The American Founding
Rights of the Colonies
The Question is whether the Colonies are represented in the British Parliament or not? You affirm it to be indubitable Fact that they are represented, and from thence you infer a Right in the Parliament to impose Taxes of every Kind upon them. You do not insist upon the Power, but upon the Right of Parliament to impose Taxes upon the Colonies. This is certainly a very proper Distinction, as Right and Power have very different Meanings, and convey very different Ideas: For had you told us that the Parliament of Great Britain have Power, by the Fleets and Armies of the Kingdom, to impose Taxes and to raise Contributions upon the Colonies, I should not have to presumed to dispute the Point with you; but as you insist upon the Right only, I must beg Leave to differ from you in Opinion, and shall give my Reasons for it.
I cannot comprehend how Men who are excluded from voting at the Election of Members of Parliament can be represented in that Assembly, or how those who are elected do not sit in the House as Representatives of their Constituents. These Assertions appear to me not only paradoxical, but contrary to the fundamental Principles of the English Constitution.
To illustrate this important Disquisition, I conceive we must recur to the civil Constitution of England, and from thence deduce and ascertain the Rights and Privileges of the People at the first Establishment of the Government, and discover the Alterations that have been made in them from Time to Time; and it is from the Laws of the Kingdom, founded upon the Principles of the Law of Nature, that we are to show the Obligation every Member of the State is under to pay Obedience to its Institutions. From these Principles I shall endeavor to prove that the Inhabitants of Britain, who have no Vote in the Election of Members of Parliament, are not represented in that Assembly, and yet that they owe Obedience to the Laws of Parliament; which, as to them, are constitutional, and not arbitrary. As to the Colonies, I shall consider them afterwards.
Now it is a Fact, as certain as History can make it, that the present civil Constitution of England derives its Original from those Saxons who, coming over to the Assistance of the Britons in the Time of their King Vortiger made themselves Masters of the Kingdom, and established a Form of Government in it similar to that they had been accustomed to live under in their native Country as similar, at least, as the Difference of their Situation and Circumstances would permit. This Government, like that from whence they came, was founded upon Principles of the most perfect Liberty: The conquered Lands were divided among the Individuals in Proportion to the Rank they held in the Nation, and every Freeman, that is, every Freeholder, was a member of their Wittinagemot, or Parliament. The other Part of the Nation, or the NonProprietors of Land, were of little Estimation. They, as in Germany, were either Slaves, mere Hewers of Wood and Drawers of Water, or Freedmen; who, being of foreign Extraction, had been manumitted by their Masters, and were excluded from the high Privilege of having a Share in the Administration of the Commonwealth, unless they became Proprietors of Land (which they might obtain by Purchase or Donation) and in that Case they has a Right to sit with the Freemen, in the Parliament or sovereign Legislature of the State.
How long this Right of being personally present in the Parliament continued, or when the Custom of sending Representatives to this great Council of the Nation, was first introduced, cannot be determined with Precision; but let the Custom of Representation be introduced when it will, it is certain that every Freeman, or, which was the same Thing in the Eye of the Constitution, every Freeholder, had a right to vote at the Election of Members of Parliament, and therefore might be said, with great Propriety, to be present in that Assembly, either in his own Person or by Representation. This Right of Election in the Freeholders is evident from the Statute 1st Hen. 5. Ch. 1st, which limits the Right of Election to those Freeholders only who are resident in the Counties the Day of the Date of the Writ of Election; but yet every resident Freeholder indiscriminately, let his Freehold be ever so small, had a Right to vote at the Election of Knights for his County so that they were actually represented. And this Right of Election continued until it was taken away by the Statute 8th Hen. 6 Ch. 7. Shillings by the year at the least.
Now this statute was deprivative of the Right of those Freeholders who came within the Description of it; but of what did it deprive them, if they were represented notwithstanding their Right of Election was taken from them? The mere Act of voting was nothing, of no Value, if they were represented as constitutionally without it as with it: But when by the fundamental Principles of the Constitution they were to be considered as Members of the Legislature, and as such had a right to be present in Person, or to send their Procurators or Attornies, and by them to give their Suffrage in the supreme Council of the Nation, this Statute deprived them of an essential Right; a Right without which by the ancient Constitution of the State, all other Liberties were but a Species of Bondage.
As these Freeholders then were deprived of their Rights to substitute Delegates to Parliament, they could not be represented, but were placed in the same Condition with the NonProprietors of Land, who were excluded by the original Constitution from having any Share in the Legislature, but who, notwithstanding such Exclusion, are bound to pay Obedience to the Laws of Parliament, even if they should consist of nine Tenths of the People of Britain; but then the Obligation of these Laws does not arise from their being virtually represented in Parliament, but from a quite different Reason.
From hence it is evident that the Obligation of the Laws of Parliament upon the People of Britain who have no Right to be Electors does not arise from their being virtually represented, but from a quit different Principle; a Principle of the Law of Nature, true, certain, and universal, applicable to every Sort of Government, and not contrary to the common Understandings of Mankind.
If what you say is real Fact, that the nine Tenths of the People ofBritain are deprived of the high Privilege of being Electors, it shows a great Defect in the present Constitution, which has departed so much from its original Purity; but never can prove that those People are even virtually represented in Parliament. And here give me Leave to observe that it would be a Work worthy of the best patriotick Spirits in the Nation to effectuate an Alteration in this putrid Part of the Constitution; and, by restoring it to its pristine Perfection, prevent any "Order or Rank of the Subjects from imposing upon or binding the rest without their Consent.” But, I fear, the Gangrene has taken too deep Hold to be eradicated in these Days of Venality.
But if those People of Britain who are excluded from being Electors are not represented in Parliament, the Conclusion is much stronger against the People of the Colonies being represented; who are considered by the British Government itself, in every Instance of Parliamentary Legislation, as a distinct People.
As then we can receive no Light from the Laws of the Kingdom, or from ancient History, to direct us in out Inquiry, we must have Recourse to the Law of Nature, and those Rights of Mankind which flow from it.
I have observed before that when Subjects are deprived of their civil Rights, or are dissatisfied with the Place they hold in the Community, they have a natural Right to quit the Society of which they are Members, and to retire into another Country. Now when Men exercise this Right, and withdraw themselves from their Country, they recover their natural Freedom and Independence: The Jurisdiction and Sovereignty of the State they have quitted ceases; and if they unite, and by common Consent take Possession of a New Country, and form themselves into a political Society, they become a sovereign State, independent of the State from which they have separated. If then the Subjects of England have a natural Right to relinquish their Country, and by retiring from it, and associating together, to form a new political Society and independent State, they must have a Right, by Compact with Sovereign of the Nation, to remove into a new Country, and to form a civil Establishment upon the Terms of the Compact. In such a Case, the Terms of the Compact must be obligatory and binding upon the Parties; they must be the Magna Charta, the fundamental Principles of Government, to this new Society; and every Infringement of them must be wrong, and may be opposed. It will be necessary then to examine whether any such Compact was entered into between the Sovereign and those English Subjects who established themselves in America.