On Claims to the Soil of America, 16 March 1773
On Claims to the Soil of America
Printed in The Public Advertiser, March 16, 1773;3 incomplete draft: American Philosophical Society
This essay contains the first hint that in one crucial area, land tenure, Franklin was abandoning his earlier view of the crown as the centripetal force in the empire. His thinking fed on controversy, which developed it a little here, a little there, until he was on new ground. In this case the controversy was the clash of ideas in Massachusetts, as reflected in recent letters to a London newspaper; and the new ground appears in a few sentences that are irreconcilable with the British concept of the crown and its dominion. Later in the year Franklin moved further, to the radical idea that colonists had an option about accepting royal sovereignty over their land.4
The background of the essay was Bostonian. In Hutchinson’s opening speech to the General Court on January 6, which the Public Advertiser printed on March 4, the Governor argued that colonists carried Parliamentary jurisdiction with them when they emigrated to the crown’s dominions overseas.5 On March 5 “Junius Americanus,” alias Arthur Lee, disagreed in the same newspaper. The issue, he contended, was not Parliament’s authority as such, but whether that authority included taxation: taxing unrepresented colonists was a novel usurpation of the one power over them that the legislature did not possess, for taxation and representation were inseparable. This letter evoked an angry rejoinder on March 9, in which the anonymous writer made two points. First, British subjects at home were on a different level from those in the colonies, because the former held their land in their own right, whereas the latter held theirs from the crown and were therefore subject to its dominion exercised through Parliament. Second, taxation and representation were separable even in England, where many taxpayers were unrepresented; why then should colonists claim an exemption that their fellow-subjects did not claim?
This essay was Franklin’s reply. The contentions that the king’s American subjects were on a lower level than his British subjects, and that taxation was unrelated to representation, had annoyed him for years.6 He attacked them here by a line of reasoning that had little novelty until it led him to adumbrate a query about the king’s right in land. Questioning that right meant, in the last analysis, questioning the right of the crown in Parliament to govern the colonies.
The doctrine of royal sovereignty in British possessions outside the realm had been fully developed at law. The root of the doctrine, as it applied to colonies that had previously been uninhabited or peopled only by savages, was the king’s position as universal landlord. He might grant land in one form of tenure or another, and delegate more or less of his jurisdiction; but final title remained his. When his subjects settled the American wilderness they carried with them, along with their allegiance, such of his law as was applicable to their circumstances; and statutes passed after their emigration affected them only when so specified. They could not conquer or purchase Indian land for themselves, or set up their own form of government; for government inhered in land, and their land was the crown’s. The king conferred upon them such right as they had to govern themselves, and whatever measure of autonomy they derived from his prerogative was irrevocable by prerogative alone: he might not tax a colony, for instance, after vesting that power in the local assembly. But any such powers that the colony had acquired might be modified or revoked by the crown in Parliament. In this sense the colonists, being under an omnicompetent authority in which they had no part, were on a different level from their fellow-subjects at home. This in outline was the doctrine expounded by lawyers, if we read them correctly,7 of royal dominion in America.
But Franklin was no lawyer. He was “somewhat of a Civilian,” as he remarked to his son, and his views went “a little farther” than those of the jurists.8 Indeed they did. Although in this essay he accepted quitrents, which expressed the crown’s right in land, he proceeded to suggest that the right was nonexistent. The crown granted land to subjects only to exclude other subjects from it, he argued, and the grant entailed no responsibility for securing the grantees in possession; they themselves secured that possession by purchase or conquest from the Indians, and thereby obtained title to their land “at their own Charges.” The emphasis was his, although half-concealed in the body of the essay; his point that settlers establish title by their own efforts, rather than by grant, was not hammered home as he knew how to do, either because he did not realize its full implications or because he was too politic to develop them. But he did express here in public what he had hitherto suggested only in the privacy of his marginalia.9 He thereby took issue, though unobtrusively, with the legal concept of the crown and its dominion.
