or within the same ; according to such laws, ordinances, and in
structions, as shall be, in that behalf, given and signed with our
hand, or sign manual, and pass under the privy seal of our realm
of England."

" And that, also, there shall be a council established here in
England, which shall consist of thirteen persons, to be for that
purpose appointed ; which shall have the superior managing and
direction only of, and for, all matters, that shall or may concern
the government of the said several colonies."

" Also, we do for us, our heirs, &c., declare, that all and every
the persons, being our subjects, which shall dwell and inhabit
within every, or any, the said several colonies, and every of their
children, which shall happen to be born within any of the said
several colonies, shall have and enjoy all liberties, franchises, and
immunities, within any of our other dominions, to all intents and
purposes, as if they had been abiding and born within our realm of
England"

This latter declaration (to which there is one correspondent,
or similar, in every American grant), plainly indicates, that it
was not the royal intention to comprise the colonies within the
realm of England. The powers committed to the two coun
cils, demonstrate the same ; for they would be incompatible with
the idea of any other than distinct States.

The King could neither exercise, himself, nor empower others
to exercise, such an authority as was really vested in the council,
without a breach of the Constitution, if the colonies had been a
part of the realm, or within the jurisdiction of Parliament. Such
an exertion of power would have been unconstitutional and ille
gal, and of course inadmissible : but we find it was never called
in question by the legislature ; and we may conclude from thence,
that America was universally considered as being without the
jurisdiction of Parliament.

The second charter explains and amplifies the privileges of
the company, erecting them into " one body or commonalty per-



68 HAMILTON'S WORKS. [^T. 18.

petual ;" and confirming to them the property of their former
territories, with the addition of all the islands lying within one
hundred miles of the shores of both seas; together with all
u commodities, jurisdictions, royalties, privileges, franchises, and pre
eminences," to be held by the king, his heirs and successors, "in
free and common soccage." They were only to pay one fifth part
of all the gold and silver ore they might find, in lieu of all ser
vices.

Their government was vested in a council, first appointed by
the king ; which, upon every necessary occasion, was to be sum
moned together by the company's treasurer. But immediately
after the persons appointed are named in the charter, it is de
clared, that " the said council and treasurer, or any of them,
shall be henceforth " nominated, chosen, continued, displaced,
changed, altered, or supplied, as death, or other several occasions
shall require, out of the company of the said adventurers, by the
voice of the greater part of the said company and adventurers ;"
every member, newly elected, to be sworn into office by the Lord
Chancellor.

This council had " full power and authority to make, ordain,
and establish, all manner of orders, laws, directions, instructions,
forms and ceremonies, of government and magistracy, fit and ne
cessary for, and concerning, the government of the said colo
ny ; and the same to abrogate, revoke, or change, at all times, not
only within the precincts of the said colony, but also on the
seas, in going or coming, to or from the said colony."

This charter is also silent with respect to Parliament; the
authority of which is evidently precluded by the whole tenor
of it.

You, sir, took no notice of the circumstance, that the council
was to be nominated, chosen, continued, &c., out of the Virginia
company itself, agreeably to the voice of the majority. You
omitted this, and gave quite a different turn to the matter : but
herein you acted not at all discordant with your usual practice.
Nor did you esteem it politic to transcribe the following clause :
"that the said company, and every of them, their factors and
assigns, shall be free of all subsidies and customs in Virginia,



;ET. 18.] THE FARMER REFUTED. 69

for the space of one and twenty years ; and from all taxes and
impositions for ever, upon any goods or merchandises, at any time
or times hereafter, either upon importation thither, or exporta
tion from thence."

