In The Justice and Policy of Taxing the American Colonies in Great-Britain, considered, Maurice Moore details the history of representative taxation in Great Britain in the seventeenth century. Moore emphasizes the protection of property rights, the privilege of being an American colonist, and the colonists’ right of representative taxation. He then describes virtual representation and considers criticizing it an unwise practice that unjustly affects American colonists.
WHETHER the Commons of England made up a part of the Saxon Wittingham Mote, hath been a subject of great dispute: and altho’ this point has never been fully determined, yet it seems to be agreed by the authority of two learned writers, [Spellman and Maddox] that they were always called to attend it, whenever the exigencies of the state made a tax necessary; without doubt, to make known their circumstances, and to suggest to that assembly some made of taxation that was likely to be the least burthensome to them. This just and laudable practice prevailed ‘til the time of William the Conqueror, when that prince erected a new court or parliament, of which the commons were no part, and changed the Allodial tenure1 of the Saxons into the Feudal, and annexed certain rents or services to all his grants, from which, together with fines and forfeitures, the crown was abundantly supplied; it therefore seldom happened that any were taxed in this court; but when it did, they were tallaged to one tenth part of their estate only, and none but villains were ever liable to be taxed at will.
This method of tallaging those who were subject to it, continued but for a few reigns after the conquest, and then a regular parliament was established, which consisted of the Superior and Inferior Barons, Citizens and Burgesses, who it is said, [Ld. Coke] at first sat together: But when they had < 4 > formed themselves into distinct houses, the representatives of the people laid claim to their antient and equitable right of taxing themselves and constituents, and have ever since, with the greatest propriety and justice, enjoyed it.
From this slight view of the mode of imposing taxes for public benefit, so long practiced in Great-Britain, (in the course of which there has been no other interruption, than that occasioned by the conquest) it is clearly to be inferred, that the right of prescribing the measure and manner of raising all taxes is a constitutional one, which was enjoyed by the ancestors of the Colonists; and the present inhabitants of Great-Britain, as early as they have any knowledge of them from history, and has been handed down to them under the influence of reason and justice, through a course of several hundred years.
Nothing can be more consistent with the rights and liberties of a free people, than whenever the good of the community requires a part of the private property of Individuals, that they should be allowed to give it in such manner and portions as their situation and circumstances can best afford; indeed they cannot be free without it: for if any sublunary power in being, can deprive them of part of their estate without their consent, the same power may take away the whole; and if it appears to them to be a measure of justice, proscribe ‘em into the bargain.
The inhabitants of the Colonies upon the Continent (other than those acquired in the late war) have always thought, and I believe ever will think, all the constitutional rights and liberties enjoyed < 5 > in Great-Britain, at the time they departed from it, their Birth-Right, and that they brought them over with them to America; among which, that of being taxed only by their own consent, is one of the most essential.
It is certainly very natural, that those who transport themselves from one country to another, should as well carry with carry with them the Laws and Policy, as the Customs and Manners of the country whence they came. But it hath been said from the authority of a very learned Judge, [Holt. Smith’s case] that the Colonies are conquered counties; and that therefore the law is what the King pleases: but however learned and respectable the person might be who gave that opinion, I shall not hesitate to declare that I think the subject was not well considered and that it was founded on no Law whatever. Pufendof2, in speaking of the different forms of government, takes occasion of mentioning two methods of treating the inhabitants of conquered counties; one is, when the victor removes ‘em to his own country, or gives them the same privileges with his former subjects; the other is, when they are left to enjoy their antient seats, but entirely lose the sovereignty of the country. In this last case, he says, they are subject to the conqueror; but is the circumstance of any of the Colonies, other than those already excepted, similar to either of these cases? They surely are not. The antient inhabitants of the Colonies have neither been removed to Great-Britain, or left in possession of their lands; nor did they ever submit to, or acknowledge < 6 > themselves subject to any foreign power upon earth, but have long since abandoned the country, and retired into remote parts of America where they are governed y their own laws and their own magistrates. It therefore cannot be said with the least propriety, that the laws which these Savages alone, had they staid in the country, would have been liable to, as a vanquished people, are applicable to the present inhabitants of the Colonies, who themselves, are the conquerors. The earth the air and trees, are by no means the object of any human laws whatsoever, otherwise than as they bear respect to the concernments of men. It must then be the conquered people, who are subject to the laws of the conqueror, and not the country. –The Colonists seem to stand on the same footing with those who leave their own country, and settle themselves in a new one which was not inhabited before: If they do, and I think it must appear so to any man who will give himself the trouble of considering this subject, then there is the option of the same learned Judge [Holt. Blankard’s case] in favour of what I have advance; which is that, the Colonists have brought over with them every constitutional right, liberty and privilege; and if being taxed only by their own consent is one of them, they cannot, with the least degree of justice, be taxed by the British parliament, in which they are not represented, no person in that assembly being authorized to signify their consent: Few persons there, are acquainted with their circumstance, and perhaps none know what mode of taxation would be least burdensome to them.
