parliament, independently of any auxiliary jurisdiction derived from the blended exertion of prerogative in cases of that legal repugnancy, which in terminis are excepted by their said charters; and wherein prerogative singly, or conjunctively with both Houses, has and may acknowledgedly interpose, pursuantly to the same. This obedience would certainly be, with respect to him a naked duty; an ex parte obligation obtruded upon him, which is repugnant to the nature of all legalities and destructive of that principle wherein English Liberty essentially consists. But farther, were the English Americans not only to be bound there by the acts of the British parliament in all cases, but also by those of their own assemblies:—here would be a subjection within a subjection, which might subordinate their actions to alternate contrarities and cross penalties! a duplicity of jurisdiction over the same objects, and equally in the first instance, unknown to the law! a supersaetation in the legislative system, which seems monstrous and unnatural! The delegation therefore of a legislative power to the colonies must, one would think, from its necessary efficacy, be considered not only as uncurrent with, but as exclusive of all parliamentary participation in the proper subjects of their legislation, that is to say, in cases not repugnant to the laws of Great-Britain. And in all such cases may not the maxim be fitly applied;—“Designatio unius est exclusto alterius, et expressum facit cessare tacitum?”
That such a question should be occasioned at this time of day, seems altogether surprizing; after our very parliaments have taken occasional notices of and impliedly confirmed the acts of the American assemblies, in local levies and assessments; and the administration itself having had frequent resources to them for supplies in such pressing seasons, when, if the mother country had a right of imposing taxes, the importance of the occasion would have worthily becomed her to have done so, and, on the supposition of that right, should have done it,—for the sake of certainty and dispatch.
But it has been asserted with more justice and consistency that the King’s Scepter is the instrument of power over the colonies, and Prerogative the rule by which their obedience must be regulated. In this case, however, have not the royal charters been granted, establishing a constitution, and delegating to them the before-mentioned qualified power of legislation? To which the crown, even for the necessary provision and maintenance of their government, has frequently referred itself, as to an essential principal, concurring party; thereby recognizing that vested right in the colonies, the establishment whereof itself had originally prescribed and chartered. Moreover, is not the King a perpetual constituent branch of their legislatures representedly present in every assembly, and an actual party to all their laws? And this being the case, prerogative must indeed be owned to have herein tempered its operations agreeable to the spirit of the English constitution, and to have thus generously bound and limited itself. Nor could it well have happened otherwise: for if, as has been said, the common-law followed the subject to America, it is presumed that prerogative could have only acted there consistently with, and in conformity to it. Further with particular respect to the point in question, numerous are the instances of money-levies and assessments enacted by the American assemblies, that have travelled through occasional examinations, of the several boards and cognizances here, and nevertheless been confirmed, or received the royal approbation: and no instance that I can find has occurred, where any such act has been disallowed merely on account of its particular tendency, or of those legislatures having exercised a power which did not appertain to them. And the royal confirmation of the actual exercise of this power proceeded, no doubt, from a respect to and consideration of the statute, De tallagio non concedendo; or, “The prohibition of imposing any taxes or aids without the universal consent of the freemen,” &c. An exemption, founded on common law and ancient English liberty! which it seems the colonists do conceive themselves intitled to, as their birthright: that birthright by which they are themselves tied in interest to the mother country, and bound to a correllative loyalty, which thus requires not any military force to be secured or vindicated. So that whether this question, of a substituting right to impose œconomical taxes on the colonies, be applied to the British parliament, independently as before-noticed; or to the royal prerogative, exclusive of the American assemblies; in both cases it would be a lost point. On the other hand, should this right, so delegated to the colonies, be now considered by any after-thought as a reversible error; be it remembered, that at first it was so delegated by solemn acts of government; that it proved the means of their vast increase and cultivation, and by consequence of those immense profits and advantages which have thence accrued to us; that it is sanctified by successive usage, grounded upon a generous reliance on English Faith and Compact, and that usage—ratified by repeated authoritative acquiescence: and lastly, that any violation of their constitutions, by what means soever executed, might unhinge the principles of their natural and civil attachment to the mother-country; thereby opening to our foreign enemies a direct passage to our Palladium itself.
Nor, this privilege being left them, let it be thought that the colonies will of course be independent. No! numerous are the residuary ties which the Crown and Parliament have upon them:—the Navigation Act, by which they are directly excluded from all foreign markets;—the power of laying duties on their exports—transmitted to Britain;—the right of port entry and clearance;—the command of their castles, fortifications and militia;—the appointment of their several officers, civil as well as military;—the executive power of government;—the right of convening, proroguing, and dissolving their assemblies;—the Governor’s negative to any bill;—the determination of appeals from their courts of judicature;—and, as a clincher, the absolute jurisdiction of annulling their acts, when their before-mentioned legislative power appears to have been exceeded. This is a general sketch of the nature of that supremacy, which, with some partial exceptions, the mothercountry has retained over her colonies—By it, it will appear, how little has been left them; and, were that little now to be taken away, how soon, at the best, they might probably be deserted. To conclude: were it not for this privilege, the condition of our Americans would be worse than that of our other English subjects: a condition, that would argue the most intemperate folly and perverseness to reduce them to; a folly and perverseness, which must not be imputed to the policy of the English nation.
AEQUUS.
An Inquiry into the Rights of the British Colonies
Born in Virginia, Richard Bland graduated from William and Mary College and served in the Virginia House of Burgesses from 1742 until 1775. Always a cautious politician, and somewhat conservative in bent, Bland was nevertheless consistently sent by his constituents to represent them in any revolutionary convention. Their trust in his ability to pursue American interests had to stem, at least in part, from the contents of this pamphlet, and from the fact that when it was published during the week of March 7, 1766, it was unique for the period in having the author’s name boldly listed on the title page—“By Richard Bland, of Virginia.” A collector of old documents, many of which survive to this day only because of his efforts, Bland’s careful study of such documents led to his being considered the best authority of his time on colonial legal history. His expertise is reflected throughout the pamphlet. Reprinted in the Virginia Gazette on May 30, 1766, and then in London in 1769, Bland’s essay seems to have generated surprisingly little interest elsewhere in the colonies, at least it was never reprinted again. The pamphlet was, however, the earliest published defense of the colonial attitude toward taxation and laid out the argument to be adopted during the revolutionary era. Indeed, the final outcome of the pamphlet is to be found in the Declaration of Independence.
SIR,
I take the Liberty to address you, as the Author of “The Regulations lately made concerning the Colonies, and the Taxes imposed upon them considered.” It is not to the Man, whoever you are, that I address myself; but it is to the Author of a Pamphlet which, according