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Principles of Law and Polity

Updated: Sep 23, 2023

PRINCIPLES

O F

LAW and POLITY,

Applied to the Government of the British Colonies in America.


Written in the Year 1764.

Published in the Year 1774.


PREFACE

In the Year 1764.


A VIEW of the prefent wealth, power, and cx- tenfion of the BriliJJj Empire is alarming as well as pleafing : we cannot but be concerned for the {lability of a fabrick built on fo disjoined foundations, and raif- ed to fo great a heighth ; and muft be convinced that it will require much political ilciil to fccure its duration. The mofl obvious means to efFeft this, muft be an Union of the feveral parts of this vaft body, and efpecially a Connexion between the Scat of Empire and its Depen- dencies ; a Connexion not created by temporary expe- dients, or fupported by enforced fubje£lion ; but eftab- liftied upon fixed Principles of Lazv and Polity, and maintained by a regular, free, and equitable fubordina- tion. What are the principles which will befl: conneft the Head and the Members of this great Empire is the fubje£l of the prefent enquiry. They ought to be fim- ple, plahi, and certain, dr they will not be fuitable to their general purpofe ; they ought to be gencraHy ad- mitted, or they will not have their full effe(St ; they muft be fuch as will ftand the tell of rcafou, or they will not be generally admitted.


In this difputative age, and in a fclcnceof all the mofl dif- putative, it may feem a difficult tait ro attcippc to fettle

K 3 a gene-a general theory for a bufinefs in which fuch a variety of paflions, prejudices, and interefls, are like to inter- pofe. Scnfible of this, and ftudious only of Truth and Utility, the writer has avoided declamation, and kept clofe to argument. He has reduced his whole fubje£^ into a fet of propofitions ; beginning with firfl principles which are felf-evident, proceeding to propofitions ca- pable of pofitive proof, and defcending to hypothefes which are to be determined by degrees of probability only. This was intended to be a perfe^l chain ; the avoiding of prolixity is the caufe why it is not fo : where any links Ihali appear to be wanting, the judicious reader will eafily fupply them. The advantages of this kind of writing are obvious: by feeing the principles and the reasoning of the arguments laid before him ar- ticulately, the reader can more precisely determine what to affent to, and what to deny j and the writer, If he should appear to be mistaken, will have the merit of contributing to his own conviction.


The present expecl:ation, that a new Regulation of the American Governments will soon take place, probably arifcs more from the opinion the public has of the abi- lities of the prefent Miniftry, than from any thing that has tranfpircd from the Cabinet : it cannot be fuppofed that their penetration can overlook the neceffuy of fuch a Pvegulation, nor their public I'pirit fail to carry it into execution. But it may be a queflion, whether the prefent is a proper time for this work : more urgent bufmefs may Hand before it j fome preparatory ftcps may be required to precede it ; caution and deliberation may retard it: but thefe will only ferve to poftpone. As we may expeft that this Reformation, like all others, will be oppofed by powerful prejudices, it may not be amifs to reafon with them at leifure, and endeavour to take off their force before they become oppofed to Go- vernment.


 


Principles of Law and Polity


1. The Kingdom of Great Britain is imperial; that is, sovereign, and not subordinate to or dependent upon any earthly power.


2. In all imperial states there resides somewhere or other an absolute power, which we will call the Sovereignty.


3. The Sovereignty of Great Britain is in the King in Parliament; that is, in the King acting with the advice and consent of the Lords and the Commons (by their Representative), assembled in the Parliament of Great Britain.


4. The King in Parliament has the sole right of legislation, and the supreme superintendency of the government; and, in this plentitude of power, is absolute, uncontrollable, and accountable to none; and therefore, in a political sense, can do no wrong.


5. The Execution of the government is in the King alone, to be exercised according to the laws of the country, written and unwritten.


6. The exercise of this right is the King's Prerogative ; and, whilst it is regulated by the laws, the King can do no wrong in fuch exercise.


7- The Laws are either unwritten, that is, rules of government immemorially admitted and approved j or written, that is, ordinances of the Parliament,


8. The privileges of the people are the right of having conjunctively, by their representatives, one third part of the sovereign legislative power, and of enjoying separately the protection and benefit of the laws,


9. The Kingdom of Great Britain has, belonging to and depending upon it, divers external dominations and countries; all which together with Great Britain, form the British Empire. Let, therefore, the British Empire signify the aggregate body of the British dominions, and the Kingdom of Great Britain the island which is the seat of the government.