Sir,
Your anonymous Correspondent in last Tuesday’s Paper calls it Arrogance to place the Subjects in America and the Subjects in Great Britain upon a Level; and to prove it, asks and answers “from whom do the People of Great Britain hold their Lands? From no People under Heaven. From whom do most of the Inhabitants in North America hold their Lands? Not from Themselves, but from Great Britain. Does one Foot of Land on the Banks of the Missisippi belong to the American Colonists? No, the Lands on the Eastern Bank of the Mississippi, for the Extent of 1000 Miles, are the Property of the People of Great Britain, or of the King, as Trustee for the People of Great Britain.” Thus far your positive Correspondent. To me, however it seems, that the Subjects in the two Countries are more upon a Level than he imagines. Britain was formerly the America of the Germans. They came hither in their Ships; found the Cream of the Land possessed by a Parcel of Welsh Caribbs,10 whom they judged unworthy of it, and therefore drove them into the Mountains, and sat down in their Places. These Anglo-Saxons, our Ancestors, came at their own Expence, and therefore supposed that when they had secured the new Country, they held it of themselves, and of no other People under Heaven. Accordingly we do not find that their Mother Country, Germany, ever pretended to tax them; nor is it likely, if she had, that they would have paid it.11 So far then the Level is clear; for unless Great Britain had a Property in the Lands of America before the Colonists went thither, it does not appear how they could take Lands of her to hold on any Terms. Now the Fact is well known, that Britain had not a Foot of Land in New-England; and that when the first Settlers went into that Country, they found it possessed by various Tribes of Indians, from whom they either purchased or conquered what they now enjoy. European Nations have indeed pretended, some, that the Pope could give them a Right to the Lands of America; others, that, sailing along a Coast there, landing on some Beach unseen by the Natives, and branding a Post with the Arms of their own Country, created a Right to as much of the internal Territory as they should afterwards think proper to claim. But “one would hardly imagine” as your Writer says, “that such Nonsense could find Advocates.” And yet he himself tells us, “the Lands on the Eastern Bank of the Mississippi are the Property of the People of Great Britain.” That is, the French claimed them because one of their Nation discovered them by sailing down that River in a Canoe, and at the End of the last War gave up that Claim to the English. Whatever Right this Conquest conferred, give me Leave to say, is as much a Right of the Colonies as of Great Britain; for they had Man for Man with her in the Armies that fought for it.
But if Englishmen should come with this Parchment Right in their Hands, and bid an Indian Nation, settled there, remove in Consequence of it, I believe they would say, what your Correspondent says on the other Side of the Question, “that it is directly contrary to the Nature of Things and to Common-sense.” Thus, Cassini, the French Astronomer, discovered with his Telescope that District in the Moon, which, in Honour of his Sovereign, he called Louisiana.12 By a successful War, perhaps, we might oblige Louis to give it up, and agree that it should henceforth, in all Maps of the Moon be called Nova Britannia, and be held by King George as Trustee for the People of Great Britain. But if Englishmen could fly as well as sail, and arriving there should claim the Country upon that Right, the native Inhabitants, to acknowledge and submit to it must be Lunatics indeed.
In Fact, neither the Grantor nor the Grantees of these chimerical Rights, ever understood more by them than that they were an Exclusion of other Englishmen from the respective Boundaries of each Grant. The Grantees, to obtain some Title, were obliged to purchase of the Indians, or conquer them at their own Charges. And if they had insisted that the Crown should put them in Possession of what it granted, the Grant would probably never have been made. This Purchase and Conquest, with the Expence of settling and clearing the Lands, have occasioned many of the Grants to be relinquished, as not worth holding. And most of those who went thro’ with their Undertakings find they have dearly earned or paid for what they now possess. And yet, notwithstanding what this Writer says, I believe he cannot produce an Instance since the Settlement of the Country, of any one Colonist’s Refusal to pay the stipulated Quit-rent to the Crown, on any Pretence whatever.1 His Accusation, therefore, in this Point is injurious and quite without Foundation.
Since a good Understanding between the Parts of a great Empire is the Strength of the Whole, what beneficial End can it answer to represent the Colonists here as unreasonable and unjust, if they object to a Compliance with Exactions they think unconstitutional? Perpetual Abuse and false Representation, may exasperate and alienate on both Sides. It may divide. It can never unite. This Writer says, “The Colonists will most graciously accept of Land from Great Britain for nothing; but should Great Britain ask for a small Part of the Produce of those Lands to help to defray the Public Expence, the Colonist immediately cries out he is treated as a Slave, and robbed of his Property.” Now it happens that Facts shew this Charge also to be groundless; and that the Writer does not, in his own Phrase, use “the Words of Truth and Soberness.” The Grant of Lands for nothing, I have already spoken to; and I here add, that Great Britain never asked for a small or any Part of the Produce of those Lands to help defray the Public Expence, but it was immediately, voluntarily and freely given, in Proportion to the Abilities of the People. But there is some Difference between asking and taking by Force. The old Way, and the best, in my humble Opinion, was for the Crown to ask Supplies, and then they were granted to an Extent beyond its Expectations. The new Way is to make an Act of Parliament to levy Duties on the Colonies without asking, and send a Fleet and Army to enforce it. A Landlord engaged in an expensive Law-suit may borrow Money2 of his Tenants who respect him, or by shewing them that their Interest in the Event is the same with his, he may receive their voluntary Contributions towards the Support of his Litigation; but if he should declare that he has a Right to take from them whatever he thinks proper, and should go from House to House among them with a Parcel of armed Servants, extorting Money Sword in Hand, perhaps it might be justly called Robbery; at least it would be manifest that the Want of Money was not his only Want—that he wanted Honesty—and it would be found in the End that he also wanted Understanding.
