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Les diagrammes suivants illustrent la m6thode. 1 2 3 1 2 3 4 5 6 ^ '-■• i#' ■I I REMARKS ON THE I PRINCIPAL ACTI fl- op T HE *i(J{IIRTEENTH PARLIAMENT O F GREAT BRITAIN. gjr the Author of Letters concerning th^? ' ■J V , Pred.u State of Poland, , nardoninou$ dece refpeft huinain, quand il i'agit des fautef publiques que lelmalheur deiteins a arraclies a des corpt re- i'pe^^!^ . Qa IMS laurhrt trop les mettre a » jour, ce foiit des pharesquiavertiirentcescor^stou}oillt Ittiijliiians dc n* plu» fe brifer MIX lafimet ccueil*. ,* - . w ..... V a i:, Contamin| REMARKS on tlic A 0%$ delating to the C O L N 1 E S, m ^"l^'^itr >^->: L O N 6 6 N,^ .■'•"^''" ..■'', fruited for T. PAY MB, at the Mg wi-QA^jtJgJ i MDCCLXKiY. R US' i f \ ^ '1 \^ f ■ f CONTENTS. PREFACE. REASONS for undertaking this work, and apo- logy for publifhing this part of it. DESIGN. Diftribution of the fubjea, and method of treating it. PART I. Enquiry into the matter of Right. Sect. I. ff^jat is the power with whuh the conjiitution imfejis the crovm aver countries conquer ed^ or otherwife acquired? Power of making capitulations and treaties of peace, and prefcribing forms of government to the founders of new fcttlements, p. i. Exemplified in the cafe of Ire- land, p. 4— of Wales, Berwick, &c. p. 15. Precedents prove the power conftitutional, p. 20. Definition of the term « conftitution,^' p. 22. In what fenfe the contti- tution of England can be faid to be fixed, p. 24. S:*cT. II. Can the operations of the whole body of the legiflaturt be riftraintdby any a£l of the crown f Of the king's fevcral capacities, viz. fupreme legiflative, lubordinate legiflative, executive, andprocuratorial, p. 26. Capitulations, treaties, and charters granted to original fettlers, are afts of the king in his procuratorial capacity, and bmdingon the whole legiflature, p. 32. Obfcurity thrown on this queftion by the unconftitutional maxims of the Stewart family, p. 38. Praiftces to be juftified only by thofe maxims, ftill retained, p. 39. Danger of con- founding the ieveral capacities of the king, p. 45. Sect. III. Is there any other principle in the conftitution to refiratn the operations of the whole body i>f the legijlature on the particular point of Taxation ? Cafe of i country fuppofed to furrender without a ca- pitulation, or of a country fuppofed to be fettled without a charter, p. 48. Powers and exemptions conveyed by capitulations, treaties, and charters, p. 49. Examiration of a maxim laid down by Locke, p. 54. Definition of property, p. 55. To pay a tax is not to give up part of our property, p. 56. Taxes are not gifts, p. 58. Are not im- pofed by confent of all the taxed, or their reprefentatives, p. 60. Reprefcntation and taxation not infeparable, p. 67. Advantages enjoyed by Britons from the peculiar relation - a the ~"*'^i-:' C O N T E N T S. o them 1 !t^' Wk' .^' Houfc of Commons, ftands in aCcthe?" o^r\o f ''•" *u' ?°"*^ °^ Commons ftands Ss, p! ;5 "■ '" '^' ^''"^ '■^^^*'°" »° the Ame- Sect. IV. Summar:, oftht arguments x,n the matter of right. PART II. • Enquiry into the matter of Fact. Sect. I. What are the priviUget granted to the firji filers m North America by the Virginian charteni ' Abftraft of the firft Virginia charter, p. 86. Of the S,?,^7'''^'"'''i"'"vP-94- Of the^hird V^ginU charter, p. 97. Remarks on thefe charters, p. loi.^ S ^hl!P''l'"'''[^'P'J'"J^'i"i^<'»ted by tbe crown to the P'^pi^ofNewEnglandbythefir/ichartero/MaJfachufe^^^^^^ Of it, 'L ^'""^ ""^ ^^" ''^''^"* P" ' °9- Abftraa Sect. III. MJIraSl oftht charters ofConneaicut andRhtd* IJland, Remarks on the three laft charters, p. 124. ^^aJ: ^* T^f ^'J'^^'privilegesgrantedby thetrown to the New Engenders by the fecond charter ofMaJachufet's.Bay / Hiitory of the grant of this charter, p. 1 29. Abftraft ?» 314. , Motion for documents negativeoy p< 316. Papers produced and re- fdutions formed on them, p. 320. Addrefs to enforce 25 Hen. VIII. with remarks on that ftatute, p. 321. ord Hillfborough's letter, and Mr. Burke's remarks on it, examined, p. 340. Sect. III. Proceedings of the third fejfions. Effefts of tt.e letter, p. 345. Speech at opening the (effion, p. 346. Amendments moved to the addrefs, p. 348. rartial repeal of the obnoxious adl;, p. 35%. Pro- ceedings of the malcontents at home, p. 354. Motion rejefled, p. 356. Sect. IV. Proceedings of the Jeventh fefftons. Meflage and papers fent by his majefty, p. 362. A^s pad thereupon, p. 367. Sect. V. Aa for Jhutting up the portofBoJien. Abftra£l of the a£b, p. 370. It was paUed on fufBci- ent evidence, p. 373. Objection to its involving the in- nocent with the guilty anfwered, p. 379. Sect. VI. A£i for the impartial adminiftration of jujlice in the cafe ef perfons quejitoned for any a£f done in the execu- cutim of the laws in Maffachufet^ s Bay. ^ Abftraft of the aft, p. 393. The ad vindicated, p. 39 5. Sect. VIL The aSlfor the better regulating the government of Majfachufet's Bey. . - The government of this province ftood in need of re- formation, p. 404. Conftitution of the council, p. 406. Appointment of judges, p. 417. Of juries and (herifFs, p. 42 1 . Regulations of public meetings, p . 42 8 . Sect. VIII. The^ebecAa. Abftraft of it, p. 438. Eftabliihment of the Roman Catholic religion vindicated, p. 450. Defers in not ex- plaining what is meant by the king's fupremacy, j). 457. in not allowing the marriage of priefts, and providing for the gradual fuppreffion of monafteries, p. 46 1 . in not ex- empting proteftants from the payment of tythes, p. 466. Of the eftablilhment of the laws of Canada m civil caufes, p. 468. Of the confirmation of the criminal law of Eng- and, p. 476. Of the leglflative council} p. Fian of reconciliatioa, p. 483. 479- PREFACE. THE oppofite and irreconcilable characters beftowed by different perfons on the lafl parliament had long perplexed me. To the virulent efFufions of maddening fadlion, to the abufive bead-roll of cant fentences echoed from inferior quarters, I paid little heed ; but when grave magiftrates, in addrefles to the throne ; when famous orators, within the walls of the houfe itfelf, reprefented parlia- ment as the betrayer, not the guardian of the rights of the people j when others as loudly exalted its wifdom, firmnefs, and independence; it then became at once more interefting, and more difficult to de- cide what was the chara^er that parlia- ment deferved. A 2 The IT PREFACE. The interert which every citizen muft take in fuch a qucftion was much increaf- cd by the very firrt appearances of the election that fucceeded. At firft fight it appeared that a large majority of the fame members would be returned to the next parliament. If the thirteenth parliament then deferved one half of the reproaches with which it had been fo plentifully laden, we might exped before the ei^d of the fourteenth to be in that fort of ftat€, in which it would behove every prudent and every honed citizen to lay afide all confidence in eleSlors or ele^ed, and take the charge of his fecurity into his own hands. , To put my mind at eafe, I determined to fit down and examine coolly the prin- cipal tranfayprtb,attepding.to. It, 18 now. I have only t^ add, that the .obj^e<^^ of « the^legifl^tyre Ji^ the adi5 h^re e^^mined,' wccc,.fome of thp moft di^pult.that ever c^mebefbre this, or indeed anyparliam^ot.' —It was therefore natural, that the adl* thpmfdves fhouid be liable to the greateft ' objeaions, In other inftances. I. believe, it will .be found, that we owe to it more beneficial ads than to any other parliament frorn the revolution to this hour. * ; believe this phra/e is borrowed frpm a fa- mous orator.— But I may venture to fay, that we attach very diiFerent ideas to the fame figns. THE % il THE © ^: s I Q: iSi, 'TTVHEfobjcar.of the a^s here confidered J[J was to fecure the dependence of the cojowies upon the mot^icr-country : a more jnjpprtant one has feldom come before apar- hmm, few in which greater, or more complw;atedintercfts were involved: « moft « certainly it called for the whole wifdom of " the.wifeft among them *.'* A fubjea: in which not' only the general ter^fts of fo many individuals are fo deeply concerned, mull have produced many appeals to the public. Every man thought himfclf at liberty, fome thought themfelves engaged to give their opinions j much novelty, therc- iore, will not be expefted. My chief aim will be, to colled the vari- ous arguments as they lie fcattered in differ- cnt writers, to reduce them each to its pro- ♦ Mr. Burke's Speech to the Eleaors of Briftol. per THE DESIGN. per clafs, to prefent tlicm to the reader iq that point of view, in which alone they are applicable to the queflions we are are to examine. In the difcuffion of thefe queftioQS w6 (hall reap little benefit froi^ the jdogmatic tone of general aflertlon, from the ingenuity of me- taphor, or from the pompous difplay of thofe gratuitous and acknowledged truths, which being generally received, are little «( doubted, and being little doubted have ** been rarely proved *.*' To many of the laXter clafs one general anfwer would fuffice. " To be prejudiced is always to be weak f.** What avails it to tell us, that " a colony " is to the mother-country as a member to " the body, deriving its adtion and its " flrength from the general principle of vi- " tality |, The colonifts may fmile perhaps at the pomp with which the hackneyed meta- phor is reproduced ; but they will add, " If *' you think us incurably tainted, fubmit us ** to amputation, you will find we have a " principle of vitality within ourfelves j wq " fhall not periih like a putrid, limb.'* (( (S • See Taxation no Tyranny, p. i. + See ibid. p. 3. X See ib. p. 28. What THE DESIGN. xl What avails it to tell us, that " the juft, f wife, and neceffarjr confticutional fuperiori- " ty of GreatBritain over her colonies fliould ." be maintained unimpaired, and undiminifh- " ed * ?•• But one American has yet denied the pofition f. What avails it to tell us, that the fupe- jiority of Great Britain over her colonies is not to annihilate the liberties of the Ame- ricans, is not « to put them in a fituation " not becoming a freeman • ??' Thefe truths, what courtier is hardy enough to difpute ? If you mean to inftruft us, go one ftep farther, teach us to apply each our own maxim to our own cafe: define this conftitu- tional fuperiority of Great Britain: teach us to reconcile Britifli fuperiority with Ameri- can liberty *. This is not a queftion of the fchools, to be decided by random maxims, or apophthegms of the fages. What avails it to cite detached uncon- pe(^ed opinions from writers on our laws ? This is not a queftiort before a common tourt of juftice, acknowledged to be com- f Mr. Bu.ke's Speech to the Elearors of Briftol. t Dr. ^' m'din, as cited by Dr. Tucker, but it is fmcc faid .U performance which the dean refers to is not Dr. Franklin's. ^ petent m T H E*'D E S I G N. petent by both the. contending parties. On thi^-queftion the opinions of juidgcs and coun- cil haye no.do.ubt their weight J bat will the Americans aUow them to be decifive ? If they, would, with. all due deference to. fo formidable a body, the writings of lawyers, arc, like, two-qdg§d ; weappna, tlicy cut, at friend and foe* Wthoever is acquainted, vrith then) w4U be ready enough to acknow- ledge, that there is not in the world a . more, flncluadng, we may, boldly, fay, a n^ore fallacious g\iide. . There, is, no inaxim fo uncpnftitutional, np two maxims fo contradi^o^y, that I. would npt undertake to prove from the writings or opinions of fomc of; them *. U * Thus Lord Coke is cited by the author of ** the ** Appeal to Juftice, and the intereft of the people of ** Great Britain in the prefent iDifputes with America." Coke had faid, " that it. is againftthe franchife of the *' Jand for freemen to be taxed but by their own con- " fent" This pofition wavS not true in his time : it is ftill lefs fo in ours : it would disfranchife three-fourths of the inhabitants of Great Britain : three-fourths of us neither are taxers, nor give our voice in the choice of taxers, nor even our confent to the nomination of thofe vi'ho do chufe them. Our fecurity is not that our confent is given to every tax, but that our interefts and thofe of the taxert are fo involved, that in general we cannot be taxed withoui: their being taxed with us. 7 The THE DESIGN. xilt Itmay ferve the putpofe" of party but hot of truth, to mutilate or to inifapply more re - fpeclable authorities^. . Hard The fame writer lays great ftrefs on the opinions of the judges in the time of Henry VI. and Richard III. refpefting "the power of taxing Ireland. A courtier perhaps might think him anf\^'ered, by citing the opi- nions of the judges in the time of Charles I. refpedV ing fln"p.money. He cites from Brafton, *' Auxilia " fiunt de gratia & non dejure^ cum dependeant cx.gratia " tenantium, et non ad voluntatem dbminorum." A tnaxim as plainly contradicted by fa6t as that other of Lord Coke. Few men I believe pay taxes out of mere good'will. To furnifh means for the defence of the community againit foreign foes, and for the fecurity of each man's property againft the fraud or violence of dometlic invaders — whatever political fatiaticifm may tell us, is a matter of flria duty : if Brafton's authority is all-conclufive, what will this writer fay to another quotation ? I hope, and 1 believe it will, be lefs agreeable to his tafte. " Rex eft vicarius, et mi- " nifter Dei in terra, omnis quidem fub eb eft, et ipfe ** fub nulla nifi tantum fub Deo." I mention this only to fliew the abfurdity of relying on general iind detach- ed maxims laid down by our lawyers. * The author of the Appeal has prefixed to his ivork a refolution of the houft df commons : \vt cites it thus : " Refolved, That the ancient and undoubted rights