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Full text of "An historical review of the argument in favor of the right of the British Parliament to tax the American colonies"

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BANCROFT 
LIBRARY 

-c- 

THE LIBRARY 

OF 

THE UNIVERSITY 
OF CALIFORNIA 



rm OTmflem OF CHICAGO 

Founded by John 0. Rockefeller. 



AN r ,Sf,T fi"71l 0? TH AfiOOMBKf 1H TAW/l CT 

ftlOHT 0? TRR HftinSR PAKLIAM8Hf TO TAI THE 
OCtCHXRS, 



A 

S0BHIW1SD TO TH^ ?A00tTT 

SCJI00I* CF AfifS AK0 
II CAKCIOACY FCH THi CTOIUtR 0? 
MAtf RH OF PHllCBOFirr. 

ORFABTMCKT OF HI8TOKT 



BT 



4464 

TKf ' r -' { 



I. 

tzigUtt* Attempts to SolTa Her Imperial Problem. 

P a g * 

The Trench tar bringa America into prominence.-.-.- * 1 

Kngltnd'a i$0rial problem m |~2 

Row she attempted to eolve it - Sons stances! -------3 

England 9 a burden at the close tf tue iar - - - * - -3 

America ehoul -i thie burden ^^^*3 

How could Am<-. be secured! - --_-.-_,. 

*nd f s Interest in the colonioe had beea oeantexoial - * 3 

The Hereantile 8yte - --.- .3 

This eystenj not bey burdeneome to the coioni^a-Swiig^lin^- $ 

Knglieli etateemen beeome intereetM in Aa^ric 4 

Attempt* tc fix the political t*tua of the aolonies - 

Townehend -.-.-^----- -^.^.-^.>.^^4 

fremrHteM policy * TKe Sugar Act - Th innor^tion - - - 4 
the Stamp Aot - <3re *..-.' -.y ^en^-s - - - * - -5 

Opposition in Aisarioa * Steop Act repealed 

Declaratory Act--- -.^^^. *^.6 

Townaliend Dot lee and their repeal *. 6 

Attest to eatahLiflh preoedent for the principlt of 

t&e Oeclaretory Act -*.-.-.--. --6 
colonies o?>^e th^5 i:.ot)x*r-ot<untry tbe trouble of solv 
ing the problem, P n tly are ocneeyne.'j * - 

CKAPTtt II* 

The American Conception of th^ British Ooverrunent. 



r. 



toerioan Conception - r>ro*re ^eire - federmtite 8 

A coupon British coneii iution t -teveloptaent of this iim -8-9 

Qtfcoar politico! bcnda of union -~ - . -g 

Allegiance tc the eaute K:i - 

j action to control of Parliament - Qen^relly 
;i aohi c -Limltatioaa ia Rn/ilsmd 

and Amerion ' 10-11 

Ho AR?*rte>m ^iisittnction bat**:-- ""t tc " 

Internal sind external tnuc^a * - 11*13 

Oifttinotioa between right to r*?^ulate trade 

ley duties for revenue -.*-- 

Col .m to deny Ieglelatit9 po^er of 

lament - Franklin - Havley - y^aamchusettji 

l5aolTa f 1769, - fc, A Jama I 

l^gialmtive pow^r of Parlifeiant extende to 

trade only end is based on ocneent 13 14 



OIUFTfR 1 



th ColaniaU Otny tho Bight of P rli**nt to fax Thou* 

e 



on thi* principle ----..- --- l 

Baa of ol*i*s for oxtiaption* - * ---- ----- - - - : 

1* J griwtte 5 1 o 

aioaiona - Cimrttra ocmoi larad an 
7*afcm&fi of this ^rgu n ~ Its Ab-irUc 
fHftdftMntftl prinoip3*a of th* British 

ititutlon * -- ""* iTV* H 
i ) Taxation *nrj reprsnt*tion -iur* 

in0epfabl *.-. 
(b) % colonists art not 

rliaiatnt --- - --- --- 17 

oon- 

17 

British theory of yirtix%l **pra 
sent at ion - -- -.--^^-^, 17 

jtm^rlc ! 

--- - - 37-15* 

1 
ftnt --- ...... ---- - 1 -v. 

of 
- - - -v -- li 

( ' iv cn -rt-it i .-%n*i oth^x roy^tl 

...... - - - Xf 

b f Ry ^ct of P*rUMnt * - 

,. -. ^ ^ . 

1 "> 'is* l?iv of p.tuTte * - - 
...^^^. ..i] 

fho l:;w of ntuvt - - .t &*n - -1 



of nature I ^/iu&lityi n-itur%l 
ritfito - - --- -. - - --- ----- 

Qt -%nd cor ;,nt %.^ tK--> b^tin of 

1 ****.....- - -* *.-.-. '.",.*, 

ibt of r^voluti^n -- -------- 



thf British 

.on - ij^>^rt^l f qorwi-itrit 
British S&pir* inc- 

ni-ri t.H "Rritinh o ,.t:UuU;r; ^ 

Bond c - mbi4sion to th British 

in 

his political a^p^oity -**--- ,***. 
(b) Subnotion to th-% a - 31. 

fftrlittfttfil tlui aupr^^ej unliit.i j?ow r 
of 



111. 



Page 

legislative power includes power to tax 33 

Distinction between internal and external 

t*x denied ---- --,--_- . S3 

fixation ind legislation are inseparable - 33 
Colonists begin to accept inseparability of 

T -!tion and legislation J.5-34 

British ridicule shifting of ground tey 
Aric aa - - ~ - ---.,--,.-. 
Constitutional limits to the taxing power of 
Parliament -----------------34 

Burke and Qrenyille en imperial taxation 35 

CHAPTSfl V* 
The Argument in F-yor ef th* Right 64 T , 

Taxation a sovereign power - nacesaary to government -36 

1, Ch<irtor do not ^xaiimt oolc "torn 
Parliamentary taxation --------.... 36 

Charters are grants lik those of Sn&li?h 

corporations -.-,.<.'..-... 36-37 

Char tor 3 show * ra^aey of pgtrliatraant - S7-36 

the King cannot exempt from tho authority 

of Pirllament 38-39 

ETSH Parliament cannot ali^nite its legis- 

latitt t>ov r 39-40 

Charters may be repealed by Parliament or 
annulled by th$ c^urta - * - - - 40 
Charters are temporary grint* of goternment, 

2. the Colonies *re not exempt by precedent - - 41 
Parliament h at* t*ep*ate41y a.'?aertd ita 
authority OTtr tht colonies 41-43 

Parliament has regulated the internal 

af f airo of thn Las -42-44 

Parliament had taxed the colonial i 

Excise Tax, 1646, no preoeUont - - - - 44 
*airi^ttion 4ot ------------ -4 

Seamsn 1 . hospital ta% --40 

oli n*9 Act -----..-- 45-46 

the Post Office Act lays an internal 

tax 4G-47 

Africans hnire ao<jui^e*d in thin taxation - 47-48 
3 Th^ colonies are not exempt by tt British 

Constitution 48-49 

A. The Colonies ,nre net entitled to all 
the constitutional rights, privi 
leges and immunities of British 
subjeetst (1) By ch*r^ ) by Acts 

of Parliament i (3) By Comrtton taw| 

(4) By law of nature 49-50 

If colonista ire entitled to all 
t&e*e rights, te.| they nmt be 
annexed to the realn ------- -50-51 



IV 

I I I . ? 



B. Taxation and representation are 

not strictly inseparable - - 51-52 

This objection extends to other 

^crms cf leg in lit ion - Taxation 

and government are inseparable 63-53 

Americana have misunderstood or 

misquoted 14-igna Charta. etc. 53-54 

In Ility of taxation and 
representation based on a false 

.nciple - - 54 

Represent at ion in fngland is 

bag od on land-tenure- - - - 55 

C, The colonies* are represented in 

par it ----- - - - 56 

English syetern of virtual repre- 

-i tat ion. i;3aal -56 

Inseparability of taxation and 
virtual rsvTsaantation aocaptod 57 
An Amtti'icau representation in 
Parli - "? I ------ -57-56 

The colonists are virtually rep- 

jfjnte-! ----------*-- 58-59 

British subjects within the Kmpire 

^iv^ virtual consent -" "- - 59 

Arr,9rican principle of virtual con 
sent ae sail.* tha W T ole British 

Constitution -.~--~-~-~ 59-60 

4, The law of nature does not $*ompt the col 
onists ---_ go 

te of nature and crigiral ccr^ cl ~ - - - 61 
Charter compact theory answered by Hutching on '-1-62 
Government rests on c en-rent, express ' r 

tacit -6?> 

TTTf niture cixnot exeispt f r? m authority 

of Parliament - 6P^6S 

Sight cf local revcluticn -lonied - - - G3 

ConclusioCk 63-64 



CHIP? tit I. 

to $<HT? K^B iwr*f IAI 



The y*x 1700 was an ominous cno In the history of 
tho tnU*h paoplo. It pr^tieally brotifht to a 01000 a 
of a **ri.t of war0 wfcloh aa40 tfc* inglilj 019*0100 in America 
and iMim and a<l0^i 0norm<mnlf to tHir torritory iwill a* to 
thoiv etmrliil gap0atni0. the ir^rlOAn 0oloni$0 now a QUBMN! 

to thoooolteo. 

won 
vi0torio0* M0n fro th* <ilffr0nt eolonioo had fought nido 

by 0140 in th0 ownon cnuao, an" to om xtsnt a foiling of 

. 

unity ha boofi onf*na^ro4. Th<t w*r had gro^tly dlminl0ho4 
*xt*rnil 'iangov -Farwoh t 8pmili aM Indian - tr. in mioli 

of tho E$ilitvy wl politieml dopondonoo of tho ooloni^to on 
tho sjoth*?iv<sowit0y. Hitherto tv* Ingli^ po^tiosaiona h^i con- 
9idio<t of an inland kin^!i with fow f>olitionllyinignif leant 
who^o ocnvtitutional f^lation* witte tht ^theT-country 
bon dtfinod* ln|?and now found hor01f at th*? hoad 
f a nation iujs^rial in *xt0itt f if not in f orm.Sho was fcaro^nt 
f00 to faoo vith tho profeloia of dttoxwining her 0on*tituti0nl 

tho oolonloo, fh tnglih oon^titutien w0 a 
a growth. It was vagao, ilWlafinod. It wa nowaoro 
0I0lf ctaie xy of written ?rin*ipl*0 with a roogni0d 

uwpiro to int ryrot it in Oa000 of di^pttto. It had b0on tho 
product of oicporiottoo and at critical tiiaoa had boon 30terl04 



by circumstances. Moreover, It had, in the main, grown up in 
a feudal inland with littl* reference to any ftnglish terri 
tory outside of that island* How the midden expansion of 
tb*ir possessions, their rapidly d*v*loping trad*, th* nec 
essity of soo* agreement for common d*f*nji*, th* n*w f**lin of 
security and s*lf-oosspla**nt a one* it in th* colonies, all mad* 
it essential that th* English shcUld 4terraine what thoir 
ccnatitution r*ally inw, or houl1 b*, oono*rning th relation 
of th* different part* of thoir territory to **oh oth*r. This 
wry yoar saw th* accession of a now King - George 111 * a 
narrow, pedantic, obatinat* ruler, who** ideas of imperial 
authority w*r* not lik*ly to m*et with favor frosi th* wafting 
colonies. The attwrapt* of thi* King and hin minis tor* to nolv* 
the probl* by stretching an outgrown inaular oonstltution 
over th$ newly extended British po*s***ions led to thi revolt 
of the teeriein oolonie** 

At th* ol oe* of the French war England was burd*ned 
with an Qnoraoua debt, most of which had been contracted in a 
war fought, mooording to th* British writer*, at th* earnest 
solicitation of the oolonista and fot thoir protection f*oa 
imminent danger. Altho th* oononista strenuously denied 
this, yet it nttst b* or needed that th* result of th* war was 
greatly beneficial to th**. Moreover, later Indian troubles 



111 Qrenville, Regulations, Ktc,, pp. 3,56-o7| 
^xtra-Cfficial Papers II, Appendix p.33j Hutchinson, Mass, 
Bay 111, pp. 103-4. 



Bad* it necessary to leave an army of 10,000 rcen in America 
for the safety and security of the colonies and other 
ish possessions thsre. Many public man In Cn:land 
thought it Just to require the colonists to help support 
this away, whose presence wa* considered beneficial to 
thecu How to secure this support ** the problem confronting 
British statemen. 

Hitherto Kn$ land *s interest in the colonies had been 
mainly commercial. She had regulated their trade according to 
the principles cf the Mercantile System, which regarded thea 
as a source of raw material and a vent for the manufactured 
product of the mother-country. Their Industries had been 
restrained in certain lines, but encouraged in othor**. The 
Harisation Acts had restricted their carrying trade to 
English vessels, but by defining colonial vessels as 
fnglish vesssela, h >d given them a share in this monopoly, 
On the whole, this system probibly did little harm to the 
colonies. The only act which -vas much complained of ac the 
Molasses Act of 1735, which placed prohibitory duties oft 
foreign sugar and molasses in an attempt to bre%k tap the 
profitable trade between Hew England and the French and Dtstch 
lest India Islands. But this law was not strictly enforced 
and 1fc0 duties were generally evaded by an extensive system 
of smuggling, which probably extended to other articles of 
istport, particularly tee.. 1 



(1). Orer.v. 