As a Friend to both Countries, being connected with both, I wish Governor Hutchinson had thought of some other Subject for his Speech, and not revived needlessly a Dispute that can end in nothing but Mischief. I am sure he could not expect to convince an Individual there by such known false Facts and sophistical Reasoning. Here the Discourse appears plausible by chiming in with national and ministerial Prejudices, and therefore I think it written to recommend himself here, and not to do Service there. It has been industriously printed and circulated here before the Assembly’s Answer could come over. To that however I leave it, only reminding its Readers of the equitable Rule, Audi et alteram partem.
The hacknied Argument of your Correspondent, that all the Freeholders in America ought to be taxed by Parliament, though they have no Share in the Choice of its Members, because many People in England are so taxed without having any Share in that Choice, seems to be arguing from bad to worse. If any here are unjustly deprived of that Privilege, restore it. Do right at home, if you please, and then make that a Precedent for doing right abroad: But never think that doing wrong at home will justify your doing wrong all the World over.3 The Argument is a Confession indeed, but contains not the least Shadow of a Justification. I am, Sir,
A New England-man
3. The next day’s issue carried two minor textual corrections, which we have silently incorporated.
4. See the headnote on his letter to WF below, July 14. His “Edict by the King of Prussia” (below, Sept. 22) is essentially a reductio ad absurdum of the idea that the sovereign has title to his subjects’ land outside the realm.
5. See BF to Cushing above, March 9, n. 3.
6. Above, XIII, 220–1, 231–2; XV, 36–8; XVI, 246, 279, 324; XVII, 321, 324–5, 388, 399.
7. Our outline is based primarily upon the following: George Chalmers, Opinions of Eminent Lawyers … (2 vols., London, 1814), I, 29–140, 143–65, 195, 222–4, 232–3, 294; II, 44–5, 209, 246, 287; Sir Johns Comyns, A Digest of the Laws of England (5 vols., London, 1762–67), IV, 147–8, 220, 388, 403–404; and Joseph Chitty, A Treatise on the Law of the Prerogatives of the Crown … (London, 1820), pp. 30–4, 205. See also A. Berriedale Keith, Constitutional History of the First British Empire (Oxford, 1930), pp. 3–17, and Stanley G. Hardinge, first Earl of Halsbury, The Laws of England … (3rd ed.; 42 vols., London, 1952–63), V, 460, 544, 548–53, 697, 702; VII, 208–9, 240.
8. To WF below, July 14.
9. See above, XVI, 291–2; XVII, 385.
10. The sentence would have been clear enough to BF’s readers because of the recent excitement over St. Vincent. The Caribs there, according to the opposition, were being treated in the same way. See above, p. 63 n. 9.
11. This is a foretaste of the idea that BF expanded in his “Edict by the King of Prussia” below, Sept. 22.
12. The draft begins with “Cassini.” BF was unquestionably referring to Jean-Dominique (1625–1712), the founder of a dynasty of French astronomers that lasted for more than a century. We have failed to find a lunar Louisiana, but assume that it was on the map of the moon that he presented to the Académie in 1679. See Charles J. E. Wolf, Histoire de l’Observatoire de Paris … (Paris, 1902), pp. 168–70.
1. Many objections were raised to quitrents, but BF seems to be correct that the crown’s right to them was not challenged; see Beverley W. Bond, Jr., The Quit-Rent System in the American Colonies (New Haven and London, 1919), pp. 219–460, especially p. 457.
2. The draft ends here. BF’s plea for returning to the “old Way” was one that he had often made before; see the conclusion of the headnote on Cushing’s letter below, June 30.
3. This echoes one of BF’s marginalia above, XVII, 330–1.