made on each side as calmly and impartially as possible.
’Tis said the British Parliament hath a right to tax the Americans. If this proposition is incontrovertible, it must certainly be built on such a basis and such clear principles as will be sufficient to dispose loyal and reasonable men chearfully to acquiesce in it. There are some points in government which perhaps are best never touched upon, but when any question once becomes the subject of publick debate, strength of reason is the sole authority that with men of reason can determine the matter.
If the Parliament of Great-Britain have a right to tax the Americans, it must either be the same right in virtue of which they have a right to tax Great-Britain, and be vested in them by the same power, or it must be a distinct right either inherent in themselves, or vested in them by some other power.
The right of the Commons of Great-Britain to lay on taxes arises, as I conceive, from their having been chosen by the people who are to pay these taxes to act in their behalf and as their representatives. There may be other qualifications necessary, that a man be a Briton born, subject of the king, possessed of a certain estate, &c. but none is so absolutely necessary as election. He that hath been a representative had a right to refuse or concur in any tax bill whilst a member, but if he is not chosen again in a following Parliament, he hath no right whatever to meddle in the matter; this proves that the power is originally in the people, and the legislative capacity of the whole house, and of every member, depends upon their free election, and is of force no longer than for the time for which they have been elected; this being elapsed, the trust reposed in them entirely ceases, it absolutely returns to the body of the people; in that interval during which the people are unrepresented, any power their representatives might have is entirely and solely in the people themselves, no tax can be laid on, nor any law to bind the people be formed, for this plain reason, because there are no persons qualified for that purpose. The people have not representatives assigned, but chuse them, and being so chosen, the rights of the people reside now in them, and they may, but not before, act in their behalf. Now, when the crown issues writs of election, it is not to empower the electors to chuse representatives for America, nor yet for all Great-Britain, but only for some certain place specified in the writ; and when the electors of Great-Britain chuse representatives, their meaning also is not to chuse representatives for their fellow subjects in America, or any where else, but for themselves. In Great-Britain English electors cannot elect in behalf of Scotland, and Scotch electors cannot in behalf of England; and for the same reason neither Scotch nor English can elect any for America. These electors do not represent the Americans, nor are they their proxies to vote in members in their behalf; neither can British electors give any instructions to British representatives, or invest them with any power to dispose of the rights and property of any of their fellow subjects without the kingdom of Great-Britain. It seems not unreasonable then to conclude, that the right which the elected acquire by their election to pass tax laws binding upon their electors does not at the same time give them a right to represent and lay on taxes on those who never invested them with any such power, and by whom they neither were nor could be elected. If the Americans themselves are not received as voters in the bishoprick of Durham, manor of East-Greenwich, or any place mentioned in their charters, and the same liberty and privileges with those places therein secured unto them, if they are not allowed to chuse any representatives for themselves in the House of Commons, it seems natural, that what they have no right to do themselves, none can have a right to do for them, and so no body can chuse or send a representative for them to any place where they are not allowed to sit or be represented. If so, the electors of Great-Britain never in fact elected representatives for America, nor could these electors possibly convey any power to give away property where they have no property themselves. The electors do not represent America, neither their representatives by them elected; the electors cannot dispose of the property of America, therefore they cannot give a power so to do unto others. In England there can be no taxation without representation, and no representation without election; but it is undeniable that the representatives of Great-Britain are not elected by nor for the Americans, and therefore cannot represent them; and so, if the Parliament of Great-Britain has a right to tax America, that right cannot possibly be grounded on the consideration that the people of Great-Britain have chosen them their representatives, without which choice they would be no Parliament at all.
If the Parliament of Great-Britain has a right to tax the Americans distinct from the right which they derive from their electors, and which they exercise as the representatives of the people of Great-Britain, then this right they must hold either from the crown, or from the Americans, or else it must be a native inherent right in themselves, at least a consequence of their being representatives of the people of Great-Britain.
It is plain that the colonies have been settled by authority and under the sanction of the crown, but as the crown did not reserve unto itself a right to rule over them without their own assemblies, but on the contrary established legislatures among them, as it did not reserve a right to lay taxes on them in a manner which, were the experiment made in England, might be thought unconstitutional, so neither do I find that a reserve of that kind was made by the crown in favour of the Parliament, on the contrary, by the charters all the inhabitants were promised the enjoyment of the same and all privileges of his majesty’s liege subjects in England, of which doubtless not to be taxed where they are not represented is one of the principal. As to any right that might accrue to Parliament from any act or surrender of the Americans, I believe it hath never been thought of; they have a profound veneration for the British Parliament, they look upon it as the great palladium of the British liberties, but still they are not there represented, they have had their own legislatures and representatives for ages past, and as a body cannot be more than in one place at once, they think they cannot be legally represented in more than one legislative body, but also think, that by the laws of England Protestants ought not to be doubly taxed, or, what they think worse, taxed in two places.
If therefore this right of taxing the Americans resides in the Commons of Great-Britain at all, it must be an inherent right in themselves, or at least in consequence of their being representatives of the people of Great-Britain. The act for better securing the dependency of the colonies, which I have inserted at large, evidently seems to tend this way. That the colonies were thought at the disposal of Parliament one might be led to think, because by that act, from the simple authority of the crown, which they were till then subject to by their charters, they were now declared to be subordinate to and dependent (on the joint authority) of crown and Parliament. Yet, concerning this act, I would only observe, that however it may determine the case from that day, it cannot be the ground on which the subordination of the colonies originally was or now can be built; for it declares not only, that the colonies are and ought to be, but also that they always have been, subject to crown and Parliament. A law binds after it is made, it cannot bind before it exists, and so surely it cannot be said, that the colonies have always been bound by a law which is above a hundred years posterior to them in point of existence. It is also a little difficult to reconcile this law with prior charters; our Carolina charter makes our province subject immediately to the crown, and near a hundred years after a law is made to declare, that this was not and must not be the case, but that the Americans always were and ought to be subject to crown and Parliament. Perhaps this hath not been so seriously considered as it may hereafter, but neither this nor any law can be supposed to be binding ex post facto, or contrary to our fundamental constitution. Montesquieu observes, that the British constitution (which God preserves) will be lost, whenever the legislative power shall be more corrupted than the executive part of the legislature.
And after all, in this very law, the Americans are allowed to be represented in their own assemblies, and to lay on duties and taxes, though not exclusively; but whether America, or any part of the British empire, should be liable to have taxes imposed on them by different legislatures, and whether these would not frequently clash with one another to the detriment of crown and subjects, I leave others duly to consider.
It is said, if America cannot be taxed by the British Parliament, then it would be independent of Great-Britain. This is now a very popular
