A declaration of the people’s natural right to a share in the legislature: which is the fundamental principle of the British constitution of state.
AN accurate and critical knowledge of Law (such as can only be acquired by much reading and long experience in the profession) is indeed a necessary qua∣lification for those persons who under∣take to deliver their opinions concerning the nicer and more difficult questions of jurisprudence; but, when the Natural Rights of any of our fellow-subjects are apparently at stake, every man has a right to judge for himself, and to de∣clare his sentiments, as far as plain con∣clusions of reason and common-sense will fairly warrant; and such only are re∣ferred to in the following Declaration of the Natural Right of popular Repre∣sentation in the legislature.
Amongst all the rights and privileges appertaining unto us, (said that truly noble lawyer, Lord Sommers,).
that of having a Share in the Legislation, and being to be governed by such laws as we ourselves shall chuse, is the most fundamental and essential, as well as the most advantageous and beneficial, &c.
And as all British subjects, whether in Great-Britain, Ireland, or the Colo∣nies, are equally free by the law of Na∣ture, they certainly are equally entitled to the same Natural Rights that are essential for their own preservation; because this privilege of having a share in the legis∣lation is not merely a British Right, pe∣culiar to this island, but it is also a Na∣tural Right, which cannot, without the most flagrant and stimulating injustice, be withdrawn from any part of the British Empire by any worldly authority whatso∣ever; because,
by the natural Law,
whereunto he [ALMIGHTY GOD] hath made all subject, (says the learned Hooker,)
the lawful power of making laws, to command whole po∣litic societies of men,
belongeth so pro∣perly unto the same entire societies,
that for any Prince or Potentate, of what kind soever
upon earth, to exercise the same of himself,
[or themselves,] and not either by express Commission im∣mediately and personally received from God, or else by authority derived at the first from their consent upon whose per∣sons they impose laws,
it is no better than mere tyranny! Laws they are
which public Appro∣bation
hath not made so.
Agreeable to the same just principles of natural E∣quity
is that maxim of the English Con∣stitution, that
Law, to bind all, must be assented to by all;
(Principia Leg∣et Aequit. p. 56.)
and there can be no legal appearance of Assent without some de∣gree of Representation.It must indeed be acknowledged, that the Representation of the people of Eng∣land is not so perfect as equity may seem to require, since very many individuals have no VOTE in Elections, and con∣sequently cannot be said expressly to give their Assent to the laws by which they are governed: nevertheless, the whole country which they inhabit, and in which they earn their bread, and even the very houses in which they live, (whe∣ther they are housekeepers or lodgers,) are represented by the votes of the respective proprietors; since every Free∣holder has a Right to vote; so that, in this one respect, the Representation is general; and, though far from EQUAL, would still be a sufficient check against arbitrary power, and afford sufficient se∣curity for the lives and property of those persons who have no Vote, if the laws against parliamentary corruption (and es∣pecially that Act of 7 and 8 Wil. III. c. 4.) were duly enforced; and also if all persons, who are entrusted with the disposal of public Money, were required to render a strict account of it, and to be severely punished whenever convicted of exerting the influence of the public trea∣sury against public liberty; which is the most baneful treachery and dishonesty that men in office (who are the servants of the Public, as well as of the King) can possibly commit. But, notwith∣standing the Inequality of the English Representation, and the various means practised to corrupt it, yet it has been the principal instrument of preserving amongst us those remains of natural Li∣berty which we still enjoy in a greater proportion than most other kingdoms, and has occasioned more examples of just retribution on Tyrants, Traitors, and Court-Favourites, in the English annals, than the history of any other nation af∣fords; so that M. Rapin is thereby led to conclude his account of K. Richard II. (that notorious corrupter of parliaments, and enemy to the privileges of London and other corporations) with the fol∣lowing reflection:
That, in a govern∣ment such as that of England, all the efforts that the Sovereign makes, to usurp an absolute authority, are so many steps which lead him towards
It is manifest, therefore, that the constitutional govern∣ment of England, even with all its de∣fects,
is infinitely better than any other form of government whereby the people
are deprived of their just share in the le∣gislature;
so that the Inequality
in this island affords no
just argument for setting aside the Repre∣sentation
of the people in other parts of the British Empire; because experience teaches us, that even a defective Repre∣sentation
is better than none at all; and therefore it is highly unreasonable,
and contrary to natural Equity,
to pretend that our brethren and fellow-subjects in the more distant parts of the British Em∣pire
ought to be deprived entirely
of their natural Rights
merely be∣cause our own liberties are not entirely perfect!
or because our own Representa∣tion in the Legislature appears, in some few respects, to be defective! and it would be quite as unreasonable
to alledge, that the principle or reason of the maxim before quoted (viz.
that Law, to bind all, must be assented to by all
) is unjust and inconclusive, merely because it would be very difficult to accomplish it literally
by the express assent
of every individual! But it is clearly sufficient that the maxim be construed to signify that delegated as∣sent
of the people by a majority of their legal Representatives,
which is constitu∣tionally
necessary to make all laws bind∣ing;
and such a legal Representa∣tion
of the people is therefore absolutely necessary to constitute an effectual Legis∣lature
for any part of the British Em∣pire;
for no Tax can be levyed without manifest Robbery and Injustice
where this legal and constitutional Representation
is wanting; because the English Law ab∣hors the idea of taking the least pro∣perty from Freemen
without their free consent
— “It is iniquitous
” (iniquum est,
says the maxim)
should not have the free
disposal of their own effects;
— and whatever is iniquitous
can never be made lawful
by any authority on earth; not even by the united authority of King, Lords, and Commons; for that would be con∣trary to the eternalLaws of God,
which are supreme.