<7> It hath indeed pleased some of the honourable members of that august assembly to say, that the Colonies are virtually represented in parliament; but this is a doctrine which only tends to allow the Colonists a shadow of that substance which they must ever be slaves without. It cannot surely be consistent with British liberty, that any set of men should represent another, detached from them in situation and interest, without the privity and consent of the represented. The office of a representative is founded on choice, and is intended for the benefit of the constituents: A representative is to act in every respect as the persons who appointed him to that office would do, were they themselves present: And hath the members of the House of Commons, or any of them, been chose by the Colonists to represent them? Hath their conduct in respect to the Stamp Duty been consistent with the interests of the Colonists? Or hath that conduct been such as the[y] the Colonists would have adopted, had they been present in parliament? No surely: So far from it, there are very few members of that assembly, who have ever been heard of in America. The Stamp Duty is inconsistent with their interests, and the mode of imposing it, destructive of their most essential rights and liberties. It is very fortunate for the present members of parliament, that for all that can be done in the Colonies, they have an estate for life in their office; for I believe I may venture to say, that no Colonist in his senses, would ever desire to be again represented by the same people.
To prove that the Colonists are within the < 8 > meaning of the doctrine of virtual representation, they have been compared to the inhabitants of several corporate towns in England, to the East-India company, the body of London merchants, to the proprietors of the public funds, to women and children, and in short, to all those who do not vote for the electing of members of parliament, who are all said to be virtually represented: On the justice and truth of this comparison intirely depends the decision of this question. It may therefore be necessary to observe, that by the antient English constitution, none were actually represented in parliament, other than Shires, the Cinque-Ports, Cities, and Antient Boroughs, and the elections for them were made by freeholders, and those who held by free burgage tenure, all villains, copyholders, tenants and antient demesne, and tenants-of lords, were excluded from electing or being elected: but at latest, in King John’s time a practice obtained of making free boroughs by charter, by which means they became intitled to send members to parliament, and it continued till the reign of King Charles the Second, when the House of Commons voted the elections made by virtue of that King’s charters void, and so put a stop to the practice. From hence it is evident that the right that those derive from their particular species of property, peculiar franchises, and inhabitancy in particular places, is not an exclusive one, because it either depends on that which may, through that bounty of the crown, be extended at least to its American subjects, or on a certain species of property that may be bought and sold, < 9 > and which the Colonists are capable of possessing in any part of King’s dominions. If the right of being actually represented in parliament is constitutionally annexed to freehold estate, the American freeholders, can with no more justice be deprived of it, than they may of their freeholds. And the power of dispossessing them of either, cannot, from the nature of the British constitution, (which is forced on the foundation of securing to every individual his right, liberty and property) be lodged with any other persons in being, than themselves: The acknowledging them to have a right of being taxed only by their own consent, is yielding them that from which they never can derive the least advantage, while ever that of actually choosing their own representatives, is withheld from them.
The notion of virtual representation, may, for all I know, be consistent enough, while it is confined to Great-Britain only; its inhabitants intimately reside together; the interest and circumstance of those who do not vote for representatives, are the same with those that do; and are equally well known to, and understood by such representatives. It cannot then be imagined tat the virtually represented in Great Britain can ever be subject to any imposition, that will not be extended to, and equally affecting to the electors of members of parliament: And tho’ certain corporate towns, the East-India company, the body of London merchants, proprietors of public funds, the monied interest, and women are respectively as such, actually represented in parliament; yet many of the members of them (women excepted) are intitled to vote for representatives; < 10 > and if they were not, the influence they, and particularly women (through who means votes are often obtain’d) must necessarily have, from their intimate acquaintance and connection with the electors, is such as much render the choice in a great measure agreeable to them. But hath the Colonies any of these advantages? They certainly have not: They live above a thousand leagues from Great-Britain; their interest and circumstance are not similar to those of the British inhabitants; nor have been well considered or understood y the British parliament. He Colonists have suffered many impositions, as may be seen by the several acts of trade which have been borne by the alone, and which no otherwise affected the electors of members of parliament, than as they were obliged to receive the profit arising from them. The Colonists cannot have the least influence either with the electors or elected, they are almost unknown to either of them, unless as mere vehicles of trade; in which light indeed they have been long known and considered.