of " every free man are, that he hath a full and abfolutS ** property in his goods and eftate, and cannGt bfe ta^d " but by common cOhferit." The refolutioh flfands thus upon the Journals :— " Refolved upoh the iquef- " tion, that the ancient and undoubted fight <>f every " freeman XIV tut DESIGN. Hard words may ferve to fliew a mart's fpleen, but they ferve little to fortify his opi- nion. Virulent and abufive language "^ may carry ofFa fit of paffion, but will neither per- fuade nor convince. The only method of determining fairly on the condua of the late parliament in this im- portant bufinefs, will be to enquire *• freeman is, that he hath a full and abfolute property " in his goods and eftatc, and that no tax, tallage, loan, " benevolence, or other like charge, ought to be com- " manded or levied by the king, or any of his miniver j, " without common aflent by ail of parliament." See Journals of the Houfe of Commons,, Vol. I. p. 878. The reader fees, that this refolution is. levelled againft the unconftitutional power aflumed by the crown. It was never intended to define the power of pariiament. To mutilate or mifapply citations of fuch authority, in a queftion of fuch magnitude, is at once impolitic and unfair. • The author of the Appeal above cited, talks (p. 37). «'of the ideots who are conduding our prefent mea- ' fures. Of Lord North's fnuffing up the incenfe of adulation « in the very fincerity of his vanity and folly. One feels pain at meeting with thefe illi- beral phrafes in a book, which does net otherwife want ment. The writers on the minifterial fide have kept pace with their antagonifts in this application of abu- five terms, &c. The phrafes of « rebels, » « babes of «' grace," are by many of them dealt out with a verv liberal hand. The author of « Taxation no Tyranny » m his « terrific " ftyle, talks of « airyburfts of malevo- with fcorn rather than refute them by difputation." I. As ii\ THE DESIGN. XV I. As to the point of Bight, il As to the crown alone, what is the power with which the conftitution invefts that branch of the legiflnture over countries con- quered, or otherwife acquired ? 2. As to the lohole body of the legillature, whether its operations can be reflrained by any a£ts of the aforenamed branch of it. 3. Again as to the whole body of the le- giflature, whether on the particular point of taxation there be any other principle in the conftitution to reftrain its operations ? < II. As to the point of fa6l. 1. What were the privileges originally granted by the crowr. to the colonies ? 2. Whatpower preceding parliaments exer- cifed over them. When thefe queftions are fairly difcuffed, and not before, we may venture to give our opinions. III. On the merits of the proceedings of the lafi parliament. 1. Whether they were confiftent with the fpirit of the conftitucion. 2. Whether they were confiftent with the diftates of found policy. To enter on the two laft fubjeds of enquiry before the other points are fully fettled, would at leaft be prepofterous. It would be to begin where we ought to end. If Vj^ the bES^G £ If the t)6wfcr veftea in the crown, over ^dtt^Wrid'or iciquired ccrtiritriiis, lic'^drCum. fcHbed Vithin dcrt'dln bbbn'ds, by i'ef tafti ^c- knowlcdgefd riifes, all^ftsdbheih the ekef- cife of that pbWer, tniift bc'rilckfui'ea liy th'bife hiles, dn their confoi^mity to which their va- lidity iwill depend. If the aas done 'ta We cx^r'cife of fet power do not'biild or reflram parh'dment, it is in vain to cite thofe aas. 6'n this'fuppo- fition charters are ufelefs parchmehts,~l)e- caufe inejffe^ive. If there be any principle In our conftitu- tion, by which the Americans can cUim an exemption from parliaiiicritary taxation, then too charters will be fdtrnd but ufelefa parchments, becaufe unnecejfaty. If there be no fuch principle, then aflow- iiig to charter^ their utmoft force, the cdld- nifts can plead no exemption from tlietice, till they have fliewn it to be there either ^e- cified, or of neceffity implied. If different interpretations be put on the fame grants by the contending parties, we iniift then appeal to ufage to decide between them. If the prdce'cdrngs of the laft parliament be not without reludance ; but not without a faving of their rights ; but not without declaring this to be an aft of favour, the voluntary efFeft of their rever- ence to the king. Thefe are the feveral ads exercifed by the kings of England a/o;ie, over the Irifh nation, from the fettlement of the firft co- lony to the'full eftablifhment of the Irifh * A. D. i3;6. par- I la Acts relating Part J, parliament. I have been the more parti- cular in ftating them, as apprehending that of all the poffeffions acquired by Eng- land, no other was acquired in a manner fo much refembling the mode of our ac- quifitions in North America. Ireland can no more be called a conqtiejl than North America. Ireland was a colony. The firft fettlements in America were yielded by the inhabitants to a fet of adventure r3, fub- jeas to the crown of England : the firft icttlemcnts in Ireland were yielded by the lawful proprietor, to a fet of adventurers fubjeas to the crown of England. The fettlements yet America were granted to the fettlers as already belonging to the king: thofc in Ireland were yielded by the fet- tlers to the king, and regranted by him. Certain conditions were granted to the firft adventurers in America; certain conditions were granted to the firft adventurers in Ire- land. The fettlements in America were extended ; partly by driving out the na- tives, ' Part J, more partU pprehending red by Eng- in a manner J of our ac- Ireland can than North y. Thefirft yielded by iturcra, fub- dr thefirft :lded by the adventurers land. The anted to the 3 the king: by the fet- sd by him, \ to the firft \ conditions rers in Ire- lerica were ut the na- tives, Sea. L TO TH5 CptONlES, 1-3 tives, partly by compads with the native?. —So were the fettlements in Ireland. I know of no law, or received maxim, by which the power of the crown has httn in this inftance abridged. And therefore whatever power the king could conftitu- tionally exert over Ireland, the fame he could exert over America. Whatever rights he could conftitutionally grant to Ireland, the fame he could grant to Ame- rica. I do not now mean to pufli the pa- rallel farther. The prefent queftlon is not whether he did adlually grant xV^fame pri- vileges to the one as to the other. That queftion will meet us in its proper place. What I contend for now is only this :— That the terms on which the king got pof- feffion of America, were fimilar to tUe terms on which he got poffeffion of Ire- land ; that therefore if he had a conftitu- tional right of conveying certain power?, and granting certain exemptions to the fet- tlers in Irdand, he had the fame conlti- tutional right of conveying certain powers, and ,i|i t I 4* H Acts reiatino Part 1. and granting certain exemptions, to the fettlers in America *, • The parallel between Ireland and our Ame- rican colonies has fince been urged, and carried much farther by two oppofite parties. The one faid, that Ireland was an example of a fubordinate ftate enjoying the full exclufive power of taxation, and internal legiflation.— ** No man (it was faid) *^ would pretend that we had a right tu tax Ireland. •' Thofe who attempted it, contradidled thcmfelves ** by allowing it was a right which we r::ight not *' to exercife j which we could not cxercife."— The oppofite party allowed the patallel between Ireland and America, but maintained our righc of tax- ing Ireland j ilill allowing that right to be unexer- cifeable. Had the gentleman, who advanced this do£lrine, taken the pains of defining what he meant by rightf he would have found it difficult to main- tain his propofition, A third party urged, that Ire- land and America ihould never be compared tbge^ ther, Hisreafons were fomewhat fingular :— — '* Ire- ** land (fays he) has one parliament : America has ** many, Ireland provides for its own civil govern- ** ment ; the civil eovernment of America is, in ** part at leaft, in great part, fupported by Great *' Britain. Ireland does more : it gives many thou- ** fand a year toward the military eftablilhment of *' Great Britain : nay, it fubftdifes Great Britain ; ** large fums are given in pcnfiom,'* The latter If Se fixed, as j Dnftltution J often has ;| langed by | J we owe i greater de- ■ s the fame -^ ake thefe ^ >le an ob-: ■ 1 lltution is ■ to change, ■ er country, ^ )t this is a J whence a- i le dhifioriy 1 legiflativc ^ uniting the ^ le of alte- f ratior, lH ration, not from their inability to efFeft alterations when they are united. Let them be once united, and you may fay of them as truly as of any other legifla- ture, " Elle change la conftitution comme " Dieu crea la lumiere*." In this inftance therefore, as well as in any other, parliament nay change the conftitution, by abridging or controlling the power of the king. But till it is a- bridged or controlled, the power itfelf and the exercile of it are furely conftitu- tional. * See Conftitution d'Angleterre, chap. xii. m SECT. lil kt iii. I I ^ z6 Acts Relating Part I, SEC T. II. Can the operations of the whole body of the legijlature -A? rejiramed hy any aSl of the Crown ? . • , • TO anfwer this queftion it will be neceflary to flate, an4 (Jiftinguilh, the feveral capacities in which the king may be confidered as. acting. The king gives his affent to a bill pro- pofed tO)him by the two houfes of parlia- ment. The bill becomes a law. That is, a command concerning forts of actions; addrefled either to all the fubjedls of the realm in general, or io forts of fubjeds*. Here the king a/, of ac- Itions, and addrefl^^d io forts oi perfons, and fb have one is Acts relating Part I. li i'i! be concerning forts of adions, and ad- drefled to Jorfs of perfons, yet thefe forts of adlions are comprifed in a more general fort, concerning which a command has been ifTued by that legiflaiive power, which is called thcj'uf>rcmr. The circumftances under which, and the forts of perfons to whom thefe com- mands of the fubordinate legiflation are to be addreflcd, are fpeclally pointed out by the fiipreme legiflation, . In a word, o«^ property of adls of legiflation ; yet this power wants that independence which I have been always accufliomcd to attach to the idea of legiQation. I have always thought that there is mgch truth in that remnrk of a very fenfible writer f : *' The ** legiflative power (fays he) is that power in any ** rtate, which can make laws binding upon every *' other member of the lUtc, not to be repealed *' or contr ailed by any other power but by itfelf only. ♦' Nothing Ihort of this is legiflation. Call any *' other pov/er by what name you pleafe, it is not ** legiflative. It is fubordinate to it, dependent " upon it, delegated from it, created by it." • •|- See tl)c Defence of the Proceedings of the Houfe of Commons in the MiddleCex Eleilion, printed in 1770, quar- to, p. J I. the Sev^.II. TO THE Colonies. 29 tlie will of the fubordiiiate Icgiflation is clire(5ted as to its objedl, circumfc ibed as to its exercifc, and controllable as to its cflFcds, by the fupreme legiflation. No adt of the king in this capacity can be applied to the prefent qucflion. The king iflucs a command concern- ing individual aBions^ addreflcd to indi- vidual perfons. That is, he commands individual perfons, each comprifed within a fort of perfons, already difigned by the legiflaturc, to perform certain particular adions, each comprifed within a fort of a4£lions already commanded to be done by that fort of perfons *. Here the king ads in his executive capacity. '" '' ' Clearlv * For inftance, it is a general command of the leginature, that all perfoiis, importing certaiji mcrchandifcs from certain places, do pay fuch and fuch duties ; and that the duties fo paid be given by the receivers to other perfons, who are to ap- ply them to fuch and fuch pisrpofsis. Thefearea^l general commands, concerning forts of a£lions to forts of people. The Jcgiilature has no individual perfon in contemplation. John Stiles imports fuch raerchandifes from fuch places. The king, ase;^- ecutjve i'lii !',,:! 30 Acts Relating Part I. Clearly no ad of the king in this capa- city can be applied to the prcfent quef- tion. The king grants a capitulation, or makes a treaty. In what capacity does he ad then ? He does not aft in his fupreme legifla- tive capacity. He never ads in that ca- pacity but in conjunaion with the other conftituent parts of the parliament. No eommand is ifllied ; nor are the perfons, whom he has in contemplation in this ca- ecutive magiftratc, commands John Stiles to pay the duties J commands a particular officer to receive them, and to accompt for them to other perfons: he commands thofe perfons to apply them to their refpeaive purpofes. John Stiles re- fufe8 to obey this comn ind : the king, as execu- tive magiftrate, commands his offi-ers to feize the goods, fell them, &c. Here all thefe general com. mands are applied to individual adions and per- fons. The QolonifatioB, began to be confidered as parts of, or -belonging to the realm. Still however the line between refpec- tive powers of the king and parliament over them were far from being precifely drawn. It was far from being fixed, in what capacity the king aded when he granted charters. The idea of a diftlnft fovereignty in the king over the colonies, unconneaed with, and independent of the parliament, was indeed apparently given up. But many of the pradices, which are to be juf- * See Pownal's Adminiftration of the Colo- nies, cd. 5. vol. i. p. 122. I>4. tified , 'I k, li: '^m i: :; 1 1' 4* Acts relatin© Part I, tified only by that idea, were ftill re- tained. I (hall only mention two. The firft is, . the giving to the king in council the power of hearing and determining, in dernier refort, zW caufes arifing in the colonies. This regulation was a confe- quence of confidering the colonies as part of the king's foreign dominions Appeals Jay in Normandy to the duke in council. They lieatprefent from Jerfcy, Giiern- fcy. &c. to the king, as duke of Nor- mandy. But if the colonies are part of the realm, fuch appeal is unconftitu- tional. This is not only nnconOitutlonal, but it is againft an exprefs law. For by the aft, 10 Cha. r. c. lo. for regulating the privy couijcil, and taking away the ftar-cham. ber, it is faid (fed. iii.) «« that the coun- " cil table hath of late afTumed unto itfelf *' a power to intermeddle in civil caufes, ?' and matters only of private interefl be- 5' tween party and party, &c. &c. By '* which Sea. II. TO THE Colonies. 