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1775-80] New England charters. Pennsylvania charter 199

the result was a declaration, under the King's privy seal, that “taxes ought not to be levied upon. . . a colony but by the consent of the General Assembly." And this declaration had been directly acted upon under Governor Culpeper in Virginia, measures intended to raise revenue for protecting the colony being "passed into law by the King's most excellent Majesty by and with the consent of the General Assembly" of the colony. "If the Virginians had been subjects of the realm, this could not have been done without a direct violation of Magna Carta, which provides that no English subject shall be taxed without the consent of Parliament."

As for the admitted jurisdiction of Parliament over the regulation of commerce, which Hamilton's reasoning seemed to cover, the answer was, "It is enough, we have consented to it."

By the year 1780 Galloway, who had cut loose all connexion with America and gone to England, agreed in effect with Hamilton. In 1775, while there was still hope for his famous Plan of Union, he could “discover no exemption or discharge from the authority of Parliament in any of" the charters, save that of Pennsylvania; and there it was only partial, while other parts of the same charter were to the contrary. But disappointed hopes and five years of revolution had their effect; he could now condemn the New England charters as inculcating independence, so far as Parliament was concerned. By the Plymouth charter of 1628 "every prerogative of the Crown, and all the rights of the aristocratic part of the British Constitution, were sacrificed to the republican views of the grantees." There was no control over "this complete legislative authority," except that nothing contrary to the laws of the realm should be done. The people of Massachusetts had been "educated under the unlimited and [therefore] unconstitutional powers of their former and present charters." So of the other charters; they contained "the same unlimited and unconstitutional powers." All supervision over their legislative, executive, and federative powers had been given up; the colonies made what laws they pleased, and executed them as they pleased; they made peace and war with whom they pleased. By their several charters they were constituted "so many complete, independent societies" within the State.

The exceptional clause in the charter of Pennsylvania was to the effect that the King grants that he will levy no taxes on the inhabitants of the province unless with the consent of the General Assembly or by Act of Parliament. Franklin, asked on examination by the House of Commons how the assertion could be made that laying taxes on his people by the Stamp Act infringed their rights, in the face of that clause, explained the provision thus. By the same charter, and otherwise, his people were entitled to all the privileges and liberties of Englishmen; one of those privileges was, that they were not to be taxed but by their common consent. They had therefore relied upon

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The King as representative of Great Britain [1768it that Parliament would not and could not tax them until it had qualified itself to do so by admitting his people to representation, who ought to make part of the common consent.

But were not these charters of the colonies, though granted in fact by the Kings of England, granted in law by Parliament as the sovereign power of the nation? The Whigs said that they were not; though the elder Adams, inconsistently with that idea, had in 1768 spoken of the charters as a royal promise "on behalf of the nation," for making which it had never till very lately been "questioned but the King had power." The Whigs generally however would have said, then or later, that that was a mere slip or inadvertence. That they generally held that the King's promise was made in his own right alone is clear. Galloway, speaking with ample knowledge, said of the idea, "We find it in all the resolves and petitions of the American assemblies, town meetings, and provincial committees, and even in the proceedings of the Continental Congress," which indeed had declared upon it.

Galloway pronounced the idea a delusion, "a distinction nowhere to be found"; the charters had been granted by the King as representative of Great Britain; they had therefore been granted by Parliament, and hence the colonies derived their rights from the British legislature. He supported the proposition thus. The King held the great seal in his representative capacity only. One right which he had under the seal was to form territory within the realm into inferior bodies politic, vesting in the people there the power to make laws for the regulation of internal police, but not to discharge the people from obedience to Parliament, because that would weaken and dismember and in the end destroy the State. The colonies were by their own admission members of the State; which he seems to lead the reader to infer, was bringing them "within the realm." Every colony in America had been settled under licence and authority of the great seal, "affixed by the representative of the body politic of Britain," to the charters. There was no other source from which the King could derive authority. He brushed aside the position taken by some that the oath of allegiance in America was professed to the King, not as representative of Great Britain, but as representing the several legislatures of the colonies; it was "a new and unheard of capacity of his Majesty"; it made his Majesty the representative of his own representatives, delegates, or substitutes.

Seabury dealt with the matter thus: "To talk of being liege subjects to King George while we disavow the authority of Parliament is another piece of Whiggish nonsense . . . If we obey the laws of the King, we obey the laws of Parliament. If we disown the authority of the Parliament, we disown the authority of the King. The King of Great Britain was placed on the throne by virtue of an Act of Parliament, and he is King of America by virtue of being King of Great Britain. He is therefore King of America by Act of Parliament."

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The King as source of authority

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To this Hamilton replied, that the Act of Parliament was not the efficient cause of his Majesty's being the King of America; it was only the occasion of it. He was 66 King of America by virtue of a compact between us and the [former] Kings of Great Britain. These colonies were planted and settled by the grants and under the protection of English Kings, who entered into covenants with us, for themselves, their heirs, and successors." From these covenants the duty of protection by them and of obedience by us arose. "Our compact takes no cognizance of the manner of their accession to the throne." It could therefore make no difference that King James and the first and second Charles were in truth parliamentary Kings. Passing to the distinction itself between allegiance to the King and subjection to Parliament, Hamilton said that there were valid reasons for such a distinction. The people of America held their lands, by virtue of charters, from the King; they were under no obligation to Lords or Commons for them. "Our title is similar, and equal, to that by which they possess their lands; and the King is the legal fountain of both." But the chief reason was, that the colonists had the right to claim protection from the King of Great Britain. It had been said that they owed this to Great Britain. That was not true; the King, as executive, was the supreme protector of the empire. He it was who had defended the colonies; to him alone were the colonies bound to render allegiance and submission. "The law of nature and the British Constitution both confine allegiance to the person of the King." Calvin's case had so decided. That is, allegiance was "confined" to a "person" who simply bore the name and title of King of Great Britain.

