Complete Works. Hamilton Alexander
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were born within the realm of England.”
The vague and improper manner in which this particle is used in many other places of the several charters will not allow it the least weight in the present instance. In the eleventh article of the third Virginia charter there is this expression: “All such, and so many of our loving subjects, or any other strangers that will,” etc. The same rule of inference that makes Rhode Island and Connecticut simple corporations, will also transform the king's loving subjects into mere strangers, which I apprehend cannot be done without some degree of absurdity.
In the fifteenth year of Charles the Second, Carolina was erected into a principality. A patent dated March 24, 1663, was granted to eight lord proprietors, vesting them with all its rights, privileges, prerogatives, royalties, etc., and the whole legislative and executive authority, together with the power of creating a nobility. The form of government was determined by a compact between the people and the proprietors, which contained one hundred and twenty articles; and “these were to be and remain the sacred and unalterable rule and form of government in Carolina for ever.” A Palatine was to be erected from among the proprietaries, who was to govern the principality during his life; and at his demise, the surviving lords were to succeed him according to the order of seniority. The legislative power was to reside in the Parliament of that country, consisting of the Palatine as sovereign; an upper House, in which the proprietors or their deputies, the governor and the nobility, were to sit; and a lower House, composed of the delegates of the people. There was likewise a court established, the members of which were three proprietaries, and the Palatine as president, and in this court the whole executive authority was lodged.
There were also several other courts: the Chief Justice's, the High Constable's, the Chancellor's, and the High Steward's Court. The principal officers of the State, in number, titles, and power, resembled those of the realm of England. The proprietors of Carolina considered themselves as possessed of every requisite toward forming a separate independent state, and were always extremely jealous of any encroachments. They even disputed the king's authority to establish Courts of Vice-Admiralty within their precincts, though for the examination and punishment of offences committed without them, and always appointed an admiral of their own. One of their governors was deposed for “accepting a commission under King William, as Judge of the Admiralty, when he had, at the same time, a commission from the Lords proprietaries for the same office.”
The Philadelphia charter was next granted, and contained almost an equality of privileges with that of Maryland. There was, indeed, a reverse in favor of Parliament, perfectly singular and unprecedented in any foregoing charter, and which must either be rejected, or the general tenor of the grant becomes unintelligible.
It happened that the charter of Massachusetts was vacated by a decision in Chancery, and a new one was conferred by William and Mary. The agents for that colony did not accept it till they had first consulted the most judicious civilians and politicians upon the contents of it, and then drew up an instrument in which they assigned the reasons of their acceptance. The following extract will serve to show their sense of it: “The colony,” say they, “is now made a province; and the General Court has, with the king's approbation, as much power in New England as the King and Parliament have in England. They have all English privileges and liberties, and can be touched by no law and by no tax, but of their own making. All the liberties of their religion are for ever secured.”
You say, that “the power to levy taxes is restrained to provincial and local purposes only, and to be exercised over such only as are inhabitants and proprietors of the said province.”
They are empowered “to levy proportionable and reasonable assessments, rates, and taxes, for our service in the necessary defence and support of the government of the said province or territory, and the protection and preservation of the inhabitants there.” The defence and support of government, and their own protection and preservation, are the purposes for which they are to raise supplies; and, in my humble opinion, there are no others to which any society is under an obligation to contribute its wealth or property.
I shall only make one more observation upon this charter—which is, that there was a reservation in it of liberty for the people of England to fish upon their coasts, which would have been useless and absurd, had that province been a part of the realm, and within the jurisdiction of Parliament.
Were it necessary to elucidate still more a point which is so conspicuous from the several charters of the colonies, as well as the express declarations of those princes by whom they were granted, to wit: “that the colonies are without the realm and jurisdiction of Parliament,” I might enumerate many striking circumstances besides those I have already mentioned. But as the case is by this time sufficiently clear, I shall confine myself to the recital of only one or two more transactions.
An act of the twenty-fifth of Charles the Second was the first that ever imposed duties on the colonies for any purpose; and these, as the preamble itself recites, were simply as a regulation of trade, and were of a prohibitory nature. Notwithstanding this, it was the source of great dissatisfaction; and was one of the principal causes of the insurrection in Virginia, under Colonel Bacon, which after his death subsided; and then the province sent agents to England, to remonstrate “against taxes and impositions being laid on the colony by any authority but that of the General Assembly.” In consequence of this, a declaration was obtained, under the privy seal of King Charles, dated nineteenth of April, 1676, to this effect: that “taxes ought not to be laid upon the proprietors and inhabitants of the colony, but by the common consent of the General Assembly.”
About three years after, when King Charles had occasion to raise a permanent revenue for the support of Virginia, he did not attempt to do it by means of a parliamentary donation, but framed a bill, and sent it there by Lord Culpepper, who was at that time governor, to receive the concurrence of their legislature. It was there passed into a law, and “enacted by the King's most excellent Majesty, by and with the consent of the General Assembly of the colony of Virginia. “If the Virginians had been subjects of the realm, this could not have been done without a direct violation of Magna Charta, which provides that no English subject shall be taxed without the consent of Parliament.
Thus, sir, I have taken a pretty general survey of the American charters, and proved, to the satisfaction of every unbiassed person, that they are entirely discordant with that sovereignty of Parliament for which you are an advocate. The disingenuity of your extracts (to give it no harsher name) merits the severest censure, and will, no doubt, serve to discredit all your former, as well as future, labors in your favorite cause of despotism.
It is true, that New York has no charter. But if it could support its claim to liberty in no other way, it might, with justice, plead the common principles of colonization: for it would be unreasonable to exclude one colony from the enjoyment of the most important privileges of the rest. There is no need, however, of this plea. THE SACRED RIGHTS OF MANKIND 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 BY MORTAL POWER.
The nations of Turkey, Russia, France, Spain, and all other despotic kingdoms in the world, have an inherent right, whenever they please, to shake off the yoke of servitude (though sanctioned by the immemorial usage of their ancestors), and to model their government upon the principles of civil liberty.
I will now venture to assert, that I have demonstrated, from the voice of nature, the spirit of the British constitution, and the charters of the colonies in general, the absolute non-existence of that parliamentary supremacy for which you contend. I am not apt to be dogmatical, or too confident of my own opinions; but if I thought it possible for me to be mistaken, when I maintain that the Parliament of Great Britain has no sovereign authority over America, I should distrust every principle of my understanding, reject every distinction between truth and falsehood, and fall into a universal skepticism.
Hitherto, I have reasoned against the whole authority of Parliament, without even excepting the right we have conceded, of regulating trade. I considered it, in its original state, as founded in the British constitution, the natural rights of society,