The third charter is a still farther enlargement of their terri
tory and privileges, and is that by which their present form of
government is modelled. The following extract will show the
nature of it. " We do hereby ordain and grant, that the said
treasurer and company of adventurers and planters aforesaid,
shall and may, once every week, and oftener, at their pleasure,
hold and keep a court or assembly, for the better order and gov
ernment of the said plantation ; and that any five persons of our
council for the time being, of which company the treasurer, or
his deputy, to be always one, and the number of fifteen persons,
at the least, of the generality of the said company assembled
together, in such manner as hath been heretofore used and accus
tomed, shall be reputed to be, and shall be, a sufficient court for
the handling, ordering, and dispatching of all such casual and
particular occurrences, as shall, from time to time, happen,
touching and concerning the said plantation. And, neverthe
less, for the handling, ordering, and disposing of the matters
and affairs of greater weight and importance, such as shall, in
any sort, concern the weal public, and the general good of the
said plantation, as, namely, the manner of government, from time
to time, to be used, the ordering and disposing of the lands and
possessions, and the settling and establishing of a trade there, or such
like, there shall be held and kept, every year for ever, one great
general and solemn assembly. In all and every of which said
great and general courts, so assembled, our will and pleasure is,
and we do, for us, our heirs and successors for ever, give and
grant to the said treasurer and company, or the greater number
of them, so assembled, that they shall and may have full power
and authority, from time to time, and at all times hereafter, to
elect and choose discreet persons to be of our said council, for the
first colony of Virginia ; and to nominate and appoint such
officers, as they shall think fit and requisite for the government,
managing, ordering, and dispatching of the affairs of the said



TO HAMILTON'S WORKS. [^Ex. 18.

company ; and shall likewise have full power and authority to
ordain and make such laws and ordinances for the good and
welfare of the said plantation, as to them, from time to time,
shall be thought requisite and meet ; so always, as the same be not
contrary to the laws and statutes of this our realm of Jtfngland"

By this charter, King James divested himself wholly both of
the legislative and executive authority : but, for his own secu
rity, prescribed a model for their civil constitution. Their laws
were not to be contrary to the laws and statutes of his realm of
England ; which restriction was inserted into all the subsequent
charters, with some little variation, such as, that their laws
should be " consonant to reason, and not repugnant, or contrary,
but as near as conveniently may be, agreeable to the laws, statutes,
and rights of this our kingdom of England."

This mode of expression, so indefinite in itself, shows that
the use made of the clause, by some ministerial advocates, is by
no means natural or warrantable. It could only be intended to
set forth the British Constitution as a pattern for theirs: and
accordingly we find, that upon the arrival of Sir George Yardly
in Virginia, soon after this patent was procured, the government
was regulated upon a new plan, that it might " resemble the
British Constitution, composed of two Houses of Parliament,
and a sovereign. The number of the council was increased,
intending this body should represent the House of Lords, while
the House of Commons was composed of burgesses, assembled
from every plantation and settlement in the country."

There might be a great dissimilarity between the laws of
Virginia and those of Great Britain, and yet not an absolute con
trariety : so that the clause in question is not explicit or deter
minate enough, to authorize the conclusion drawn from it. Be
sides, if the colonies were within the realm of England, there
would be no necessity for any provision in favor of its laws :
and if they were without (as is clearly implied by the clause
itself), it must be a contradiction to suppose its jurisdiction could
extend beyond its own limits.

But the true interpretation may be ascertained, beyond a
doubt, by the conduct of those very princes who granted the



jEi. 18.] THE FARMER REFUTED. 71

charters. They were certainly the best judges of their own in
tention, and they have left us indubitable marks of it.

In April, 1621, about nine years after the third Virginia
charter was issued, a bill was introduced into the House of Com
mons, for indulging the subjects of England with the privilege
of fishing upon the coast of America: but the House was in
formed by the Secretary of State, by order of his Majesty King
James, that " America was not annexed to the realm; and that it
was not fitting that Parliament should make laws for those countries"

In the reign of his successor, Charles the First (who granted
the Massachusetts and Maryland charters), the same bill was
again proposed in the House, and was, in the like manner, re
fused the royal assent ; with a similar declaration, that " it was
unnecessary ; that the colonies were without the realm and juris
diction of Parliament.' 1 ' 1

Circumstances which evidently prove, that these clauses were
not inserted to render the colonies dependent on the Parliament ;
but only (as I have observed) to mark out a model of govern
ment for them. If, then, the colonies were, at first, without the
realm and jurisdiction of Parliament, no human authority could
afterwards alter the case, without their own voluntary, full, and
express approbation.