In every point of view, the making laws for the subjects of any part of the British Empire, without their participa∣tion and assent, is INIQUITOUS, and there∣fore unlawful: for though the purport of any law, so made, be in itself per∣fectly just and equitable, yet it becomes otherwise (that is, unjust and ini∣quitous, and therefore unlawful) by the want of these necessary legal Formali∣ties of Representation and Assent: for if the inhabitants of one part of the empire might determine a question, or enact a law, for the peculiar advantage only of that one part, though to the ma∣nifest detriment and injury of another part, without the Representation of the latter, the former part would be made judges in their own cause; a circumstance that would be literally partial! the very reverse of justice and natural equity, and which must, therefore, be esteemed In∣iquity, even to a fundamental maxim,viz.
It is INIQUITOUS for any one to be a Judge in his own cause. Par∣tiality is, therefore, such an abomination in the eye of the law, that no Power on earth can make it LAWFUL: for even an Act of Parliament
(says the learned Judge Hobart, Rep. 87.) made a∣gainst NATURAL EQUITY, as to make a man judge in his own case,(the ex∣ample, observe, is the very point in ques∣tion) “is VOID in itself;” for
jura na∣turae sunt immutabilia,
and they are “leges legum.”Every King of England (apparently for the same reason) is restrained by the Law from changing or making new Laws without the assent or consent of his WHOLE KINGDOM in Parliament ex∣pressed.And the whole King∣dom, even of Great-Britain itself, is only a part of the British Empire; and there∣fore, by a parity of reasoning, cannot justly or equitably be permitted to make laws for the whole; because
where the same reason is, the same law (or right) must prevail: for
turpis est pars quae non convenit cum suo toto;
nihil in lege in∣tolerabilius est, eandem rem diverso jure censeri.
4 Co. 83.
The free Representation of the people in the legis∣lature
is, therefore, to be esteemed, of all our Rights, the most essential,
(as Lord Sommers has declared,) to maintain that excellent Equilibrium of power, or mixt government, limited by law,
ancestors have always most zealously as∣serted, and transmitted to us, as our best Birthright
so that every attempt to set the same aside
in any degree, or in any part of the empire,
or to corrupt it
by undue influence of places and pensions, or bribes with public mo∣ney, is Treason against the Constitution;
the highest of Treason:
whatsoever is ordained, that can clearly be proved to be contrary to the constitution,
must be allowed to be fun∣damentally wrong,
and therefore null
of itself; for,
sublato fundamento, cadit opus. (Jenk. Cent. 106.)
But more particularly the Parliament has no power to give up the ancient and esta∣blished Right of the people
to be repre∣sented
in the legislature;
because an Act for so base a purpose would entirely sub∣vert the principles and constitution on which the very Existence of the legisla∣ture itself, which ordained it, is formed! so that such an unnatural Act
of the state would be parallel to the crime of felo de se
in a private person; and, being thus contrary to
the nature of things, can never be rendered valid by any Authority whatsoever. And in∣deed it is laid down as a maxim, by the great Lord Sommers, that no man or society of men have power to deliver up their preservation, or the means of it, to the absolute Will of any man (or men); and they will have always a right to preserve what they have not power to part with.
And if a politic society has no just power to de∣liver up even its own preservation, it cer∣tainly has much less right to deliver up the necessary preservation of other so∣cieties of their brethren and friends (not represented among them) without their Consent: and all such attempts must neces∣sarily be deemed void and ineffectual, be∣cause
there is no necessity to obey, where there is no authority
For as it so clearly appears, from what has been said, that Natural Equity
does not permit even the inferior Property
of lands, goods,
chattels, or money, to be alienated without the consent
of the proprietors, much less can it permit the alienation, annulling, or changing, of our most valuable inheritance, the Law,
without the due assent and consent
of the heritors
themselves, the People at large, or their lawful Representatives in their respective assemblies or parliaments!
This is a necessary conclusion of reason and common-sense;
drawn from the effect and force of Natural Equity,
even in cases of much less consequence (viz.
respecting goods and common pecuniary property); so that the distinction, which some great and able politicians have lately made, between Taxation
(in the late disputes about taxing the Co∣lonies,) was certainly erroneous,
though well intended; since it plainly appears, that the right of Legislation
is not less
inseparable, by Natural Equity,
from the people of every part of the British Empire, than the right of granting or with-holding Taxes;
for, otherwise, the free subjects of one part
of the empire would be liable to be most materially in∣jured in their greatest
and most valuable inheritance, the Law,
by the hasty de∣cisions of men on the other side of
the empire, with whom probably they would be totally unacquainted, and whose in∣terest might perhaps be as widely differ∣ent
from theirs (for any thing they could know to the contrary) as their situation
upon the face of the globe is distant;
that is, as widely different as the East is from the West!