4, « which (fiy,,heaa) great and manifold m.fch,ef8 have arifen." For remedy, the aft not onlyabolitte, the ftar-chamber. a«d thejurifdiaionof feveral other courts ereaed on the fame model, (fefl. i;;. ,„d -) but lifcewife declares « that neither ^h,smajefty, nor his privy council have. or ought to have any jurifdiaion. &c. by Enghft bill, ^:c. to determine, or difpofe of lands, &c. of any of the fub- jeas of this kingdom," (fea.v) Now are not all the colonies parcels of. thi, k-gdom ? And if fo, i^ „„t , j^j;,;^, power thus exercifed by the king in coun. "' °^'" ""^ 'o'-^^ies, exerted in the teeth ot an aa of parliament f By a provifion in 6 Anne, ch. 6. the two privy cour^cils of the two kingdom, are confolidated into one; which privy councl is to have the fame powers as the ?nvy council of England la^rfully had be- fore the union, and none other. Colonies "-ere now eftablilhed. Yet here no power f: • 4» Acts RELATiNc Parti. power of appeal is given to tLe king ir> council. In truth, the conftitution is (o totaliy a ftranger to this power aflumed by the king in council over the colonics, that it has left him in a ftate of utter debility, uninvefted with any coercive power to en- force the -^.xtcution of his judgments. Of this debility a caufe, at this moment de- pending in one of our colonies, afforded a ftriking proof. An order was fent to expedite it. This order produced the fame effe£t on the judges as an equal quantity of blank paper. And as if fim- ple difobedience were not enough, they treated it with fcorn *. The fecond pradice, which iffiies fron^ the fame fource, and is equally uncon- flitutional, is the (landing diredion iffued by the king to governors. They are au- * It was called ** a Whitehall mandate." And as a reafon for paying no regard to it, their re- verences obferved, " that the privy council might *' err as well as they,*' thoiifed ndate." And " THE Colonies. ^y l^f'^'^^^^^-'^^exerdfe this power, not only according to .heir firft coL fions. and the tcrma of th. u 07 iiich/url/wr powers i^/i a • '*' '""^ '" •"» privy council." Here *e executive power take» upon itfel/^ f t '''""' '^Siflative power, or XT has been done or granted by th^ kinl ;p-uratoHa,capac.,. ^,;'^^J;:■ W,h.„g ,.ore than a/«W.W. i of legiflation. It is :, .,« , ^ /..«»..« over an. ^"""'""'^- Another miftake, which has been con- J-iyperfiftedineverfincetheRevl. '■on, isattrrbutingtothefcinginhisA/ When the province of New England had ;M it' 't^V: f i w 'J f 1 i 44 Acts relating Parti, !ii i had forfeited its charter, king William granted it a feeond. And it was declared in council that he had a right to do fo. From thequeflion of the king, and from the anfwer of the council, it is clear that both king and council confidercd the granting of the original charter, and tlie granting of thisy^cW charter, to be adls of the///-o^ power, cxercifed by the king in one and tht fame capacity. For all this, it appears pretty evident from what we have before laid down, that though called hy the fame name, they are ads of diffe- rent powers, cxercifed by the king in different capacities. The original charters granted to new fettlers appear to be treaties, capitulations, compacts, made by the king in liis pro- curatorial capacity. But thefe charters once forfeited, the fettlers are in all points fubjemuft fuch compaa: be underftood to have given them ? Such powers as are therein j^^^^^^, and more- over fueh other powers,, not fpecified, as it is neceffary they fliould enjoy, in order to cxercife fuch powers as are fpecified. It gives them thefe and no other. From what duties and what reftraints muft fuch a compaa beunderflood to have exempted them ? Yxom fuch duties, and fuch re^aitus as are therein fpecified ; and moreover, from fuch- other duties and re- ftsaints as are not fpecified : but from which.it is. neceffary to be exempted^ in order to their full enjoyment of exemption from fuch duties and reftraints as are fpe- cified*. From the[e^ and<«(9 other^ it. exempts them. Whether among the powers conveyed^ and the exemptions granted to the colo- nies by their charters, the exclufive power of iir Sed. in. t6 tHE CotoiiiiL ., ^i ot fixing their own internal legination, and i full exemption from internal taxation by theBritifh parliament, ht indeed fpecifically named j or be neceflary to the full exercife <5f th6 powdfs, orb the full efijoymeht of the exemptions that ^r^fpccified, isa quet tiori which will meet us in its proper place. Bat tti&Y we not go fahher ? May we not fay. that a ckft may be put, in which, be- yond thefe, ftill other powers arid exempti- ohs, iieither fpecifically named in the corn- pad, nor neceftary to tfce exercife and eri- jbyment of fuch as are fpecifically named, may yet fairly be fuppofed to be conveyed and granted by a cliar'ter ? It fliould feem fb, if thofe who accepted it did, from tlie b^ginriirig, linderftand the charter to have donveyed fuch other powei's and exempti- bns ; if in confequehce of that interpreta- tion, they haveever fince conftantly and uni- formly exercifed thofe powers, and enjoyed tliofe exemptions ; dnd if thofe who by them- felves, or by their agent, granted the char- ter, did at the beginning acquiefce in this E 2 inter-. Vi j ' a ^^^^1 ■ i ^^^H ■ wj^flB ^'^■1 ,. < -i 1 pH i ' WHB f. i 11 1 1 ffl^^^l t ^^^1 * ^■^1 W 1 52 Acts reiatin© I interpretation, and have ever fince con- ftantly and uniformly allowed theexercife oOhofe rights, and the enjoyment.of thofe exemptions. ^ This lang:uage we may allow, I think, te be agreeable to the fpirit of the confti- tution. The uniform exercife of any. power, by any branch of the community, from the very foundation of that commu- nity, during fo long a fpace of time, in the faceofthelegiflatureis, according to the de- finition we have already given of the confti- tution, a fufficient proof that fuch apower is conftitutional. If therefore the Americans, (hould have been miftaken in their interpretation of their charters ; if they fhould have fup- pofed them to have conveyed more powers, or granted more exemptions, than they really were meant to convey or grant :— yet if that interpretation was coeval with, the charters themfelves ; if their condu^ was guided by it "i and if. for more than a.luindred years, parliament has looked on an Sea. ill TO THE Colonies. ^, an unconcerned fpedator, ' would not thi« be equivalent to what is called cujom in the common law ? Would it be politic all at once to aflume a power to which parlia- ment has no right j or having ought to have aj^rfec/, if not exera/eJ it long be- fore ? -Would there be no injuftice in treating as groundlefs, expedtations autho- • rifed by the filcnce of parliament, imbibed by the prefent colonifts, with the prejudices of their earlieft infancy ? It is now afTerted, that a full exe; ption from internal taxation by parjiament, was always fuppofed by the grantees to be con- veyed by the charters; and that this fup- pontion has been conftantly acquiefced in by parliament. What truth there is in this, is likewife a queftion, which will meet us in another place. In the mean time there is another prin- ciple, on which the right of impofing in- ternal taxes over the colonies, has been combated ; a principle which has no rela- tion to any particular charters ; or to the ^3 fpecific Wi Jtk', ^iiH 54 ACT8 RELATING Part I. ■! n ,:, i Specific powejrs or jexemption? groi)pdci^ pn them. In fqpport of this principle, the vener- able name of Locke is * rung inceflantly \n out ears : — he is to prove it to be foun4- jed in fome immutable law of nature. And jf this be pof enough, (hould the apoflolip order be inverted, fl^ould this immutablp put ofi mutability? then fhe yfhok phalan? of lawyers, from Coke down to Blackftone, are to be brought up 'm array. They arp p prove it an eflential part of the Britiih pnftitutioi|. f be principle i? this. — That no ppwer on earth has a right to take a^ay any part of any man's frop^rty f ^ithopj his * It IS remarkable, that thofe who now cite Lock?, to proye a wajjt of power in the parliament, {hoi;Id be the fame who, on another occafion, cited she fame Locke, to prove the king has a difpenfing power. t The term propcrity is here ufed for the thing over which we exercife the rig)it of propertji,^ apfl rot for the right itfelf. 2 own r ■ Se($l. Ilf. TO THE Colonies. IS own confent freely given, either in perforin or by his own reprefentative, freely chofen. This right of nature (it is faid) is parti- cularly recognifed by the conftitution of our own country, where taxes are 2ifreg gift- To judge of the validity of this maxim, the firft point neceflary will be to under- ftand it. A point which has been over- looked, or overleaped by the greater part of thofe by whom the maxim is adduced. To underftand it, it will be necefTary to define the terms of it. This proceeding, I am fure, Mr. Locke would not have dbjeded to, though per- adventure in the prefent inftance he for- got to adopt it. What is property ? It is that things I apprehend, or good which you, the pro- prietor, have a right to ufe in a particu- lar manner, and you alontt to the exclu- fion of every othei" man whatever. Whence arifes this right? From the command of the law. It is the law which E 4 iay» r!- I fell !: Ili: i^ Acts relatij^g p^rt I. fays to you, the proprietor, take this thing, »re it, enjoy it. It is the law, which fay§ to every other man, do not take it, do not ufe it, do not enjoy it. • 1 ake away the fence which the law has ret around this thing, this good, whatever It be, and where would your right or property be then? If this be a true definition of the tern^ property, and to my underftanding it ap^ pears fo, what does this boafted maxim come to at lafl ? Or how will you apply it to the point in queftion? ^ comes out af^ ter all, that the payment of a tax is not the giving up any part of our own pro- perty; it is the a%nmem only of a cer- tain portion of the common ftock to the fu^ort and maintenance pf government. That this idea of a tax ha§ no^ been fuf- ficiently attended to, arifes perhaps fron. ^^^s-l^en^ generally paid \n coin, ao^ not in i^^ Where th, tax is paid i^ miHwwr the tenth fl,eaf. The law has faid to the farmer, nine fheaves are yours : the Hime law has Ikid to the parlbn, the te.th IS yours. The law has faid to the parfon, meddle not with the nine fheaves: the Tame law has faid to the farmer, meddle not with the tenth. is not the fame rcafoning applicable to 6 taxes 11 'i '(. 4> Mi lii.l Acts relating Part I. taxes paid for the fupport of civil govern- ment ? Are not thefe too the property of the civil magiftrate ? The queftion then is not who is to give away our property ; no man, no body of men is to do it. But who is to apportion and diftribute th? feveral parcels of the common ftock. For When the iegiflature vefts the property of fo many acres of land ; or the property of whatever thing or good you pleafe in me, it is always with the implied refervatioii of fo much of the produce thereof as the legiflature . then has, or at any future period yZ**?// keep back for the fervice of the pommunity 'ix\, general. Taxes then cannot, in a proper fenfe, be called a gift, much lefe a free gift. For in the ftrid and proper fenfe nothing is giveftt if by given is meant ceding that which is our own, that which we have a right to withold. The commons indeed, in impofing aids and taxes make ufc of the terms " give *^ and i !i ,1 I ,i Scsfl, 111. TO THE Colonies. $9 «♦ andgrant:^ And the torm is In them allowable enough. For the commons arc iavcfted with the whole property of the kingdom, in truft that they (hall appop- llon and diftribute to the fupreme execu- tive magiftratp, that which is neceflary to the fuppof t of his department of the government ; and that they fliall co- operate in fecuring to each man his ihare of the remaining parcel ; which ihare alofie is his property, and to te difpofed of as he pleafes. They give ^nd grant to the magiftrate, that which is neceffary to the exigencies of the magi- ftrate; and in ihtfame fenfe they ghe and grant th.e refidue, to every man his ihare. On this h\(Q notion, " that the pay- ," ment of taxes is the giving up a part of '* our property," is ingrafted another idea, no lefs falfe, " that taxes cannot in a free " ftate be granted but by the confent of ** the giver. '^ This ' EH! I ft 6o Acts Relating fill [J ^ Part I. ' This idea of ..;;/,«/ has been much in- fifted on by lawyers. Ir may therefore b. rigbt to ftatc their opinions in their own words. It would be tedious to ci.e them all. Let us then content ourfelves with the words of a learned leader of them, who is hmifelf a hoft. " No fubjea of England /fays ht *) ean " be conflrained to pay any aids or taxes, " even for the defence of the realm, or " f^PPort of government, but fuch as are «impofedbyhis.