The settlement of New England was the next in succession,
and was instigated by a detestation of civil and ecclesiastical
tyranny. The principal design of the enterprise, was to be
emancipated from their sufferings, under the authority of Par
liament and the laws of England. For this purpose, the Puri
tans had before retired to foreign countries, particularly to Hol
land. But Sir Eobert Naughton, Secretary of State, having
remonstrated to his Majesty, concerning the impolicy and ab
surdity of dispeopling his own dominions, by means of religious
oppression, obtained permission for the Puritans to take up their
abode in America, where they found an asylum from their former
misfortunes.

Previous to their embarkation at Holland, they had stipu
lated with the Virginia Company,* for a tract of land in contiguity

* This was after they had received their third charter.



72 HAMILTON'S WORKS. [^Ei. 18.

with Hudson's River: but when they arrived in America (by
some misconduct of the Pilot), they found themselves at Cape
Cod, which was without the boundaries of the Virginia Patent.
There the season compelled them to remain; and there they
have prosecuted their settlements.

They looked upon themselves as having reverted to a state
of nature ; but, being willing still to enjoy the protection of their
former sovereign, they executed the following instrument.

"In the name of God, Amen! We, whose names are un
derwritten, the loyal subjects of our dread Sovereign Lord,
King James, of Great Britain, &c., King* defender of the
faith, &c., having undertaken, for the glory of God, and the
advancement of the Christian faith, and the honor of our
King and country, a voyage to plant the first colony in the
northern part of Virginia, do, by these presents, mutually, in
the presence of God and one another, covenant and combine
ourselves together, into a civil body politic, for our better
order and preservation, and furtherance of the ends aforesaid ;
and by virtue hereof, to enact, constitute, and frame, such just
and equal laws, ordinances, acts, constitutions, and officers, from
time to time, as shall be thought most meet and convenient for
the general good of the colony ; unto which we promise all due
submission and obedience.

" In witness whereof, we have hereunto subscribed our names,
at Cape Cod, November 11, 1620."

This was the original constitution of New Plymouth. It
deserves to be remarked here, that these first settlers possessed
their lands by the most equitable and independent title, that of a
fair and honest purchase from their natural owners, the Indian
tribes. King James, soon after, erected a council at Plymouth,
in the county of Devon, "for the planting, ruling, ordering, and

* This ought to silence the infamous calumnies of those, who represent the first
settlers in New England, as enemies to kingly government ; and who are, in their
own opinions, wondrous witty, by retailing the idle and malicious stories that have
been propagated concerning them ; such as their having erased the words King,
Kingdom, and the like, out of their Bibles, and inserted in their stead, Civil Magis
trate, Parliament, and Republic.



JET. 18.] THE FARMER REFUTED. 73

governing, of New England in America ;" and granted to " them,
their successors and assigns, all that part of America, lying and
being, in breadth, from forty degrees of north latitude from the
equinoctial line, to the forty-eighth degree of the said northerly
latitude, inclusively ; and in length of, and within all the breadth
aforesaid, throughout all the main land, from sea to sea ; together
with all the firm lands, soils, grounds, havens, ports, rivers,
waters, fishings, mines, minerals, precious stones, quarries, and
all and singular other commodities, jurisdictions, royalties, privi
leges, franchises, and pre-eminences,, both within the said tract of
land upon the main, and also within the islands and seas adja
cent. To be held of his Majesty, his heirs and successors, in
free and common soccage : and the only consideration to be, the
fifth part of all gold and silver ore, for and in respect of all and
all manner of duties, demands, and services."

This council was vested with the sole power of legislation;
the election and appointment of all officers, civil and military ;
authority to coin money, make war and peace, and a variety of
other signal privileges. The colony of New Plymouth was com
prehended within the grant. In consequence of which, its in
habitants, a few years after, purchased the claim of the patentees,
with all their rights and immunities, and became an independent
state by charter.