OI> Irf* 



' 










ffctr * teni ration preceding tho French War, ftn&li&fe 

paid little attention to Ain- , There h-u1 been 
no attempt to define the political statuu of the colonies, 
The colon! * bad proapered thru ne?leot. But the war and ita 
twwdena created en interest in them, and miniotar* U< e Charles 
Townabend and Cteorge flrenvill* began to pride th^mselvea on 
their knowledge of Aneric *. Townahenl, while % member of the 
Bute Ministry, adTooated a polio/ which aiamd at the complete 
dependence of the colonies, <?vn to the e^tint of re&odelling 
their charters according tc uniform plan* then Qc^nrille 
Minister he thoxjght it right thit the colonist* 



pay a jttat proportion of th^ expense of maintaining 
the ay in Awerio*, 1 Accordingly, he laid his plana for 



collecting a revenue there. He providod for the strict 
ent of the act* of trade ard navigation. The Kola^aeo Act 
of 1735 expiring by limitation in 1764, Parliament paiaed the 
Sugar Act (4 0*org 111, c, 15) making th$ duty on 
perpetual at a higher rate, radticin^ that on laol&ssas from a 
prohibitory to a revenue duty, and laying iiaport fiutioa on 
certain other artlclee. As Burke pointed out thid waa the 
firet act of Parliament extending to th* colonia* which 

$4 all tha oharacteriatlce of a r<*variu9 K>nuro: vi., 
C 1 ) " a title purporting their being grants, 11 (3) a preamble 
containing the wordu "give and grant 11 , and (5) the purpose of 

(1) Kno, *rtro-Cfficlal Tip*m 11, pp. 24- . 



revenue clearly shown In th text of th$ bill* Hitherto, 
fngland "pursued trade antf forgot revenue*. Kow she was 
attempting to combine the burden* of two inconsistent 
polio lea - tc jcln together, in an unnatural union, "the 
restraint of an universal internal *md external monopoly, 
with a universal internal and external taxation*. 

At the same session Orenville proposed a stamp tax 
and saw* a year* a notice to th colonial agents, f frow a 
real regard and tenderness for the subjects in the colonial* 
that if "they had any other mode of taxation sr;or& convenient 
to therc, and made any proposition which should c-irry the 

appearance of e<|tial efficiency with the stamp duty, he would 

ta 
it -ill due ccna iteration*. AocotdinJily. sirly in 



-~,* 

1765, no battar plan havitig be^n suf/^^sted, rarliiaem 

passed an act imnosing stamp -tnties in the colonies. 






Burke, Speech fcr the Aspeal o f the Tea Duty, 
1.774. 

Knox f The C aims of tho Colonios, 
^xtra-0fficial ??iper^, Appendix, yip. 6-7 j 

Be^ister, 1765, p.33| Burke discredits this stater^ent because 
CJrenville in nl" xibseqfuent apteoluia in Farliawent wade 

no reference to it. But it aeons clear from U*uduit*6 report 
to the Hasjsach^setts iasemMy ly of tho Acusembly 

(both quoted in tacky 111, note p. 5*0) that Qrenrille must 
ha?e discxiseed the .matter with th^ out of doors, Xnox 

says ha did, Extra-Official Papers 11, pp. 24-S. 

Knox, f.xtr ^ial Papers, Appendix pp. 



These net* atirr*** $ amen opposition In tonic a. The 
emits war* flooded with newspaper *rticl*3, r^ftpblftte, 
prtrted epeeehea an*', r^aclwa of aafierabliei*. They eon ted 
their offset. Within a ysar, the Staastp let was r*p**l*<** At 
the 9411* tint, a balm to th wounded pride of Or* -it Britain, 
Parliament pauiaed th D*cl%yato3ry Aot, v9iioh fi*rt<i its 

to I9si8lat for tho colonies *ln all o 
rpal prodwiod A Itill In t^o diioion, but it 
III nwtw than, th* nomt y^jr t Townshand p***ma<!*d 
to Uy rovnuj duties o tt t gU0 t and oa^ oth 
ij>ortd into th ooloni09 t for tfe^ support of thai* 
und aiUitmrr ***abn4ta*tft* tot, mainly thru th* 
of colonial aoB- importation and fion-consma^tion 
the r*v*ni purpon* of tn* iot* fan dofo\t*d| and, in 
th duti* were rap**!**, ^cpt that on t** f which wa left 
to Kftifttftiii tho prinoipl* of tht 0*$Iii*&tcry Act, 7h*n followed 
another period of ^ui*t tli Ministry h*ct almndon*d th 
polioy of rfiimu*, but init*d on th. r^ht to t.iat, and th* 
oolonieto w^iro uot muoh alartn*4 at th* ***rtion of an 
btr*ct prifiaipl*, so long a* no mtt*5Ej>t w* mad* to enforo* 
it. iut ft foolih &ttj^t to *stfiiblili % pr^ed*nt for thi* 
right l*d to th Boaton T*a Party and the con^dquont Atali* 
tory Aot* of Parliament the ocntrov*r*y oonoornin^ th* 
oon<titutional rtlatioiwi of tho ooloniaa to the mother-country 
wa again taken up and omti-uod, *ith incr*ning bitternegs, 
until the thirteen American ooloniee ^aved the otfe#*ocuntry 



the trouble of nolving &* latparlal p*obl*w f aa far a* 
they wre oonom*d, by &s*rting oon^lt independence 
and uocoesfully defending thtir poition. 



8* 
OKAFTEA II. 



NfiAti CCNCIfPnOH OF BRITISH 



riod of intenae discus a ion, when 
hitherto little considered $r** for ittfrjedi%te notation, it ia 
inevitable th<*t there should be m development of principle* 
from ocnfused smd eonfliottn* ideas ite a More definite *yte, 
Accordingly! during the period frots the f* *ee of Farie t th* 
Declaration of Independeme, tbe Afwiriesn oonception of tlwi) 
government of the British postaion prog r^esed fro* an 
ill-defined qtjanl^i rf?rial legielative unicm to * eommeroial 
lemftMi baaed on consent, whose cml? politic*! tie was 

-; perhape t%e adjeotive f^dermtive wotild describe both 
concept iona. 

* V 

At the beginning of tlie ooittroversy it 

tluit a oommott cciiotitution attended over ta entire Britis 
dorainionu. By thic conistit^tion the eeloniets ment a body 
of principles end maxiats the sy^teB of compact* end o 
ticne, ctietome, statute* and judicial deoieio^B vhkrh had 
determined tlie form of the British ^ovrnifeent Oiti^ene of 
Great Britain were oon^idtortd British ubjot0 within the 
realm? citiseem of the British posfieeeiene outid^ of Qreat 
Britain were coccidered British smbjeote without tn^ r^al 
fimdtsieiitftl principles ol this constitution applied 

tc ^.11 British subjects, irithin or without the realm, 



and %11 these eubj^cta wer qually entitled^ according to the 
constitution, to the sam liberties and 



(1) Ctie, 



9. 

By 1775 African ideas had advanced to the $oint where John 
Adams and some others were ready to deny that the British 
constitution had any binding force in the colonies and to 
assert that their laws and governments were based on the law 
of nature, aad compact with the British government and King, 

Besides a cewum constitution the colonists sometimes 
acknowledged two other politic*! bonds of union with the moths; 
country, (a) They owed allegiance to the s*nue King, (b) 
They were subject to th$ control of Parliament, 

( ) The American theory was that allegiance was due 
t the natural parson of the King, When this continent was 

.severed, the English constitution contained no provision 
for the creation or government of colonies, this was a new 
problem suddenly thrust upon th Old World by the discovery 
of the Hew. In Kngland, th$ Kins, a * h * successor of th 
Pope, claimed, fcy the doctrine of apostolic succession, the 
right to dispose of all heathen lands* It is a proposition 
universally acknowledged, lay th supporters of this view, 

t any acquisition of foreign territory, however obtained, 
is, until annexed to the reala, at the absolute disposal of 
the Kins;* who nay grant it to foreign settlers, or ven 
'sell it. th* colonists went out at* subjects of the Kingi 



(1) PC-,- ; .. t ' . ir.iatr^tion T4 -'-,, ... - , ..-'. ! 

Uovanglus pp, ^7-981 Hi/nil . ,p, 81, 103, 1' 

Bancroft, Controversy, Etc., . ' -i t 46 j ';,. Adams in Kass, 
State Papers 












. 



10. 
him they received their grante of land end charter* of 

gev*mentj to him, In return, th<$- conceived that they owed 

(1) 
alle&i&nce almilir to thnt of the fetidal oath of fealty, 



, they came to doubt th* validity of the King* claim 
to the landflj but, until the Declaration of Independence, 
they Haver wavered In their profession of allegiance to his 
natural person, altftc some of them came to consider it as 
resulting from a oonpact atipulmting protection on the one 
hand and obedience on the oth*?r. The petition for ftedreaa 
of Qrievanoes adopted by the ?ir*t Oontinental Congreee was 

raae<i to the King, and th llt of charge* in the Declara 
tion of July 4, 1776* was isnde againat him and not againet 
Parlisuaent or the British ^oTernnent* 

(b) th authority df Parliaswmt over th^ 
British dozaiflior. In oome forB or another, g 

admitted* the A^erio-in pntriote, the Uw IThig party in 
Parliament, and sonte of the Ar^riorsn loyalists held th-it the 
power of Parlios*nt wn lifted by th^> principle* of the 
British conatitution. The Awerlcnn ^arty in ^n^land con 
ceded that Parliainent had a general right to make laws for 
the colonies, but Pitt ind a f*w oth^yti e^cepted taxing 
poorer fro l;h f Tl^lative power* In America 

there aa acsse diveraity of opinion ccnoernln.flf the extent of 



(1) 3. . ^te ?per, pp* ^84- 

! ppll$~H4l H^uailton Paprd 1., p. 110. 






, 





















11. 



Parliament .^rvrpower over thera aart the authority on which it 
was :.*-kr.*d. The early statsiaanttt on this point are aonetiJki 
hajqr attd indefinite. Pirliaaent wa commonly referred to by 
sone such title an the "supreme legislative powar* and 
authority was a*crib*4 to It in euch matters * 
of the oojsmrco of tte wbolt Kapiro, on*r % 
end other matters of a general nature,* "general euperintend- 
ing pow^r .... ovar t>;^ hol British Empire ..... so 



in our circuaetanaea ie acnsifitent with the enjoyment 

i ) 

of our essential rights as froeaan and British subject*,* 
and *aota for tha amendment of the aoromon law 41 , Otis 

admitted that Fririiaiaent h/*d A right to tax the colonies. 



An Ai^ric< irtction betMtfi *>>^ right to lay 

internal and external taxes, a* <U*4tf*fttUh0<3 from that between 

iea for revenue and duties for the refulation o^ trade, 
**eeam aot to b^ve- been in e rids nee. On th* contrary, such a 
".inction was easph* tic ally denied by th-^ foreaiost 'Defenders 
of the American oauae during the early period. B t, 
-\tisient aoon bgan ta cryatalli* into ** 



U) " Hopxina, Hi^hts of tne Colonies Examined, *Z 
Col. K^cords, pp. 416-27. 

(2) Otters of Mass. House to Agent de B^rdt. Dec, 30, 
1766 - 8. Adantt. ^*i 

() . 7. -. ftesolu 

(4) . r,.-:,; .-irkc .- n ih Oefeiwse of the 

Libel, 17"55 ^ilsc Itc^ao^o of Maas. Houae t . Bernard, 

. , - 111, Appendix, pp. 463- . 



. . 



. 






13, 

duties for the regulation of trade and duties for revenue. 
The right of Parliament to lay the former was considered 
essential to the relations between a mother-country and her 
colonies*. 

Shortly after Parliament averted it ^ right to 
legislate for the colonies *in all oases whatsoever,* the 
opinion began to develop in America that Parliament had no 
right to legislate for thea at all. Franklin had suggested the 

possibility of such a development during his ox nain .tion 

(Z) 
before parliament before the repeal of the Stamp Act. 

During the first session eT the Hassaohuoetts Assembly after 
the news of the Declaratory Act had reached America, Joseph 
Hawloy boldly denied the right of Parliament to legislate for 
the colonies - a sentiment which is a iid to have aet the 
approval of Ctia, who, the yetr before, had stated thmt 

Parliament undoubtedly had a right to tax the colonies. 

' -^.^ 

Altho the colonies continued to profess *due subordination* 
to Parliament which they characterised in such vague terms as 
the supreme legislative in all oases of necessity for the 
whole fcapire*, the doctrine that Parliament had no right to 
legislate for the colonies without their consent in any case, 

ti) Dickinson, Keaoirs, *tc. xiv, p. 184. 

(i) Oobbett Parliamentary History XIV. p. 168. iarly 
in 1776 Franklin had privately expressed his sentiments 
against the right of Parliasent to legislate for the colonies. 
Franklin* forks (ligele-* Edition 111. p. 487) i see also franklin 
Life 6 Writings (Smyth 111. p. S59), 



(3) Howard, Preliminaries JCtc,, pp. 18"- . 
4) Boston Inat ructions , June 17, 1766, Hutohinsoa,History 
of lass. Bay, 111, Appendix p. 490. 



- 






' 






- 



13. 



steadily 6&in<Nl ground. the !to3i>aohttett Houae r*ol*ed in 
1709 that *nc },^wg could be mad* to bind tho. y body 

which thav * ore net r#pr^<*entc4 f anvl Saanial Adat;ie Is quo tad 



ae spying, th-it yaar, in the Beaton Town Me 'ting, "Independ 
ent wt art, and iruitpandtnt we wil" b*. In 1774 



Wilson declared that the oolonie* vere beyond the legi^latire 

( ) 
authority of F^llaKeat, ?nd thin doctrine waa by this tiae 

quite generally aooepted* P^rlittnt h^l no ocnstitutionat 
authority ovtr the coionien f but wae permitted, ritii their 
ccnaent - tpreaa or virtual - to regulate their trade and 
*8U0h other matters as concern all the coloniea together** 
With the Qubstitution ol tue idea of a ooaia^roiul for a 
political union, a eotameroial pretext was found for permitting 
farlitnent tc regulate their trade | viz., it waa baaed on 
the protection the British f&eet gave tht tr . ; 



right of Parliament, with tii* consent of the colonies, to 
regulate the trade their fleet protected, continued to be 
advance*! ground in the oontroveray until 1774, when soaie of 
the radical loader* began to adtroo&te absolute iride^ndenoe 
9M a policy* Thus, during Uie two years preceding the Declara 
tion of independence, the WKig leaders oonceivea their 
rol?it.iona with Great Britain to be in the aatur* of , ooameroial 
baeed on ooneentj the only political tiee which bound 




ay, in, PP. : 
.. 

