« ForrigeFortsett »
But we need not pursue our researches on this point, for the best evidence that can be produced of the deep and universal sense of the value of our natural rights, and of the energy of the principles of the common law, are the
memorials of the spirit which pervaded and ani*5 mated every part of our *country, after the peace
of 1763, when the same parent power which had nourished and protected us, attempted to abridge our immunities, and retard the progress of our rising greatness.
The house of representatives in Massachusetts, the house of assembly in New-York, and the house of burgesses in Virginia, took an early and distinguished part, upon the first promulgation of English measures of taxation, in the assertion of their rights as freeborn English subjects.* The claim to common law rights soon became
under the auspices of William Penn, whose influence contributed to plant West-New Jersey, and who was a joint assignee and trustee of an undivided portion of West-Jersey, as well as a joint owner by purchase with other partners of East-Jersey. The declaration of the general assembly of Virginia in 1624, that the governor should not lay, levy, or employ any taxes or impositions upon the colony, except by the authority of the general assembly, was the first colonial example of the assertion of such a right; as that house was the first popular representative body ever convened in America. Hening's Statutes, vol. i. p. 118. 122. Story's Com. on the Const. vol. i. p. 26. The charter of the colony of Maryland, in 1632, was peculiarly liberal. It established an independent colonial legislation in the proprietary and the freemen or their deputies, and the crown stipulated never to levy any tax upon the inhabitants, and the inhabitants were to enjoy all the rights and privileges of English subjects. 1 Chalmers' Annals, p. 202—205. 1 Hazard's Coll. p. 327. The first assembly of Maryland, in 1638, declared the great charter of England to be the measure of their liberties; and William Penn, in the preface to the plan of government prepared for Pennsylvania, 1682, declared, that any government is free to the people under it, where the laws rule and the people are a party to those laws. ProucPs Hist. of Pennsyleania, vol. ii. app. p. 7. Bacon's Laws, 1638, ch. 2.
* Minot's Hist. of Massachusetts, vol. ii. p. 175. Journals of Assembly of New-York, vol. ii. p. 769—780. Jefferson's Notes on Virginia, 189. a topic of universal concern and national vindication. In October, 1765, a convention of delegates from nine colonies assembled at New-York, and made and published a declaration of rights, in which they insisted that the people of the colonies were entitled to all the inherent rights and liberties of English subjects, of which the most essential were, the exclusive power to tax themselves, and the privilege of trial by jury.* The sense of America was, however, more fully ascertained, and more explicitly and solemnly promulgated, in the memorable declaration of rights of the first continental congress, in October, 1774, and which was a representation of all the colonies except Georgia. That declaration contained the assertion of several great and fundamental principles of American *liberty, and it constituted the basis of *6 those subsequent bills of rights, which, under various modifications, pervaded all our constitutional charters. It was declared, " that the inhabitants of the English colonies in North America, by the immutable laws of
Marshall's Life of Washington, vol. ii. p. 83. and Appendix, note No 4. Wirt's Life of Patrick Henry,sect. 2. Tho assertion by the English house of commons, in 1764, and prior to the stamp act, of a right to impose taxes upon the colonies, produced spirited and manly remonstrances to the king and parliament from several of the colonial assemblies. Pitkin's Hist. cf the United States, vol. i. p. 165—169. The general assembly of the colony of New-York, in October, 1764, not only asserted their exclusive right of taxing their constituents, but complained, at the same time, of the grievance of putting on end, by act of parliament, to commercial intercourse between the colonies and foreign West-India settlements. Journals of N. V, i6t i The stamp act was passed the 22d March, 1765, and this was the first measure of indirect taxation laid upon the colonies by the British Parliament for the mere purpose of revenue. The first resolutions of any of the colonial assemblies after the passage of the stamp act, came from the house of burgesses of Virginia. They were introduced by Patrick Henry in May, 1765, and asserted the right in the colonists of taxing themselves. Wirt's Life of Patrick Henry, sect 2. * Marshall's Life of Washington, vol. ii. p. 90, and Appendix, note No. 5. nature, the principles of the English constitution, and their several charters or compacts, were entitled to life, liberty, and property; and that they had never ceded to any sovereign power whatever, a right to dispose of either, without their consent; that their ancestors, who first settled the colonies, were, at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural bom subjects; and by such emigration they by no means forfeited, surrendered, or lost any of those rights;—that the foundation of English liberty, and of all free government, was the right of the people to participate in the legislative power, and they were entitled to a free and exclusive power of legislation, in all matters of taxation and internal policy, in their several provincial legislatures, where their right of representation could alone be preserved;— that the respective colonies were entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law; that they were entitled to the benefit of such of the English statutes as existed at the time of their colonization, and which they had by experience found to be applicable to their several local and other circumstances;—that they were likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws."* Upon