^.,,;^,,,,^,,j,^^^f his representative in parliament.'' To prove that every Englifhman has really a reprefentative in parli^iment, the fame commentator informs us, « that on- "ly fuch are excluded (from the pri- "vdege of voting for a reprefentative) as *'canW«,^,y/of their o^vnjthat there - IS hardly a/... agent to be found, but * See Blackftone's Commentaries, vol. I p HO. 5. edu. oaavo, printed at O.ford, i-^^^, ^' " what i.!i ! ■ Part T. 'I Sea.IH. to the Co.om.«. g, "what is intituled to a vote iafe^e place "or other m the kingdom ♦.» That we may not however fuppofe tl,„ the confent of our reprefentative depend Mpon out own perfonal confent, the L„- ed commentator remind, U3 (of whn is moft certamly true) that « the reprefen- tafve. once choien, is „o. ZnaZ 'confuUwitl, or take the advice of,: 'conihtuents upon any p„,euh.rpoi„ "rntrr-;:i^''''"^^''--<>^p- When the learned commentator comes confiderthefoundarionoftheexclufiv grants of fubnd,esmuft originate in their * See Blackftone's Cnmm» • .^7^- The learned a^h^.^Z? T' ' ^• believe, three fourths of ot f2l '''"''' ^ will and free a^cncv Un '^"""' ^^ ^'■^^<^ and free aLcv on Z ?r u ^'^°"^ ^"'^ "''^1 t Sec his Commentaries, vol. i. p. ,^g. houfe, ( 1 ' ! ' 1 I ■it. ,! '!( 6i Acts ^ELAxrkG t^irt t •( <( sc houfe, he rejeds the general reafon afligil- cd for it, " that the fupplies are raifed upon the body of the people, atid there- fore it is proper that t/iey alone (hould have the right of taxing themfelves,"— . and affigns another, *« that they are a tefn- ** porary eleSlhe body, freely nominated by ** the people, and therefore lefs liable to be " influenced by the crown ; and when " once influenced, to continue foj than the " lords, who are a permanent and herd- " ditary body, created at pleafure by the "king*." The attentive reader will qbferve, that • See his Commentaries, vol, i. ji. 169* The circumftance of their being a temporary and ele£live body, is no doubt one good reafon why the com- mons fhould be entrufted with the power of a tax- ation ; as the circumftance of the lords being zper- manent and hereditary body, is a very good reafoix why they fhould net be entrufted with it. The danger however would, I apprehend, arifc, not from the influence of the crowH^ but from partial attachment tb their own interefts. The diftinc- tion of terres, nobles^ &c. would foon arife, if the power of taxing were intruded vrith the ifzzti. the :''i S«a.Iir. TO THE Colonies. 63 the citations produced, though all occur- ring within the compafs of a very few pages, are not eafily reconcileable to each other. In the firfl It fhould feem that the pri- vilege of granting aids is appropriated to the commons, on account of their repre^ fentative capacity ; in the laft it is no long. er on that account, but becaufe they are a temporary and eleaive body. In the firft it fhould feem that their con- sent to a tax makes fuch a tax; cc illitu- tional i becaufe their confent is the cx- preffion of the confent of their conjlituents. In the fecond it appears, that the confent of the conftituents is a matter of perfed indifference. Thefe contradidions I found, I did not make them. " No fubjed can be conflrained to pay « any tax but by his own confent freely " given, either in perfon. or by his owa " reprefentative." This is thefence which our lawyers tell us the conftrtution has placed 1^ ill ( ■fei ,1 «-i- i ! Vi iff I, ii.l 6+ Acts relating Tart L ! m placed around Mr. Locke's natural righf of not parting with our own property, but" with our own rtf;?/^/?/'. • This is a queftioft of fads : let us then appeal to fads. ^ ' If there be any truth in this aflertion^ it mud follow, that the conftitution has given to every man who is to coatribute to a tax, the right of voting for his repre- fentative. No than who has eyes to fee, and who chufes to make ufe of them, can ferioufly believe this to be the cafe in Eng- land. Many, who are not poor enough to be ranked among the non-willing, (fuppof-- ing with our commentator that want of weqlth implies want oi will) are yet bur- geffes of no borough, have no freehold, have none but copyhold lands; thcfe men have no votes. Many a man hires a piece of ground for a long term j he gives perhaps ten pounds a year; he builds on it; the rent of the houfe he builds is fixty or eighty pounds Sea. III. TO THE Colonies. 65 pounds a year: furely he Is rich enough to have a will of his own. He ought therefore to have a vote. The holders of ftock are furely rich e- nbugh to have a will of their own. Their • attachment to the conftitution cannot rea- foHably be fuppofed to be lefs ftrong, lefs enlightened, lels adive than that of land- holders. Their all depends upon the pre- fervation of the conftitution. Yet thefe men have no votes. How many hundreds of our fellow ci- tizens have large capitals engaged in ma- nufadures : furely they are rich enough to have a mil. Yet neither have thefe men any votes. Sum up the number of citizens under thefe feveral defcriptlons; add the other numerous claffes of citizens, who, though rich enough, as the phrafe is, to have'^a will, have yet by the conftitution no right tovot^. Then fum up the number ''of thefe who have that right, ftrike the bal- lancc, and it will be found that the non- 1' voters |J;; I It, m \ .4i i J 'Hi ' ■ i'' 66 Acts relating Part I. voters are nearly three fourths of the whole mafs of citizens. Here then the maxim fails; it is n t cfTential to the chara^er of a freeman who is to contribute to" a tax, that he have a right of voting for his reprefentative. The greater part of the fubjedts of England, though they contribute to taxes, have no right of voting for their reprefentatives. Nor even of thofe who /lave a right to vote can it with any degree of truth be affirmed, that their own perfonal consent, or the perfonal confent of their reprefen- tative is neceflary to render a tax /ega/. If it could, it would follow, that no n'- prefentative could be chofen but by the unanimous confent of every conjiitnent^ that no law could pafs without the unani- mous confent of every reprefentativ.e. Here too, thank heaven, the maxim fails. There exifls a country, if indeed Poland can be fuid to exift, where this idea of per- fonal indiAidual confent was adopted and carried Sed. irr. TO THE Colonies. ty carried mto execution. With what fuc- cefs, let its prefent melancholy ftatc de- clare. The whole fabric of the Polilh go- vernment, all the abfurdities with which it teems, are the natural confequence of this very principle ; that no fubjed fhould obey a law, or pay a tax, which is not impofed by his own free con- sent, given by himfelf or his reprefenta- tive. Yet this principle, pregnant with fuch fatal confequences, have many of the friends of America chofen as a fhield to protea the colonies againft the power of the Britilh legiflature. This principle has the fame extravagance kid down as the corner ftone of ^x\\i^ freedom. Still however we are told, " reprefen- " tation and taxation are infeparable." Afk for proofs, urge the number of perfons not reprefented and yet taxed, you may puzzle, but you will not con- vince. F 2 One n :.l ii 1 .( If If ■ ) ' ! I li , 69 Acts relating Part I. (( One gentleman * afks himfelf " what ** are the exad bounds and limits of real reprefentation ?" I was impatient to hear the queftion anfwered by (o able and acute a writer. But alas ! " he excufed himfelf from " entering into the matter -f .'* What a lofs to the world ! Why did he not prove in his own concife and nervous ftyle, that the Americans fhould be ** excepted and exempted from the reafons and the * rules which obtain and take place in the cafe X of other unreprefented fubjeds ?" But it is probable, to make ufe again of his own happy expreffion, " the matter feem- ** ed to him fo clear, that whoever fhould ** multiply words on this fubjed, would ** hardly do it for the fake of being con- ** vinced §." Whether this gentleman's * Author of the ConfuJerations on the Mea- fures carrying on with refpedt to the Brltifli Co- lonies in North America, •f See p. 130. X See ib. p. ig. § See ib. p. 13, aim v^ m? '/ colony. w,th leave to begin their plantation at any place on the coaft of America betweea th.rty-four and forty-one degrees, and to takepoffeflionof all the lands, &c. with- m the precinas there defcribed. there to mhabu and fortify, according to their beft d.fcnuo„, and the difcretion of the coun- cil of that colony. His majefty grants to the adventurers from the wejl of England tk: title of the •• To which p„,p„ft t;, ^ J 'eave ,o rob a„. p,„„,„ .;; ,„, j,„.j;.^ « J^^'™ fecondt 9^1 Acts relating Part II. V.i fecofiJ, or Plymouth colony^ with leave to begin their plantation at any place on the coaft of America between thirty-eight and forty-five degrees of nortliern lati- tude ; and invefts them with the fame ex- dufive privileges with which by the pre- ceding article he had invefted the firft, or London colony. By the preceding claufes all the lands lying between thirty-eight and forty de- grees inclufively, were left open to each company alike. Firft occupancy it fecms wa& to fix and determine the property. It is therefore provided that the plan- tations of thofe who Ihall fettle laft, fhall jaotbemaide within one hundred Engl ifh miles of tliofe wliolhould be firft planted. The king ordains that each of thefe co- lonies fhall have a coimcil to govern and -order all nutters and caujes-t which may arife within the colony, *' according to ** fuch laws, ordinances, and inftrudiono, ** as fhall be in that behalf given and fign- " ed with his hjlnd, or fign manual, and ** pafa iil Se(fl. i. TO THE Colonies. 91 ** pafs uhder the privy-fcal of his realm of *' England." The king fixes the number of each of thefe councils, who « are to be ordained, «* made^ and removed from time to time, " according as ihall be direSied and com- " prifed in the fame inJiruSiions:' Befides thefe colonial councils, one fu» perior domeftic council is eftablifhed, to confift of tHrteen perfons, to be appointed hy the king, to be Called *« the council of " Virginia, to have the fuperior manage ** ing and direSlion only ♦ of all matter* " tliait may concern the government, as " well of the feveral colonies as of any «' other place within the aforefaid pre- ** cinds of thirty-four and forty-five de- ^* grees of northern latitude." The colonifls are allowed to work, for Jheir own profit, all the mines of gold, fil- ver, and copper, as well within, as on the main land on the back of the colo- nies, paying to the king one fifth part of ^ That Is, I fuppofc, thty vnfy, all ,j J i ', •Mi'li! If, !l I ■ 92 Acts relating Part II. all the gold and filver, and one fifteenth part of all the copper to be found there, without any other manner of profit or ac- count to him. The right of coinage alfo is allowed them. • They are allowed to carry over all fuch perfons as are willing to go with them, and not '''■fpecia/ly rejirained by the king^^* with " fufficient fhipping, and furniture ** of armour, weapons, ordinance, pow- " der, vidual, and all other things ne- " cefTary for the plantations, their ufe ** and defence." They are empowered to make a defcn- five war. That is, to repel by force all " intruders^"* into their fettlements, all ** annoyers^^ of them. They are allowed to impofe a duty of two and a half per cent, on all merchan- difes imported into the faid colonies by perfons not being of the faid colonies^ but being of realms or dominions under the obedience of the king, and a duty oi f've per cent, on all merchandifes imported by mt v Sed. r. TO THE Colonies. ' , pj by perfons neither being of the colonies, nor fubjeas under, the o^ey/af^ce of the king. And to enforce the payment of thefe du:ies, they are allowed to feiz^, and detain, the perfons, fhips, and goods of the importers. The duties thus coIle£!ed are appro- priated : during the fpace of twenty-one years, « they are to be wholly employed « to the ufe, benefit, and behoof, of the « faid feveral plantations, where fuch traf- " fick fhall be made. At the expiration *' of that term they are to be taken to the ** ufe of the king, and colleded by fuch " officers and minifters as the king fhall " appoint." They are allowed to «' tranfport goods, " chattel, armour, munition, and furni- « ture, needful for their apparel, food, «* defence, or otherwife, out of the realms " of England and Ireland, and .7// the o- " ther dominions of the king, without any *^' cuftom, fubfidy, or other duty -during *' the fpaee oi/even years.'* The If m^ U. 94 Acts relating Part IT. 'T i if (-■1 !- : ; - f 11 - 'l'^ :in > ! il ",! / ' -'Ik The inhabitants of the colonies, and fuch of their children, as fliall be born within the precin(fl:s of them, arc to en- joy ** all the liberties, franchifes, and im- " munities, within any of the king's other ** dominions, to all intents and purpofes, ** as if they had been abiding, and born " within the realm of England, or any " other of the faid dominions." The king farther engages, on petition being made, to grant to fuch perfons as the refpedive council of each colony fliall name, all the lands contained within the precinds of the colonies " to be holden •* of the king, as of his manor of Eaft ** Greenwich in Kent in^r^^, and common ''^ foccagc only, and not in capite.** Three years afterwards the king grant- ed a fccond charter, explanatory of the firft. So far as the firft related to the " fir ft or London colony." It is dated the 23d of March, 1609*. • See Golledtion of Charters, No. II. A great Sea. 1. TO THE Colonies. 95 A great number of new adventurers. including all the companies of London, are here named. They, and fuch others as they fhould hereafter aObciate, are ereaed into a body corporate, under the title of « The treafurer and company of • adventurers, and planters of the city of London, for the firft colony of Virginia.