101. H;i ilton 
Fapare t. p. 134, 

(4) 3. Ad ana Writings (Gu^him) II. p. , Jefferson 
(Forl) 1. 



to tfe* ti94ttttfy **** * eaaoa king* 
thra wwi 4orifi4 



on 









IS, 

CHAW!* UU 
CCtOKlSfS &m THS KIOTt OF PAJnUBm TC TAX 1KWL 



fhruout th< nfcolc diaetioeion, th* colonists were 
united on one principle* They denied that Parliament 
had any right *hatevor to ta* them - wither internally or 
externally * for jrarpoaee of rewme. Ifcey bised their 

exertion on (1) specific barter g*<mt| (2) tlie 
iBtntal principles of the Brltieh oonetltntioni (3) precedent, 

and (4) the taw of nature. 

t ' 

1} the eolemiete wre exesxpt from Parliamentary taxa 
tion by expreae grants in roy^l qhertere and oomtniQalcns 
of the early eoleniml ohnrtere, particularly these of Virginia 
and ^ateiachuaetta, made sp^cifid eewi>tion of taxation for a 



certain period, or indefinitely* At first, the colonists con 



sidered theee *h*.rter ao 4SS ft ^ a ^3r than 

they later cam to be regarded. Burin,-* the e^rly period, this 

argtwient was amch in evidence in the coloniee ishere atxcfe 

(3) 
charter* existed. As early an Jnly, 17S4, the fatal weafcneea 

of thia argt&sient - that if the charters were grant they could 



be annihilated by act of P^rlinjeent - wae pointed out by 

\f 
Otis* dadsden showed the danger arising from the divergence 

in charters in the different eoloaie| ana the Stamp Act 



i cg upeech at Boston own Meeing after Pance o 
Paris. 1763, Hutehinson Hiatory of Haas* Bay ill, j>p, 101-3* 

(3) Xaa* State Pamera. Intro-tuction pp. 9-11} slao 
84 f i81-*e$* etl ftight* tte. t Appendix, W* 103*4. Fitch, 



w* 84 f i1-*e$* etl ftigt* te. t Appendx, W* 
iteasofte IThy. Ktc, Conn Col, fiec. III, pp, 663-71. 

(3) Mi^ ; i *tc., pp. 49,61. 

(4) Sibbe f IJoettEjentary Hiotory 1, pp. 6-8. 



0on$raaa f af tar * **r& dafo^ta, finally daoid^d not to 
thair oUlsM on th* oh<*rtar aieaiaption*. 

3. tha aoloniaa cliim^l thay wara axasapt from f 
naatmry tut*tioa by tha fupdaaiiBlal principles of th 

*-~ . *-, M, * 



princtiplt oil whlli thin 

w* th*t n osn b tax*d toy % body in which h* is 

not tqpMMntaU fht^ primll* v b^td on th^ doetrin* 



th*t it in B nfcuolfct* rtgbt of Byitlh ubjeot that thair 
e*inot b tn)wn without th^ir ecnatnt* 



that taxation an-1 rpr wont \tion 

to b u aerd oonatitation^l principle* It w^a foun&ad 
on u4ai mnd eonnson law f <%notiond by Hagna Ch^rta, tha Bill 
of Hlght*, nd ethr fngUah chnrtata and oojsp^ota. It 
*J^ fomtdd on th Imw of natnf| *it li itaalf an 
law of mttwa'j 4%ya tord 0iian t "for wh^t*v(Mr i 
own, t?i ^baolutaly hi own? no man hath A right to t<Ue* it 
froa him without hi oon^ant^ aithar *tpr9*d by hiaaialf o 
bin rprnttifw ,,...! onillanfa any ona to point 
out tha tim* whan uny tux w* laid upon *ny p^raon by 
aantf that paraon baing untapraaantad in F^rli^wanti* 
in proof of his oontantion that thia haa baan tha u^unga in 



ingl^nd ha oitaa tha omaas of Ch**t*r, t'i-* Clergy t Cal 

( ) 
and ftarwiek f Jataay, Ottarn^ay and Mmn, 



. , pp. 

>b4tt t Fnrliajwtntary Hiatory XJi, pp, 169, 
Alao Ctie, Highta, attc* pp. 68, 93* Petition to C< 
anp Act Oongvaaa* Wovangltia p* 118* 



According to the viewn of th colonists they were 
not represented In the British parliament, consequently they 
could not constitutionally be tmxed by it. Some of the Americana, 
desiring closer union with the mothers-country and among th$sa- 
el*t, proposed representation in Parliament as m remcdyf but 
tht m**s ef the Americana repudiated the idea aa i .po-iaibl* 
and undeeirable. They wer^? represented in their colonial 
asaembliee # th*y &id f and theee alone had th* ? ight to tax 
them* 

To thie the British replied that the Americans were 
already virtually represented in Parliament, beo&uae they were 
British aubjecte.! that every member of Parliament represented 
every subject in the impire, that the colonists were as fully 
represented as Manchester, Birmingham and other English 
cities which aent no distinct representatives, and that they 
were in the s me position as English corporations* 

The Aiaericans answered th* virtual representation 
theory by advocating a system of their own - proportional, 
territorial representation* According to this system each 
district or locality elects one of its number to the iegisl** 
ture, and this member distinctly represents the people who 
etact hie* While the proportional idea was not worked out to 
its modern perfection, the germ wan certainly proeent. they 
denied th*t they were on the same footing as gnglis) ra 
tions. It was no *ns** to them, th*y aaid, to cite the eases 
of Manohdstcr and other fnglish towns} if theae towns were 
net represented, it was t&a fault of the corrupt system of 
representation, for they h*d a constitutional riffht to be 



18. 

represented. They wore not represented as the English town* 
ars which send no direct representatives, for it is 



principle that every British subject yitJiin the r<ialm 
is represented in Parliament* They were not a van 
virtually represented as Manchester and other similar cases, 
for the unrepresented Kngliah ! -ave influence thru parentage, 
relation, friendship, employment, dependence, etc,, on the 



electors and members of Parliament, *hieli the Americana do 

U) 

not have. 

Shortly after the repeal of the 8tam Act, Kichard 
Bland advanced a doctrine displacing virtual representation 
with Tirtual cor gent as a basis f<Jr legislation* The 
inhabitants of Qreat Britain *re subject *o the authority 
of Parliament, not because they are yirttially represented, 



but by s principle of natural law that e vry man who remains 
in a kingdom gives virtual connent to the laws of that 

kingdom, passed by its constitutional legislature* But th 

> & -. f ,..^ ._,_ 4, 

colctists, dissatisfied with these Uws, had exercised their 
natural right in leiving the kingdom and setting up for 
themselves, in a new country, a government of their own, 



to Hie terms of a compact with the sovereign of 

(3), 
the nation they had left* This theory was consistent with 



Ss mi** Writings I. p-... .; - .7. 

, ) Onlaney in Tyler, Uternry History I, pp. 101-114| 
also fc. Bancroft, Controversy, J?to., pp. 96-100$ Hsjiilton 
Papers 1, pp. 80-91. 

(3) Bland, An Inquiry 8 to., pp. 14, 14, 16 



19. 



th lator natural rights doctrine and aoourod th<* *pproy*l 
of oao of its loading 



fioproaontation in tho body whio^ taxoa thorn wa* 
tfctw hold and rooogniJtod to bo * constitutional right of 
British erobjootft within the roalm. How did the coloniata 
dorivo a <3lai to thia right? 

(--) By charter* and Q.ffiog f^yjl in : qtruotior>8 A tho 
colonists *f t thy aro ontitlod to all th rights awd 

pritilo^oo of British 3bj*ot* itttaiin tho roalta, including 

W 

tho right to be r9pr*s*ntod in tho body whioh taxoa thorn, 

Franklin oaid that tho pooplo of Pennsylvania oonoidorod 
tbia grarst of thoir ohartor to bo valid ovon in tho faoo of 

on oitproas Torvition f in tho oam charter, of tho authority 

\S) 
of Parliament to tax thett| but by aorae of the ocloni^ta 



clauso of thoir charter was considered dimply confirraa- 

(4) 
tory of existing common Inw righto. 

(b) By 'Sundry *sta of gaylA*|aent front the reifft 

(5) (6) 

of l&ward 111, ad by an tot of tho 13th George II (c . 

* 

(1) dee Jcifferoon, Smamary View, en natural right to 
a oountryi also S. Adaisus 11, . -6-S64. 

Ctia, flights fto,. pp. 6l-65i 8. Adams I, pp. 7-1 , 
, 1-71, **d tl f pp. 256*-64| alao Virginia Stamp Act 

in fn? trcvtrsy. A^pondit pp, 



Cobhottj ^arliamontary History JIVl. p. 138. 
dibboo. DooiiKontary History 1, pp 



fetato Fmpom, pp. 137-8. 



Btato Papon* , 1 p. 107J S Ai 

l, pp. S9*61f Mais. Staisp tet ^solvo. Knox, 
38-43. 






. 
























30. 



the colonists baae a claim to the right*, privile^* and 
nitiaa of British subject* within the raalsu 



(c) By qQKB _ __? also tli colonists claim tha 

"1 > 
rights of British oubjecti. HSlls qaotaa Coke and the 



Calvin ca to *how th it th9 ooloniata art r;*1nir a-bom 

(3) 
subjaata by cetuson 1**, At first the colonists did not 

aeoss to dcubt that thd eonnon law of Inglftnd ooctende i to 
them, llfl AoaMi latar /riters thonght ttmt th* tngliah 



coon law had no bin lin^ force without th r*lm al that 

t - oolonl&ta brought with thm liaiat o otach of it > 

101 

th*f ohoa to adopt and no rror. 

(a) *B/ tha law ^of ft?itur an<! of nationa*^ th* 
Amrioans clalia f on th* authority of T^ttdl, colonist* 
turally booma part 'of th 8tat with its ftnoiant 

entitled to all the ontl%l rights of tha mother- 

(6) 
ocuntry*. 

the Colonists claimed that, ly pr<Ki4U<i.n<ti thay 
exespt froa taxation without th^ir conBtnt* Th*y 



(7) 
they had not baen t43td by F^rllaiaont prior to 1764. 



" ' ' . p. 151; . '.. larss II, - 

?~ti*, Rifihti Rto.! :. Mj ritoh, r~ - - - -. nb ; 
S. Aflasit Iritin^a I, px). 61-71. 

-ia Rights Itc.^ AppandU, pp. 106-112. 

:. f 1C- 

(5; Hovanglm . 94. 05. Franklin had privataly 
as<l tHi opinion in 1769 - Bigalaw IV. 



. 

(6) Otia, ai^ta ' . -7. 

(?) 



Staa^ Mt FTaolr^e of Wtjw Tor firginia* 

3 . , 103. 









. 


* 



ai. 

It aueh acts as the 35th of Charles II are revenue lawn. 

(1) 
they are precedents of power rither th.tn of right and equity* 

lin did not regard the revenue collected thru tha Poat 

Of floe Act a* * tax, the money paid for the postage of a 

( 
letter , , . . is meroly a guantium meruit for a eeyvloe done.* 

The colonist* *lso Qlalmeci that they were exempt 
from ?.*urUfUttntav? taxation by the law of nature - their 
natural rlghta a men, not as British aubjoota. By 1774 many 
AJRerioan leadarn w@re coming to lany that f'trll-ument had any 
constitutional right over the colonies at all} that not only 

taxation, but all tJwir laws and gotvrnmenta were b^oed on 

_ 
r am oompioti that Parliament waa permitted t< regulate 

., : " , " ^? 

their trade and pass other law* of a general nature, 

th* natural rights philoapphera were fre<iw*ntly quoted 
Orotius, V^ttel and Puffendorf J Bc^rlamaqui anl Hontoaquieui 
Hookar, Milton^ Sidney, Harrington, Stldtn and tocke. Coke 
waa freely quoted an natural law by JTaaea Oti and John Adaiaai 
Blackatone by Alexander Hamilton ml Ju me Orayton. But the 
American 3 aee to have been rost influenced by the English 
writers, pertleulstrly locks, 

According to the natural right doctrine a state of 
nature existed antecedent to all human gevament. Some of the 



Ctia, Rights ito, f p. 94. 

laaefitary History in . p. 14. 


















. 
. 



33. 

American* *eaj** to believe In the reality of riia at te of 
nattcre, other* considered it an Ideal condition. In thi* 
state of nature, all rsen were considered equal, and on thia 
tlie colonist* btaed their claim that all mm *ere entitled to 
qual right* and privileges. ' |i thi* tate of nature, all 
po*s**ed certain inalienable riant* - right* which oculd 
ri^Jitftslly be taken from the, and wkich thoy thenaelvea 



not slve t; . tfce prlnoipml inalienable 
are right to llfe t libert/^ private \ to the 

poaal cf that property. The li'^erty of man in a stmte of 
;re, and of independent atate*, i* *t b fr#a from my 
ctip^rior power on earth, not to bo tind** tha will or legislative 
atjthcritr of Bien, bt only to hive the law of nature for hi* 



J. AdaM III, r, 'ilfon pp 

Ctl^, Ki^hte Utc, 

Their idea* of the s^uality of man wr^ v-urioualy 
tated* It V33 a erne times atated that all men were e^ual in a 
state of nature. (Hamilton, p, 76), is that all n#n are 

born into society aqual (Cti^ f Tiniication, ^to* f in Tyler 
I, pp 45-44: J. Ada^a, Canon an! Teudal 1*^4-; Dacliratior. of 
Independence), *cmatin-, re e^ual <)/ nature 

(lovanglus, p. 13), and sometisi^^ that natiar* has given all 

) 

; J. Adaj&a, C 

t*W| Qibbdu Oc :tory I, r . 11-,3| Hamilton Paper 3, 

PP. 7, 

(5) Ctls, Fi.^ht* t3., AppenlU pp. 108-1111 3, Adam* 
^ritinga II, pp. 

Ctia.j Righta Sto. 20| S. Adam* fritinf* It, p.55Q-9j 
Maa*. State Paper* pp. 343-57; ton Faper* pp. 76 ^03| 

Declaration of Indeper^ienoe. 

(7) Otis, flights Etc,, p. 48 - Quoted from tooka. 









i#s 
, 

. 



: 



>. 