If those who have been for bringing the Colonies within the meaning of virtual representation, by comparing them to certain corporate towns and persons in England, had been pleased to mention why those please and people are virtually represented in parliament, they must at the same time have proved that there is no similitude between them and the Colonies; for all these places lay, and body of men reside in, some county or other of Great-Britain; and tho’ nine tenths of the inhabitants of any county should be inhabitants to vote at an election, yet are they a part of that county, as such, may be virtually < 11 > represented by those who have been elected to represent the whole county: But here the virtually represented know their representatives, and may, indiscriminately with the freeholders, at any time, instruct them what part to act in cases of importance: But I should be glad to be informed, in what county in England and Colonies are situated? If in no one at all; who are their particular virtual representatives? To say that they are represented by the whole body of the House of Commons, will be to leave them without that advantage of giving that their represented in England have; for it cannot be imagined, that the conduct of the House of Common can ever be subject to the direction of the Colonists. The same reason then why certain persons in England (who have been excluded from voting at elections, merely for conveniency) may be virtually represented in parliament, doth not hold good in respect of the Colonies; I therefore conclude that they cannot be represented in the same manner: But if it should be still insisted upon, that they are, I would then humbly propose, that the Colonies be divided into five hundred and fifty-eight districts, and that each of them be numbered; that for he future, all writs of election in England, shall direct the voters to chuse a person to sit and vote in parliament as real representative of the county, city, or borough, for which such writ shall be issued; and as virtual representative of the five hundred and fifty-eighth part of the Colonies of such a number; and that each district be made acquainted with it particular virtual representative. <12 > By this means the Colonist will know to whom they are to direct their instructions; and will so far be upon a footing with the virtually represented in Great-Britain. That the notion of the Colonists being virtually represented in parliament, is of late date, is evident from the numberless acts of oppression and tyranny that have been practiced upon them by officers of the crown commissioned in England, and sent over to America, which have been repeatedly made known, and complained of in England; and whenever it hath happened that they were conveyed to the Royal Ear in Council, it hath constantly been thro’ the channel of the Board of Trade: But in no one instance, that I know of, did ever the British parliament represent to the crown any grievances felt only in the Colonies, or make application to the Sovereign for a redress of them, and as a grade inquest for the who kingdom, (had they thought themselves the represent to the crown any grievances felt only in the Colonies, or make application to the Sovereign for a redress of them, and as a grand inquest for the whole kingdom, (had they thought themselves the representatives of the Colonies) they would never negligently passed over a duty which was indispensably incumbent upon such subjects, when they happen in Great-Britain, is undeniably true; and would it not be want of humanity, to suppose that they have always considered themselves as the representatives of the Colonies, and yet have ever neglected to render them and essential service, to which all those they represent, are indisputable intitled To the inhabitants of the Colonies I have been speaking of, the crown has been graciously pleased to grant respectively the plains of exercising their constutional rights, < 13 > I have now before me a Charter given by King Charles the Second to the province of Carolina,3 an observe, one of the principal objects of this Charter, was to encourage the settlement of that colony, in which few resided at the time it was granted; nor was it then likely that my would leave their native country, wherein they enjoyed every right and liberty and excellent constitution could afford, and come over to the desarts of America, unless by some means or other, an enjoyment of those rights and liberties in Carolina, could be secured to them and their posterity: One of these was, to be taxed only by their own consent, signified in parliament by representatives actually chosen by themselves; and as the remote situation of Carolina from Great-Britain, rendered it imposible for those who should inhabit that province, to run over to England whenever a new parliament was to be summoned.—King Charles thought proper to grant, that an assembly should be called and established by the proprietors, and that the freemen of Carolina, should consent, by themselves, or deputies in that assembly, to all laws whatsoever, that might respect the public state of the whole province or territory, or of any distinct or particular county. And had the crown considered the Colonists as being virtually represented in parliament, such a grant would have been extremely absurd: for no set of people can be represented at one time in two distinct and independent assemblies, which may counteract each other: This might be to make the represented grand and refuse in one instant the same thing, which is impossible, from the nation of the human < 14 > mind. That it is a matter intirely new in England, further appears, from the constant and repeated applications that have been made by the Crown in the course of the last war, to the assemblies in the Colonies, for supplies; which, if the British parliament could have given, might as easily have been asked for in England; and in ally probability, would have been much more liberally granted; but the parliament had not then imagined themselves the representatives of the Colonists; if they had, would they not have interposed and asserted their right of taxing their constituents? More especially, as the poverty of the Colonists often obliged them to grant much less than the Crown required, and the burthen became proportionably heavier in Great-Britain, as it was lighter in America; would they not have acquainted the King that they were the Colony representatives, and that the Colonists mih be much more copiously taxed in parliament, than it was likely they wou’d choose to be, if their consent was to asked in their own provincial assemblies? Without doubt they would; but the truth is, the notion of their being virtually represented, had not then and existence, but [which had] been since introduced, to cover the shackles which have been prepared for the Colonists in their present state of inability by those, who being wholly attentive to themselves, forget that the Colonists are their fellow-subjects; that they were born free, and are intitled to every British constitutional right and liberty, as well as themselves; or that to do them injustice, is as criminal, as to deal unjustly with those they really represent. To impose a Tax on the Colonies, in the British parliament appears to me, to be a measure almost as impolitic, as it is inconsistent with the rights of the Colonists; < 15 > for as they are unalterable of opinion, that such an imposition is no less arbitrary than oppressive, it will be degrees alienate their affections from the Mother Country; the seeds of discontent will be sowed in the Colonies, and children will be taught to hate the name of those who have enslaved their country; the principles of disaffection will increase with their year, and the spirit of rebellion grow formidable with their numbers; and in the course of a century or two, it will cost Great-Britain more to keep them in their state of subjection, than all the profits arising from them, will pay: And if it did not, the story of Julius Caesar, is enough to shew that there is danger in a standing army abroad.