Would this be equita∣ble? could such notorious Injustice
be ever made lawful? The true consti∣tutional mode of connecting
British Do∣minions, that are otherwise separated by Nature,
is demonstrated by the esta∣blished example of the Union of Great-Britain and Ireland, which by long ex∣perience has proved to be sufficiently ef∣fectual. It must be acknowledged, in∣deed, that an Act of Parliament was made in the 6th of K. George I. chap. 5. wherein it is laid down, that
the King and Parliament of Great-Britain may make Laws to bind Ireland.
as it does not appear that the Parliament of Ireland ever acknowledged or gave any formal Assent
to the said Act, the same must necessarily be considered as a mere assertion
on one part,
at the making of which, the persons most materially concerned on the other part
were neither HEARD, nor represented!
the most notorious that can possibly be attri∣buted to any proceeding, either in the enacting
or execution of Laws!
and there∣fore it is to very little purpose to cite the said Act as a Precedent for taxing the American Subjects without their Consent;
for the privileges which the Parliament of Ireland has maintained and enjoyed, both before and since that time, (clearly distinct and separate from the British Parliament,) afford a better and more authentic precedent on the other side of the question,
in behalf of the peo∣ple’s natural Rights,
) than the Act itself does against them: for, as the King and the People (including the Lords and Commons) of Great-Britain constitute the sovereign Power
(under God) or Le∣gislature of Great-Britain, so the King and the People of Ireland are the natu∣ral and constitutional Legislature or State of that kingdom, and actually exercise (both in Legislation and Taxation
) their distinct jurisdiction, to this day; which is the best proof of their Right: and, in like manner, according to this ancient and established legal precedent, the King, together with the People of every dis∣tinct province, subject to the imperial
Crown of Great-Britain, and detached (as Ireland is) from this island, ought to be and have been esteemed, from the first establishment of our colonies, the only proper and constitutional Legisla∣ture for each province respectively;
because the Representation of the People,
in every part of the British Empire, is absolutely necessary to constitute an ef∣fectual Legislature,
according to the fun∣damental principles of the English Con∣stitution; for none of them, separately,
can be esteemed a competent Legislature
to judge of the other’s Rights,
without the highest injustice and iniquity;
which is before demonstrated by some of the first maxims or principles of Reason.
And yet, howsoever distinct these seve∣ral parts or provinces may seem, in point of situation, as well as in the exercise of a separate legislative power for each, (which constitutional Right they have enjoyed beyond the memory of man,) they are nevertheless firmly united by the circle of the British Diadem, so as to form one vast Empire,
which will never be divided, if the safe and honest policy be adopted, of maintaining the British Constitution
inviolate, in all parts of the Empire: for it is a system so natural,
and so engaging,
to the ge∣nerality of mankind, that by the same means we might hold the Empire of the World,
were the laws of natural Equity, Justice, and Liberty, to be strictly ob∣served,
and the abomination
as well as political Slavery abolished!On the other hand, it is not only Trea∣son against the Constitution
to attempt to deprive any free British Subjects of their natural Right
to a Share in the Legis∣lature,
but it is equally derogatory and injurious to the Authority of the Crown;
because a King of Eng∣land
has no legal Authority
to govern by any other mode than that limited
go∣vernment called the English Constitution,
which he is sworn to maintain; for such is the frailty of human nature, that no man or body of men whatever is to be entrusted with the administration of go∣vernment, unless they are thus limited by Law,
and by a due Representation of the people at large, subject to a frequent appeal, by Election,
to the whole body of constituents: for it is a maxim,
that he who is allowed more Power, by Law,
than is fit, (or equitable,) the same will still desire more Power than
is already lawful:
so that no Power on earth is tolerable without a just limitation;
and Law, which ought to be supreme,
cannot subsist where Will
are absolute, whether it be the Will
of a few,
or of many.
A King, therefore, who presumes to act without the constitutional limitation, destroys the foundation of his own au∣thority; for the most respectable and most ancient writer on the English Con∣stitution assures us, that
there is no King where Will rules,(or is obso∣lute,) “and not Law.“ The same doctrine is expressed still more clearly in the old Year Books, that, if there was no Law, there would be no King, and no inheritance.
For these plain reasons, whenever the English Government ceases to be limited, in any part of the British Dominions, it ceases to be lawful!
And therefore the fatal consequences of proceeding to enforce the execution of any Acts, or Resolutions, for the es∣tablishing such unlimited and unlaw∣ful Government, is more easily con∣ceived than expressed; because
the condition of all subjects would be a∣like, whether under absolute or limited Government, if it were not lawful to maintain and preserve those limita∣tions, since Will and Pleasure, and not Law, would be, alike in both, the mea∣sure of obedience; for, to have liberties and privileges, unless they may be de∣fended, and to have none at all, is the same thing as to be governed by mere Will and Pleasure (Lord Sommers, p. 24.); and misera est servitus ubi jus est vagum aut incertum.