Such was conceived to be th$ condition of man In * 
etate cf nature, Men in this state were tho^ht of as 
forming governments by original dotapact, each consenting to 
up soe portion of his liberty tc secure the rest* 



The Americans did not insist on the reality of thi* 

by which tfOY&rnxaent *s originally created, bwt nsed modifi 

cation of it more Attractive to hw*n reason <*nd reora Conducive 



to their immediate end*, fur in<itorfl l$t f^glandi ae 

( ) 

tural ri^ht to io. and settled without th* realiR in an 
/% 

independent country. Being thua in a attte ef nature 

^ngl^nd, they foredl a cc^; iat with it* Fin/j estibliehln 
authority orer thorn, thi ters *re 



ocmpacte establishing governments "began tc &ain trorind dting 

(5) 
&gietanee to the fwalieM Acts, It irna 



by thn writers of the latr period (1774-1776). 

(1) *>. Hopkins Sights of the Colonies xamin*d, R.I. 

; :.ir.^, Cofluaon S^nae. 
(>) S9 p-^ee 18-19 for natural right to leaye a country* 

3. Adsms fritin^ . I9PS*4. 

4) Hovan^lus pp. 95, 9C>| Hamilton Papers p ; . - l.Ctis 

the kin^s of fcnglan ':heir throne to th< 

ss or implied - formed between William III and the 
of Ungland and the colonies after Qteat Britain 
been thrown into a state of nitttre by the abdication of 
,T'-.<99 II - Ctie Itights Rtc.^ . 'I^lltcn held th 

cur compact took no cognisance of the ^ray the English kings 
can* to tha throne (Hcaaiiton, pP* 80-81). J. 
colony Bade a separate ooupact ^charter) and that the Ki 
was at the head llffer ims (Hor?inrlxif. ? 

(5) Hutchinaon, Kiatory o^ Jl% Bay IT. p. 17nj 
ters) 



u 



(I vernr ^ been originally formed by compact, 

i^f l^fS^^ 



it followe^that all Just ajovemment rest** on ths ccneent of the 
3ov . Alt subject, it in true, could not ?,ive ccnaent, 

9xp*itly or virtually, to the original compact by which the 

inusent was creates!, but every man when ho becomes of 
has t nattnrtut right to choos* what government he will live 

r. If H* remains in his native lend, he virtually 
rente to ite lnwe. The ehief eadii of ^ovemwent being 



security of the natural inalienable rights - life, liberty and 

rty, and property being admitted to have aa existence in 

(5) 
the atate of nature it follow* that taxation, - tho taking of 

CSWilT^- 

private property - without consent is a subversion of the ends 


thioh ^cverwment waa created and a vie the laws 



of nature which no ^aw of society oan raake ^ 

The ofejeet of government being the eod of thi^ 
it follows that whenever any body of isen in whom the people 
have entrtisted the administration o^ government frtM to govern 
for the general good, they forfeit the powe^?. placed in their 



(I) Lton F&per^ p, 76i Wovn^luii p, 85a fceclaration 

of Independence 

(n) Otl, Right* ftc., . 1^-16 1 Bland, An Enquiry *>> . 
pp. 13, U 1; . ' 

Rights Ktc,, 15-16J Bland, An fa^uiry *to. M n. 
13. 14, 16 1 S Mama thought a ^%n oon'^d not beecwe a subject 
lt fe/ egress ftejapact. .% Adarse Writingi 11* pp. 2St-64. 

(4) Ctia pp. 1 of tha llaee. Hou*ie to Shelburno, 

*: P^pere pp. 1^7-411 S . A;as Writings II, pp. 

ton Pa^re pp 7C?-77| Declaration of Independence, 

(',) Shelbuxn totter, I5a, State Papers*, p. 138. 



I 

hands and may be lepoaed, When f f jlanent exceeded what the 
cclonlata coneldered Its constitution a powepu the remedy 
prescribed waa nullification, advocated In principle by Hopkins, 
Diokir.oon and ether, .v<d made efficient In practical opera 
tion in the case of the Stamp Act. When the Sln^ violated 
t, the remedy advocated and put int 



o r cti w 



.0 j.j-.; : _.. " l ' " - r ;--;.i-~. U . Pr^ao naml 
contract on his part, will annul it on the jp&rt of the people, 

^d plan to deprive the people of ill the 
blening8 f and ende of the contract, to subvert 



of the conetltutioni to deprive theia of all ?^h?iri in B 
and executing the laws, will Justify * 



any form of Qoirernment 8 , wrote Jeffer<m,*beec0 

of the*e ende (for which it was cr*ated>, it i^ the 

of the people to alter or to abcllsh Itj &iid tit^te .a 

new Oovernjient. " Row, because we hav$ suffered * a long train 

of abuaes *nd utrorpations 11 froro the King of Oreat Britain, we do 

'solemnly publish and declare, That the >3 oniea ire, 

' ttM H* 

nd of Hight otaght to be Free and Ind^pewient Statoe? this 
declaration, when adopted by the repreeen; alive ft cf tha colonies, 
tranaforaed the Anerlc^n devolution into a lay cf Indeptndt nee. 

(1) Novan^lue, , 13. 



CHAPTER IT. 

W. :*?T1CI C? 

the Saglish conception of ths sowrameat of the 
British possession* was an imperial end. Ihis i thoroughly 
tiua of thoae she aupoorted the ^asurea for the taxation of 
Africa and generally true of th<s whctej for Burke 

^ last an*lyi F*rliifint Hd a right to 



for th^ coloni^f* *in mil oaota ^hatooaver*, in1 aur/ortecl the 
D3$l -xr.it cry Act in on -ibla peeoh| an4 avn Ohathaia thought 



r rliament was tupresie ot*r th? whole British poeeaaion 
in mil n*ttera of leglalation^ altno He aa4 a xediouloua 



distinction b*tw*#n the right to legislate ana the right to 
If the poliey of the government under different 



^ iris trie ft * or $ven tiii^er the aatne ministry, wm *;j. eometinee 
weiUt and vaeillatinr^ their principles wero oertulniy 
ccnaistent than thoae of the coloniftta, 



(l) Burk sup? cr ted tho declaratory Act in 1766, 
apparently tc pr< . of a aakrtcwn by 

the British gcyern^nt. But in 1774 (Speech on repeal of the 
Tea Duty) he asuarte one for 

doctors and philosophare to wr^n r ^ about anutnat i r ictical 
9tatemaiUi%ip d^aoa*4 Sh removsil of all t-i*s Jsid by P r- 
liaeent loniee, aa a matter of e*pedienc . 

( Cob^.^tt, ^o^t-^r; ry X1T1. 

103*8, the Declaratory *ct wae passed by a Whig ministry 
friendly tc Amerioa * a division, "And thid w, perhap t 

the only question that cotiM h^te feetn thought of. upon which 
the ministry and their antagonists In th oppoiition, would 
kato gone together on a 4i vision,* Annual Aegldter for 
p, 305, 



. 



























. 



the British pooaession, a*y thu advocates of this 
idea, form on* nation, * British Rmpire. This fmpire 
is a ttnion, a state, not a confederation or alliance. It 

embraces tM ancient realia of tl*nd ana th* territories that 

() 
;* been annexed to it including the colonies, that the 

colonies are part of the British ftapire ia ittstd by ths bsst 
on the 14W U< , ^aj^ a fory writer, using ths 



qitiotations fro Vattsl that the colonists h&v* applied to 
show that they *<** entitled to all the ri;hto of British 
] 



:?r<$ w^s a * f*lin/t, however, that thi 

colonies wr0. to some extent, inferior or subordinate to 

(i) 
parent fttmte. It in a fwa^lawentsl l%w of th* res.la f and is 



generally a<iteowle- 4 ged , that eoloni^sts ire aubor^in%t^ to 
the othf r<-contry. In ti owio senee^ this inferiority 

had been shown by tfceir subnotion to th laws of trade and 



-:"' > " tiona ^tc. f pp. 59-44 

K%eeetasette]iits f 1T4, KACX b<s 

within tlve relsi beoimee they irere eyewn eet-tea <ind it 
is the estates of the or own that .-uake v. ' ' rcrersy 

, J?iv. 7C-71). 

i'.) Masn- , p 17Q| Hutch. 

:s, p* 537: 

attel, see. p. 30. 

fucker, tatters Etc., 7^6, 
Csroing, U'tture Cte. P . 
























. ' 






38. 



and the principle* of the Mercantile System. 
Grenville was a devotee of this system and believed that 

(i) 

colonies oxieted for the benefit of the parent State. 
That this wej* true in a political sense as well, was the 
belief of those who supported the Starr Act. fhs colonists, 
said tord Mansfield, *by the conditions on which they 

rated, settled andnowexiat, ire mote emphatically 

( ) 
swbjeat to Great Britain than those within the realm*, 

80*re of the American Tories thought the colonists, from 
their loo ^tion, could not enjoy all t ; -e libertine and 
im/nities of the mother-ommtry, and must remain dependent. 
fvea the American Whigs fca<! admitted their dependence, altho 



probably had no cldar idea that they a* ant anything 

(4) 
o than ccmn^rcial dependent . 

*?> British constitution with v!l Hi obli,?,ations f 



righta and privileges extei^d to the colonieef Tliics 

generally anew rod in the negative* It was believed that 
there oust be eoise curtailment of the constitutional righta 
extended to the colonies, Tho British oonotitution r^rew up 



) Qronvllla, Aegul ., p. 89. 

) Oobbett, p irlLisientary History XVI,, pp. 172-3. 

] Hut^hlri^wn, " -(uotad in t*'3cky. Ill, p, 3 

rrom a Halifax Gentlemen, Ktc quoted 
in Hirt. Contaopi , . i-?r 1. n. 71, 

) Boston Instructions of M\y, 1764, in Appendix to 
' ., p. 10 . 



ft. 



within the real*a t and hence constitutional rights belong 

to the 3uhj$c< in the realm. The mothrcoiintry is?iy ?,rant 

tfc colonist-* uuch of these r -i it seea fit or think* 

, 

they are Capable of enjoying. It doe* not follow, hoover ,that 

;. 

the oclonistt are exeaipt frow her authority. She may still 

tlxts* in dependence. "In any ether ienee a colonist la 

Itt *'* 

not % tfubjeat ufter4 to transplant hi^elf for ^nefit 

of : untry, bctt *n unnatural rival nurtured for 

fcer dtt. .on.* Har" -ard, a J&o<ie ; -/> 

^ttecr,ptdd to define exaotlj icnatitution^l ri ?hts extended 

nias. The ^ngli on la* attends tc th ccloniee 

caYariett with it all tK _ nal. rt^htg o^ ^lishmenj 

.; ; . -; : " Ufe, ll'-.r^: r ; -rt 1 /; :.^ f r\ 

4o'S* n>t gu&ranteo political rights. The c tc 



.tied tc s\50t ftclitic<a rir^ta only ao are granted to the 
th^ir l -. 



bond of union between colon it 'r-c 

ootweived te be a <3oa^ .; -set Ion t? t>e Priti ti- 

tutioi\ and government in all its , cod (a) 

allof lance to tl;e crow (b) subrjlinion tc ?-\rli<aent. 



: .; ' 

jiderc , . 56 1 Bernard , Fri ciplw 

at Halifac, 
in He%ard t Preliminaries Etc., pp. 






. 


















30. 



All-efi*jae was thought to b due tc the orc^n, or 
the King in Ilia political capacity, and not to hi* natural 
person. The croim laads, whether centred or discovered, are 
the property of the state, under the control of the King, as 
its rp?s*ntftti*s In the Mstupr of *11 oiviU tu nations, 
ha e r repma^*Ative of tii-r ott hard, by 



grants, distributed t^c^ J^nda attong the pooplo.the . ecple 

w 

in ach ca r*itainirig their duty aa auoj ^cto. According 

to the ancient doctrine of feudal tenure, tke orown retains a 
dominion in all land* md teneent9 cf Fn^li^ls *ubjocta, T;;e 
lmda of JUnorica wore diacoYorad by Se-.:uotiuA Cabot, ho a&41d 
with a commifldion gr&ntaa by the King und^r th g*@at al of 

England, which UUtinguUhoa public cU of the crown ftfp t 

(S) 
private aota of ta Eing t Tfeeir cinirt*rti and grants tf 

govartiwent r* alao f ro tht crc*n* They wr* granted unUar 
the great seal sad tfeir grants ar d r$9rvtiona are by and 
for the Kings, hi* heirs and successor*. !Hia fciitg* never 
clai^sed the landa an priv te property. That they considered thess 
as belonging to ths crown, and >t to the King pe<./rially, is 
-shown IT the f*ot th:t when Parliament was about to pass a bill 



(1) (Sail c., pp. 

&titeftf*s*n in llaa^* St-^te Papers, p* 370. 
[assaohYsettensis. p. 174. 






concerning t&* ooloni&s, Kirig Gharl l g stnt thm a 

t th Privy Council vould look aftir thai t -md th bill did 
net beooaa * law. Tha King might rnlo other realms, it is 



tnvs, but hia ut>let th0r^ ^culd b aliana, not 
ef Ore^t Britain, 



(b) The* authority of Frli&>nt wa 
as x:ttndin|r ovr the wfcole British tapirs. It was 
tc b fet uprt powtr of th stat*. It is *f tJ nature %nd 
of govrniBnt f that a uprm %nd abgolu^s Jtariadiotior 
.an authority to irhloh ^very otlir 



fi ' ll * ^ Jn^T v^ 

of tH tt i auberUruta nd to whioh ^3 very 



yltld full .^nd ptrftdt o)>ditneo. Tha 3r,pfm*i poorer of 
Q very 4t.-*tft, according to toolto *M Acherly, i th 






aupraai* l^ijJl^tiTi In Or->9t Brit*la 1m r?ited in the 

(3) 
, tordo and Ooamonn in 



i British b^liiv^d that th la unlimited ;.c^r of 
*t^nded to t^ coloni^a. It ;:^ without 

rnls3 , -.jny, for it i ceaxtansira trith thft authority 



[11 

1* 




*.ar for 

y*i -. * /** 

Jv:- pfln , i ;' , 


>, PP 198- . 