The same motives that induced the settlement of New
Plymouth, did also produce that of Massachusetts. It was
first colonized by virtue of a patent from the council at Ply
mouth ; and in a year after, by a charter from King Charles the
First, dated the 4th of March, in the fourth year of his reign ;
by which the adventurers and inhabitants were formed into
u one body politic and corporate, by the name of the Governor
and Company of the Massachusetts Bay, in New England," and
clothed with powers and privileges resembling those of the
colony of New Plymouth.

It happened some time before this, that there was a dissolu
tion of the Virginia Company, by a royal proclamation, dated
15th of July, 1624 ; by which the colony became more immedi
ately dependent on the king. The Virginians were greatly



74 HAMILTON'S WORKS. [Mv. 18.

alarmed at this, and forthwith presented a remonstrance to the
Throne ; in which they signified an apprehension of " designs
formed against their rights and privileges." In order to banish
their fears, the Lords of the Council (in a letter dated the 22d of
July 1634,) gave them an assurance, by his Majesty's direction,
" that all their estates, trade, freedom, and privileges, should be
enjoyed by them, in as extensive a manner as they enjoyed them
before the recall of the company's patent." Agreeably to this,
their former constitution was confirmed and continued.

The Maryland charter is the next in order, of which you, sir,
have made no mention. It was granted by King Charles the
First to Lord Baltimore ; and contains such ample and exalted
privileges, that no man in his senses can read it, without being
convinced it is repugnant to every idea of dependence on Parlia
ment.

It bestows on him, " all the country of Maryland, and the
islands adjacent ; together with all their commodities, jurisdic
tions, privileges, prerogatives, royal rights, &c. &c., of what kinds
soever, as well by sea as land ; and constitutes him, his heirs and
assigns, true and absolute lords and proprietaries of the said
country, and of all the premises aforesaid; saving always the
faith and allegiance, and the sovereign dominion, due to himself,
his heirs and successors : to be holden of the Kings of England,
in free and common soccage, by fealty only, and not in capite ;
paying two Indian arrows every year, and also the fifth part of
all gold and silver ore which shall from time to time happen to
be found : Granting also full and absolute power to the said Lord
Baltimore, his heirs, &c., to ordain, make, enact, and publish,
any laws whatsoever, by and with the advice, assent, and approba
tion, of the freemen of the said province, or the greater part of
them ; or of their delegates or deputies ; whom, for the enacting
of the said laws, when, and as often as need shall require, we
will, that the said now Lord Baltimore, and his heirs, shall
assemble in such sort and form, as to him and them, shall seem
best. Provided, nevertheless, that the said laws be consonant to
reason, and be not repugnant, or contrary, but as near as conven
iently may be, agreeable to the laws, statutes, and rights of this
ou kingdom of England."



jEi. 18.] THE FARMER REFUTED. 75

In another place it is ordained, that he the "said Lord Balti
more, may from time to time for ever, have and enjoy, the customs
and subsidies, within the said ports, harbors, &c., within the
province aforesaid, payable or due for merchandises and wares,
there to be laden and unladen ; the said subsidies and customs, to
be reasonably assessed (upon any occasion), by themselves and the
people there, as aforesaid ; to whom we give power by these pre
sents, for us, our heirs and successors, upon just cause and in due
proportion, to assess and impose the same."

I confine myself to these extracts, to avoid prolixity, and pass
over the enumeration of those many extensive prerogatives this
charter confers ; such as the appointment of all officers, civil and
military ; the power of making war and peace ; the establish
ment of boroughs and cities ; with all necessary immunities, and
the like.

In the fourteenth year of Charles the Second, the two colo
nies, Connecticut and New Haven, petitioned the King to unite
them into one colony, which was complied with. Privileges, as
valuable and extensive as any that had been before granted,
were comprised in their charter. There was only a reservation
of allegiance to the king, without the smallest share of the legis
lative or executive power. The next year, Providence and Rhode
Island procured a charter, with privileges exactly correspondent
to those of Connecticut.