*' Under this name they are allowed to purchafe lands in England or Wales j ta plead, and to be impleaded. The grant of lands is extended, and they are to be apportioned, and diftribut- ed, by the treafurer and company, to the feveral adventurers: proper regard being had both to the proportion, merit, and fervices of each adventurer. A new domeflic council is appointed * : the treafurer and members of the council^ pro hac vice, are named by the king; but are hereafter to be nominated, difplaced, ^^ • In the former charter ore domeftic council had the fupenor managing and direaion" ofboth co- ionics- now a domeftic council feems to have Bccii appointed to each of them feparately. or I ti ,i • I \ 96 Acts relating Part Ih or continued, not (as in tlie former char- ter) by the king, but by a Diajority of the adventurers. Each member vnw\y chofen to take the oath of '-ouiv'ellor before the Lord Chancellor, t he Lord High Treasurer, or the Lord Chamberlain. To this council power is given to con- ftitute and confirm, or to difcharge and change, all officers, governors, and minif- ters,needfultothegovernmentofthecolony. The council has farther the power of eftablifliing, or changing the form of go- vernment in the colonies ; of making, and abrogating laws to be obferved within the precindls of the colony, or upon the feas in going or coming. The governors and officers appointed by the former charter, are commanded to he obr-Jient to the governors and officers a}>r?uii. ed under the prcfcnt charter. The council has the power of admitting new freemen, of disfranchifing old ones. It has the fame power of engaging fet- tlers, and of free exportation fof. feven 6 years, Sea,!, : TO THE Colonies. 97 years, as was granted by the former charter. The company is freed from all fubfi- dics, and cuaoms, in Virginia, for one and twenty years; ^nd for ever from all taxes upon goods imported thither : as alfo from all taxes upon goods exported thence into England, or other the king's dominions, five per cent, only excepted : which fum being paid, they may within thirteen months after their firft landing in England, or other the king's dominions, re-export them for fule in/.m^« parts, without ^,7y cujom, tax, or other duty. The power of impofmg duties on non- freemen, is confirmed and extended. The duties (over and above what arc paid by the freemen) are to be five per cent, for non-freemen, who are fubjeds of the king's dominions, and ten per cent, for non-freemen, who are not fubjecls. The duties are appropriated as before in the • former charter. ^ The fv., ;> ^i \ • : I I- ! : ; 1 '■ :,)•: mJl # Acts relating Part II. Mil i: The treafurei: and company, and the go- vernors and officers, appointed by them, are veiled with a full power " to corre was ever pradifed by the Star-chamber. Any two of the couricil might fend any man^ accufed of certain mifdemeanors, to America *j there to be punijhed as the go- vernor and council there — at once judge§ and parties— fhould think meet. * The Americans are vehemently ofFended at the adts of parliament made for fending to Eng- land, perfons charged with treafonable violations of the Jaws, or with homicide or mayhem, com- mitted in the execution of them. The fame per- fons fcruple not to aflert their right to all th" benefit of a charter, which fends Engliflimen over to America to be tried for flander. Among f'H I'J! ScOl, I. TO THE Colonics. ?03 amen over Among the mifdemeanors recited, one is, *'fpreadmg offianderous reports of the county of Virginia."' Who can doubt but merchants, interefted in the fuccefs of the plantation, would have conftrued a true and fair account of the hardfhips to be undergone, and the difficulties to be fur- mounted, by the firft fettlers, into Jlan* derous reports? • But, befides that fuch a claufe is enough to vitiate the whole of the third charter, we may remark upon the general view of them all, that they certainly had not any fuch (late of America as the prefent In contemplation; and that they contain fcarce any provifion applicable to it. The pretext fet forth for cftablifhing thefe colonies, was the old ftale one of «« promoting the glory of God" A pretext which no man, who has turned over a fin- gle page of hiftory, can hear of without fliuddering. The real motive on the part H4 of J ,-...jfe , 1 W •! 104 Acts relating ■ J f! i .( ' ill: ( 1 i 1 1 i ! i 1 : ■ ll'ip ■' If • 11 ii j 1 m Part ir. of the aJvenfurersy was the hope of ef- tabliihing a lucrative trade : on the part of the crown, was the hope of enrkAwg itfelf by the difcovery of mines of gold and filver. To this purpofe, two exclu, five trading companies are eftabliHied. . Thefe companies, it is true, are fnvelled with fome of the powers of fovereignty ; that is, fuch of them as appeared neceflary to the fupport of their exclufive trade. What rights does this convey, to the co- lonifts, to thofe who were to cu/^hafe and tn/iaiii the wilds of America ? Does it con- ycy to them the right of enjoying t/^ere in America all the bleffings of the Engljih go- vernment ? As to Ireland, the privilege of enjoying in Ireland the Englifli form of government (if we may believe Dr. Leland, and h s authorities) was granted to the adventurers who fettled in that coumry; but is any thing /lie this promifed to the adventurers STiho fettled in Aiijerica? No; all the Sea. r. TO THE Colonies. ,oj Englijh rights they could ever have e^er- cfcd /.„ inens/.„,. are indeed prcfe^ed «o //;m, and to their children iarn i„ a merica. What follows ? They may come' then at any time and claim them. It may not perhaps be difficult to give thereafonfor theEnglifl. for^^/g^. vernm^ . having been communicated to f/;V"""' '" '-'"""J. -d not to the firft fetters in America. The .^..,,« J ^ndMkrs in Ireland were the fame per- fons; the chiefs who led over their friends ^nd dependents to fightforDermod, meant to fettle there themfelves; and they there- fore a&ed and obtained the communica- "onoftheEngliftlaw in their new fet- tlements. But the original adventurers, nd U.e or.g.„al fettlers in America, were two d.fFerentclafles of people; the one were fervants of the other. The adven- turers therefore obtained as many of the powers of fovereignty as they could for tbcmfelves; but for the/w/..,. they afted only, ^1 i f i|H l'*i m-i wm fi; I I [i ' HI i ' .:kS jo6 Acts relating Part ir. only, that they might not forfeit the rights they could otherwife h^ve exercifed here, that they might not be punifhed as fugi- tives, nor their children difmherited as aliens. Their lands 'tis true are granted in free and common foccage, and compreffed, by force of a fidlion, within a fmall diftrid of the mother country. What right refults from this ? Make the moft of it, no other than that of voting in the election of rc- prefentatives for that diftridt: The king indeed promifes that he will lay no imports, for a certain limited pe- riod ; and accepts a ftipulatcd fum in lieu of all imports thereafter. But what ex- emptions did the fettlers gain by this ? The power of impofing taxes on them wa$ ftill verted in a council eftabliflied at Lon- don i that is, in an eledive ariftocracy. By the jfirft charter this council was to be appointed by the king, and though the fe- cond charter gave the power cf appoint- ment Sea. I. . TO THE Colonies. 107 ment to a majority of tUc adventurers, yet what did the fettlersgain by this? The eledors refided in England, and the coun- cil fate in England. The Americans, I believe, would hardly contend for fuch a government as this. They would think themfelves fafer, I am perfuaded, in the hands of a BritiOi par- liament, than in thofe of an ariftocratical council fo eleded. The provifions of thefe charters were calculated for an exclufive trading compa- ny. Colonization was confidered only as fubfervient to commerce ; the rights of the colonift would have been buried under the weight of mercantile intereft. But in truth thefe companies fubfift no longer. The lands which were granted to them, have, either by the authority of fucceeding kings, or by the ads of their own council, been parcelled out to other adventurers, A clufter of governments have arifen, and if the prefent claims of the Americans are to be fupported by char- y i »: %M^£T il- j 108 Acts relating Part IF. charters, It muft be by the charters grant- ed to thefe later fettlcrs ♦. • It was thought, however, necclTary to ftate thefe original charters ; they at leaft ferve to fhew the fprrit with which the firft fettlements were un- dcrtalcen. There appear to have been other char- ters explanatory of the firft, fo far as it relajed to the grants made to the Plymouth company : as the two laft are explanatory of it, fo far as it relates to the grants made to the London Company. But they are not to be found, fo far as I know, in any printed colkaion. SECT. \ V. Sc«a.rf. TO THE Colonies. ,09 S E C T. II. mat were the privileges granted by the cro^^n to the people of Ne^ England, by Jirjl charter of Majachufefs Bay ? '^ H E patentees of what was fty led the J. fccond, or Plymouth company, ia the Virginia charters, had fpent large fums of money with the hope of efFeding a per- manent and advantageous fettlement ^ Tired out with repeated lofles, they were on the point of abandoning the adventure, when fome other men of fortune took it up. In the year 1620, thefe laft obtained a new patent explanatory of the firftf It was about this time that one White, a clergyman of Dorfetfhire, was looW out for a fettlement for fome ejefted mini- ;^^ * See Maudui.. Shore Hiftory of Maflichufcf^ whJrf ;In' "' '"' ^'^^ *''^ ^^"^- - -y the fir/l charter of Ma/Tachufet's Bay. ^ fters. P' 1^0 Acrs KEtATiNG Partly flers. He entered into a treaty with the Plymouth comp-.ny, by order and in the name of Sir Henry Rofcvvell, and five other gentlemen of Dorfetftiire, to whom the company fold the part of New Eng- land * therein defcribcd as lying at the bottom of Maflachiifet's Bay. Thefe new adventurers found the un- dertaking to exceed their forces. Other' gentlemen being applied to, aflbciated with them. A new draught of the formef patent was made out, in which the name» of the new aflbciates were inferted, and thtf tranfa(5lion was confirmed by the king. The council refiding in England were ftill the dircdors, and fupreme managers, * This name of ** New England " was given to an indefinite part of the territory within the li- mits of the Plymouth colony, by Charles I. then prince of Wales, at the inftance of a captain Smiths This captain Smith was a principal man in the Plymouth colony, and had drawn a plan of this part of it. The extent of it appears no otherwifc than by means of fuch and fuch names of places that are ftill current. "' of II Ser f/ie/pace of twenty and *f one years * upon all goods ^nd merchan, « difes, at any time or times hereajter, ei^ V ther upon importation thither, or ex- .V portation from thence, into Engjand, ojr "^ I can have no rcafon to doubt of Mr. Mau- duit's accuracy. I fuppofe therefore this is a tru^ copy. The reader wilJ, however, remark, that it differs effentiaJly from th? fecond chartj^r of king /ames, cited above. There a total exemption from taxes and impofitions is granted for /w«0-.«, years here onJy for feven j there five per cent, is the /.r' ptual tariff after thp expiration of the twenty-one years, here it is the tariff after the expiration of S'Ven years, and to continue only for twenty-one years. In the firft inftance the king renounces aU ^.ght of ,mpofing taxes for a certain confideration for ever, here he renounces it fpr the fame confi- deration, but only for twenty and one yean. I own however, from the turn of this whole claufe, ii looks as if the words—" for the fpace of twenty « and one years " had crept in by fpme miftake of the tranfcriber. If it had not, inftead of faying " at " any time or times hereafter," it fhould have been *« at any time or times within the faid twenty anJ one years;" and fo again, after the word ^* thenceforth "fhould have followed, « durin. ** the faid twenty and one years." " (( other ' Fart ir. ^f fiventy and nd merchant hereafter^ ei^ ither, or ex- Engjand, op of Mr. Mau- e this is a tru^ remark, that it harti;r of king xemption from venty-one years, ent. is the peri the twenty-one expiration gf 'or twenty-one J renounces all 1 confideration le fame confi- years. I own, ole claufe, it ce of twenty me miftake of )f faying *« at ild have been, 1 twenty anJ :er the word ■d, " during ^ea. h. to TrfE CoLONffes. f ,7 *' other of the king's dominions, except *' only the five pounds per centum, due for " cuftom upon all fuch goods and mer- " chandifes as after the cxprratioh of the " faid feven years fhall be imported intd *' England, or other the kfng»s domini- " nions. which five pounds per centum '' '"^y* ^^^"S paid, it fliall thenceforth be " ^^^^"^ to ^-'^Poft the fame goods, &c " into foreign parts without any cuftom, " &c. to be paid." The rights of natural.born fubjeas hen in England, and within any of the king's dommions. are preferred to the fettlers and their children. In favour of thofe who were to fettle this tax, this is the whole of what was ftipulated j and thefe therefore are all the privileges to which the prefent colonifts can be under'- iiood, under this charter, to have fuc ceeded. ^ The governor, affiftants, and freemen, m England, ftand on a very difl^erent foot- ^H\ they indeed in their general courts ^3 arc Li.li m-. Ii8 Acts rislatino Part II. IS I l?f \ are empowered to lAake *^ all manner of •• wholefomc and reafonable oidera and ♦* laws, not contrary to the laws of Eng- ** land.'* I cite the words as not knowing liOw to give the fen/e. The objefts of tbefe laws are defcribed. Atid thefe obje. 3- . / • • forced Part II. V/i.. , , fit *6iicut and Mr. Hut- remarks) His proof »Iind zeal sttlement, ling ftate 3lind zeal » as it had )pej and ■ it from Equally ' bigotry lew emi- ^ than it ; that it Jay, vo]. i. forced Sea. III. TO THE COIONIES. ,„ forced them afunder with greater vio- W than i, had colleaed, hem together. They were like the men of Babel ; no man underftood his brother. But bi^ot ry and blind zeal no more contributed to render America>«„;;„;,_^, ,h,„ .