As to those colonies which are destitute of charters, the commissions to their governors have ever been considered as equivalent securities, both for property, jurisdiction, and privileges, with charters; and as to the power of the crown being absolute in those colonies, it is absolute no where. There is no fundamental or other law, that makes a king of England absolute any where, except in conquered countries; and an attempt to assume such a power, by the fundamental laws, forfeits the prince's right even to the limited crown.
As to "the charter governments reverting to absolute monarchy, as their charters may happen to be forfeited, by the grantees not fulfilling the conditions of them;" I answer, if they could be forfeited, and were actually forfeited, the only consequence would be, that the king would have no power over them at all. He would not be bound to protect the people, nor, that I can see, would the people here, who were born here, be, by any principle of common law, bound even to allegiance to the king. The connection would be broken between the crown and the natives of the country.
It has been a great dispute whether charters granted within the realm, can be forfeited at all. It was a question debated with infinite learning, in the case of the charter of London: it was adjudged forfeited, in an arbitrary reign: but afterwards, after the revolution, it was declared in parliament, not forfeited, and by an act of parliament made incapable of forfeiture. The charter of Massachusetts was declared forfeited too. So were other American charters. The Massachusetts alone, were tame enough to give it up. But no American charter will ever be decreed forfeited again, or if any should, the decree will be regarded no more, than a vote of the lower house of the robinhood society. The court of chancery has no authority without the realm; by common law, surely it has none in America. What! the privileges of millions of Americans depend on the discretion of a lord chancellor? God forbid! The passivity of this colony in receiving the present charter, in lieu of the first, is, in the opinion of some, the deepest stain upon its character. There is less to be said in excuse for it, than the witchcraft, or hanging the Quakers. A vast party in the province were against it at the time, and thought themselves betrayed by their agent. It has been a warning to their posterity, and one principal motive with the people, never to trust any agent with power to concede away their privileges again. It may as well be pretended that the people of Great Britain can forfeit their privileges, as the people of this province. If the contract of state is broken, the people and king of England must recur to nature. It is the same in this province. We shall never more submit to decrees in chancery, or acts of parliament, annihilating charters, or abridging English liberties.
Whether Massachusettensis was born as a politician, in the year 1764, I [knew] not: but he often writes as if he [know] nothing of that period. In his attempt to trace the denial of the supreme authority of the parliament, he commits such mistakes, as a man of age, at that time, ought to blush at. He says, that "when the stamp act was made, the authority of parliament to impose external taxes, or, in other words, to lay duties upon goods and merchandize was admitted," and that when the tea act was made, "a new distinction was set up, that parliament had a right to lay duties upon merchandize, for the purpose of regulating trade, but not for the purpose of raising a revenue." This is a total misapprehension of the declared opinions of people at those times. The authority of parliament to lay taxes for a revenue has been always generally denied. And their right to lay duties to regulate trade, has been denied by many, who have ever contended that trade should be regulated only by prohibitions.
The act of parliament of the 4th George 3d, passed in the year 1764, was the first act of the British parliament that ever was passed, in which the design of raising a revenue was expressed. Let Massachusettensis name any statute before that, in which the word revenue is used, or the thought of raising a revenue is expressed. This act is entitled, "an act for granting certain duties in the British colonies, and plantations in America," &c. The word revenue, in the preamble of this act, instantly ran through the colonies, and rang an alarm, almost as much as if the design of forging chains for the colonists had been expressed in words. I have now before me a pamphlet, written and printed in the year 1764, entitled, "The sentiments of a British American," upon this act. How the idea of a revenue, though from an acknowledged external tax, was relished in that time, may be read in the frontispiece of that pamphlet.
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Ergo quid refert mea Cui serviam? clitellas dum portem meas. Phaedrus. |
The first objection to this act, which was made in that pamphlet, by its worthy author, Oxenbridge Thacher, Esq. who died a martyr to that [amity] for his country, which the conduct of the junto gave him, is this, "The first objection is, that a tax is thereby laid on several commodities, to be raised and levied in the plantations, and to be remitted home to England. This is esteemed a grievance, inasmuch as the same are laid, without the consent of the representatives of the colonists. It is esteemed an essential British right, that no person shall be subject to any tax; but what in person, or by his representative, he hath a voice in laying." Here is a tax unquestionably external, in the sense in which that word is used, in the distinction that is made by some between external and internal taxes, and unquestionably laid in part for the regulation of trade; yet called a grievance, and a violation of an essential British right, in the year 1764, by one who was then at the head of the popular branch of our constitution, and as well acquainted with the sense of his constituents, as any man living. And it is indisputable, that in those words he wrote the almost universal sense of this colony.
There are so many egregious errors in point of fact, and respecting the opinions of the people in this writer, which it is difficult to impute to wilful misrepresentation, that I sometimes think he is some smart young gentleman, come up into life since this great controversy was opened; if not, he must have conversed wholly with the junto, and they must have deceived him, respecting their own sentiments.
This writer sneers at the distinction between a right to lay the former duty of a shilling on the pound of tea, and the right to lay the three pence. But is there not a real difference between laying a duty to be paid in England upon exportation, and to be paid in America upon importation? Is there not a difference between parliament's laying on duties within their own realm, where they have undoubtedly jurisdiction, and laying them out of their realm, nay laying them on in our realm, where we say they have no jurisdiction? Let them lay on what duties they please in England, we have nothing to say against that.
"Our patriots most heroically resolved to become independent states, and flatly denied that parliament had a right to make any laws whatever that should be binding upon the colonies."