10. The King of the Parliament, is the sole and absolute Sovereign of the whole British Empire.


11. No members of the British Empire, other than the Parliament of Great Britain, can have a right to interfere in the exercise of this Sovereignty, but by being admitted into the Parliament, as Wales, Chester, and Durham have been, and Ireland may be.


12. Such a union is not necessary to the generality of the British external dominions; but it may be expedient with most of them.


13. The external British dominions, without such a union, are subordinate to and dependent upon the Kingdom of Great Britain, and must derive from thence all their powers of legislation and jurisdiction.


14. Legislation is not necessary to an external and dependant government; jurisdiction is necessary and essential to it. Therefore,


15. A separate Legislation is not an absolute right of British subjects residing out of the seat of Empire; it may or may not be allowed, and has or has not been granted, according to the circumstances of the community.


16. Where it is granted allowed, it must be exercised in subordination to the Sovereign power from whom it is derived.


17. No grant of the power of Legislation to a dependent government, whether it comes from the King alone, or from the Parliament, can preclude the Parliament of Great Britain from interfering in such dependent government, at such time and in such matter as they shall think fit.


18. Though the King can do a£ls to bind himfelf and his fuccelTors, he cannot bind the Parliament \ nor can the Varliament bind their fucceffors, nor even them- felves.


19. It is the Ki?ig's prerogative to provide for the ad* ininiftration of juftice in general, according to law.


20. In places to which the ordinary adminiftrationof jufl:ice does not extend, the King has a right to malcC: extraordinary j)rovilion for it, fo that fuch provifion be as conformable to the laws as the cafe will permit. Keverthelefs,


21. It is the right of the Parliament y by its fupreme power of legiflation and fuperintendency, to adjuft and fettle finally the powers and modes of jurifdiftion. Therefore,


22. The new jurifdiftions efiabliflied by \\\t King, until they are confirmed by Parliament, are only tem- porary provifions.


23. The King has a right to grant to private perfons goods or lands which have been acquired by, or have fal- len to the general eflate, fo that fuch grants be agreeable to law; in which cafe, they are prefumed to be bene- ficial to the community.


24. Such grants may be enquired into legally by th^ courts of law, and difcretionally by the Parliament; and if they (liail be found to be illegal, exorbitant, of ])rejudicial to the community, they may be avoided, up- on a prcfumption that the King was deceived.


25. A grant upon a condition performed or to be performed, is a grant upon a valuable consideration : if the condition is performed, the grantee becomes a pur- chafer for value ; if it is not performed, the grant is void.


26. Jurisdiction, being a matter of public trust, and not of private property, cannot be claime4 as granted for a valuable consideration.


27. If a grantee professes to hold a jurisdiction as a property yielding profit, he proves that he ought not to hold it; as the profit must arise from something or other prejudicial to the public; for whose sake only jurisdictions are or ought to be created or exercised.


28. Where the Ki^^S grants jurisdiction and lands in one grant, they are in law two separate grants, as they are to be judged by separate and diflinft principles ; and the grant of the one may be valid, and of the other void or voidable.


29. The rule that a British subject shall not be bound by laws, or liable to taxes, but what he has consented to by his representatives, must be confined to the inhabitants of Great Britain only; and is not strictly true even there.


30. The Parliament of Great Britain, as well from its rights of Sovereignty as from occasional exigencies, has a right to make laws for, and impose taxes upon, its subjects in its external dominations, although they are not represented in such Parliament. But,


31. Taxes imposed upon the external dominations ought to be applied to the use of the people, from whom they are raised.


32. The Parlia?nent o£ Great Britain has aright and a duty to take care to provide for the defence of the American colonies ; efpecially as fuch colonies arc un- able to defend themfelves.


33. The Parliament of Great Britain has a right and a duty to take care that provifion be made for a fufficient fupport of the American governments. Becaufe,


34. The fupport of the Government is one of the principal conditions upon which a colony is allowed the power of Legiflation. Alio, becaufe


35. Some of the Ammcan Colonies have fhewn them- filves deficient in the fupport of their feveral Govern- ments, both as to fufficiency and independency.


36. The colonies ought, so far as they are able, to pay the charge of the support of their own governments, and of their own defense.