»Journals of Congress, vol. i. p. 28. ed. Phil. 1800. It was a principle of the English common law, that acts of parliament did not bind the English colonies unless they were specially named. Blankard v. Galdy. 4 Mod. 222. 2 Solk. 411, S. C. Sir Joseph Jekyll, in 2 P. Wms. 75. But the prevalent doctrine in the colonies, and one that was acted upon by some of the legislatures, was, that no act of parliament was binding upon the colonies, though named, unless ratified by the colonial legislatures, and on the ground that they were not represented in parliament. Hutchinson's History, vol. i. p. 322. Chalmers" Annals, 277. 400. Pitkin's Hist. of the the formation of the several state constitutions, *after the colonies had become independent states, *7 it was in most instances thought proper to collect, digest, and declare, in a precise and definite manner, and in the shape of abstract propositions and elementary maxims, the most essential articles appertaining to civil liberty and the natural rights of mankind.*
The precedent for these declaratory bills of rights was to be found, not only in the colonial annals to which I have alluded, but in the practice of the English nation, who had frequently been obliged to recover, their indefeasible rights, by intrepid councils, or by force of arms, and then to proclaim (hem by the most solemn and positive enactments, as a barrier against the tyranny of the executive power. The establishment of magna charta, and its generous provision for all classes of freemen against the complicated oppressions of the feudal system; the petition of right, early in the reign of Charles I., asserting by statute the rights of the nation as contained in their ancient laws, and especially in "the great *char- *8 ter of the liberties of England;" and the bill of
United States, vol. i. p. 91. 92. 96, 97. The original charter of Pennsylvania, to William Penu, contained a provision, that no contribution, should bo levied on the inhabitants or their estates, unless by the consent of the proprietary or governor and assembly, or by act of parliament in England. Charter, sec. 2. Proud'* Hi*t. of Pvnnsylvania, vol. i. p. 185. Yet this anomalous reservation of a power of taxation in parliament, was always understood by the colonists to imply, that the people of the province were to be allowed to send their representatives to parliament previous to the exercise of the power. This was so asserted by Dr. Franklin, in his examination before the house of commons in England, prior to the American war.
* Cicero, in his Treatise De Republica, lib. 1. sec. 32, insisted that equality of rights was the basis of a commonwealth; for sinca property could not be equal, and talents were not equal, rights ought to be held equal among all the citizens of the state, which was, in itself, nothing but a community of rights.
rights at the revolution, in 1688,a are illustrious examples of the intelligence and spirit of the English nation, and they form distinguished eras in their constitutional history.1' But the necessity, in our representative republics, of these declaratory codes, has been frequently questioned, inasmuch as the government, in all its parts, is the creature of the people, and every department of it is filled by their agents, duly chosen or appointed, according to their will, and made responsible for mal-administration. It may be observed, on the one hand, that no gross violation of those absolute private rights, which are clearly understood and settled by the common reason of mankind, is to be apprehended in the ordinary course of public affairs; and as to extraordinary instances of faction and turbulence, and the corruption and violence which they necessarily engender, no parchment checks can be relied on as affording, under such circumstances, any effectual protection to public liberty. When the spirit of liberty has fled, and truth and justice are disregarded, private rights can easily be sacrificed under the forms of law. On the
• Act of 1 W. Si. M., sera. 2. ch. 2, entitled " an act declaring the rights and liberties of the subject, and settling the succession of the crown." See also the act of settlement, 12 & 13 Wm. 3. ch. 2, and ante vol. i. 293.
b This free spirit of the English nation at the era of magna charta, was not peculiar to the Anglo-Saxon race in that island. We have an analogous and almost contemporary case in Denmark, upon the election of King Christopher II., in 1319. He was called upon by the diet or assembly of great men which elected him, to sign a capitulation or charter, taken from preceding models, in which it was declared, not only that the fendal nobility and the clergy should be secure in their privileges and exemptions, but that the free peasants should not be subject to any tax contrary to the established laws and customs; that a parliament should be annually held at Wyborg; that no man should be imprisoned, or deprived of life and property, without public trial and conviction according to law; and that no law should be made or altered without consent of parliament, consisting of the prelates and best men of the kingdom. Bishop Muller on the ancient History and Constitution of Denmark noted in the Foreign Quarterly Review, No. 21.