^^ ^^,_ t-pUc-ty of languages contribute to make men knowing. Thus much i, certain, bigotry and blind «al brought difperfion out of union. Hence new fettlements were formed, and new charters fued for. By degrees part of thefe religionifts fell -ay from the reft. Some fettled upon the river Conneaicu^ Another part went and occupied Rhode Ifland. Each of thefe d.v.fions bethought themfelves of apply! ■ns for, and found means of obtainil, feparate charter*. From that diftrifl, of -h.ch the Whole had been already grlnt ed to the whole body of the advll:^ -dcr the Plymouth charter, two large •S«Cllca,„„^Ch»„„vN„.v;.a„,,vH. EtATiNa p^rt 11. diilridls were diffevcred in favour of' a part of that body, without the pri- vity of the reft. Thefe new tribes wertf each of them ereded into ** a body cor- " porate,** and enjoined to ufe the powers vefted in them «« according to the courfe " of ot/ier corporations within the king- *' dom of England." Mean time nothing can be more ftrik- ing than the difference between the fitu- ation of the adventurers under thefe two laft charters, and that ofthofe un^ier the ,firft. On the one hand exemptions were granted to the patentees of Maflachufet's Bay, which were not granted to the pa* tentees of Gonneaicut and Rhode Ifland. On the other hand more extenfive powers were granted to the latter in one or two eflential ppints. The reafon of this diflFerence is obvious* In the charter granted to the patentees of Maflachufet's Bay the king had in con- templation only a fet of merchants and adventurer* refiding in England, and car- rying Sewt. in. TO THE Colonies. 123 rying on by their fadtors and agents an exclufive trade to a certain part of Ame- rica. In granting the charter to the pa- tentees of ConnediciTt and Rhode Ifland, he had in contemplation to prefcribe a form of government for a number of fub- jefts already fettled there. Thus, for inftance, the general court of the company of Maflachufet's bay was to confift of the governor, or deputy»-gover- nor, and fuch of the ajjtjiants and free- men as were prefent; that is, all the free- men had a right of being prefent, and vot- ing at thefe courts. In Connedicut and Rhode Ifland, the freemen of the differ- ent towns and diftrids were to eled de- puties to deliberate, and vote for them in the general courts. To the patentees of Maflachufet's Bay, an exemption from the payment of all cuftoms on goods exported from Eng- land was granted for the fpace of fcven years. To the others, this exemption, is cxprefly dfnied. The 1 |i m k; ; 'tH If tf 1 vSIr II; '^^ lit Hi " ''^^ '^4 Acts relating i'art IL The patentees of Maflkchufet^s Ba^ liad no power of creaing courts of judr- cature. To the others this power is gi'- ven. In thefe charters, it is not the moft fan- guine advocate of the Americans that can find any thing, to juftify their claim of in- dependence on the parliament or laws of England. On the contrary, the laws of England are throughout referred to as the ftandard, by which the validity of their own regulations is to be tried. The le- giflative powers conveyed to them are to be ufedinthe manner '« that other corpora^ •* tions in England ufe them." And fure- ly no corporation in England did ever fup- pofe that their powers of fubordinate le- giflation exempted them from the fupremc legiflation of parliament. In the charter of Rhode Ifland we find ihe following claufe. « Many of the in- •* habitants cannot in their private opi- ♦• nion conform to the public exercife of " religion IP PI' (II f^&. Ill '' TO THE Colonies, «i rel,g,o„ according ,o ,he liturgy and ceremonies of the church of England. • or take and fubfcribe the oath, and ar- ..c e, n,ade and eftablifl,ed in that be- oftheremotediftancesofthofeplac* ./'!'' "»«'<: hope, be no breach of the ^_ unity and uniformity eftablifhed in this nation, we h,ve therefore thought fit ;. °. °"'^'"-«'>« no perfon, within the fajd colony ihall. in any wife, be mo- lefted, or called in quefiion, for any dif. .. ^'""'" '" opinion in matter of reli- g.on-any law. ftatute, .&=. of ../.> „,/„ to the contrary notwithftanding." JJerethenwefeeafpecificlawofM,> realm I mean the aa of uniformity, by wh,ch the colonic thought they A^bl bound. „n,ef,,hey had a fpecific ....;>. '«». Theobjeaofthisiawwasruch,a3 -oud render the obfervance of the law ■' "» "'^'■^ uncultivated and diftant TOons, am.tterof,hegreateftpoffibIe indif. 1x6 Acts relating Part ir. indifFerence to the government in Eng- Und. Suppofing the Engllfli clergy to be as Intolerant as the moft uncandid of their ei;i.e;^ies have ever reprefented thein, yet jhere were no endowments to tempt their javarice. The fcene was too remote to be galling to their pridp. Few, if any, of the fettlers were of the church of Eng- Jand, They were of va^riops feds, no onis of which but had teivified its, hatred to the reft. Yet even this law they thought might legally be put in executipn againl^ them. They felt that they were legally, fubjedt to it. And they therefore prayed 4 fpecific exemption from it- J^ withpuf that fpecific cj^emption th.ey would havp been fubjeds to this laiy, ^hy iwt to others ? The charter of Maflajchufet^s Bay con- tains nothing more than an exclufive right of trading within a particular diftrid of America. This right is conveyed to a company ^tOrAllf TO THE eoLONlE*/ 127' pany hadf ^xtenfive privileges, but hardly t aay of the powers of political govern- f^nt. They had indeed the power of impofmg commercial duties, but they cburd- hj no domeftic taKcs, either oi^- freemen or non-freeme.?. They couJcJ .cred no courts. The people whom they fent out, or fuch of the adventurers as went of their own accord, had no other proteaion for their rights than what was to be found in the courts /^ere in England- ^he fame proteaion which a Gentoo may find at prefent. The patentees were ex- empted from cuftoms and duties for a gi- ven time; but^r/i an exemption fo H- mited, isitfelfthe flrongeft confirmation of the right. Some of thefe defeds are fupplied in the charters granted to Connedlicut and Rhode Ifland. But in neither of M./^ is there cxprelTed or implied any thing like a total emancipation from the power of par- M I '11 'ka m t 11 ' W m:! '!• a 228 Acts relating Part II* parliament, except as to'thefingle ob- jea of conformity to the church of Eng- land: nor does any reafon appear why fuch an emancipation fhould be neceflary to the exercife of any power, or the en- joyment of any exemption that is there (jxpreffed. Hi, ma^' n 61 SECT. ! I Sea. IV. TO THE Colonies. 129 ^ SECT. IV. What were the privileges granted by the Crown to the New-Engianders, by the Second Charter of Mafachufet's Bay ? T N the general flaughter made of cor-! -■- porations, toward the latter end of the reign of Charles II. the company of Maf- fachufet's fliared the common fiite. It was in the year 1683, that a monfter called a quo warranto was let loofe upon them, from the court of King's Bench, to devour their privileges. And in the year follow- ing, another of the fame breed, called a Scire facias, out of the court of Chancery, to fummon them to makd their appearance within a month. Having neither wings to fly with, nor conimand over the waves toftill them, they came not within the time. For this contempt judgment was entered upagainft them. From this time the crown faw them proftrateat its feet. K At id •• 111 f '3° Acts REtATiNO Part II. At the refurreaion of the conftitution under king William, entreaty was ufed with his majefty to reftore the ancient charter. The requeft, as to the fpecific terms of it, was refufed. They were de- nied what they alked for; but, what is fingular, they were granted more : a char- ter was granted them, in many refpeds more beneficial than their old one.* It is ♦ See this charter in the Appendix to NeaJe's Hiftory of New England, vol. ii. number I. It i» reprinted in the colleftion printed for Almon. I could not read without furprize the following paf- fage in a book attributed to Mr. Burke f. The writer is fpcaking of this colony. « Some time " after the revolution (fays he) they received a new «' charter, which, though very favourable, was «* much infmor to th? cxtenfivc privileges of the *• fomfir charter, which indeed were too extfn- « five for a colony." Surely this writer had not attended to the firf! charter, or had forgot that it was granted to a company rejiding in England. And therefore with all it's extenjiue priviUget want- ed all the pawwi neceOary to conftjiute a politicj^l government. i.l h,{): t 6«« Acpount of Europtan SettlemcHts in America, vol. 11. p. 169, edit. 5. this Sed. IV. *6 THE CoLONtES* ijf this new charter which goes by the nam* of the fecond charter of the Maffaehu. fet's Bay. This cfmrtet (after feciting the fevfcral charters heretofore granted to the compa- ny of Plymouth, and to the patentees of Maffachufet's Bay, and the vacating of this laft charter x3n a writ of fcire facias in touft of Chancery); fets out with fiam:. mg as the fubjedt of its difpofal, the eolo* ny of Maffachufet's Bay : to which, how. ever, we find now, for the firft time, ag- gregated a number of other fettlements, known by the refpeaive names of « NeW " Plymouth J the province of Maine j th* « territories called Acadia, or Nova Sco^ ** tia ,'^ with the intermediate waftes. It i« remarkable, that the terms un- ^r wbi6h they ftand charafterifed in thrf charter, are thofe of faS^ones, and coIo- nkt : the firft of which feems to fliew «he Uga/ iit^ entertained of the fettlers under the former charters. The law eon- fidcred them as favors, or age^^ts, of a K 2 com* i ?■ j.n m I :■ \i^ Acts relating Part IL, company.: the governing part of which was fuppofed to be fixed, and refident in England. ; The ** faaories and colonies," thus in- corporated, are not declared (as in the former charters) " a body corporate and " politic, capable of pleading, and being impleaded," &c. but are erededinto " one " real province."~A very different kind of fociety, and requiring far other powers than a mere body corporate. The affairs of the province accordingly are to be adminiftered by a governor, dc- puty-gOyernor, and fecretary; all three .at the nomination of the crown ; by twenty-eight affiftants, or counfellors, to be annually chofen by the general affem- blies; and laftly, by i^eprefentatives to be deputed by the refpe ij .-..-.•^ ... ... ■ ■._The ii.illi if Part ir, I SeaiV. t6 the Colonies. '■ I of which i refident '* thus in- as in the orate and and being nto " one •ent kind 2r powers :ordingIy rnor, dc- all three wn ; by :Ilors, to al aflem- resto be and dif- e gover- e^ven^L at The ^33 , The general courts, or afTemblies, are to confift of the governor, or deputy..o. vernor. the affiftants, and the reprefenL 11 V c s • ^ With the governor is lodged the power of fummoning the council, and general courts. Both, or either, as often as he fe« fit. But the general courts he is ob^gedtofummononceayearatlearf He may adjourn, prorogue, ordiffol,^ themathi,p,^^rure. He ~has a negative on.l aws,.asalfointheelediono# counfellors. - - . - .:.. .^ HehaS^thecon>ffia=i^^iie-„i,i.;, w//wMhe province • Tif^t^o"^"" « - -.in. Js. Z-^TZ^ - ^o. .the. to >ch per.ns as he Jhefe are aas in which, by the char- -, ^he ,s bound only by his ..„ dif- ■ Other aas are not to be done but with 'he adv.ce, or confent" of the council. IB ■i'< '11 k M '34^ Acts relatinq Part IT, ' i-v V It ia with their " advice and confenl'* that he is to appoint judges, connmiflioners of oyer and terniiner, IherifFs, juftices of the peace, and other officers, belonging to the council, or courts of juftiep j to do aJl that is neceflary for the probate of wills, a;id grafting adminiftrations j to iflue his warrant for difpofing of the taxes levied J)y the general afiemblies, for the defence and fupport of the government, according to fuch a^s as fhall be in force within the province j arid to grant commifljons for .exercifing martial law. It is with the general aflemblies that it lies to eledl annually the affiftants or coun- fellorsj and to amove them for mifde- jneanors ; to fix the number of reprefen- tatives, which each county, town, or place, is to depute :' the right of voting, however, being reftrided to freeholders of forty (hillings a year, or men poffefled of fom€ other eftate of the value of fifty pounds; to ered courts; to make all nianner of '* vjrholefome and reafonable f* laws^ Sea. IV. TO THE COIONIES. 13^ " ^^^'' ^'^^« ^ith penalties, or without, ** not repugn^ni to the laws of England •" to appoint annually all civil officers, except thofe referved to the crown, or to the go- vernoras above mentioned ; to fet forth the fcveral duties, powers, and limits of the officers appointed by thcmfelves ; to prefcribe the forms of oaths to be taken by fuch officers, fuch oaths, as before, not to be " repugnant to the /aws of Eng^ "/W;" toimpofe "fines, mulds, im* *■■ prifonments, and other punifhments ;" « to impofe, and levy proportionable and " reafonable affefTments and taxes, on the " eftates and perfons of all the proprietors, *'or inhabitants of tlie province;" and, finally, to authorize the governor, when they fee fit, to lead the militia out of the limits of the province. It is in the name of the king, that all courts of juftice are to be holdcn; and they are to have a power of - hearing " and determining, all manner of pleas, •* real, perfonal, or mixed j in caufes cri- ^4 « minal. I ■ I '1 fVfe' 136 Acts relating Part II. ! iii Hip ** minal or civil ; on matters capital, or " not capital ; and of awarding, and " making out execution thereon." - To the i nhabitants in general, are grant- ed all the liberties of natural-born fubjeds withm any of the king's dominions ; the right of appealing to the king, in dernier refort, from any '* judgment or fentence," in any perfonal adtion, wherein the matter in difference exceeds the value of jhree hundred pounds fterling : io fuch of them as pofTefs a freehold of the yearly value of forty f}iillings,or a perfonal eft?ite of the va- lue of fifty pounds, is granted a right of voting at the eledion of reprefentatives to ferve in the general aflemblies; and, laflly, by an cxprefs provifion, to all except Pa- pifts, a full liberty of confcience. To the king himfelf are referved, the powers of ereding courts of admiralty ; of nominating the governor, lieutenant- governor, and fecretary ; of receiving ap- peals in />£'r/2>«tf/ adions ; of difallowing, fo it be within three years after their cn- '. ' adment. Scd.IV. TO THE Colonies. 