37. The defense of the American colonies, being now almost wholly a sea service, is connected with the defense of trade. Therefore,


38. Duties upon imports and exports, make the most proper funds for the expenses of such defense. And,


39. It being the proper business of the Parliament of Great Britain, to establish and determine the necessary regulations and restrictions of the trade of their external dominions; and the duties upon the American imports and exports being interwove with the regulations and restrictions of trade; the imposition of such duties is the proper business of the Parliament.


40. The port duties being most properly applicable to the defense of the colonies, it remains that the support of the governments be provided for by internal duties.


41. The fund for the defence of the country* and ihofe for the fupport of the Governments, fliould be kept feparate ; becaufe the former relates to the general whole of the country, and the latter to the particu- lar divifions of it. ^^ i-*-- '


42. The fund for the defence of the country ftiould be kept entire, becaufe itmuil be applied to the de- fence of fuch parts as ihall have mofl: need of it, with- out any regard to the particular divifions of the coun- try.


43. The feveral funds for the fupport of the Govern- ments ought to be kept feparate : otherwife money, raifed by internal taxes in one Province, may be applied to the fupport of the Government cf another ; which feems not to be equitable.


44. Although the right of the Parliament of Great Britain, to raise taxes in any parts of the British Empire, is not to be disputed; yet it would be most advisable to leave to the Provincial Legislatures the raising the internal taxes.


45. If the sums required were fixed, there would be no inconvenience in letting the Provincial Legislature determine the manner in which they shall be raised.


46. It will be more agreeable to the people, that the necessary internal taxes should be raised by the Provincial Legislatures; as they will be most able to consult the particular convenience of their respective provinces. Whereas,


47. It may be difficult to form a general Parliamentary tax, so as to make it equally suitable to all provinces.


48. It would make it more agreeable to the people, though the sum to be raised was prescribed, to leave the method of taxation to their own legislature.


49. If the Provincial Legislatures should refuse to raise the sums required for the support of government, or should insist upon doing it by improper means, the Parliament might then take the business into their own hands.


50. But it is most probable that the people would acquiesce in this measure, and would soon be reconciled to it, when they observed the good effects of a certain and adequate establishment for the support of government. For,


51. The want of such an establishment has had bad consequences in many of the governments of the American colonies, and has contributed more than all other things put together, to contention in the legislature, and defect of justice in the courts of law. Therefore,


52. The establishment of a certain, sufficient, and independent Civil List, is not only expedient, but necessary to the welfare of the American colonies.


53. Such an appointment will tend greatly to remove all the seeds of contention, and to promote a lasting harmony and good understanding between the government and the people.


54. The People of the colonies ought not to object to fuch an appointment, becaufe the fupport of Govern- ment is one of the terms upon which they have received


the power of Leglflation -, and, if the Government is not fupported, the Legiflation mufl: ceafe : and becaufe


55. The Support of Government ought to be certain and fufficient ; otherwife the execution of it will be un- certain, and its powers infufficient for its purpofes.


56. The Government ought not to be dependent upon the people ; and the particular means ufcd in Ibme of the Colonies to keep their Governments dependent, and the ufe which has been made of fuch dependency, afford ample proofs that they ought not to be fo,


57. The right of a people in a Lcgiflative Colony, to judge of the expediency of extraordinary and contingent expences, does not conclude for the fame right as to the ordinary and neceflary expences ; becaufe


58. The former mud be ever uncertain, the latter may be reduced to a certainty ; the one concerns the welfare only of the colony, the other the very exigence as a separate state.


59. The subjects of the British Empire, residing in its external dominions, are entitled to all the rights and privileges of British subjects, which they are capable of enjoying.


60. There are some rights and privileges which the British subjects, the external dominions, are not equally capable of enjoying with those residing in Great Britain.


61. The right of having a share in the Imperial Legislature, is one of these incapacities in those external dominions, where a representation is impracticable.


62. A representation of the American colonies in the Imperial Legislature is not impracticable: and therefore,


63. The propriety of a Representation of the American colonies in the Imperial Legislature, must be determined by expediency only.


64. A representation of the American colonies, in the Imperial Legislature, is not necessary to establish the authority of the Parliament over the colonies. But,


65. It may be expedient for quieting disputes concerning such authority, and preventing a separation in the future times.


66. The expediency of American Legislatures, does not arise from the want of their having representatives in the Imperial Legislature.


67. If the American colonies had representatives in Parliament, still there would be an occasion for provincial Legislatures, for their domestic economy, and the support of their governments. But,


68. All external Legislatures must be subject to, and dependent on, the Imperial Legislature: otherwise there would be an Empire in and Empire.


