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CHAPTER SEVENTEEN THE ORIGINAL COLONIAL CONTRACT The doctrine that the terms of the original contract were found in governmental usage provides one explanation why English constitutional history does not contain chapters about contract renegotiations, renewals, amendments, or novations. The revolutionary settlement enacted by Parliament when bestowing the throne on William and Mary was, in constitutional theory, evidence of constitutional custom, not a new original contract. The one new original contract postulated in British constitutionallore was the contract made by English settlers emigrating to Ireland or to the American colonies. This contract can be called by several names: the migration contract, the settlement contract, the second original contract, the original American contract, or the original colonial contract. When considering this second original contract it is well to keep in mind certain distinctions. Not every claim to usage or to contract is a claim related to the original colonial contract. When the people of Richmond County, Virginia, asserted the right to be taxed only by a local assembly, and based their claim on the authority of "Charter, natural Justice, and constant Usage, ever since their first Settlement in America," they cited three distinct authorities for rights, none of which was a contract unless they meant the charter to be evidence of the original colonial 139 THE ORIGINAL COLONIAL CONTRACT contract. When the first Continental Congress told the British people that the colonists claimed the "same fair inheritance" of rights as did they, "guarantied by the plighted faith of government and the most solemn compacts with British Sovereigns," it was citing the authority of contract, but the original contract, not the second or original colonial contract. When, however, the voters of Westerly, Rhode Island, said that their ancestors had migrated to New England "upon express conditions that all their natural, civil, and religious rights and privileges should be secured to them and their heirs forever," they were relying on the authority of the original colonial contract. 1 What the voters of Westerly meant was explained by Massachusetts' Samuel Cooke. The original colonial contract, Cooke said, consisted of the conditions "which their fore-fathers, the first occupants made, and asserted as the terms of their removal with their effects, into this wilderness ." Even more, these conditions were obligatory, Virginia's Richard Bland wrote, elaborating on the constitutional theory. "[T]he Terms of the Compact must be obligatory and binding upon the Parties; they must be the Magna Charta, the fundamental Principles of Government, to this new Society; and every Infringement of them must be wrong, and may be opposed."2 Once more we are encountering what was the constitutional norm for American whigs, a legal argument that was not sui generis, but well established in the polemics of imperial legal debate. The Irish had been making it for years. In 1775, at a time when all attention was focused on the original American contract, a pamphlet was printed in Dublin reminding readers that the first English emigrants to Ireland had made a compact with the Crown retaining their civil rights under the English constitution. The original colonial contract was not even a new argument in North America. It had been pleaded in the colonies following the New England rebellion against the prerogative taxation imposed by Governor Edmund Andros. John Palmer, the most competent common lawyer in Andros's administration, defended prerogative taxes on grounds that North America was conquered territory and subject to prerogative decrees. Edward Rawson, answering Palmer, denied the fact of conquest, and countered with the original colonial contract, stating it in terms close to those asserted by American whigs eighty years later. [T]here was an Original Contract between the King and the first Planters in New-England, the King promising them, if they at their own cost and charge would subdue a Wilderness, and enlarge his Dominions, they and their Posterity after them should enjoy such THE ORIGINAL COLONIAL CONTRACT Priviledges as are in their Charters expressed, of which that of not having Taxes imposed on them without their own consent was one. 3 Rawson is not as clear as we would wish. It may be that he would have limited the original colonial contract to rights stated or implied in the colonial charters. If so, his rule of construction was narrower than that adopted by most Americans who considered the question. They would have found the terms of the contract in a much wider range of evidence- actual statements made by or on behalf of the Crown, the conditions...

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