Hamilton made no reference to the fact that the Stewart Kings, under whose charters most of the colonies held, had claimed authority above Parliament, probably because in the contest with Charles I the colonists mainly were with Parliament; and he was replying to Seabury, not to Galloway, who wrote perhaps a little later. With Galloway's argument before him for answer, there can be little difficulty in supposing that Hamilton would have alluded to the professions of the Stewarts. Was it true, he would have been likely to say, that the Stewart Kings affixed the great seal to the charters as representatives of another? And even if they had forgotten, for the moment, the divine right of Kings, could any King, by using the great seal, or in any other way, without sufficient notice to the grantees, constitute himself a representative of others, to the prejudice of the grantees?

This part of the subject may be closed with a statement of the chief resolutions of the Continental Congress, of the year 1774, as the final summing up of the whole case. In virtue of the three sources of right above considered, the Congress resolved - First, that the inhabitants of the British colonies in North America were entitled to life, liberty, and property, and that they had never ceded to any foreign power whatever

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Summary of the Whig doctrine.

Taxation [1774

a right to dispose of either without their consent. Secondly, that their ancestors, who first settled the colonies, were at the time of their emigration entitled to all the rights, liberties, and immunities of free and natural born subjects within the realm of England. Thirdly, that by such emigration they had not forfeited, surrendered, or lost any of those rights, but that they and their descendants were entitled to exercise and enjoy all such of them as their local or other circumstances would permit. Fourthly, that the foundation of English liberties and of all free government was a right in the people to participate in their legislative council; and as the English colonists were not represented, and from their local circumstances could not properly be represented, in Parliament, they were entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation could alone be preserved, in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as had been theretofore used and accustomed. But from the necessity of the case, and from a regard for the mutual interests of both countries, the colonies cheerfully consented to the operation of such laws of Parliament as were bona fide restrained to the regulation of their external commerce, excluding every idea of taxation, internal or external, for raising a revenue on the subjects in America without their consent. Fifthly and Sixthly, that they were entitled to the common law, and to such English statutes as they had by experience found applicable to their several localities and circumstances. Seventhly, that they were entitled to all the immunities and privileges granted and confirmed to them by royal charters and secured by their own provincial laws.

Several resolutions followed pertaining to other grounds of complaint.

(iv) GENERAL OBJECTIONS

There were certain objections to the American position which applied alike to all claims of exemption from the authority of Parliament. One was that the colonies as members of the empire ought to contribute to the support of the general government. Thus the money laid out by Great Britain in establishing and protecting the colonies, especially in the late war with France, gave to the government a right of compensation in taxes. This objection was answered by many of the Whig writers. Governor Hopkins, writing in 1765, considered that there was no foundation for the claim. As for the late war, many of the colonies, especially those of New England, took the charge upon themselves entirely. The same was true of the expenses of protection. against the savages and other enemies, for a hundred years. The colonies had been called upon indeed to raise men and send them out for the defence of other colonies, and even to make conquests for the Crown. They had dutifully obeyed, until all Canada and even Havana had been

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Support in return for protection

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conquered. They had responded cheerfully, but they reaped no benefit: everything obtained belonged solely to Great Britain. As for bearing a share of the general expenses of government, was it not enough that the colonies, of themselves, supported a government as expensive to them as was the internal government of Great Britain to its inhabitants? And had they not always responded cheerfully when called upon by the Crown? Why then distrust them now?

Dulaney too pointed out that the British Ministry, in the time of the late war with France, so far from thinking it proper for the House of Commons to "give and grant" the property of the colonists to support the war in America, had directly applied to the colonies to tax themselves; and he added that they had promised to recommend Parliament to reimburse the colonies in the expenses they had borne, a promise which was made good.

Hamilton, in 1774, referring to claims upon the colonies for the support of the British navy, because of its protection of America, replied that Great Britain enjoyed a monopoly of the trade of the colonies. The colonies were compelled to trade with the mother-country, and the profits were a great source of wealth to her; were not these sufficient recompense? Franklin's answer, as will be seen below, was that Great Britain was entitled to a toll or duty for guarding the seas.

Another objection was, that a power of regulation by government was a power of legislation; and a power of legislation must be universal and supreme. The conclusion drawn was, that as the colonies had acknowledged the power of Parliament to regulate their commerce, they had thereby acknowledged every other power of legislation by that body. Dickinson answered that the objection was based upon confusion. There was a time when England had no colonies; trade was the object for which they had been encouraged. Love of freedom was a chief motive of the adventurers: the connexion of colonies with the parent-State was a new thing in the English laws. That the rights of England extinguished the rights of the adventurers-rights essential to the freedom they would have had, had they stayed at home-was against reason, humanity, and the constitution of England. Colonies could not have been planted on such terms. The colonists simply claimed what they would have had had they never left England. But there was another principle touching trade. All the power of Parliament could not regulate trade at pleasure. It had to be regulated by treaties and alliances formed by the King, without the consent of the nation, with other States. When a universal empire was established, and not till then, could regulations of trade. properly be called Acts of the supreme legislature. But let it be admitted that the power to regulate trade is vested in Parliament. Still, commerce rested on concessions and restrictions mutually stipulated between the different powers of the world. How the people of England shall trade must be determined by Germans, Frenchmen, Spaniards.

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