69. Some external States are incapable of a Legifla* ture; which has often been the cafe of infant Colo- nies. Therefore,


70. The same form of Government is not equally proper to a colony in its infant and in its mature state.


71. There may be a middle flate between infancy and maturity, which may admit of a form of Govern- ment more proper for it than either of the extremes.


72. There is but one perfect form of government for Provinces arrived at maturity.


73. That is the most perfect form of Government for a dependent province which approaches the nearest to that of the sovereign state, and differs from it as little as possible.


74. There is no such form of government among the American colonies and therefore,


75. Every American Government is capable of having its constitution altered for the better.


76. The Grants of the powers of Governments to American colonies by charters, cannot be underftood to be intended for other than their infant or growing ftates.


77. They cannot be intended for their mature flate, that is, for perpetuity; becaufe they are in many things unconftitutional and contrary to the very nature df a Britijh Government. Therefore,


78. They mufl be confidered as defigned only as tem- porary means, for fettling and bringing forward the peopling^ the colonies; which being eliefled, the caufe of the peculiarity of their conflitution ceafes.


79. If the Charters can be pleaded againfl the autho- rity of Parliament, they amount to an alienation of the dominions of Great Britain, and are, Jn effe£l, a£ls of

tlifmemberlng the Briti/h Empire, and Will operate as fuch, if care is not taken to prevent it.


80. To make the Government of a Province the moft perfed, it is neceflary to regard the Extenfion as well as the Conditution of it.


8 1 . A Province fhould be fo extended, that the ho- nourable fupport of the Government (hould not be bur- thenfome ; and fo confined, that the alTembling the Le- giflature may not be inconvenient.


82. Where the Legiflature can meet without inconve- nience, the larger a Province is, the more effeftual will be the powers of its Government.


83. The notion which has heretofore prevailed, that the dividing Jmerica into many governments, and different modes of government, will be the means to prevent their uniting to revolt, is ill-founded ; fince, if the Governments were ever fo much confo- lidated, it will be neceflary to have fo many diflinft States, as to make an union to revolt imprafticable. Whereas,


84. The fplitting America into many fmall govern- ments, weakens the governing power, and ftrengthens that of the people ; and thereby makes revolting more probable and more practicable.


85. To prevent revolts in future times (for there is no room to fear them in the present) the most effectual means would be, to make the governments large and respectable, and balance the powers of them.


86. There is no government in America at present, whose powers are properly balanced; there not being in any of them a real and distinct third legislative power mediating between the King and the people, which is the peculiar excellence of the British Constitution.


87. The want of such a third Legislative power, adds weight to the popular, and lightens the royal scale: so as to destroy the balance between the royal and popular powers.


88. Although America is not now (and probably will not be for many years to come) ripe enough for a hereditary Nobility; yet it is now capable of a Nobility for life.


89. A Nobility appointed by the King for life, and made independent, would probably give strength and stability to the American governments, as effectually as an hereditary Nobility does to that of Great Britain.


90. The reformation of the American governments should not be controlled by the present boundaries of the colonies; as they were mostly settled upon partial, occasional, and accidental considerations, without any regard to a whole.


91. To settle the American governments to the greatest possible advantage, it will be necessary to reduce the number of them; in some places to unite and consolidate; in others to separate and transfer; and in general to divide by natural boundaries instead of imaginary lines.


92. If there (hould be but one form of Government eftabiifhed for all the North American Provinces, it would greatly facilitate the reformation of them : fince, if the mode of Government was every where the fame, people would be more indifferent under what divifion they were ranged.


93. No objections ought to arise to the alteration of the boundaries of provinces from Proprietors, on ac- count of their property only ; fince there is no occafion that it fliould in the lead affect the boundaries of pro- perties.


94. The present diflinftlons of one government being more free or more popular than another, rend to embarrass and to weaken the whole; and Ihould not be al- lowed to fubfifl: among people, fubjecl to one King and one Law, and all equally fit for one form of Govern- ment.


95. The American colonies, in general, are at this time arrived at that state, which qualifies them to receive the most perfect form of government, which their situation and relation to Great Britain make them capable of.


96. The people of North America, at this time, expect a revisal and reformation of the American governments, and are better disposed to submit to it than ever they were, or perhaps ever will be again.


97. This is therefore the proper and critical time to reform the American governments upon a general, constitutional, firm, and durable plan; and if it is not done now, it will probably every day grow more difficult, till at last it becomes impracticable.





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