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CHAPTER VII

THE AMERICAN CONSTITUTION OF 1750

URING the period from 1606 to 1750, there was

going on a continual process of unification of the British Colonies in America. Though their populations were separated by local interests and jealousies, they were all of one race, and, whatever the beginnings of their political organization, they all tended toward a single form that of a province, which was recognized as a political organism distinct from the Realm of England or the Realm of Great Britain, and as entitled to the largest degree of statehood consistent with the welfare. of the whole Empire.

Thomas Pownall, who was Governor of Massachusetts in 1757 and of New Jersey in 1759, in the fourth edition. of his book The Administration of the Colonies, published in 1768, gives an ingenious and plausible reason for James I. having admitted the Virginians to a share in their own government. He says:

It was a most fortunate thing for the American Colonies that the Island of Jersey had, by its constitution, a right to hold a convention or meeting of the three orders or estates of the island, in imitation of those august assemblies, known by that or some other name, in great kingdoms and monarchies, a shadow and resemblance of an English Parliament, in which the King's Governor, or Lieutenant, had a negative voice; the great business of which meetings was the raising money to supply public occasions. "For" (Mr. Falle says), "as in England money cannot be raised upon the subject but by authority

of Parliament, so here it is a received maxim that no levies can be made upon the inhabitants but by their own consent, declared by their representatives assembled in Common Council." It was fortunate, I say, for our Colonies, that this was the case of Jersey; for there can be no other reasonable account given, how our Colonies preserved this essential right of Englishmen, but that it happened to be also a constitutional right of his Majesty's foreign French-Norman subjects.

But whether England conceded to the dependencies political personality to the greatest extent possible because it found that they could not be administered except on this basis, or because the French-Norman subjects of the King in the Island of Jersey had previously obtained it by constitutional settlement, or because the English sentiment for political liberty responded to and helped on the desire of the colonists for political personality for their communities, is immaterial for the present purposes. That the right of the people in the subordinate parts of the English and British Empire to participate in their own local government existed from the year 1621, as a principle of the Constitution of the Empire, is beyond doubt. The Imperial Constitution was the aggregate of the dispositions made by England and Great Britain concerning the extent to which statehood ought justly to be conceded by it to the respective dependencies in the interests of the whole Empire composed of England, as the Imperial State, and its dependencies. The adjustments and readjustments necessary to preserve a just balance between the interests of the metropole and the dependencies, which the French called the "colonial pact," required the exercise of expert and diplomatic powers. The problem for England was vastly complicated by the fact that the case was really that of the population of one political community treating with the population of another, and not, as in France, the King treating with the influential persons in each Colony.

Upon the King, therefore, as a part of his diplomatic functions, the duty was cast of determining, under the advice of experts, what ought justly to be the extent of the participation of the people of the dependencies in the government of them, as States, and of establishing those determinations by means of constitutional settlements made by Proclamations or Charters.

But, although there was a general recognition of the King's functions in this respect, there was at no time prior to 1750 any thought of denying to Parliament a visitorial and superintending power superior to that of the King. Even in 1630, Charles I. issued a Patent to a guild for the colonization of the Providence Islands in the West Indies with a proviso that it should not take effect as a Charter until confirmed by Parliament, and the granting, confirmation, or amendment by Parliament of Charters of colonizing guilds was not uncommon. In 1698 a Charter was granted, by Act of Parliament, to the English Company Trading to the East Indies, as a joint-stock company, which was, by Acts of Parliament of 1707 and 1711, consolidated with the original East India Company, the Charter of which was granted by Queen Elizabeth in 1600, and renewed in 1658 by Cromwell, and in 1662 by Charles II. By the operations of this United Company, the foundation of the British Empire in India was laid.

The Colonies, from the outset, claimed that the power of Parliament, when sitting as the Parliament of the Empire, was different from its power when sitting as the Parliament of the Realm.

In 1646, when Dr. Child and others petitioned the Commissioners of the Lords and Commons for Foreign Plantations for a regulation permitting religious freedom in Massachusetts Bay, claiming that the Colony was only a guild and hence was subject to Parliament like all the corporations of the Realm, the General Court of the

Colony thus stated its views of the power of Parliament in the Empire:

1. That there is a difference between subjection to the laws in general, as all that dwell in England are, and subjection to some laws of State, proper to foreign plantations;

2. That we must distinguish between corporations within England and corporations of, but not within, England; the first are subject to the laws of England, yet not to every general law, as the City of London and other corporations have divers customs and by-laws differing from the common and statute laws of England. Again, though plantations be bodies corporate (and so is every city and commonwealth), yet they are also above the rank of an ordinary corporation.

In the Act of Parliament of 1649, declaring the estabishment of the Commonwealth, the power of Parliament was declared in language which did not differentiate its powers when sitting as the Parliament of the Realm from its powers when sitting as the Parliament of the Empire. The Act read:

Be it declared and enacted by this present Parliament, and by the authority of the same, that the people of England, and of all the dominions and territories thereunto belonging, are and shall be, and are hereby constituted, made, established, and confirmed, to be a Commonwealth and Free State, and shall from henceforth be governed as a Commonwealth and Free State by the supreme authority of this nation, the representatives of the people in Parliament, and by such as they shall appoint and constitute as officers and ministers under them for the good of the people, and that without any King or House of Lords.

Virginia, however, after its revolt from the authority of the Commonwealth, procured its constitutional relationship to England,—and incidentally the constitutional relationship of all the Colonies,-to be thus expressed in the Articles of Surrender of March 12, 1651:

First: It is agreed that the Plantation of Virginia, and all the inhabitants thereof, shall be and remain in due obedience and subjection to the Commonwealth of England, according to the laws there established, and that this submission and subscription be acknowledged a voluntary act not forced nor constrained by a conquest upon the country, and that they shall have and enjoy such freedoms and privileges as belong to the free born people of England.

Second: That the Grand Assembly as formerly shall convene and transact the affairs of Virginia, wherein nothing is to be acted or done contrary to the government of the Commonwealth of England and the laws there established.

Seventh: That the people of Virginia shall have free trade as the people of England do enjoy to all places and with all nations according to the laws of that Commonwealth; and that Virginia shall enjoy all privileges equal with any English Plantations in America.

Eighth: That Virginia shall be free from all taxes, customs and impositions whatsoever, and none to be imposed on them without consent of the Grand Assembly, and so that neither forts nor castles be erected or garrisons maintained without their consent.

This constitutional settlement, by which it was agreed that Virginia was in a relationship of "due obedience and subjection" to the State of England (that is, in a relationship of such obedience and subjection as was due and proper on just principles of free Imperial government) necessarily implied that Parliament had only the powers which the State of England could exercise by virtue of this constitutional settlement.

The language used in the English statutes shows that from the time of the accession of William III., at least, the King was regarded as the King of the dominions and territories because England was the Imperial State on which these dominions and territories were dependent

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