137 aftment, any laws made by the general afTemblies. From thcfe laws, however, are except- ed, fuch as fl,all be made to pafs any grant of lands within theHirce colonies of Maf- rachufefs Bay. New Plymouth, and the province of Maine only. Laws for thefe purpofes are exempted from difallowance* Finally, to the king are referved all trees of a certain diameter; and, as in former charters, the fifth part of all gold or filver ore, and of all precious ftones. Many, we are to obferve, are the powers granted in this charter, which were wanting in the former. Among others, that of levying taxes on themfelves 13 particularly obfervable. Jt is from this fpecification, whereby the power of taxation is, by the parliament, rpeakmg through the king, communicat- ed to the colonies, that fome are forward to infer the parliament's having renounc ed It for itfelf. But this inference feems notjuft. The *r 1 i'tf 13$ Acts relating PartIL li M " ! The circumnancc of two taxing powers over the Tame body of perfons taxable ; of tiro taxing powcri, I fay ; a fubordinate mac befidcs the fopreme ; of two fuch tax- iag poweri. eftablifhcd for raifing funds for difFerent purpofcs, is by no means new. The truth is, nothing can be lefs fo. We fee it every where. Look around us any way, it ftares us in the face. Not a panfh in the kingdom, but has a power of taxing itfelf ; or, to fpeak more accu- rately, not a parifli in which there is not a certain body of men, the vellry, to whom ^tthin the limits of that parifh, for cer- tain purpofes of that pariQi, belongs a power of laying taxes on the reft. Are then the perfons thus taxed, are they by virtue of their being fubjedcd to the au- tshority of this one taxing body, exempted from the authority of every other taxing body ? and in particubr from the fupreme univerfal taxing authority of parliament ? No : they are again taxable by a fccond taxing body, viz. the vcftry as above, with two iHL'iiiki' Sea. IV. TO THE Colonies. 139 two juaices fuperadded, for certain other purpofes of that pariOi. They are a third time taxed, if the pariHi be a corporation, by a third taxing body, the rulers of that corporation, for the purpofes of the cor- poration. They arc a fourth time taxed by a fourth taxing body, the juftices of the county, for the purpofes of the county. Laflly, they are a fifth time taxed by par- liament; a fifth, and univ^fal taxing body, for the univerfal purpofes of the whole empire. The inference in itfelf then is nothing kfs than juft. That to king William in particular, who granted the charter, it did not appear juft J that he never meant it Pould be made ; that he never thought it •would be made, is what the grantees had early, and authentic proofs of. To himfelf, we may remember, the king had referved the power of nominat- ing the chief officers, the governor, de^ jputy-governor, and fecretary. The h ^4^ Acts relating Tart If- - the refer vation, it feems, gave great' offence ; fo much, that the agents thought it-neceflary to go into arguments to jufti-- fy them for having accepted the charter' with fuch a clog to it. •: In the courfe of thofe arguments^ the idea of exemption from parliamentary taxation is t/iere broached. We fhall fee how it vvras /lere received. Confide;, fay they to their conftituents ; confider, tho* 5rou have not thofe powers, how ample are thefe you have. ■ :> :«i The general court has," (by this char- tier)-** with the king's approbation, as much ^' power in New England, as the king and " parliament have in England. They ^* have ^//Englifh liberties r—can be' touch! «"ed by no- law : by no tax, but of their ** own making *■;*' • > ., ^' The province caught up the idea. Ac- cordingly the firft aa of the new legifla^ --j'ij ■ ' * Sec Nca^eX Hiftory of New Enoland, vol ;y p. 479. turc Sea. ly. TO THE Colonies. ,^, Magna Cha«a.afei„g.,,eircirard P-.Ijses,a.onswhich this wa. not for, ' Itisamongthe.priiicipalof thefeaf- feions. .Mhatnoaid...ax,taIIage,airef. n,e..s, cuftom, loan, benevolence/or .mpofifon whatever, (hall be laid, affeff- •ed, ■mpofed, or levied on any of their -jeft;esrubjeas.or their eJes,ont; ^Fet,.nccwhatfoever,butbytheaaand confent of the governor, council, and reprelentafves of the people, affemblcd 'n general court." That the frovince -wijka to have the charter interpreted in the fenfe their agents put upon it. is abundantly apparent. DM ^e4«^ then interpret it in ,h«f,„f,. We ftall foon fee. ^. 4/i//w M. .^. It was exprefslypuno him, whether that, ^d hts anfwer was as exptefsly in the ' negative. 1 1 14a Acts relating Part IT, negative. " Did your majcfty mean to exempt us," fay the reprefentatives, "from parliamentary taxation ?" Says the mo- narch — " No. — You the fubordinate le- •* giflative body of this my province fhall " not be the onfy body having power to " lay taxes. Others, one other fuch body «* at leaft there fhall be befides." Wbat Ihall be this body ? The king alone ? That, I truft, will hardly be maintained. If any one can find out another, befides the parliament, let him produce it. SECT. Sea.V. TO THE COLOHIES. Hi ir/iat SECT. V. ■«>ere the prMi.g,, ,^„^^^^ ^^ ^^^ '2'^'' ^'f proprietor and inhabUants of Maryland in the Charter of Mary land f . ■DESIDES thefe governments, which ■"-''^'"ne are called ./,..,Wi there are others, which though equally derived front charters, are called proprietary. Thefe Mr. Juftice Blacfcftone defines to be governments, •• granted out by the " "'"'" «° individuals, in the nature of " f'^-lMofy principalities, with all the in- " ^"'^ '^g^li'ies and fubordinate pwers " °f i'giflMion. which formerly belonged "totheowners,"ashethink, proper to :»" them, " of counties palatine." The firft of thefe proprietary govern- ments (or indeed of any of the cobnies founded for the exprefs purpofe of fet. 'I'iig) wh.ch was difmembered from the general m 144 Acts Relating Pirt II.. i 1 M tirely feparated from them ; to be fubjea to the crown of England only, and there- on to depend. To lord Baltimore is granted the fole and abfolute proprietorlhip, as we ha^/fe already intimated, of all the lands, as alio ^ the i! ''\\ >:■ m * i i nciation,it depends upon the relation which the co- lonies were fuppofed to fland in to the tine What that relation was, is a queftion that has been the fuhjea of much eoutroverfy. »h,ch b, ,he fa.e cla.fe was „„cr .o bcccn/du e "0 u„^„e i. n,„„. „a„ ,h,, „„, ./:;; pro ecu„„„ „„ acc„„„t of f„,h a drte, this daufl render,,,. ,he ,ax wh.nce ,ha debe y,L ,o a„ illpoal n, ij u , '° accrue ilegal, fhouldbeabar; as, were the tax Je.aL payment would he a bar. * * .i£. I L4 Before 152 Acts relating Part ir. Before we enter upon it, it may be proper to premifc, that the interpretation we are in fearch of for this claufe, is the inter- pretation that according to probability was put upon it by the contraifling parties, of whatever rature might have been the propofitions aflumed in that interpreta- tion, whether true or falfe : as to this matter, it is probable, that between the fentiments of the fovereign and the noble favourite there was no great dif- ference. The favourite, we have obferv- ed, was a Roman catholic, a difciple •of that fed, whofe prejudices run the ftrongeft in favour of the power of the crown. Charles at this time unqucftionably un- derftood himfelf to be in poflcflion of the right of levying certain taxes by h'ls/ole authority, without the concurrence of the two other eftates, upon his Englijh fub- je6ts. If he confidered the colonies as ftanding to him in the fame relation as his Englifh fubjedls, then this renunciation might If] Sea. V. TO THE Colonies. i^j might be interpreted, as extending only to the right which he claimed over hip Englim fubjedls, namely, the right of }'. ying certain taxes without the concur- rence of the other eftates. But it is likcwife beyond a doubt, that Charles confidercd the colonies as entire- iy fubjeds to hi8>^/^ authority, and not to that of the other eftates; whom hcfuj)'- pofedto have no more right of making laws to bind them, than they now have of making laws to bind Hanover. This opinion James I. had exprefly avowed in a letter to the houfe *. It fhould feem therefore pro- bable, that In granting this charter Charles confidered the colonies as ftanding to him in this relation. And if fo. It muft, I think follow, that the covenant was meant and underjlood, to convey to the proprie- tor and inhabitants of Maryland, a full fecurity agalnfl: taxation by any power in England. ♦ Vide infra, Sc(5l. V\l. This ■I ill 11 ' i^ 11 % 154 Agts ^.elating PartlJ. • This large interpretation of the claufe in queftion, feems farther warranted by the words of the claufe itfelf. It can hard- ly befaid» Ithink, that when the king gives his confent to a tax, levied in -his ■hanic, and by his authority, he docs not '«* caufe that tax to be fet." And with- -Qut the confent of the king a bill for tax- ation can no more acquire the force of a command than a bill for any other pur- pofe. In a law for taxation, as well as in * every other ad of legiflation, the immedi- ate inftrumentality is attributed to the king. Now the words of the claufe of co- venant are, that the king " will neither " fet, nor caufe to be fet" any tax in Mary- land. Hence therefore, I think, we may conclude, that according to the flridl/f //^r, as well as the fpirit of the charter, the inhabitants of Maryland are taxable only by their own governors and af- fembly; and not by another body of mt;u, whofe commands are without ef- fea, I! i I Mr/- \\ Sea. F. TO THE ColONIES, ,55 fta, till ratified by the authority of ,b« king. ' This laft argument appears to me con- clufivej nor Ihould I fcruple therefore to fay. that by this charter, the proprietor and inhabitants of Maryland ^ere. and fuppofing them to have kept their part of the contraa inviolate. Ml are exempted irom parliamentary taxation. But taxation only excepted, there feems no reafon to fuppofe b^t .,h,t Maryland i,. in «// other rtfpefls fubjea to the fupreme legiflative power of par- . liament. The inhabitants of that colony are ex- prefly ranked with the " r./ ./ M.>^. y^^/>-^ot the kingdom of England." And with refpea to them in particular, three ftatutes at leaft are manifeltly repealed. Two of them, the ftatute* of fugitives, » Or rather ftatutes, viz. ,3 EJiz c ,— 14 Ehz. c. 6.-, James I. c. 4. f'^t. g. ^ and \ '1 t 1 I, ;i i 11^ IK i .^M X 1' 1 1 156 Acts relating Part II. and the statute of '* quia cmplores" by- name; and the third, •* de praerogativa «*regia" by implication. True it is that the repeal of -the ftatute of fugitives was of no farther ufe than to fecure them againft the lofs of their Eng- lifli pofleflionfi, or any other penalties that might at any time be inflided on them here, for having quitted England. The operation of that ftatute would have been fpent in England. And from hence, therefore I allow* no argument can be drawn to prove that the fetliers in Mary- land coniidered themfelves as indepen- dant on the pov/er of parliament, But the repeal of the other two ftatutes was to enable them to purchale lands, to be holden there^ in Maryland^ diredly of lord Baltimore, the immediate feoffor, and not of the king, the chief lord of the fee. It fcems then, that the proprietor had no doubt but that the operation of thefe afls, had they not been repealed as iiLii Sea. V. TO THE COIONIES. JJ7 to him and his people, would have ex- tended themrelves, and reached them 'here in Maryland. Now if he was con- vmced that thefe afls would, unrepealed. haveoperatedthereinMaryland,i,isnot eafy to conceive upon what grounds he could .magine that any other aft of the fame power might not operate there as weJI, _ ' fii.. SECT Jl H^ Acts RELATiNd Part it SECT. VI. If^/iaf were the privileges granted by the crown to the proprietor and inhabitants of Penfylvania, bjn the charter of Fenjyl- *uanid? THE next of thfe proprietary go- vernments in time, as well as fitu- ation, to that of Maryland, the only one indeed, befides Maryland, now remaining^ is Penfyhania. . The grant of it made to the celebrated William Penn, the firft pro- prietor, bears date the 28th of February, in the 33d year of Charles II. * The differences and refemblances be- tween the conftitution given to this colo- ny, and the conftitution given to the other proprietary colony, are fuch, for the moft part, as might be expeded from the cha- raders and circumftances of the two pro- prietors. See Collcaion of Charters, No. Vll. Both li / I Both Sea. VI. TO THE Colonies. ,^, Both fled to America as to an afylum for the.r religion; but Baltimore fled froa the nation, Pe„„f,o„.,he hierarchy and the court. Baltimore looked towards the crown, as the protedor of him and his t"be, againft the neceflkry fever.ues of thenation, Penn looked back to t^eaf- feftionsofhis fellow-fubjeas, as a ram- Pa« againa the oppreffions of the crown. Baltimore won from the favour of a fteady