The result of the free inquiries of many persons, into the right of the Parliament, to exercise such a power over the colonies, seems, in your Excellency's opinion, to be the cause, of what you are pleased to call the present "disturbed state of the government;" upon which, you "may not any longer, consistent with your duty to the King, and your regard to the interest of the province, delay communicating your sentiments." But that the principles adopted in consequence hereof, are unconstitutional, is a subject of inquiry. We know of no such disorders arising therefrom, as are mentioned by your Excellency. If Grand Jurors have not, on their oaths, found such offences, as your Excellency, with the advice of his Majesty's Council, have ordered to be prosecuted, it is to be presumed, they have followed the dictates of good conscience. They are the constitutional judges of these matters, and it is not to be supposed, that moved from corrupt principles, they have suffered offenders to escape a prosecution, and thus supported and encouraged them to go on offending. If any part of authority shall, in an unconstitutional manner, interpose in any matter, it will be no wonder if it be brought into contempt; to the lessening or confounding of that subordination, which is necessary to a well regulated state. Your Excellency's representation that the bands of government are weakened, we humbly conceive to be without good grounds; though we must own, the heavy burdens unconstitutionally brought upon the people, have been, and still are universally, and very justly complained of, as a grievance.
You are pleased to say, that, "when our predecessors first took possession of this plantation, or colony, under a grant and charter from the Crown of England, it was their sense, and it was the sense of the kingdom, that they were to remain subject to the supreme authority of Parliament;" whereby we understand your Excellency to mean, in the sense of the declaratory act of Parliament afore mentioned, in all cases whatever. And, indeed, it is difficult, if possible, to draw a line of distinction between the universal authority of Parliament over the colonies, and no authority at all. It is, therefore, necessary for us to inquire how it appears, for your Excellency has not shown it to us, that when, or at the time that our predecessors took possession of this plantation, or colony, under a grant and charter from the Crown of England, it was their sense, and the sense of the kingdom, that they were to remain subject to the authority of Parliament. In making this inquiry, we shall, according to your Excellency's recommendation, treat the subject with calmness and candor, and also with a due regard to truth.
Previous to a direct consideration of the charter granted to the province or colony, and the better to elucidate the true sense and meaning of it, we would take a view of the state of the English North American continent at the time, when, and after possession was first taken of any part of it, by the Europeans. It was then possessed by heathen and barbarous people, who had, nevertheless, all that right to the soil, and sovereignty in and over the lands they possessed, which God had originally given to man. Whether their being heathen, inferred any right or authority to christian princes, a right which had long been assumed by the Pope, to dispose of their lands to others, we will leave your Excellency, or any one of understanding and impartial judgment, to consider. It is certain, they had in no other sense, forfeited them to any power in Europe. Should the doctrine be admitted, that the discovery of lands owned and possessed by pagan people, gives to any christian prince a right and title to the dominion and property, still it is vested in the Crown alone. It was an acquisition of foreign territory, not annexed to the realm of England, and, therefore, at the absolute disposal of the Crown. For we take it to be a settled point, that the King has a constitutional prerogative, to dispose of and alienate, any part of his territories not annexed to the realm. In exercise of this prerogative, Queen Elizabeth granted the first American charter; and, claiming a right by virtue of discovery, then supposed to be valid, to the lands which are now possessed by the colony of Virginia, she conveyed to Sir Walter Rawleigh, the property, dominion, and sovereignty thereof, to be held of the Crown, by homage, and a certain render, without any reservation to herself, of any share in the Legislative and Executive authority. After the attainder of Sir Walter, King James the I. created two Virginian companies, to be governed each by laws, transmitted to them by his Majesty, and not by the Parliament, with power to establish, and cause to be made, a coin to pass current among them; and vested with all liberties, franchises and immunities, within any of his other dominions, to all intents and purposes, as if they had been abiding and born within the realm. A declaration similar to this, is contained in the first charter of this colony, and in those of other American colonies, which shows that the colonies were not intended, or considered to be within the realm of England, though within the allegiance of the English Crown. After this, another charter was granted by the same King James, to the Treasurer and Company of Virginia, vesting them with full power and authority, to make, ordain, and establish, all manner of orders, laws, directions, instructions, forms and ceremonies of governments, and magistracy, fit and necessary, and the same to abrogate, &c. without any reservation for securing their subjection to Parliament, and future laws of England. A third charter was afterwards granted by the same King, to the Treasurer and Company of Virginia, vesting them with full power and authority to make laws, with an addition of this clause, "so, always, that the same be not contrary to the laws and statutes of this our realm of England." The same clause was afterwards copied into the charter of this and other colonies, with certain variations, such as, that these laws should be "consonant to reason," "not repugnant to the laws of England," "as nearly as conveniently may be to the laws, statutes and rights of England," &c. These modes of expression, convey the same meaning, and serve to show an intention, that the laws of the colonies should be as much as possible, conformable in the spirit of them, to the principles and fundamental laws of the English constitution, its rights and statutes then in being, and by no means to bind the colonies to a subjection to the supreme authority of the English Parliament. And that this is the true intention, we think it further evident from this consideration, that no acts of any colony Legislative, are ever brought into Parliament for inspection there, though the laws made in some of them, like the acts of the British Parliament, are laid before the King for his dissent or allowance.