The Stamp Duty is itself a burthen too great for the circumstances of the Colonies to bear, considering the many restrictions that have been put upon their trade, which are at present rigorously enforced throughout America: It will occasion a discontinuance of industry, and must in the end, reduce them to a state of beggary; they will no longer be able to purchase the manufactures of the Mother Country, or furnish her with materials for making new ones. Great Britain then loses a trade, from which she hath derived her greatest opulence and dignity, and this too by insisting on a measure destructive of the peace and happiness of many thousands of as loyal subjects as any the King has. Can this be consistent with the wisdom and humanity of a British parliament? I think it cannot. The act imposing a Stamp Duty will surely be repealed, as soon its consequences are well considered. I am persuaded, the more closely united the Mother Country and the Colonies are, the happier it will be for both; but such an union will never take such a footing, as that each may advance the other’s interest, while he labours for his own. A very sensible and elegant writer [Cato’s Letters] in speaking of Colonies, hath observed that, “It is not to be hoped, in the corrupt state of human nature, that any nation will be subject to another, any longer than it finds its own account in it, and cannot help itself. Every man’s first thought will be for himself and his own interest; and he will not be long to seek for arguments to justify his being so, when he knows how to attain when he proposes. Men will think it hard to work, toil, and run hazards. For the advantage of others, any longer than they find their own interest in it; and especially for those < 16 > who use them ill: All nature points out that course. No creature sucks and teats of their dames, longer than they can draw milk from thence, or can provide themselves with better food; no will any country continue their subjection to another, only because their great grand-mothers, were acquainted. This is the course of human affairs; and all wise stats will always have it before their eyes. They will well consider, therefore, how to preserve the advantages arising from Colonies, and avoid the evil. And I conceive that there can be but two ways tin nature to hinder them from throwing off their dependence; one to keep it out of their power, and the other of their will. The first must be by force, and the latter by using them well, and keeping them employed in such producions, and making such manufactures as will support themselves and families comfortable, and procure them wealth too; or at least not prejudice their Mother Country,–Force can never be used effectually to answer the end, without destroying the Colonies themselves. Liberty and Encouragement are necessary to carry people thither; and violence will hinder both, etc.” –I do not pretend to be politician enough to point out the methods that will must effectually secure the dependency of the Colonies; but I am as much convinced that just and equitable ones may be discovered and pursued, as I am, that force and oppression will one day or other, produce a contrary effect. It would be no injustice that the Colonies should bear a proportionable part of the heavy expence that hath been incurred in the course of the late war; and I am persuaded, that no man of sense in the Colonies would oppse it; but they should be allowed to consent to it, according to their constitutional right, in their own provincial assemblies, where they are really represented: And in estimating such proportion of expence, their number, circumstance, and the restrictions on their trade, should be considered: But if the British parliament will insist on taxing the Colonists, as their virtual representatives, then are they stripped of that constitutional right on which their liberty and property depends, and reduced to the most abject state of slavery: A situation, in which, it is very unnatural to think a Mother can take pleasure in viewing her children.
 All misspellings have not been corrected.
1 Free tenure, held without any obligation of vassalage or fealty. Henry C. Black, Black’s Law’s Law Dictionary (St. Paul: West Publishing Company [Fourth Edition], 1951), 100.
2 Samuel von Pufendof (1632-1694), German jurist, historian and natural law philosopher. Encyclopedia Britannica (Chicago: Encyclopedia Britannica, Incorporated, 30 volumes, [Fifteenth Edition], 1974, VIII, 293.
3 Moore refers to the charter issued to the Lords Proprietors on March 24, 1663. It is printed in Mattie Erma Parker (ed.), North Carolina Charters and Constitutions, 1578-1698 (Raleigh: Carolina Charter Tercentenary Commission, 1963), 74-89.