"-*: ' 
>3 1 . , 










d ,lcrl , , :, pp* 

. p, . Thicker, PieaB , p, l-< 



p, 

of the orownj but it is an eatabliabed rule of construction, 
which aluo <fonfirms the authority of Parliament , that tfeoae 

j of tho Empire without tho realia are not bound unl*e 
na**d in the <4ct, That tho American party in 



Centrally ao<$ttieac*d in thi viaw, is ahown by the fact that 

;.>t the declaratory Act, "Pitt couVi natr imt t-o votes 
in the CpfB&oTis and Shelburno but four in thr* Lordo* . Burfco 



thia opinion, >>ut thought subo Miration un liberty 
be uf r ioir*tly rccnoil^d. Thuo the aright -f flreat 



Britain to legislate for ftrery portion of the Stapir* 
en ita joyexoign power as vprt legislature, 

The pow^r of 3egislmtior was held to include tlio poorer 
to lay taxes of all kind*, Tbe ditlncticn, attributed to the 

between the right to lay intern eternal taxea 

denied, and the po**r of ^rliameat to lay octh waa aaaerted. 
Tho dia&inotlon between th9 rig^t to lay dutiaa for revenue and 
for the regulation of tride, ^as likatvise denied, "It in th^ aane 
t| I 3 ^^tUr yo*a r*Btrnin c. from eaarnins a p**ny or take 



the penny from m ?ift^r I haw earned t*J aid an 
(5) 

" .^d by Rncx a 3 * of 



. -' - . :' - . >.t "Tpr-''. . 

: : i*tory , - . - 

.' ; ~ ; ~; ! '. r J . - ..' : , > " ? r~- '''; ''1 s !': "" ". "' ro v t';-" 11 

*. .JUurt^n Ho* ^evnor&riee, r. 

the T^% Duty; f Speech, 



Oct. U, 1, . 

mo Rto, pp, 103-110; An Examine^ 
tion l^to, f 1T66| Cannin?, t^ttera i5to. 

: The ConstitutienaX fiighta Jtc, f letter 3, 
























. 



33 

, th most rt<lioalou that wa *rr ocntandad for; 
beeaur, .ye Farlimaent the right to ipo*i a he.airr duty, 

but not a email cne. Knox thought it would tee say tc evade 

1 -Motion, mini collect sufficient revenue under the 
vsnpi latins tr*<lej for* he $ys, according to the 



principles of t*m oolcnista ^n<i the definition of ta tax 
by Diokinson in t^ Far *ter, %<!**, 0wn th*s 

lot, ire ragulfction*! ( ^, ITo kind of a tsuc was eonaiu- 



h* lagilatit r>^oh of Parliaz&mt* "Taxation 
rt of 3c?*rigii pow^r, one brar.ch of logialftticn,* 



rplf tc Fitt f diatiroticn bet'e^n tha powtr to 
'-. pow^r to 



Our ^ lu 1 following th* r*p&3 or the Stasip Act 

, rt ^dlru? tfee p?i33age of the 7owrjsh*nd Acta, the colonists 

las *;o *o^ept th P*irlira*nt&ry dootrin* f ho 

of taxation and legialation HJW iaeparat>le f and to <iny 
' : * iiar?*nt tc liy either* the tgrisa in A?srica 

wore iuiak to t*k ra, At thi^ tiwo, rit^s Rutohinfon, none 

of th9 oeloni admitted tb^ right of F^rii-i^nt th<tm, 

- raen wer? b^giipning to .n** that, by degrees* tfce 

^cctrine, f no representation* ao t4Jcatin f ing tc the 

(O 
'ioctrir-0 l f rtc> represent at ioi . i l*}i*i*tien |4 - | 



laiw&nt ccjBJLandin;; U: certain 

, I* it Ir* any v* * tax or th* 
it -iacrtt#3 in cojaplyin*; with it". Fejp*r 

*, ::;. , *- 

(3) Cobbett. r--\rlii*m*?ntnry History XVI . , pp. 101-3; See 
th$ Constitutional Rights Kto., letter ! 

(4) Hutch iiieon, History of Nk&i. B%y III, ?p. 164-5* 



., 



si. 

which, *e ha* been noted, had already found expraaalon la acme 
quartere and w&* soon to tmcoiae wi<Mly accepted. 

3 advocates of Parliamentary rights ridiculed this 
shifting of ground Itf the totrlcans, Ihen th#y werfc opposing 
the Stamp Act they set tip * distinction between Internal and 
exttrnU txt9, fhn Parliament adoptd thi ditii5tlon snd 
laid tb* To* 0uty, a nw distinction wa& 1 uj btwe<&n thu 
right to ri* a ret*ftti and tii^i rie h * ^o r*-saUte trade. The 



to d<my th^ right rt ptrliJtm^nt is la to 

fox ttoew *it *: , th meaning cf thia utdp ira urtm 



for tlwr can b no lin* drawn between the ani a ^ the 
authority of Parliaiaent *nrf ^beol\ite independence t 



But altho tinlirtit^ j power W^A 

aeoribed to Parliament by \n controwreialiete except the 
Anorioan Wh.ig, yet Briti ,- : i n4 :^ 

pr^acribed metric tien to tli ^ BfiESX 

tli colonies* pitte limitation by deflnitioit 
Oenitl teonard imposed a <-.-natittitional 
Ae legislature c*n hv0 no right to tax any part 
of the Kapire to a |l ouut th?*n Ita Jtjit ar.- e<tni table 



^ t*i n^ewsiry fiatlon%l ex^nee. Is a line 

(I) 
drawn by the constitution 



Kn^t, Ot ntrof*ry . . pp* 34-.55| 
. 173-4, tno* thought the real Oietiuctlon w2Ucli tli^ .\mori- 
cana objected to wn that between ImpcfJin^t taxee and collecting 
them. CcntroiNiray Rtc*. pp. 4,*"" 

) A Plain and Sea^onsble Addree $to,, 17cr> Rut eh in* 
son iti Ita9*aeh*3ett State Ppere pp. 337-40 1 
p. 198. 

(3) Mas^achueettenais, p. S03. 



*, 

view concerning tho taxing power of Farllfc* 
ent was an imperial one* It was const i tut lonally Justifiable, 
but expedient only as a last resort. Tho rlfftt, of Parliament to 
tax the colonies was unlimited! but It was *an instrur^nt of 
empire,* to be used in forcing payitent from portions of the 

empire which refuse or neglect to tax themselves for common 

U) 
purpoeea f and "not aa a me^ne of supply^ It was not 

unlike that of Orenvllla, exoe t th^t, In sorr.e case, Or^ntllle 
wou; !.*! taxation by P rll^r-nt in th f irt instance. 

Parliament f aafe Qrenvillo, axerelees itn power over the 
colonies only In ci^en, like a general tax, which the 
assemblies oannot provide for. *Th<n >i;ertion of that authority 
which belongs to its universal soperintendenoe, neither 



lowers the dignity nor de^reoiates the usefulness of 

' 
11 :-ite'.l powe s. They retain all that they even had and are 

really incapable of ore.* 



Speech for *ep*il of fe% Duty, 1774, 

ftc. ff> 



, 



' 
























Y. 



iv mre* or THS MOOT to TAX, 

The Srltiah considered t&cation as m novereiga power. 
Tho right t t**j as *I1 & tc euU* other legislation of ft 
public nature, wae ao&sider&t an attribute of sovereignty, 
without w&ioh g0vara*nt ootaa not xit| ana 



witfe th ifi^it to tJut all British aubjsata within that 
. flit and of goftsrniaimt Is protctioj t)lft 



mt fct 0>lt to ^pplf proteotlon$ this la 



1. *U* elaia n*f th colonists that their 
them frM t^atiom toy FaTliuont wan oet fey 
both of the truth f th ptat*nt and of itc 



It sm concelirtd th*t tho ooloni<>8 ^re ^o^o^atjl^nf orat4 
tho orown ady itti prarogfttitt to constitute corporations 
or political iaodiaa and grsnt them the neces;sir/ powers of 
ft3?oisnt ? that 5h^y huve 0c iofal or oon^titutionai claim 
to greater right* ana jc*ptio than other Cngiitih 

but f -like th f r^ limltta fey the |>ewr granted in their 

(5) 
ohartera In speaking of the original Sia&aaelmsettfi grants 



vlj . , . >0| fTnoXj < ro*er*y 

., pp. 55-57$ A Fl^l ., 1766, p* 

10| A tetter to an * P., 1?74, >p t ;3-SM 

iii^iac]iufeet tenela, p. 108. 

{3} l^rtin Howard la Hart, ntenporarie* pp. J94- ; 
llandflfld, in Oobb^tt, PnrliatRt ry XVt. , , -6| 

A better fo an H P., 1715, ^, 5 ry of Han* 

Bay, 111, pp. 3SS-9, i.lao l!i Ma^d. State Fapere, pp. ' -.;. 



. 
























it government, Hutohineon aaid, "Nothing can be more plain than 
that the charter, as well a the ?>atent to tne oounoil of 
?lycrath, constitute* corporation* in England, with power to 
create a eul>orainate government or governments w thin the 
plantation." 



The teraa of the ohartera, inated of xaptin5 from 
T f ; 
th* axithorlty of Parlitsont, ^uavd against such oxomption^, Tl* 

H^ 

ch^rttr alono contains an oxpxoaa oxwption from 



P xrliamtntary taxation, but othr partt of tho oamo charter 
eolaro the oontMVf and expr^jjaiy retain the aubyineion to the 



of British laws.* fh? people of aryland have 

always taken thie to mea that the King oouid not tax them fc 

(3) 
hia prerogative, Cn the other hand, cbedienoe to Gr^at 

ii expTeiBtly enjoined in %ll tHeae charters* the 



chartar assHreasly r03erve<l the right of 

(5) 
to tax the people of the oolonyj and thd oharter* of the other 

&a 

ccloniee nmet be underetooi a implying it* 



grante and exersptiona of the charters ehow the 

of Parliament. The olauae granting legislative powar *not 

repugnant to the lawa of England, 1 if it has any significance 



1ta*. State 

aalloway, A Candid fxamination ftc., r.. 
nox, Clais ltd. pp* 5-0. 
14) Kno f Centrovaray, pp. 
pp. 1 1O-111 . 



Knox. Olaiih* Ktc. t pp. i>-0. Coutrorerey pp. 70-71. 
(6) Tucker, tettere, Ito* 1760, pp. 6-9. 



- 



. 



t 



Pi, 

at all) i a limitation on th Assembly and a reservation 
of the jowr of Parliament, the e*e<nptiona trot taxation 

for limited tiro*, plainly indicate the liability tu tax after 

(8) 
the axpirs.ticn of the specified time, It coul'l not have been 

the sense of the early colonists that thea* taxea were to be 
laid by the ling* a prerogative, t^thr than by F^rlia?sent| for, 
at the time H* Massachusetts charter van granted (1638) f one 
of tlie principal patentees, Sume! Vassal, *wa> euffaring the 



loss of his % oo4 m rather than submit to th$ imposition laid 

W 

by the King without the consent of ?%rlianent. * 



if the oharter had ^raatea, in expraee and unraia- 
takeabla ter , the exemptlone claimed by the aoloni3te t the 

woia be immlidj for 1*ie King ha no right tc make such 

, the Xing cannot aienat* sub joe tn from thair alls* 
to tha nation, nor thair obedience to Par t. A 

of the *?outi*e power of the t^ta f e oan affix 



great aeal *to all acte of the legislative ana auch as he 
is empowered to do ty his prerngatiTe t ana no other." Hie 



are known and defined. He o$n ^atmbiiah an define 
tha limits of theocolonies m--.l "vat them with po^er to fr.ike 
smnloipal lawa f for the regulation of t rnal pcliou" 

but he a^nnot aiaoharge thaax from obedience to Parliament, 

T~ : p. 339, 

(3) Maaohusetteml 1 $, 174j Hu^ ^s State 

h ins on | in &&9, r>t/xte Paper ; ' - . 
alloway, A Oaiidid ficamin^tion T % . . 



!3) 
4) 



St 

The crown cannot disunite ftae^f from its connection with the 
state under any idea of prerogatite, much less can it eraan- 
cip*t* a abject from these laws, to which itself is boxmdf 
for prerogative in the hands of the cwwn, in a $en3ral sense, 
is *vhat privilege ia in these cf Parliaiaent, in a more 
confined onej they are both intended, In certain cn<es, to en^ 
force *>*er, er alleviate th* rigor of the lawj net to 

-ry it l^tc oppreaaion or to defeat its ffact .... Ho 

(1) 

prercgttivi can 50 beyond law, con^wmtly no charter." The 

Ki , In the colonies any wore th* in the 



** * 

alienate the territory from the crown and establish ^crsrnnents 



indt>endent of Parliament. the authority f r^rlioment is 

founded on oownon law, prior to the grant of the charter, and 

(3) 
cannot be abridged by the King, 

lot only was it held that th* ling cannot alienate 
any portion of the legislative po^-^r of Parliament, but that even 



Farliament itself cannot do ao irretocably. *th jr icn of 






Purliaaent leing e)tablin>.<>d > It -ill follow th*t th<? iction 

cannot "be apportioned} it ia transcendent and entire.* T > 



to t^x 'V.T, *?^?ordlnf to locke, been exnressV/ 04 

to Parliament from the people and cannot b" tran^forrtd, 



by ParliasRent itself, arach less by a King who gts his throne 



73; 



' 



Wielrve, Rights te,, jm. 9-10. 
Qutchlnson, in Mass* St^te Bapers, p 370 
Martin t, Contemporaries p 395 

tin Howard in Tyl*r f Literary Hiatc. . I, 



40. 

(1) 
from Parliament, 

These charter grants, it wtwj thought, could be modified 
or repealed by ParUasient, or annulled by Parliament or th* 
courts. Barnard held the opinion that while the King could 
bind himself and Ilia sttteesse**, h<* could not bind ?arliasnt, 
nor can the Parliament bind their auoofiaeors nor ven thera- 
selves*, let only has Parliament the right to annul those 
rters, but the colonists may, *at any tiiwi b dprlfd of 

thir boi*ftd privila^aa aM im??runiti09 toy th ordinary and 

WJ 
inferior oporntiono of 4 aoiro faoiag or a gue yarrmnto^ * 

In th$ time of Charles 1X 9 the Ma83ohuo9tte charter v waa 
y6*t*d in chancery for the abiwe of it. Vow U It possible, 11 
eays ?4anfield t *to suppose that a legislature ean exist with 
a eole power of l&ying taxes, vfcioh legislature ay be 

(Destroyed toy* process in the courts of ahftneery or 
(5) 

Bench? 