You are pleased to assert, "that the charters of Khode Island
and Connecticut are simply matters of incorporation ;" and pro
duce an extract in confirmation of this assertion.

I should be astonished at so extraordinary a deviation from
truth, if there were not many instances similar to it. Not only
the whole tenor of their charters, but their constant practice and
form of government, hitherto, declare the reverse of your asser
tion. But, that I may not unnecessarily prolong this letter by a
quotation of the different parts of the respective charters, give
me leave to present you with an account of the constitution of
these colonies, which was laid before the House of Lords in Jan
uary 1734.

Connecticut and Khode Island," say the commissioners o



76 HAMILTON'S WORKS. |>ET. 18.

Trade and Plantations, "are charter governments, where almost
the whole power of the crown is delegated to the people, who
make annual election of their Assembly, their Councils, and
their Governors ; likewise to the majority of which Assemblies,
Councils, and Governors, respectively, being collective bodies,
the power of making laws is granted ; and, as their charters are
worded, they can, and do, make laws, even without the Govern
or's assent, no negative voice being reserved to them, as Govern
ors, in said charters. These colonies have the power of making
laws for their better government and support ; and are not under
any obligation, by their respective constitutions, to return au
thentic copies of their laws to the crown, for approbation or dis
allowance ; nor to give any account of their proceedings ; nor
are their laws repealable by the crown ; but the validity of them
depends upon their not being contrary, but as nearly as may be,
agreeable to the laws of England."

As to the expression, as other our liege people of this our realm
of England, or any other corporation or body politic, within the
same ; if any stress be laid on the particle other, it will imply not
only that the colonies were simple matters of corporation, but
that the inhabitants of them were considered as being within the
realm of England. But this cannot be admitted as true without
contradicting other clauses of the same charters. Thus, in the
preamble to that of Ehode Island, it is said that the first planters
" did, by the consent of our royal progenitors, transport them
selves out of this Kingdom of England into America." And in
each of the charters the King stipulates that all the children
born in America, shall enjoy " all the liberties and immunities
of free and natural subjects, within any of his dominions, as if
they and every of them were born within the realm of England."

The vague and improper manner in which this particle is
used in many other places of the several charters, will not allow
it the least weight in the present instance. In the eleventh arti
cle of the third Virginia charter there is this expression: " All
such, and so many of our loving subjects, or any other strangers
that will, &c." The same rule of inference that makes Rhode
Island and Connecticut simple corporations, will also transform



jET. 18.] THE FARMER REFUTED. 77

the king's loving subjects into mere strangers, which I appre
hend cannot be done without some degree of absurdity.

In the fifteenth year of Charles the Second, Carolina was
erected into a principality. A patent dated March 24, 1663,
was granted to eight lord proprietors, vesting them with all its
rights, privileges, prerogatives, royalties, &c., and the whole
legislative and executive authority, together with the power of
creating a nobility. The form of government was determined
by a compact between the people and the proprietors, which con
tained one hundred and twenty articles ; and " these were to be
and remain the sacred and unalterable rule and form of govern
ment in Carolina for ever." A Palatine was to be erected from
among the proprietaries, who was to govern the principality
during his life ; and at his demise, the surviving lords were to
succeed him according to the order of seniority. The legislative
power was to reside in the parliament of that country, consisting
of the Palatine as sovereign ; an upper House, in which the pro
prietors or their deputies, the Governor and the Nobility, were
to sit ; and a lower House composed of the delegates of the peopk.
There was likewise a court established, the members of which
were three proprietaries, and the Palatine as president, and in
this court the whole executive authority was lodged.

There were also several other courts : the Chief Justice's, the
High Constable's, the Chancellor's, and High Steward's Court.
The principal officers of the State, in number, titles, and power,
resembled those of the realm of England. The proprietors of Ca
rolina considered themselves as possessed of every requisite
towards forming a separate independent State, and were always
extremely jealous of any encroachments. They even disputed
the King's authority to establish Courts of Yice Admiralty within