Septr. 8. Thursday.1
In the Committee for States Rights,2 Grievances and Means of Redress.
Coll. Lee. The Rights are built on a fourfold foundation—on Nature, on the british Constitution, on Charters, and on immemorial Usage. The Navigation Act, a Capital Violation.
Mr. Jay. It is necessary to recur to the Law of Nature, and the british Constitution to ascertain our Rights.
The Constitution of G.B. will not apply to some of the Charter Rights.
A Mother Country surcharged with Inhabitants, they have a Right to emigrate. It may be said, if We leave our Country, We cannot leave our Allegiance. But there is no Allegiance without Protection. And Emigrants have a Right, to erect what Government they please.
Mr. J. Rutledge. An Emigrant would not have a Right to set up what constitution they please. A Subject could not alienate his Allegiance.
Lee. Cant see why We should not lay our Rights upon the broadest Bottom, the Ground of Nature. Our Ancestors found here no Government.
Mr. Pendleton. Consider how far We have a Right to interfere, with Regard to the Canada Constitution.
If the Majority of the People there should be pleased with the new Constitution, would not the People of America and of England have a Right to oppose it, and prevent such a Constitution being established in our Neighbourhood.
Lee. It is contended that the Crown had no Right to grant such Charters as it has to the Colonies—and therefore We shall rest our Rights on a feeble foundation, if we rest em only on Charters—nor will it weaken our Objections to the Canada Bill.
Mr. Rutledge. Our Claims I think are well founded on the british Constitution, and not on the Law of Nature.
Coll. Dyer. Part of the Country within the Canada Bill, is a conquered Country, and part not. It is said to be a Rule that the King can give a Conquered Country what Law he pleases.
Mr. Jay. I cant think the british Constitution inseperably attached to the Person of every Subject. Whence did the Constitution derive its Authority? From compact. Might not that Authority be given up by Compact.
Mr. Wm. Livingston. A Corporation cannot make a Corporation. Charter Governments have done it. K[ing] cant appoint a Person to make a Justice of Peace. All Governors do it. Therefore it will not do for America to rest wholly on the Laws of England.
Mr. Sherman. The Ministry contend, that the Colonies are only like Corporations in England, and therefore subordinate to the Legislature of the Kingdom.—The Colonies not bound to the King or Crown by the Act of Settlement, but by their consent to it.
There is no other Legislative over the Colonies but their respective Assemblies.
The Colonies adopt the common Law, not as the common Law, but as the highest Reason.
Mr. Duane. Upon the whole for grounding our Rights on the Laws and Constitution of the Country from whence We sprung, and Charters, without recurring to the Law of Nature—because this will be a feeble Support. Charters are Compacts between the Crown and the People and I think on this foundation the Charter Governments stand firm.
England is Governed by a limited Monarchy and free Constitution.
Priviledges of Englishmen were inherent, their Birthright and Inheritance, and cannot be deprived of them, without their Consent.
Objection. That all the Rights of Englishmen will make us independent.
I hope a Line may be drawn to obviate this Objection.
James was against Parliaments interfering with the Colonies. In the Reign of Charles 2d. the Sentiments of the Crown seem to have been changed. The Navigation Act was made. Massachusetts denyed the Authority—but made a Law to inforce it in the Colony.
Lee. Life and Liberty, which is necessary for the Security of Life, cannot be given up when We enter into Society.
Mr. Rutledge. The first Emigrants could not be considered as in a State of Nature—they had no Right to elect a new King.
Mr. Jay. I have always withheld my Assent from the Position that every Subject discovering Land [does so]3 for the State to which they belong.
Mr. Galloway. I never could find the Rights of Americans, in the Distinctions between Taxation and Legislation, nor in the Distinction between Laws for Revenue and for the Regulation of Trade. I have looked for our Rights in the Laws of Nature—but could not find them in a State of Nature, but always in a State of political Society.
Power results from the Real Property, of the Society.
The States of Greece, Macedon, Rome, were founded on this Plan. None but Landholders could vote in the Comitia, or stand for Offices.
English Constitution founded on the same Principle. Among the Saxons the Landholders were obliged to attend and shared among them the Power. In the Norman Period the same. When the Landholders could not all attend, the Representation of the freeholders, came in. Before the Reign of H[enry] 4., an Attempt was made to give the Tenants in Capite a Right to vote. Magna Charta. Archbishops, Bishops, Abbots, Earls and Barons and Tenants in Capite held all the Lands in England.
It is of the Essence of the English Constitution, that no Law shall be binding, but such as are made by the Consent of the Proprietors in England.
How then did it stand with our Ancestors, when they came over here? They could not be bound by any Laws made by the British Parliament—excepting those made before. I never could see any Reason to allow that we are bound to any Law made since—nor could I ever make any Distinction between the Sorts of Laws.
I have ever thought We might reduce our Rights to one. An Exemption from all Laws made by British Parliament, made since the Emigration of our Ancestors. It follows therefore that all the Acts of Parliament made since, are Violations of our Rights.
These Claims are all defensible upon the Principles even of our Enemies—Ld. North himself when he shall inform himself of the true Principles of the Constitution, &c.
I am well aware that my Arguments tend to an Independency of the Colonies, and militate against the Maxim that there must be some absolute Power to draw together all the Wills and strength of the Empire.4
1. From JA’s separate sheets of minutes of debates (D/JA/22A).
2. Thus in MS, but surely an inadvertence and a very curious one. CFA silently corrected the phrase to read: “stating rights....” The committee had been appointed “to State the rights of the Colonies in general,” &c.
3. Editorial conjecture for an omission in the MS.
4. Compare the language and arguments in Galloway’s pamphlet, printed prior to the sitting of the Congress but not published, entitled Arguments on Both Sides in the Dispute between Great Britain and Her Colonies, reprinted in Archives of the State of New Jersey, 1st ser., 10 (1886):1478–492, especially p. 484 ff.; and see Julian P. Boyd, Anglo-American Union: Joseph Galloway’s Plans to Preserve the British Empire, 1774–1788, Phila., 1941, p. 33–34. Brief as they are, JA’s notes show that Galloway’s speech in committee was a summary of his arguments carefully prepared earlier. See also JA’s notes on Galloway’s speech in Congress, 28 Sept., below.