on them are by parliament. I acknowledge the difference of fact; but cannot see the great difference in equity, while the colonists are not represented in the house of commons: And therefore with all humble deference I apprehend, that ’till the colonists are so represented, the spirit of all these authorities will argue strongly in their favour. When the parliament shall think fit to allow the colonists a representation in the house of commons, the equity of their taxing the colonies, will be as clear as their power is at present of doing it without, if they please. When Mr. Dummer wrote his defence of the charters, there was a talk of taking them away, by act of parliament. This defence is dedicated to the right honourable the Ld. Carteret, then one of this Majesty’s principal secretaries of state, since Earl of Granville. His third proposition is, that “it is not for the interest of the crown to resume the charters, if forfeited.” This he proves; as also that it would be more for the interest of Great Britain to enlarge rather than diminish, the privilege of all the colonists. His last proposition is, that it “seems inconsistent with justice to disfranchise the charter colonies by an act of parliament.”
“It seems therefore, says he, a severity without a precedent, that a people, who have the misfortune of being a thousand leagues distant from their sovereign, a misfortune great enough in itself, should, unsummoned, unheard, in one day, be deprived of their valuable privileges, which they and their fathers have enjoyed for near a hundred years.” ’Tis true, as he observes, “the legislative power is absolute and unaccountable, and King, lords and commons, may do what they please; but the question here is not about power, but right” (or rather equity) “and shall not the supreme judicature of all the nation do right?” “One may say, that what the parliament cannot do justly, they cannot do at all. In maximis minima est licentia. The higher the power is, the greater caution is to be used in the execution of it; because the sufferer is helpless and without resort.” I never heard that this reasoning gave any offence. Why should it? Is it not exactly agreable to the decisions of parliament and the determinations of the highest executive courts? But if it was thought hard that charter privileges should be taken away by act of parliament, is it not much harder to be in part, or in whole, disfranchised of rights, that have been always tho’t inherent to a British subject, namely, to be free from all taxes, but what he consents to in person, or by his representative? This right, if it could be traced no higher than Magna Charta, is part of the common law, part of a British subjects birthright, and as inherent and perpetual, as the duty of allegiance; both which have been bro’t to these colonies, and have been hitherto held sacred and inviolable, and I hope and trust ever will. ’Tis humbly conceived, that the British colonists (except only the conquered, if any) are, by Magna Charta, as well entitled to have a voice in their taxes, as the subjects within the realm. Are we not as really deprived of that right, by the parliament assessing us before we are represented in the house of commons, as if the King should do it by his prerogative? Can it be said with any colour of truth or justice, that we are represented in parliament?
As to the colonists being represented by the provincial agents, I know of no power ever given them but to appear before his Majesty, and his ministry. Sometimes they have been directed to petition the parliament: But they none of them have, and I hope never will have, a power given them, by the colonists, to act as representatives, and to consent to taxes; and if they should make any concessions to the ministry, especially without order, the provinces could not by that be considered as represented in parliament.
Hibernia habet Parliamenta et faciunt leges et nostra statuta non ligant eos quia non mittant milites ad Parliamentum, sed personae eorum sunt subjecti Regis, sicut inhabitantes Calinae Gasconiae et Guienae.
12 Rep. 111. cites R. 3. 12.—
“Ireland hath parliaments, and makes laws, and our statutes do not bind them, because they send no Knights to parliament; but their persons are subjects, of the King, as the inhabitants of Guiene, Gascony, &c.”
Yet, if specially named, or by general words included as within any of the King’s dominions, Ireland, says Ld. Coke, might be bound.
4 Inst. 351.
From all which, it seems plain, that the reason why Ireland and the plantations are not bound, unless named by an Act of Parliament, is, because they are not represented in the British parliament. Yet, in special cases, the British parliament has an undoubted right, as well as power, to bind both by their acts. But whether this can be extended to an indefinite taxation of both, is the greater question. I conceive the spirit of the British constitution must make an exception of all taxes, until it is tho’t fit to unite a dominion to the realm. Such taxation must be considered either as uniting the dominions to the realm, or disfranchising them. If they are united, they will be intitled to a representation, as well as Wales; if they are so taxed without a union, or representation, they are so far disfranchised.
I don’t find anything that looks like a duty on the colonies before the 25th of C. 2. c. 7. imposing a duty on enumerated commodities. The liberty of the subject was little attended to in that reign. If the nation could not fully assert their rights till the revolution, the colonies could not expect to be heard. I look on this act rather as a precedent of power, than of right and equity; if ’tis such, it will not affect my argument. The act appointing a tax on all mariners, of a certain sum per month, to be deducted out of their wages, is not to be compared with this. Mariners are not inhabitants of any part of the dominions: The sea is their element, till they are decrepit, and then the hospital is open for all mariners who are British subjects without exception. The general post-office established thro’ the dominions, is for the convenience of trade and commerce: It is not laying any burthen upon it; for besides that it is upon the whole cheaper to correspond in this way than any other, every one is at liberty to send his own letters by a friend. The act of the 6th of his late Majesty, tho’ it imposes a duty in terms, has been said to be designed for a prohibition; which is probable from the sums imposed; and ’tis pity it had not been so expressed, as there is not the least doubt of the just and equitable right of the parliament to lay prohibitions thro’ the dominions, when they think the good of the whole requires it. But as has been said, there is an infinite difference between that and the exercise of unlimited power of taxation, over the dominions, without allowing them a representation:—It is said that the duties imposed by the new act will amount to a prohibition: Time only can ascertain this. The utility of this act is so fully examined in the appendix that I shall add nothing on that head here. It may be said that the colonies ought to bear their proportion of the national burdens: ’Tis just they should, and I think I have proved they have always done it freely and chearfully, and I know no reason to doubt but that they ever will.
Sometimes we have been considered only as the corporations in England: And it may be urged that it is no harder upon us to be taxed by parliament for the general cause than for them, who besides are at the expence of their corporate subordinate government. * I answer. 1. Those corporations are represented in parliament. 2. The colonies are and have been at great expence in raising men, building forts, and supporting the King’s civil government here. Now I read of no governors and other officers of his Majesty’s nomination, that the city of London taxes its inhabitants to support; I know of no forts and garrisons that the city of London has lately built at its own expence, or of any annual levies that they have raised for the King’s service and the common cause. These are things very fitting and proper to be done by a subordinate dominion, and tis their duty to do all they are able; but it seems but equal they should be allowed to assess the charges of it themselves. The rules of equity and the principles of the constitution seem to require this. Those who judge of the reciprocal rights that subsist between a supreme and subordinate state or dominion, by no higher rules than are applied to a corporation of button-makers, will never have a very comprehensive view of them. Yet sorry am I to say it, many elaborate writers on the administration of the colonies, seem to me never to rise higher in their notions, than what might be expected from a secretary to one of the quorum. If I should be ranked among this number, I shall have this consolation, that I have fallen into what is called very good company, and among some who have seen very high life below stairs. I agree with the Administrator, that of whatever revenues raised in the colonies, if they must be raised without our consent, “the first and special appropriation of them ought to be to the paying the Governors, and