The charters, says Bernard, are siply 
to infant or growing colonies, and not intended for 
permanent constitutions. In many resspeots they are unccn3tlt\>> 
tiortal, and contrary to the nature of the Bri 



If they could be pleaded against the authority of ?a*lias*nt, 

( f 
it would mean the diswemberaent of the British Umpire. Theee 

charter claims, says Tucker, in a saw as tic vein,* are quot*d 



Knot, Controwrsy ftc f pp ?;-? ; Iff* , 



Hutohh, .a Haes Stats T*stt>ero, ^ . - . 

Prinoiples Sto, t Far. 17*; . 
A Utter to an H. 1%, 1765. p. 13. 
Cobbett. Parliament %ry History X7I., pp. 1 
Principlee l?tc., r r. 7-79. 






. 



->* * 









7 by the toy aa a kind of supernumerary proof, and a a 
of analogical roan on ing* fit oaly for those 



weak minis cannot digest irgumsnts of 4 superior strength 
and * 



If, then, the charter 4 id not f and could r. 
the original tattlers from taxation by Parliament, the 
claim* of the aoloniste on that score vtra rorthl*, 

fithara nev^r racslv4 t th* children onot cltit it an 



(!rrit Britain pleaded grac.dant BJJ 
a right <K> tax Aawricx. Parlioiaant, tK*y 
r^^ulat^d the nff ai?a cf tho colonists? IR every way tht 
wit or ingenuity of man could posaibly device, * DM 
authority of Parliament ever the colonies had been expreeely 
aaierted en *veral occasions bsfore tho jOecl ;ratry Act. 
In 1660 *n Aot of parJiam^nt declared thoit thy h-,d atweya 
been ani o^ht to b ^Btitjjeot to such la*a t order und 
regulations as are or ih^ll b^ made by tho firliazaent of 
, ____ , __ , __ 



(1J Moker* Pleas and Argustsmta, p 40* 

{ ) Qrenrille. lt&ulatlAa f eto pp* llO^lll* 

(S) A tetter to an K ^, 1774, p. 






fcj 









ia. 

(l) 

England.* The act of William 111 altering the succession to 

the throne of England *ase*fed in the strongest terms the 
ascendency of Parliament in the whole British Rmpire | not 
only did Parliament enforce a change of rulers over America but 
the act contained an oath that the King would govern according 
to the (statute* of Parliament, ttie succession was agains regulated 
by Parliament in 1714. * An Act of the 7th and eth William 
111 establishing admiralty courts averted the supremacy of 
Parliament in unmistakeable terms by declaring null and void 



all acte of colonial asoeabU^s paused or to be passed contrary 

(3) 
to acts of Parliament. The piracy act (11 & 12 filliaw III), 

,..'-rt ( 

which vested piracy eases in Admiralty courts, threatened for 
feiture of charters, 

this supremacy **a acknowledged, said Hut chins on, 

at least on the part o* tha Inhabitants of Massachusetts, 

,* 
for shortly after the succession was altered, knowing the royal 

oath, they petitioned for a new charter and in an address to 
the King they acknowledged that they could not make laws 
repugnant to those of Kn&land . 

Wot only has Parliament regulated the trade or external 
affairs of the colonies but it has passed tsany acts regulating 
thsir internal Iffairs, Amoiti thase have been enumerated the 

""TIT Maejachusetteneu, P. 19B. 

(a) Kutohin^on, in Maes. State Papers. pp f ;77-8| ICnox, 
Oontrovery Rtc. f Appendix Wote. p,33f A tetter to a 9lP,1774. 



. 

fucker, tetters rtc., title page* MoPhron, lights 
c., p, 37, 

<4) Kcox, Controversy, te, p* 175, Appendix Hots p. 
of JlaPbercon, lights Ctc* , p. 38. 

(8) Hutohinson, in Haas. Stnte Papers, 












V.3 

*0 e*a o* 
, 

* 

' 









fol lowing! Aet of the 3rd and 4th Anno ana of the 3nd Oeorg* 
11 prohibiting the mfiing of tar and pitoh pin* trees In *ame 
of the colonies, and providing that penalties ehall be *^ed for 
In Admiralty Oonrtef the A0t of f h 5th aeotg* II prohibiting 
til* ntiifa0tw* of H%tf d that of. th ^4fh loor^o II e.39 t 
and othar aota for retraining aniificturo| tho naturalisation 
aot (19 flTtorgt 11), matins British sttbjatta of foroignara WBO 
hnfO livod a eortain mwb^r of jaara in tha oolonioni the 
aot of the 14th 0*org* ll t tliaaolTing the Itaaaacliuaatta land 
Bnlc| ifee aat of the tfc Anno, filing the tmluea of foraggn 
oolni the not of the 34th (teorge 11, prohibiting Aasuea of 
paper money in the Her thorn Colonleaf th0 aot of the 34th George 
ll f o, 35, diafolTtng In6atttre by erspowering British offioev* 
fe tnliet, in the oolonia??,apprentloee and indentttre 



the tot of the itfe Ooorge 11, abrogating that part of the 



law relating to the desoent of the freeholds and making 
than! aaaete for debt in the tame manner a* in Knglaad, nhioh 
was pad after the oolonlal maeewbliea had refused to 
pae it, and an et ^altering the natitre of evidence of the 



of oofflmon law by Mking n affidavit of a debt before the 
tord Mayor of tondon tto,, certified in writing, an evidence in 



il) for an eniawiratlon of tfiese regulatione of the 
fairt of the ooloni^a, a^e *no*, Controwray "tc., pp. 
9| Pownall, Adjainistratlon f t^ pp, 128-7} JloPherson, M 
., pp* 34~3S| liaae* St%te Fapeirf^ pp, 378-0. 



.. 



t 

' 



. 

tut* 

. 



their ocurta in taorioa" . 



Acts of Parliament hate also been passed which w*re 
tmaietaJt*bly revenue acts, As aarly %s 1646, says Powa&ll, 
Parliament laid an excise ta* on th* colonies. This act 
e*epted the plantations froa all customs, eubaldiaa, taxes, 
iapesitlotm or ether duties, eo+at the e.ncise" , proHdtd their 
tradt wm oarried on in fngli*li bottoms, 0thtrwjg they 
litblt Jo &1| fhc ' tieai but Pownall thinks no 
ean b drawn fy<i thi period, feteau**, in it relations to the 
colonies, pa*liaat was acting in Its cap^eity aa ectxtive - 

th* tueeessot of the ling - and not in its empaoity a* 
) 



first clear revenue Act wia the ^5th Charles 11, 

k ^-^ ^ (3) 

*.?, still in effeo* t tfela aot , enforced by the ?th ind eth 

Williasi til, o23, and by the 1st Oeorge 1*, c. IS, laid 

,gn eici>oytationt <m sugar, tobacco, cotton, 



indigo, ginger, logwood, fustici ttv! cocoa sent tc foreign 
countries or frgm cna colony ^o another It provides how 
the tax shall be He vied, collected and paid g A proridee the sa* 
penalties for ciolation as for *def rauding his Majesty of his 
oust one in Rngland,* and provides that the Duties Bhull b 
1 vie^ Ja |h^ eogapissi^^r ^f ouatom^ jyi ftafljftiid^^by and under 
the authority of the totd treasurer of England or coimuidsioner 
of the tytMW* fh Aot of tha ?th am 8th William 111. 
entitled *an act for preventing frauds and regulating abuses 
in the plantations 11 , provides that the officers "for 



m p< 
h\ i 
h) m 



Pownall, Administration >rtc* 
f 



ft* 

in the 

eoloniea shall htte the eva powr aai authority oonc^ruing 
eearohing of ships %ad eisur of goode aa in the moths r~country. 
It i mpparoit f re* the r***<miag of tto 



tlMi 4utU vtr impod fot th* aol^ purpose of 



Another ?*** mt f * till in force in the oolonito, 
id that wHicOi provide* taxation for * *MMtta* hospital at 
Qrnwich It Q%ol *tbat orery c5aan, hoover, that shall 
***** hi* M*jtr* or any other proa vhaUvor in aay of 
Ma}tr* ship* ot **lt nh toerf, i>olonr.ins or to 
to otir aubjot of iniland, or any othor of Ma Wajeety's 
loinion t h4ll allow and tlitro phall b J^U and paid Ut of 
tho wa^ot jf tyjgy fng| ftoaman.to grow due for 



fid. por aftmai Jjsj th<? better support o| the 
the thereof S 



the ^olatesoe lot (6th aeorgo II., 0.13} Inid a duty 
on all foreign ru, mclaaeee and iugar^ to I 

30 V C'.rj xru.:. f yj.j DM-: .- - || ^| || ..' 

heirs and eo*icra. Hil 9t oo tailed the technical rord 



* VT f Mimm V V** W i~w **> Jf ww p y*'* . " < * llir "* * " " 

raticn. pp. 138 -fj A Utter to an H. P., 1774, p 
__^.^,n fii^ts of Great Britain, fte. pp. S7-48. 

) liaiaohtauwittenaie, p. BOO} Snot Ccntrowrey ! 
1?MS| rovnall. Adainiotrfttion tte, . "5-^ 
flight* of Ore-it Britain^ Btc. pp. 38-30. 









tf* 









46. 

give end srant 11 in it* preamble. It * a* at tec tod, says 
Qrenville, aa unjuct and iispolitic, tout It his n*yer been 
considered unconstitutional. 

Pownall considers the expense of ittartsring soldiers 

( ) 
and supplying tn in their quarters, an a tmx, 

"It in in Ytin*, says QranylUeJto cill thaae only 
regulation* of trad** the trade of British subjects my not 
b ro^ulated by auofc we-ina, without the conourrnc of thir 
roprtatntativtd. Duties laid fo* th^ pu?po -^ w*U I*,., 
for purpcae* of revenue, art still lovi^s of mony upon 
psopls, the Constitution Jmowa no distinction bstwsen 
Jutios and internal taxation*, the argument that 



not laid internal taxes, is of no validity, sajro Knox. 
The nowlty of *a tits is no argument against the right to 

it. If so f it oculd be uid rUh equal force against the 



land tax in England, the cyder tax or any other new tax 

(4) 

to which English subjects at home haw submitted* 
But the mat authoritative case of 



in the colonies was the Act (3 Anne, o, 10) prorided for the 
establistee&t and maintenance of the Post ftffioe in Ar.^rica, and 



(l) Or^nrill^, Regulations, ^te ? 104} MassaChuoet tenais, 

IHiwnall niw Burke do not consider tfei* n re^wwue act, 
Burks says Its title clearly shows it to be a regulation of 
trade. Burke, Sp*0eh for repeal of tea Ihity, 1774$ Pownill, 
A4ainistraticm ita..pp. 135-7* 

Pcwnall. idiainistrsatloni pp. 13|>~ . 
arenville, /legulatlons ftto. p. 1C . 
(4; Know, fh* 



- 












that *th* retn\u arlaln* | fh 



b*tt*;r iaprev*d, *tttl*d and **our*d to lilt ^joaty, hie hoirt 
th pm***i<i of f**rl* wa f*<t, Ctertainly,% 
j thi* i a pta^lio tcit ina not rrio* paid for ssoa 

If thr i a 41^ Unction 

o t Cffi<$ 



It 



on x*otlr th* o<i!9 footing ** British an4 xproaly oallt* both 

nttins from potag in both Africa 
tad 9 ^pplld In p*rt to tlw 

^n of a ocntin4intftl war wid otliy public puirpo^eai th 
of it to th* support of tli oiHl liati and no* tli* itiol* of 
it to th 6ielmrg* of th* natlenl d*bt fey m*n of tH 
fgr^t< fond f nil th^sNi are rTlo^t that a** *ith* national 
or pftrtlovltr to Oromt Britain .,*,.! **ty Or*nirill* f 
*th:af oircumtane* do not oonatitnt* a t%% t I do not know 
what dof th* at%fr? dutloa %r not r\-ir)d wit> 



I ) 
to *ntitla th to th%t dmiottin ^tion, 

tt i *ri'tont f n/ thu British, that F- jrliwwnt 



In constant ^roiao of it right to t*x th 
th African* h%v 9etaioead in thfl* acta. Until r*ontly 



1) 
a) 



Oobbitt, rarliMatry History xn. p. 

Qr<9nvilS* 4g.ltion ^to 9 , 10S7i KnMc, 
Rto. f j.-, a^ae^ahwjttt^ntid, p, aol| 

ft . 176 p. 11 



48. 



(1) 
the constitutionality of auoh %*t wa* not Questioned. 



In 1764, *hig and Tory leaders (Otis and Bernard) agreed on 
the right, Leonard quotes Otis a* saying in a paophlet 
publlshS'l in 1766, "It is certain that the P*rlia*mt of 
Q* t Britain hath a just, clear &n4 *auitabla and 
cunwtituticnal right, power and authority to bind the 
colonies, by all aots wherein they are named* v*ry Xavyer, 
nay every Tyro, knc* thisi no lea certain i it that the 
lament of Oreat Britain hae a JiMit and equitable right, 
power and authority to i^ose taxea on the colonies, 



internal and external, on Ixnd as well as on trade, * 

(I) fo the American afgument that they were 
exempt frost taxation by virtue of a fundamental pfiMJBaA 

^. : "' ; : - :riU,:fr :.-nntituti-.-;n vhlr;h . re vi :? d...t BM >,/.; ijfea&l 
be taxed by a body in which he is not represented, the 
British returned a triple denial | (a) The oolonitte are 
not entitle to all the privileges and ia&mnitie* of 
British ftubjaat8| (b) strict inseparability of taxation 



P?**&*+ his plan for a Parliament ry 
tax *t thf Albany Oor wnticn, even l^anklin did not oppose 
it on the ground of ri^ht, but on that of expediency, 
Uaaaeheettn9i9, p, ^ . 

H&a&&3hW**tl*mi3 9 p. 



