor or founder, Howard had inferred that the colonies, as bodies corporate, had no rights independent of their charters. But this, said Otis, contradicted his statement that by "the common law" every colonist had a right to his life, liberty, and property.

Rights of life, liberty, and property, by nature and by the common law, were civil or political rights. But in the colonies these and all other rights, according to Howard, depended upon charter. It must follow that the people of those colonies (New York, for instance) which had no charters, had no right to life, liberty, or property. And even in the colonies which had charters, these rights depended upon the mere good-will, grace, and pleasure of the supreme power. That could not be true; the origin of these rights was found in the law of nature. If all the charters were abolished, this would not shake one of the essential rights of the colonists; the colonists would still be men, citizens, British subjects. No Act of Parliament could deprive them of the liberties of such. It followed-although Otis left the plain deduction to the reader -that the colonists could claim the common law, without admitting the authority of Parliament, even if it were true that the British Constitution was, properly speaking, the common law in such a way that Parliament, like the rights of life, liberty, and property, could be said to be the offspring of it. Otis made no allusion to this point; his argument was not affected by it. It was enough that the "personal" rights in question, being civil or political, were at the same time natural, and hence above charters or Parliaments.

Otis however did not deny that Parliament had the right to lay taxes upon the colonies, and so far take the property of the colonists

1764-74]

Rights of legislation

191

without their consent. On the contrary he in terms affirmed the right: "the Parliament of Great Britain has a just and equitable right, power, and authority, to impose taxes on the colonies, internal and external, on lands as well as on trade." This was involved in the idea of the sovereign power of the State. But he held that it would be inexpedient and unreasonable for Parliament to exercise the right without allowing the colonies actual representation. Otis was writing in 1765; but even then the whole Whig party was against him. The Whigs carried the doctrine of rights under the laws of nature to the conclusion that Parliament had no authority to lay taxes upon the colonies; the rights of "personal security, personal liberty, and private property" were beyond the reach of Parliament, except as incident to the right of Parliament to regulate the external affairs of the country. That would have been said to be the true effect of Otis' own argument.

So far as individual rights were concerned, these absolute rights were perhaps all that the colonists meant when they spoke of rights derived from the laws of nature. 66 Birthright" had a wider, an indefinite meaning; it was often used to include the common law, the great English statutes, and the British Constitution; hence many things having no bearing on the question of exemption from Parliamentary control.

As a direct consequence of the claim to such exemption in respect of the great individual rights, the Whigs claimed exemption in respect of the means whereby those rights were protected; they had rights to legislatures and Courts of their own. And these rights of direct consequence they also called inherent and indefeasible, and therefore "natural." "The supreme and subordinate powers of legislation should be free and sacred in the hands where the community have once rightfully placed them," as "a natural, essential, inherent, and inseparable right." A legislature of the colonies might be forfeited (in virtue of allegiance) to the Crown, for good cause, according to Otis, who, writing in 1764, went further than the Whig leaders ten years later; but forfeiture of the kind could not. affect the natural persons of the members of the legislature or of the inhabitants of the colonies in their rights of legislation. The colonists would still have the right either to be represented in Parliament or to possess a new subordinate legislature.

Seabury, a rector of New York, an able, caustic writer, denied that the colonies had any inherent or natural right of legislation; their powers of legislation were derived from the indulgence or grant of the parent-State. "Upon the supposition that every English colony enjoyed a legislative power independent of the Parliament, and that the Parliament has no just authority to make laws to bind them, this absurdity will follow, that there is no power in the British empire which has authority to make laws for the whole empire; that is, we have an empire without government; . . . we have a government which has no supreme power. Supreme power must be lodged somewhere.