We have brought the first American charters into view, and the state of the country when they were granted, to show, that the right of disposing of the lands was, in the opinion of those times, vested solely in the Crown; that the several charters conveyed to the grantees, who should settle upon the territories therein granted, all the powers necessary to constitute them free and distinct states; and that the fundamental laws of the English constitution should be the certain and established rule of legislation, to which, the laws to be made in the several colonies, were to be, as nearly as conveniently might be, conformable, or similar, which was the true intent and import of the words, "not repugnant to the laws of England," "consonant to reason," and other variant expressions in the different charters. And we would add, that the King, in some of the charters, reserves the right to judge of the consonance and similarity of their laws with the English constitution, to himself, and not to the Parliament; and, in consequence thereof, to affirm, or within a limited time, disallow them.
These charters, as well as that afterwards granted to Lord Baltimore, and other charters, are repugnant to the idea of Parliamentary authority; and, to suppose a Parliamentary authority over the colonies, under such charters, would necessarily induce that solecism in politics, imperium in imperio. And the King's repeatedly exercising the prerogative of disposing of the American territory by such charters, together with the silence of the nation thereupon, is an evidence that it was an acknowledged prerogative.
But, further to show the sense of the English Crown and nation, that the American colonists, and our predecessors in particular, when they first took possession of this country, by a grant and charter from the Crown, did not remain subject to the supreme authority of Parliament, we beg leave to observe, that when a bill was offered by the two Houses of Parliament to King Charles the I. granting to the subjects of England, the free liberty of fishing on the coast of America, he refused his royal assent, declaring as a reason, that "the colonies were without the realm and jurisdiction of Parliament."
In like manner, his predecessor, James the I. had before declared, upon a similar occasion, that "America was not annexed to the realm, and it was not fitting that Parliament should make laws for those countries." This reason was, not secretly, but openly declared in Parliament. If, then, the colonies were not annexed to the realm, at the time when their charters were granted, they never could afterwards, without their own special consent, which has never since been had, or even asked. If they are not now annexed to the realm, they are not a part of the kingdom, and consequently not subject to the Legislative authority of the kingdom. For no country, by the common law, was subject to the laws or to the Parliament, but the realm of England.
We would, if your Excellency pleases, subjoin an instance of conduct in King Charles the II. singular indeed, but important to our purpose, who, in 1769, framed an act for a permanent revenue for the support of Virginia, and sent it there by Lord Culpepper, the Governor of that colony, which was afterwards passed into a law, and "enacted by the King's most excellent Majesty, by, and with the consent of the General Assembly of Virginia." If the King had judged the colony to be a part of the realm, he would not, nor could he, consistently with Magna Charta, have placed himself at the head of, and joined with any Legislative body in making a law to tax the people there, other than the Lords and Commons of England.
Having taken a view of the several charters of the first colony in America, if we look into the old charter of this colony, we shall find it to be grounded on the same principle; that the right of disposing the territory granted therein, was vested in the Crown, as being that Christian Sovereign who first discovered it, when in the possession of heathens; and that it was considered as being not within the realm, but being only within the Fee and Seignory of the King. As, therefore, it was without the realm of England, must not the King, if he had designed that the Parliament should have any authority over it, have made special reservation for that purpose, which was not done?
Your Excellency says, "it appears from the charter itself, to have been the sense of our predecessors, who first took possession of this plantation, or colony, that they were to remain subject to the authority of Parliament." You have not been pleased to point out to us, how this appears from the charter, unless it be in the observation you make on the above mentioned clause, viz.: "that a favorable construction has been put upon this clause, when it has been allowed to intend such laws of England only, as are expressly made to respect us," which you say, "is by charter, a reserve of power and authority to Parliament, to bind us by such laws, at least, as are made expressly to refer to us, and consequently is a limitation of the power given to the General Court." But, we would still recur to the charter itself, and ask your Excellency, how this appears, from thence, to have been the sense of our predecessors? Is any reservation of power and authority to Parliament thus to bind us, expressed or implied in the charter? It is evident, that King Charles the I. the very Prince who granted it, as well as his predecessor, had no such idea of the supreme authority of Parliament over the colony, from their declarations before recited. Your Excellency will then allow us, further to ask, by what authority, in reason or equity, the Parliament can enforce a construction so unfavorable to us. Quod ab initio injustum est, nullum potest habere juris efectum, said Grotius. Which, with submission to your Excellency, may be rendered thus: whatever is originally in its nature wrong, can never be sanctified, or made right by repetition and use.