49. 



and legislation is not true in England; and (c) the 
Americana are represented in Parliament, 

A. It was the sent* of the ftnglish writers that 
the Americano ware not entitled to all the rights, privileges 
and iamnitiee of British subjects. Certainly they were 
not entitled by the British constitution to any rights 
and privileges which British subjects at hone did not 
pessess the principles of the English constitution do not 
give exemptions from Purlianont, "because that constitution 

is oa4 to bind all the members of the stats together 

(*) 
and to ccmpsl an obedience to its 



1, The clause of their charters granting the 
liberties and immunities of free and n tural subjects, 
cannot exempt theiaf for these liberties and immunities 
depend on location, Africans hvw the oame rights as 
British subjects born and residing in England, when both 
are within or both without tho realmj but Ar^rioans 
without the realn h^vs only thoie rights of British 
subjects within the rsala which they are capable of 
enjoying. This clause , in )ted of exempting from the 
power of Parliament, a imply means that the colonists 
are "not aliens*, but natural born subjects* and as 



i*e pp. 37-39, 

Oallcway, A Candid fxaalnation *tc., p. 















. 



. 















IKV 



bound to oboy the supreme power of th* state, and entitled 
to protection from it,* 



4cta of garli^Bent could not grant rights and 
immunities of British subjects that could put the colonists 
beyond the re^ch of later acts if Parliament repealing or 
modifying them* 

$ Ccmcn taw, according to*M9trtin Howard, carried 
Titfc it to the coloniee the personal rights of En^lishisen. but 

/ !- \ 

no political rightei it ca not be pleaded a^int the 



authority of Parliament* for statute law ie superior to 



4 . That the litw of nitufe can #ive any one the 
pririleget of isssiunitiee of in ^nglishmmii! ** denied. thl t 
cye Knox^ in reply to the Pannaylvaniai ^tsuap 4ct R' ona, 

ie^ I believe a dextrine unkr all civili^na t except the 

(4) 
Assembly of ?ennaylmniu* 

Knox made A strong arguiaerti aigainsit the in- 
istency of the double claim of the colonists tc (4) the 
rights end privileges of Englishmen and (b) exemption 



PP. 177-8. 
Se* AMP** j, 
Hutchinaon, in yss State Papers* p $74. 

Rnox, C--ntroversy J . . : ->| Omll 

A Candid RTamintition, p. *?9. 












':,> 






ttl. 

from taxation by Parliament, If, he s*ya, the coloniea 
are entitled to the constitutional righto and privileges of 
British subjeeta within the reals, they must be annexed to 
the realm and st&Ject, therefore, to it s*s>reme legislature, 
If they ure not within the reala and subject to the authority 
of Parliament, they o*n not claim any o f the right* and 
privileges the people of England derive under acts of 
Parliament or other rights peculiar to British subjects 
the 



B, By the British constitution, taxation and repre- 

; 

Dentation in the strict sertae, are not Inseparable* Such a 

( ) 
doctrine io contrary to usage in Great Britain* the Acts of 

Parliament granting representation to ffhagter and Ouxhon show 

that they were bound by ingllsh lawn without being nanstd f and 

($) 
liable to taxation, before thy wwr represented. Berwick 

was bound by acts of Parliament before it was represented* 
Bd * cr * l^^ff g , w ^s admitted to representation, it wia xcepted 
from suteral revenue acts because it paid a tax (mises) to the 
King, Ireland^ though a sep*rat% and distinct kingdom, has been 
bound by acts of Parliament * If P^rliaffisnt can bind th$se 
parts of the Aspire by its acts, It can tax them, 



\ u m*A pp* c-s. 

Thin , e^rce th ?rwifie designated 1 

based on Mansfield 1 ^ p*ech against thd repeal of the Staap At t 
Cobbstt, Parliamentary History TVI, p^. 17a5| also see V*rti& 
Howard, in Tyler, titerary History Kto. 1, pp. v -7.5| Jenyns t 
Objections, ?tc t p. 7. 

J3) HcPherson, Rights of Oreat Britain, p. ?, quotes an 
the 35th Charles U, c*9, to show that the counties 
palatine of Chester, Durham, and Lancaster were, before being 
represented! "liable to all payoents^ rates and subsidies 
granted by the Parliament of Cngland** 



, 



. 






n*W 

, 

, 




53, 



without eendins *epare*ei*t*tiwu Ta* fast 
*** ftltilT **** *r*nt*d rp***2itaUv*e before bein/> timed, i* no 
proof of the right; for theit ***** *** eupported by the Pope, 
the ling end Tarliawent wet*, at tfcet tln* f too womi to 

t it* At rr*a*nt, all tho great fngliaih corporations - - the 
Bank t tho Kaat India Oaqpa&ft nd th Hoitth 8 Oompanyj M^molHifftor 
Blrminghow and other rich tarcuilng townaj woalthy niarohanta, porsmal 
roprty hol4ot nd all lan<3<t property holders, unless 40 shilling 
faroa ho.t<lra, aro not rp resented, though all %ro t%\ed 

(73 in*, the txm repreentation f a tl^e ocloni^ta 
ao t to wean n actual o>a distinct repra^nt^iioa ot all who are 
euoh attriot inseparability of taxation and rspresumUtlon 
never <9%ieted in ny country ut any t-i/ae. It is not even 
true of any of the charter or royal gowrnoente in An^ric x, *It 
ia not true 4fl *he proirinae of ll^aoaohueettie Bay # in which, toy 
the laet hietory cf it f there appears to tie not only * multitude 
of inOiisliial9 t but even forty townahips of freehoidere now 
no dietinot 



American objection tc t-*x*tion on the grounds of 
ick cf representation extends with equal force to all other forme. 



(1) Xncx, Controversy fto,f6Oai| JlcPh^reon, Aighte of 
Great Britain, itc. p, 4. 



ef legislation. It denies not only Hit authority of Parliament, 
but of the whole British government. The inseparability of 
taaatlon and legislation, was asa*rted by QrenflUe in reply te 
Fitt. The inseparability of taxation and government was asserted 
fithe^ial forte* If Qreat Britain cannot tax the colonies, 
it follow* tlut she has no authority over them. 

The Americans ! say tbe British, have sjiimndorstooa 
cr misquoted Hagna Charta. they interpret liagna Charta to mean 
tfeet no inn en be t**ed exoept by eonaent, in p;ron or by deputy, 
aa& tfcia ie not ite true tseaning. One writer thinke the clause 
they ref^r to met toe the one that provides that no man shall be 
of his freehold etc. "nisi pr juaiciiam paruie y^l per 



T$rr*%e* fh^^lmw of the land* in thia cmse simply means an 

f3) 
of f arlinftsnt* * Xegna Charta does say, end it ie the 



law of the landf that Hie ling can 1 * i^ose toaes on hia 
jji IhtfUilHi liHUri^ *** consent of Parliament* It is inferred 
fro this Uiat He ofcn't ipe texee on his subjects out of 
gaglftnd with the oonaent of Parliament. in othor words a con 
cession frejs the orown that the subjects in England sthall not 



(1) T>yttlet<m f in Cobbett, Parliamentary History ^tc. 

','; 



. 3 -','; Amual Register, 1706. pp, 3 1-3 j A Flain ^nd Seasonable 
Address, 1766, p. 10f The Constitutional Sights, Itc tf 1766. 
. ; A letter to an K F, 1774, pp. 36, 3S-39| Boucher, a tetter 

in Tyler, titerary History I5tc, 1, pp* 370-8. 
. 

A tetter to an M P. 1706, pp* 1S-16. 












. 





















be ta*e* by tii King *in$iy f amount , according to tho logic 
of America, te * law that hi* Kaj**ty* subject* out of ftnglwo 
canuot be ta*ed at til." 

Lord Manafield w*nt at th* root of the matt** by 
attacking the principle on which the A^eric-uia baaed thir olaiia 
to exemption JTrom F iarli^aantary taxation* "I dony the proposition 
that ParliattfAt talion no &a'* property without iii consent: it 
froaviently take privmto pyopoxty without nuking what th ownar 
think* * ooapanjation." fho Idoa that no teo&ty oan bo 
without ocnaont is dirootly contrary to th truth, for it 



unconstitutional to raise money for the King i^ oondoni of any 
of people outsid* of Parliament* tBae BaclaraUon of 



Kight ak9 it illegal -ma void to lovy any 'lo*n f gift er 
bonevol^oco* oxotpt by act of Parliiant, Her did took* 
mean, ay Enoa t that th supreme powvr cannot tax a subject** 
property without hi* cc*ent f but that the King and P*rli*jMfftu 
cannot take a man' a property for their private use without hi* 
content. The consent, either p rccnally or by representation, of 
or a majority of thoee who pay a taa^ k* ne*r been con* 



n cessaryi indeed if it were insisted cn f no taxation 

( ) 
would be posible t 



ifc&t'J fcto, 1766, pp, 
KACXA Controversy ffte. p. 101* 

!) Cobbett, "arliomentary History XVI. 
3) Knox, Cent rove r*y Etc. pp. 80-87. 






sJtt" 






M, 

The people of England, say the English writers, are not 
distinctly represented in parliament, me right to a seat in 
one house and the right to rote for meafetrs of the other has 
always been based on a particular system of Land tenure . At the 
earliest period to which cur historical knowledge extends, tne 
King with hie tenants-in-chief formed the supreme legislative; 
but they were no more representatives of the people than the 
House of tords is at the present date .When thru the f r<tusnt 
parceling of the crown domains, the King's tenant a- in-chief 
became so numerous that mil could not attend the legislative 
assembly, tne devise was hit upon of permitting the leaser tenants- 
in-chief to choose a few of their number as represent ativss of 
the who lei la this way the knights of the shires came into the 
Commons, later the Kings, ty charter or prescription, granted 
to certain boroughs and corporations, the aright to elect members 
considered the distinet representatives of the people of 
ngJUnd, fne members of the elective branch mve not even called 
the representatives of the people, but the Commons in Parliament. 
The idea of a representation of the people never existed, "The 
freeholders sat in Parliament as the powers of the state, and when 
t *y ceased to be powerful, they caused to be qualified.* 



(1) Knox, Controversy Etc., pp. 61-64, 66. Mansfield, in 
Cobbett. parliamentary History pp. 173-31 Oalloway, Candid 
Examination t!tc. p. 4S. 

(3) lamsay, Thoughts ftc. p. 41 









. 






C. But, say tfce British, the eolonies are represented 
in Parliament according to tit* constitutional yste of rerr*~ 
Dentation In practice in *itland. "Mil Uritlsfe a bjeots are ranlly 
in tlie HPiiii*itien)| none are ^tnlly f all ft** Yirtnilly 
in ?arlim*nt| for T9rr miBbor ofto^n to sit In 
priit9 not only th nonntittwinta or irih*bit*f*ta of 
th pur^imlat ^Iot for wMcfc h* i cho*n, but fornss on of 
th gr**t maa%ly wbldh i in dtaty bound to look aftr the inter- 



ot of 11 *hn oo'rorj4 of Oroat Britain andi tha inhibitintfi of 

(1) 
all &*r oolonii ana dowinionia, 11 If bo think* tho ; ublio 



faro r^<|Uir*o it, H 9^ould vtn toto ngmin0t the wishes and 

^ ^^_ (3) 
instruction* of hit eon*itotnt 

Thi ytt!B of virtual r*3>r****ntaticm 



$W*ly idoal* It i a l*gftl fiction, y a British 

ono of thoto nir Prinoipi* of tht lw of ooity whioh it is 

utttrly impracticable to litorally and minutly adhera to in 

of 



oolonit a4ttitt* tho legality of this prinaiplft m far 

( ) -*a- 

droat Britain wa- concerned. 



(1) drenirille* fleffulatiene ''to.. pp 108-fcf Amual 

ty /*/ wk-wk l ">/'\^ O 

JLfOOk PP <-vI"-' 

IIK.^V.^ < 

:, 



t 



Tuoker, tetters itc,, 1766. pp. 19*/50. 

Mansfield in Cobbett, Farlitment^ry Hitory tVX, pp. 1? - . 

A Utter to a U, P., 17 . lS t 30-21. 



See p. IS. 












**<**** 
M>I<* **4 t ** 






57. 

Cn this priiiciple of virtual npre0nt*tlon, the Pritiah 
accepted th* A*riodtn dootrin* of the inseparability of taxation 
and representation. *ffce first great mxi of this and cwry 
fre^ ov*ttient% says tyttletcn, *is, Oiit no imbjot is bound 
by any law to which fc is not actually iwr nrtnally ooniiting f 
If tbe ooloniee are subject to Great Britain, they are represented 
and oonsent to all statute*,* 



At first many of Hie royal governors and amenta, 
the isotherMJountry had sent to th colonies, attempted to solve 
the probleti of representation by proposing that America be p*w 
Kitted to send * nunber of representatives to parliament. Povnall 
persistently advocated this plan. Bernard favored admitting 
an African delegation, at least long enough to remodel their 



orns*nt, Knox presented such a plan to the Bate ministry, 

and tells us that his sohene net thu approval of drenville, 
who aid not propose it to the Condone, beottae lie knew they 
would reject it, this idea also net with favor from the 



great Knglish economist, Adam Smitfc, Some pwnphlsters, like 

(6) 
Dean Tucker, opposed it on principle* others, like 



Cobbett, Parliamentary History XTO., pp. lf>6-7. 
Pownall, Administration "tc. 
Bernard, Select Utters, pp. 33*54 1 38-41. 
Knox, Extra-Cffioial Papers, XI. pp, 30-31. 
Adam Smith, Wealth of Stations. 



, 

tetters Kto. , 1766. pp. 14-18} the Constitutional 
Rtc., 1706. 



(1) 

Jenyna, ridicules it as impracticable. It seems probable 

that, h%d the Americans desired representation in ,?4*lia*nt 9 
it sight hare fceen extended to them, as it had been to the 
counties palatine of tancaater, Chester and fcarhiMRj but the 
colonists did not lasire it. This ilea oane to bi rpditad 
or abandoned * Tin by the Araerioan Totie, Onniel teonard 
i ; verted that nature, and not Parliament, had withhold represent**- 
tionj and the plan presented to the ?irt Continental Gongreee 



by foseph Oalloway provided for an A eric an 

The British oon abandoned all aohey^en of an American 
representation in Parliament and settled down to the theory that 
the colonists were already represented. The principle of virtual 
representation in ttie Commons was thought to erfcend to *wry 
British subjeot wherever he might be, the ooloniate, they sy f 
are m much represented in Parliament *a Manchester or Birmingham 
or nine-tenths of the people of England. A British colony falls 

under *the natural system of representation subsisting in the 

(3) 
time of its firt sett lenient . fcvery Amtrie^n is eligible 

tc vote in Inglund under the ntJ8 condition* aa an Kn^rl iahaian, 



(1) J^enynfi, Objections *tc. 

