Chapter 2—The Elephant in the Room
The Charter of Virginia, 1606, is the vestigial document that defined the corpus of what would become America, but it was the English legal and citizenship philosophies the colonists carried with them on the ship that breathed life into its soul. The concepts of rights, freedoms, and social justice underpin what De Tocqueville would described after the revolution as the American character, in his third volume of Democracy in America:
“[T]hey possess, without ever having taken the trouble to define its rules, a certain philosophical method that is common to all of them.” [They]did not need to draw their philosophical method from books, they found it within themselves.”
The difference in application between those who stayed behind in Old Blightey and the colonists is that King James I granted the colonists a degree of autonomy that would be laughable in England. In fact, generally speaking the English were happy to have a king in 1606. James I was reasonable ruler who didn’t ask too much of his citizenry as long as he had enough money to run the country. Yes, he required Parliament to grant him that money, but in truth there was little difference between that and the kind of conflict we still see to this day between all executives and legislatures.
However, there is a big difference between an executive who lives within a day’s ride from your house and one who lives 4,000 miles away. Inadvertently, the Virginia Charter entailed not just a royal indulgence, but what was seen by the colonists as an additional, implicit social contract unique between the king and the colonial English citizens: extremely limited interference or outright non-interference in their affairs beyond the scope of the charter. In essence, the colonists claimed all the rights of an English citizen, and also the contractual—not just de facto— right to relative autonomy from the king.
If there’s one thing the English understand better than anyone else it’s contract law. They were the ones who invented the idea that a king can be appointed by the divine ruler of the universe, but once they sign a piece of paper saying Parliament may exercise a portion of kingly authority, the king has no right to give them a particular finger which also happens to point to said invisible man in the sky. Indeed, it is in the fabric of the English character that no man—kings included—are above the law.
Although most people have forgotten about it because of the achievements of the Second Continental Congress, the First Continental Congress of 1774 is of equal revolutionary significance as it was the final attempt of the colonists to assert their contractual rights with the king before outright rebellion against contractual injustice. Regarding this injustice, they cited not only their rights as English citizens, but went back in history all the way to what they considered the legally binding 1606 charter that served as the initial contract between the king and his subjects. In the Declaration and Resolves of the First Continental Congress, they stated, among other things, the following:
[T]he inhabitants of the English Colonies in North America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following Rights:
That our ancestors, who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural born subjects within the realm of England.
That by such emigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are entitled to the exercise and enjoyment of all such of them, as their local and other circumstances enable them to exercise and enjoy.
That the foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council: and as the English colonists are not represented, and from their local and other circumstances, cannot properly be represented in the British parliament, they are entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved, in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed.
That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.
That they are entitled to the benefit of such of the English statutes, as existed at the time of their colonization; and which they have, by experience, respectively found to be applicable to their several local and other circumstances.
That these, his majesty's colonies, are likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws.
The ineffectiveness of this appeal to King George III articulated the fundamental problem of the monarchy. Citizens have long, long memories when it comes to the promises of a king, but kings rarely make it past a generation. The reason is simple: if a king by definition owes allegiance to no living man, they certainly don’t care about the promises of a dead one. A new king does not bring new policies; they bring new facts, and hence the power struggle of citizen and sovereign. Although by no means the original example, one of the best is the impact the transition of power from James I to his son Charles I had not only upon the colonies, but upon the foundations of English law at home.