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Supreme authority, where lodged

[1765

Hamilton answered Seabury, first discussing the theory of the authority of the House of Commons by way of showing that the authority of Parliament must be limited to Great Britain. The House was a check against despotism in various ways peculiar to the mothercountry. The very aim of this part of the government was to secure the rights of the people, that is, the people of Great Britain. The House of Commons represented them; their own interests were in every way connected with those of their constituents. Again, as Governor Hopkins, writing in 1765, had put it, all the powers of the House were derived from its electors, and these were persons of Great Britain; it followed that all its authority was confined to Great Britain. "The power which one society bestows upon any man or body of men can never extend beyond its own limits."

Proceeding to Seabury's proposition that supreme power must be lodged somewhere in government, Hamilton denied the inference that, unless the supreme authority be lodged in one part of the empire over all the other parts, there can be no government. Each part might enjoy a distinct, complete legislature, and still good government might prevail everywhere. It was vain to deny that two or more distinct legislatures could exist in the same State. Such a denial might hold good as regards a single community; there could not be two legislatures in England or in New York. But it did not hold good of a number of distinct societies or bodies politic under one common head; thus there might be one legislature in England, another in Ireland, and another in New York; and still these several parts might form but one State. There must indeed be some connecting, pervading principle; but that was found in the King. "His power is equal to the purpose, and his interest binds him to the due prosecution of it." How could this frustrate or obstruct government?

He affirmed then that legislation was an inherent right of the colonies, not a matter of indulgence or grant. All men were equal by birth; natural liberty was the gift of the Creator to the whole human race; and "civil liberty is only natural liberty, modified and secured by the sanctions of civil society," which of course included legislation. Neither Parliament nor Crown had bestowed natural liberty upon the colonists, or could bestow it.

(b) The British Constitution

How did Americans claim exemption from Parliament in virtue of the British Constitution? The chief answer to that question is found in the English doctrine, running back to Magna Carta, and the various stages of representation. Property could not be taken without consent of the owner given personally or by his representatives; that was the ordinary, specific way of putting it, but the ground taken was general

-1774]

Virtual representation

193

Parliament had no authority over individuals in the colonies (except incidentally, in the regulation of their external affairs) for want of representation by them.

66

In answer to this position it was contended that what came to be called "virtual representation " satisfied the meaning of the constitution; and in that sense, America, it was said, was represented in Parliament. The maxim, as the loyalist Howard was willing to call it, that Englishmen could not be taxed without their consent, was a dry maxim"; it was not to be taken literally. Rightly explained, it did not support the Whig case. It was, said Howard, the opinion of the House of Commons, and might be considered as a "law of Parliament," that the Commons were the representatives of every British subject, wheresoever he might be. In that view the maxim in question was fully vindicated, and the whole benefit of it extended to the colonies. In a literal sense the maxim never was and never could be carried out. Was the Isle of Man, or Jersey, or Guernsey represented in that sense? What was the value of the representation of each man in the kingdom of Scotland, which contained near two millions of people, and yet not more than three thousand had a vote in the election of members of Parliament? The moneyed interest of Britain, though vast, had no share in the representation; and copyholders could not vote for members of Parliament.

Otis replied with legal sarcasm. Howard had said that the opinion of a House of Commons was a "law of Parliament." Therefore it was determined by act of Parliament, that Americans were, and should believe they were, in fact represented in the House of Commons ! Would any man's calling himself an agent or representative make him such? Howard saw no difference between a literal sense of his "dry maxim" and no sense at all. Could it be argued that, because it was impracticable that each individual should in fact be represented, there should be no representation whatever?

Seabury said that the Whig doctrine had arisen from an artful change of terms. To say that an Englishman was not bound by laws to which the representatives of the nation had not given their consent was to say what was true. But to say that an Englishman was bound by no laws but those to which he had consented in person, or by his representative, was saying what never was true, and never could be true. A great part of the people of England had no share in the choice of representatives. One of the Commissioners of the Treasury, in England, speaking more directly still, said that the merchants of London, the proprietors of the public funds, the inhabitants of Leeds, Halifax, Birmingham, and Manchester, and the East India Company, did not choose representatives; and yet they were all represented in Parliament. "And the colonies, being exactly in their situation, are represented in the same manner."

C. M. H. VII.

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