(a) ilmssaohiisettensie. p, 1 

(Z) th*5 Cor.stitutiormi Uiehte Cto, f 1766, p. IZ. Cn this 
point, see also Howard, in H*rt* Contemporaries, pp. 395 
JTenyns, Cbjeoticme ftc. p . ill*, ftegvlatiea* 

pp, 107- ttt*rs tte, pp, 9-10. 









^*' 










:,. 



It was by fre* choice th*t the coloniata x$ot io far from England 



that they could not ttend election*. Th<*y should not ur^e this 
* A r^aocn for Changing the political system of England. 

In 176f> Jtichurd Bland, on behalf of the colonies, met 
the virtual representation <!oe trine irltti a t^*ory of yirtutl 
oona^nt, wM^li ' admit tcl th c on* tl tut tonality, in Great Britain, 
o^ th* taxing law of ^rliament, ^ut pronounced th^m 
in th colonies. Tiro yar later, Knox ^tttnsptud to hcnr 
thi prinoipl* of vlrttt*! oon^snt to aots of Parliament Applied to 
all British 3ubj*6t within the Empire. Ho qaote^ Hookor aid 
took* to how that %vry an giiw t-ieit consent to a goifernment 
whta he contimieo to lite under it. *Qpoa-thi8 principle, every 
tt9jet of Great Britain, when he is ta^d by parliament, is 
taxed by hia own consent, for he ie tten taxed by the consent of 



thoee tihom the society has ew>o^rered to sot fot the whole . . . Thia 

M 

l Jh British Oonttlttttion. If America will not accept thle 
syetem of repreeentation aa it ia f ahe refuse to accept the 
British constitution wder which sh^ cl^iom her rights, 

It was en thi cerstrcirersy concerning virtual consent, 
that th firet clear and indelible distinction wia drawn between. 



(1) Tucker. A tetter Bte,, 1766, p. 18. 

(3) ICnox, Controversy ^to, pp. 09-70. 















lo insfcnoo 
. 












.. 



th<i position of Englishman *nd Anwriosms with regard to the ettent 
of Parliamentary authority. Hitherto, the American objections to 

British system of representation **r<* equally applicable to 
the unrepresented English, Now the colonists be^an to recognise 
the constitutional right of Parliament to tax the unrepresented 
English, but b<*<*an to nl*ce themselves in a different category. 
the virtual consent doe trine availed the British constitution 
itself, for it rested, not as virtual representation did, on a 
principle of the British constitution, but on the law of nature. 

4, ing the later portion of the ooatroferay, the 

colonists abandoned their constitutional grounds and baaed their 
claims to exemption from P*rli*raentary taxation on their natural 
-L~l_ -il JS2lt This was revolutionary argument, and, if 
accepted, ooul<i not fail to lead to a state of practical Independ 
ence. Tha British -snd their adherents in the colonies had little 
to say -tbeut n<*tur*l rights e*oept to deny that they could 

it any exemptions from th* authority of |arliawent. they 
answered thu arguments o^ the Awsrioan*, net by affirwing or 
the validity of tt l>*ws of nature on which those 

wtre b*i^ed, but by attempting to show that thoss laws 
had not been violated, and to keep the discussion on constitution 
al grounds, the right of ?*trli**nt to tax ths colonies is 
a constitutional question, 9 aid Mansfield, to which th#? laws of 
nature are net applicable. 



(1) Cobbett, f>arliw*nt*ry History IVU !>. 176| Annual 
Register for 17C . 



' 











. 






. 



. 






^ 01 



Altho the natural right* philosophy was $ene*lly accepted 
was used by English statesmen and lawyer* when it suited thsir 

, yet it does not appear that the tnglish controversial!*** 
had any definite ideae about a pregevernmsntal state of nature 
with it condition of equality and natural, inalienable rights. 
Such a conrtlticn was considered purely ideal* Man were never 



to live in such a eUte f exoept for a few raimit*s f like 

( } 
fiehee out of the water, in great agonies, terror and convulsions.* 

The corapmot idea of the origin of *tcverrent found little 
expreeeion <anon$ the Uritieh writers, tyttleton thought government, 
or supreme power, was established by eonpaetf but, being cnoe 
oil shed, the r>eople were bound to obey the constitutional 

authority. 8e**e British writers even denied the idea of an 

(4) 
origin*! compact. 

the doctrine that the colony charters were coamaote 
between tin* wl o demists, *%s ^n^wered by Hutohincn, in his 
ute with the ttftfifiachuaett* Assembly in 1773. The charters are 
ts, h9 emidV anrl not coyspacte. tha atperienoe of Mae*aohttft0tt f 
ha is jerts, Tmt the statue of the charters beyond dispute. The 
old charter f that colony was revoJled^ aa& the cting under 

his prerogative granted a new charter, which also is *ubjct to 






{ 1 ) Ifc C o r " 1 1 1 u 1 1 c r " . -.1 feto., 1?- t . '37- 

(3) ^asay t Thoughts fftc, pp. B 9. 

Oobbett, Parliamentary History X?1 p, 166. 
(4) fans ay, Thoughts %tc, p. 10. 



ti 






, 
. 



(1) 
oy Pmrliaxient or by Judicial process. 



ffc*fher or not 'o vernment originated In oompaot, 
British *re wilting to oon*4* that It rosta on consent. Lyttleton, 
as has boon noted, atated as a foundation prittoiple of nil free 



that no subjeot is bound by nay IAW to wfeloh i 
not attwlly or virtually consontlat;* the English thought 



thia consent oould be virtual, or tacit, and quoted the words of 
Locke at authority for their contention* 

But *rtiat*ver the British may have thought of the theory 
of a pregoveraaental etat* of nature and of a social compact *n the 
origin of government, they were n unit in denyir the lawn of 

nature could exempt any part of the ftiapire from the authority of 
Parliament. Locke 'o crude, undigested general nrinoipleo concerning 

the natural riht of man eannot be literally applied to nen in a 

_ (5) 

state of /8jovernent, eaid tucker* The lavs of nature, 



Canning, are applicable only to the state of nature) men under 
government and society mat obey the supreme now*r of the state 
until tt isodifiet the evile of whioh the^r complain* th^ natural 
rights of nan cannot exempt from the powers of government, because 
governments exist at the expene* of natural rights 5 hence, this 
objection mist be considered at against the state of ?<mrnmant 



(1) HutcMnson, History of Maaa* Bay III, 



! ^arliaawnt^y History TVt* p* 166* 
Tucker, tetter to Burke tc,, 1775 t pp. 11-1S. 



irtHNV 

ti 


















imy p*rtioular form * Th l*wa of nature, 
-Uow*iy t *ar$ founded on aroaaon and iJwmtafcl* justice 
ar ich require* a rl&id performance of every lawful contr*tj- 
'up****** therefore f that a right can thsnce b* d*rive4 to 
the moet eolesn awi aor<l of %11 oovninti thoe upon 

^%iteno of $ool0tii and th wtlf*ar of millloM 

(S) 

i^ in th* hish9t dagyee ibonrd.* 

TH0 natural right of rvo3ution f so fir -wi uoh * right 
rot with th* ^ntlr tatt and not with * prUn of it 
Tha colloetiTO bo<ly of th pple of the whol British 



the right to oh?jm0 th& fern of go*9rnoiiti but th 

of 



th* D0olrmtion of Xnd$p<tn4enMi w*a th sliaux in the 

of 4*r*rican opinion ocnc^rnin^ their political 
with the ath$:r~3orantry - thi impiriil problem 

trivd to ol*i in 1704, Starting with a 
i<la of th* r*lation, in ^hioh m find BOS* & -ina of 

right of P^rliawont to taic th<wa, thy juoo9iwly danind th* 
right of ?^rliam*nt to lay duti** for revn, t,h right to 
without thuir oen^ent, an., U7 t .7n 

f not only of Farllamtnt but of th* *hols Britih 



. . . - i| Hutchlnoon, in 

Ctato T pp. 337-340* 

iHlloway, A C motion Sto. p, 

3) )lat4achu9ttn$i3 y p. ' 






'J 









64. 

gowrnraent, Starting with a triple basis fox their claims to 
exemption - charter grants, the principles of the British 
constitution mnd * aesji-conetitutional 4ew of the law of nature, 
they Hid finally staked their cause on an un dulterated theory 

itural right* The British corui -tently defended the 
acvereign constitutional right of Parliament to legislate for 
the colonies, "in all eases *hateovor t * even xfter consistency 
had lone ceased to lie a rirtue. The insistence of Parliaisent 

that it had a right to tax America beoause the principle of the 

' ^ 

corrupt awl outgrown system of fnglioh constitutional representa 
tion WSP ccnciv4 to extend over the wtiols British JBmpir* t 
led to the revolt of the colcnie* and the division of the 
tnglish people. 



. 

, 



. ?, - tife and Worke of John Acia. 
Annual 



Bancroft, S. - fteisarka on the fle<fiew of the Controversy between 

Qreat Britain and her 6oloni6d( t*ond on) , 1769. 

Bernard, Francis Principle* of Taw and Polity, 1764. 
* Seleot Letters, 1774. 

Blind, Richard - An Enquiry into the Kighta of tho British 

Colonies (first published in 17CC), 1760. 

Bradford, Aldon - llaasaohusatta Btatu Papr9, 1765-1775. 

Bvirko, fdrnund * 3p^oh on Anuirioon Taxation, April 19, 1774. 

on Arrival at Bristoi, October 13, 1774. 



Car . George - tdttara on th*^ Con-motion bat ween Qreat 

Britain and her Col onion, 1768 

C ndiefe t Sir M. - Debates in Pmrltaiaeat. 
Cobbett * Parliamentary History XVI., XVII , 
Connecticut Colonial Records t XI 1. 

Constitutional Considerations on the power of Parliament to 

try Taxea on ^he ITorth Airri^*n r"!'ri*> 
(tendon) 1706. 

Comtitutional flight of the togielatnre of Great Britain to 

Tax the British Colonies in imarica, 
li^partially Considered, (tondon), 17G8. 

Gushing, H. A* - Writings of Sams! 



Ar. of the Kighta of the Colonies upon Principles of 

j by a gentler An at the B^r, {tendon}, 1766. 

Franklin, Benjamin * forks (Bigelo*? Edition) III., IT*, 

- tife and Writing* 

Frothin^ham - The ftiae of the Hepublio. 

Galloway, Joseph - A Candid Imagi 

Britain 
177 Sj London^ 



Galloway, Joseph - A Candid Imagination of the Mutual Claims of 

Britain an! her Cclonies, (few Tork, 



. 



. 



(Ubboa, R. W. - Documentary Hifltory of the American Evolution. 

Granville, George - the Jtegulationa ftoently Made Concerning 

the Colonies, Etc. 1766. 

Hamilton Paper* 1 . 

Hart, A.B. - Contemporaries. 

Hutch inaon, thoaa* * A History of tl 3 Provinces of Maagaohuaette 

Bay TU. (London, 1838). 
- A Copy of l*tt*r sent to Qre%t Britain y l?7$. 

Jfftron , fhoii% - lutings (Ford Edition). 

J^nyns, SaoaMi - Cbj*tion* to th taxation of Our African 

Coloniaa by the to^isl^tur* of Groat 
Britain, Briefly Considered, 1765. 

Justice and feeeaaity of taxing the Goloniee Denone tarn ted 



,ty of Taxing th 
(London) t 1766* 



Knox, William - Th* Olaime of the Colonies to im Exemption from 

Internal taxee I^poaed by Authority of 



?^rliftent f <?ained in a tetter from a 
Gentleman in London, 17C , 

- The Controversy between Oreat Britain ana her 

Colonieo K^rieued (London). 1769. 

3xtra~0ffi0i*l itate Papere (iondon), 1789. 

tooky, fR.H. - A History of England in the Eighteenth Century 

(London, 188 f ) 111. 

tetter to a u. * (tondcn), 1765. 



'vir to % M. F* on the Present Bnhappy 0isptte between ftreat 
Britain and her Colonies (London) y 1774. 

Mofhtrson, - Rights ef areat Britain Averted against the 

Claims of America (tdinbergh), 1776, 

Memoirs of th Hitorial Sooiety of PennaylT^ni*, XIV* 



Hinot, . >~ . - A History of the Province of Hassaohuwetts Bay 

(Boston, 1803), 11. 

Vovanglu* and Haosaobtsaettensis , 

Ctis f James, Jr. - th* Hi^ts of the British Colonies 

Asserted and Proved, 1764. 






. . 












Palnd T Thomas - Ooamon Sense, 1776. 

Pheips, - The flights of the Colonies, and the !x tent of the 
Legislative Authority of Qreat Britain, 
Briefly Stated and Considered (London), 1769, 

Plain State of the Argument between Great Britain and her Colonies. 
1775. 

Pownall, Thomas - Administration of the Colonies (London 

4th Edition), 1768. 

Plain and Seasonable Adiress to the Freeholder* of Great Britain 

on the Pooture of Affairs in America 
(to? Itftjj 1766, 



lemaay, Alexander, Jr. - Thoughts en the Origin and Nature of 

eminent, Occasioned by the Dispute 
between Great Britain and herAmerican 
Coloniee, (London), 1769. 

Khode Island Colonial Records, VI, 

flights of Parliament Vindicated on the Occasion of the Late 

Stamp Act. iLondon), 



Tucker, Josiah - Latterc from a Merchant in London to hia Nephew 

in North America Relative to tho Affairs 
of the Colonies , 1766. 

- Respective Pleas and Arguments of the ?4 other 

Country and the Colonies Distinctly Set 
Forth, 1775. 

- Letter to E . Burke in Answer to his Printed 

Speech, 1775. 

- Humble Address and Earnest Appeal Cbnceming a 

Collection with or a Separation from the 
mtal Colonies of America, 1775. 

Tyler, M, C. - A Literary History of the American Devolution.