Complete Works. Hamilton Alexander
would be in who have every necessary qualification.
They compose a part of that society to whose government they are subject. They are nourished and maintained by it, and partake in every other emolument for which they are qualified. They have, no doubt, most of them, relations and connections among those who are privileged to vote and by that means are not entirely without influence in the appointment of their rulers. They are not governed by laws made expressly and exclusively for them, but by the general laws of their country, equally obligatory on the legal electors and on the law-makers themselves. So that they have nearly the same security against oppression which the body of the people have.
To this we may add, that they are only under a conditional prohibition, which industry and good fortune may remove. They may, one day, accumulate a sufficient property to enable them to emerge out of their present state. Or, should they die in it, their situation is not entailed upon their posterity by a fixed and irremediable doom. They, agreeably to the ordinary vicissitudes of human affairs, may acquire what their parents were deficient in.
These considerations plainly show that the people in America, of all ranks and conditions, opulent as well as indigent (if subjected to the British Parliament), would be upon a less favorable footing than that part of the people of Great Britain who are in so mean a situation that they are supposed to have no will of their own. The injustice of this must be evident to every man of common-sense.
I shall now proceed to take such a survey of the political history of the colonies as may be necessary to cast a full light upon their present contest and at the same time, to give the public a just conception of the profound and comprehensive knowledge you have of the dispute, the fairness and candor with which you have represented facts, and the immaculate purity of your intentions.
But previous to this, the following observations may not be destitute of utility.
His Holiness the Pope, by virtue of being Christ's Vicegerent upon earth, piously assumed to himself a right to dispose of the territories of infidels as he thought fit. And in process of time all Christian princes learned to imitate his example, very liberally giving and granting away the dominions and property of Pagan countries. They did not seem to be satisfied with the title which Christianity gave them to the next world only, but chose to infer from thence an exclusive right to this world also.
I must refer it to sounder casuists than I am to determine concerning the consistency or justice of this principle. It is sufficient for my purpose to observe that it is the only foundation upon which Queen Elizabeth and her successors undertook to dispose of the lands in America. Whatever right, therefore, we may suppose to have existed, it was vested entirely in the crown; the nation had no concern in it. It is an invariable maxim, that every acquisition of foreign territory is at the absolute disposal of the king; and unless he annex it to the realm, it is no part of it; and if it be once alienated, it can never be united to it without the concurrence of the proprietors.
Were there any room to doubt that the sole right of the territories in America was vested in the crown, a convincing argument might be drawn from the principle of English tenure. By means of the feudal system the king became, and still continues to be, in a legal sense, the original proprietor, or lord paramount, of all the lands in England. Agreeably to this rule, he must have been the original proprietor of all the lands in America, and was therefore authorized to dispose of them in what manner he thought proper.
The great inquiry, therefore, is concerning the terms on which these lands were really dispensed.
“The first charter granted by the crown for the purpose of colonization, is” not “that of King James the First to the two Virginia companies,” as you assert. Previous to that there was one from Queen Elizabeth to Sir Walter Raleigh, for all the territory he might discover and plant between the thirty-third and fortieth degrees of north latitude which was not actually possessed by any Christian prince or inhabited by any Christian people; to have, hold, occupy, and enjoy the same, to him, his heirs and assigns for ever, with all prerogatives, jurisdictions, royalties, privileges, franchises, thereunto belonging, by sea or land; only reserving to herself, her heirs and successors, the fifth part of all gold and silver ore that might be acquired in those regions.
By this grant, Queen Elizabeth relinquished the whole legislative and executive power to Sir Walter, upon no other condition than simple homage, and the above-mentioned fifth part of gold and silver ore; which shows that the crown considered itself as invested with the absolute and entire disposal of the territories in America, and the passive conduct of the nation declares its acquiescence in the same.
After many successless efforts to plant a colony in Virginia, this charter was forfeited and abrogated by the attainder of Sir Walter Raleigh; and then succeeded that of King James the First to the two Virginia companies, dated the 10th of April, 1606. This was afterward altered and improved by a second charter, issued in 1609. There was also a third, dated March 12, 1611–12. The mention of this last would not have answered your purpose, and therefore you chose to pass it over in silence.
In neither of these three is there the least reservation made of any authority to Parliament. The colonies are considered in them as entirely without the realm, and, consequently, without the jurisdiction of its legislature.
In the first charter from King James there are the following clauses:
“We do ordain, establish, and decree, etc., that each of the said colonies shall have a council, which shall govern and order all matters and all causes which shall arise, grow, or happen to or within the same, according to such laws, ordinances and instructions, as shall be, in that behalf, given and signed with our hand, or sign manual, and pass under the privy seal of our realm of England.
“And that, also, there shall be a council established here in England, which shall consist of thirteen persons, to be for that purpose appointed; which shall have the superior managing and directing only of, and for, all matters, that shall or may concern the government of the said several colonies.”
“Also, we do for us, our heirs, etc., declare, that all and every the persons, being our subjects, which shall dwell and inhabit within every, or any, the said several colonies, shall have and enjoy all liberties, franchises, and immunities within any of our other dominions, to all intents and purposes, as if they had been abiding and born within our realm of England.“
This latter declaration (to which there is one correspondent, or similar, in every American grant) plainly indicates that it was not the royal intention to comprise the colonies within the realm of England. The powers committed to the two councils demonstrate the same, for they would be incompatible with the idea of any other than distinct states.
The king could neither exercise, himself, nor empower others to exercise, such an authority as was really vested in the council, without a breach of the constitution, if the colonies had been a part of the realm, or within the jurisdiction of Parliament. Such an exertion of power would have been unconstitutional and illegal, and of course inadmissible, but we find it was never called in question by the legislature, and we may conclude from thence that America was universally considered as being without the jurisdiction of Parliament.
The second charter explains and amplifies the privileges of the company, erecting them into “one body or commonalty perpetual,” and confirming to them the property of their former territories, with the addition of all the islands lying within one hundred miles of the shores of both seas; together with all “commodities, jurisdictions, royalties, privileges, franchises, and pre-eminences,” to be held by the king, his heirs and successors, “in free and common soccages.” They were only to pay one fifth part of all the gold and silver ore they might find, in lieu of all services.
Their government was vested in a council, first appointed by the king; which, upon every necessary occasion, was to be summoned together by the company's treasurer. But immediately after the persons appointed are named in the charter, it is declared, that “the said council and treasurer, or any of them, shall be henceforth nominated, chosen, continued, displaced, changed, altered, or supplied, as death or other several occasions shall