tyrant, thenin the zenith of his power a permiflion of exercifing in thefe diftant re- g.ons that defpotifm. the image of which was alike dear to both : Penn extorted fromthefacilityofa capricious tyrant a permiffion to communicate freedom to a body of fellow-fufferers, whofe flghs for ^berty heaved in unifon with his own. Baltimore, whofe fpiritual prejudices fell 'nto an eafy alliance with his temporal am- bition, thought a full power over the earth P»ms, in fecurmg to them what was to S've them their chance for heaven; Penn, ' in # i! I I S 166 Acts relating Part IL f;:rhi, Mi in the ardor of a generous enthufiafm, fecnis to have wifhed for no other power than what might fuffice for the foundation of that common fabric of liberty, at which, with no other pre-eminence than that of chief labourer, he was working. BaUi- ihore had tfarried his back upon a country, the majority of whofe inhabitants were in a ftate of irreconcileable enmity with the tribe he headed j Penn kept an eye of affedion ftill fixed upon a country, where he hoped to find as many friends as there were perfohs duly fenfible of th^ value of liberty, and refolute to defend it. Conformable to this difference In the views of the two grantees was the drift of the charters, refpcdively obtained by them. That of the Maryland charter tends throughout to mark between the mother country, if fUch it might be called, and this new colony, as ftrong a line of reparation as poflible ; that of the Pcnfylvania char- ter to continue as entire as poflible the union Sea. Vr. TO THE Colonies. ,5, union between the parent and the infant date. Theabovercprercntationwillappearfuf- ficiently jnftified. by eomparing with the Maryland charter a few of the claufes of ' the charter we are now about conlidering To the icing, but unhappily in a fenfe too teral, to the Icing, not, as in England, m the regular, independent repofitories of his judicial power, the courts of Weft minfter-hall, but to the king, in eonjunc- t.on with the feeble and invidious inftru- ment of hi, prerogative, the council, is referved the powerofreceiving appeals in "elartrelort. To the king too is referved a Mgative on all laws. By an exprefs claufe a large divifion of •he laws, at that time in force in the mo- ther country, are tranfported at once into the new colony, namely, the regulations concerning property, fueceffion, and felo- nies ; which regulations were to continue f with the confeni of the proprietor, or chief governor, or of the aflembly, or by a^ of parliament in England. To prove, by argument, that a charter thus worded, does not withdraw the pro- vince from the fiipreme power of parlia- ment, with refpedl to this particular mat- ter of taxation at leaft, it would be an in- fult on the reader's underflanding to at- tempt. The very words of the charter preclude all argument. It canno' be fup- pofed, that any aflembly of Penfylvania could be ignorant of this ; and yet one of them is not alhamed to aflert, " that the ** taxation of the people of this province *' by any other pcrj'on whatjocver^ except " by the reprefcntatives they annually " chufe in aflembly, is unconftitutional*." So then the charter, which ftipulates that :hey >uay be taxed by the king and parlia- ment, ii II * See the proceedings in confequence of the llamp z£t prefixed to the Collet^ion of Charters, p. io. f > Pan II. I Scd.VI. TO THE C)LON'IRS. 165 jH mcnt, is no longer a part of their conCi- tuti n. Such is the force of <« the natural " rt^^hts of mankind," and of « the noble " principles of Englifh liberty," that a le- giflatlon, from it's firfl exiftcn<:ey;.^.r4'/- nate, becomes, notwithftanding the ex- prefs terms of the inftrument which forms that legiflation, if notdefadto, yet de jure, ''perfe-ily free'' and independent. For fo another of their refolutions fay.s it is *•' or ought to be" Upon the whole it appears, that ac- cording to the privileges originally grant- ed by the crown to the colonies, Mary- land alone is exempted from taxation : all the other provinces are, as to this point, in the fame lituation as if no charter had been granted.-The parliament may con- ftitutionally tax them, provided the mode of taxation be fuch, as to create the fame relation betueen the Houfe of Comm ns and them, as between the Houfe of Com- mons aiid the inhabitants of Great Bri- M3 tain. IMAGE EVALUATION TEST TARGET (MT-3) & 1.0 III I.I 1.25 2.2 ,56 1^ u U4 Ui 1.8 U ill 1.6 V] > >■ exemp- i68 Acts relating T*art U. exemptions not fpecificd, but neceflary to the enjoyment of fuch as are fpecified. We haVe examined no Icfs than nine fcveral charters, and in eight of them it appears, that an exemption from the power of parliament, or from parliamentary tax- ation, is neither among the exemptions, or powers fpecifically granted, or neceflary to the enjoyment, or exercifc of fuch as are fo granted. But we went farther : we fuppofed a cafe, in which the Americans might have a right to ftill other powers and exemp- tions. — We ventured to fuppofe they had a conftitutional right to any other powers and exemptions, which they had conjlantly and uniformly exercifed and enjoyed, pro- vided the legiflature of Engiapd had as conftantly, and uniformly, acquiefced iu that exercife, and enjoyment. Whether the exclufiye power of internal legiflation, and a full exemption from inter- nal taxation, by the Englifh parliament, be among the powers, and exemptions, uni- formly Sea.Vir. TO THE Colonies. ,69 formly enjoyed, on the one hand, and as uniformly allowed on the other, can be proved only by the records of parliament. Should it there appear, that from the cftablifliment of the colonies, to the rife of the prefent troubles, parliament didno ad to afTert their rightofcontroulortaxationover the Grantees • ; or having attempted any. It did at any time afterwards renounce the right J then indeed the powers ana exemp- tions, now contended for, do fall within the defcription we have given, and do, ac- cording to our priiiciples, belong of con- ftitutional right to the colonies. * I ufe the term Grantees here, and not that of Settlers, or CcUnyU, bccaufe the original charters n^ade as we have already Inun^.tc^, l.ttle or no prov,hon for the liberties of any perfons who could properly come under the denonu-nation of ^.,,/..,, or CoJon.fts. Under thefe charters the objeas of favour were not the Anceftors of the prefent Amc ncnns, but e.ther the members of a company re- ^fident ,n England, or merely the proprietor, and his I If, ^'-ifl lyo Acts relating Tart II. i'; ! 'I |';i I If, on the cither hand, it appears, that the charters were fcarcely granted befofe parhament aflumed and exercifed, as fur SS occafion called for it, its right of con- troul and taxation over the Grantees and Settlers : if it appears, that in the fame early period, the Grantees and Settlers ap- pealed to Parliament, as having fupreme jurifdidion over them, ifjhey prefented petitions to parliament, if they prayed to be heard-t if they adually were heard by their council, if parliament never relin- quiftied its jurifdidion, but aflerted it even againft the formidable pretenfions of the Stuarr %nily ; — then furely it muft follow, that neither the original Qx7iSiX.tt.% pre tended ^ nor the Parliament allowed^ fuch powers and exemptions, to have been conveyed by the charters. Let us turn then to the records of Par- liament. On the 1 2th of May, 1614, juft eight years after the grant of the fir ft, and five 7 years ,.* SLa,\lL TO THE Colonies. ,7, years only, after the grant of the fecond charter forp]antingcoloniesbAmerica,the company, the Virginia company as it was called, preferred a petition to the Houfe of Commons. It was received and read * On the 17th of the fame month conn- fel was heard at the bar on behalf of the petitioners. The journals of that time are taken very imperfedlly : however th^y furnifh evidence enough to fhew, that the matter ^^:as treated with much folemnity, and that the houfe was warm in the main- tenance of its fuperintending power. We find an order made that the Lords South- ampton, Sheffield, and others, who were Patentees, fhould be prefent - to hear the " treaty of the Virginia bufmefs.t" At the hearing it was moved, that the Trea- furer, and thofe of the company of Vir- ginia, fhould withdraw themfelves during the debate. To this it was objeded ; if thei^ was a bill depending concerning ' * See Journals, vol. i. p. 49,, t See Journals, vol. i. p. 487, 4 gg. ' :■ '■ U i ikua York, I I 172 Acts relating Part IF. i..; York, the member for York would not withdraw, »« for that it concerneth the •* Commonwealth.'^ A very remarkable ar- gument; and which plainly inferred, the opinion of the members who alledged it, that V^irginia was as much a part of the Jiate, and of the realm, as any county in England. The houfe acqulcfced in this reafon. It happened that offence was taken at fomething that had been urged by the coun- fel for the petitioners. For this he was or- dered to be reprimanded, and to make his fubmiffion at the bar, but was indulged with the liberty of making it /landing. What the part of his argument it was that gave offence, docs not particularly appear; iome conjedture, however, may be made of the fcope of it, from the reaibns affigned for their 'ndulgence. ** Though he '-i- " greffed," obferved the fpeaker, " to mat- " ters of much weight, impertinent — took " upon him to ccnfure fome things, ar d »• to advile,— -yet the houfe would not be »* perfuaded Sca.Vir. TO THE Colonics. ,73 ••pcrnuded,l,at he cameo offend with a ./'f''""-; Aft"'«ur„i„g thanks for p" '7"^ °^ "■= houfc, the reprimanded Counfelpetitioned. .. ,hat,o///„^,,, .. 7t7 ''"' '"•""■ ''^y would be pleafcd to appoint a eommittee to conn. <]« of the Virginia bufmefs .." Onthe,-thofApril,6.,, abillwas read the fi.ft ,i„e for the free libcrtv of fi'h.ng on tl,e coaHs of Newfoundknd. V.rg,nia, New England, and other coans. and parts of America f. On the fame day a report was made by S.r Edward Sands, from the fub-commit- tee to the grand committee, concerning the caufes of the decay of trade.-One caufe affigned was, the importation of Spanifl, tobacco._The remedy propofed, was. the culttvafon of tobacco i„ Virginia, and the bummer Iflands. The motion was again taken into con- fideration the next day. A debate en- S-e Journa's, vol. i p ^^g. t Ses Jcurnal.s vJ. i. p. ^^g/ fued. 174 Acts relating Part If. fued. — Some were for an abfolute prohi- bition of tobacco. — It was urged, that fuch a prohibition would totally ruin the colonifls of Virginia ; that the Company fliould at leaft be heard. — One of the pa- tentees urged, that Virginia was holden of the manor of Eaft Grcrnwich. And he a man who (as the Journals fay) " had his in- ** terefl in Virginia *' was the only member of the houfe who feemed to doubt of the Power of parliament over the colonies : the other members fecm to have had no doubt that the Parliament had a right to order the Virginians " to pluck up rf// their " tobacco by the roots." On the 23d of the fame month another petition from two planters in Virginia was read to the houfe. This too was agnnll the importation of Spanilli tobacco. The King by proclamation had ordered all to- bacco Ihipt at Virginia, to be forfeited j the Commons voted fuch forfeiture illegal. On the 25th of April, the bill for the free liberty of fiihing on the coafts of A- inerica, Sea. VI r ' TO THE Col ONIES. 171 Vp -erica, was read a feccd time .._,„„,e ^v/« of the crown, " timt ,> / "m-,i-„ , ™' " was not fit to -a e „y ,,,.^ ,^^^ ^^^ ^^^^^ ^^^_^^ ,. , ^ '"'-a > out It was re- )ws,..,oVirsini.;f„Hf the king r;'«t- It was added, that thefc co- ^on.eswcre„ot in thela^e predicament as Ga£ony &e. fo„H,f, ,^„ M'tm of them'-elvcs. ^ The bill was accordingly „„„/,-,^. j^ was reported on the .„h of Mayt. and ' dered to be engroff-ed ; and on t^e fi tt 0* December it palled the houfe J. t i^lt). p. 626. i ^^''^- p. 654. II* On 176 Acts relating Part ir. if If '^• iffl On the 26th of April anotlicr petition from Virginia was prefented to the houfe and read *. It was moved, and carried to refpite the debate cm it till the 29th. On that day the houfe was about to proceed upon this bufintfs, when " the fpeaker ** produced, and read, a letter from his •• majefty concerning this petition; the " petition by general refolution was with- *• drawn f . This is all we know of the matter from the Journals : what was ths ground of this general refolution docs not appear; nor with regard to the refolution itfelf, is it perfedly clear what we arc to underftand by it. The word " refolution" feems to be meant an a£t, a refolution of the houfe itfelf: yet the withdrawing of a peti- tion, is an ad, which, however, the con- currence of the houfe, to whom the petition is prefented, may be neceflary, is, in the * See Journals, vol. i. p. 691. t See ib. p. 694. nature If, i Sea. Vir. TO THE Colonies. ,77 naeurcof it, a„ aft of the Petitioners them- felves, by whom it is prefcntcd. From fuch premifes, the conclufion formed by a refpeflable writer *, that this was a renunciation on the part of parlia- ment of their right of cognizance over the colomes. feems rather hafty. That the w»»ft own. r cannot well underftand how it is, ,hat from barelv know.ng that a petition was „i,hd' we are warranted to conclude the ground of "s be,„g wiehdrawn ,0 have L a confcoufnefs of a want of r ,ht,to pro- 2 "P^? ''• ^'P"'''"y «hen we find th.s wthdrawing accompanied .t the time. ^rfucceededwithinaftort time afterwards, by ruch refohuions as in the nature o^ *',"! """"^^^ been founded on the fup. pofifon of th.- right. The refoiutions I -ean, are thofefpoken of b^ this author, when he toils us that « the houfe came to J-ome very ftrong refoiutions upon the them Thefe are charters granted to, and eftabliihing the Plantations: and it feems rather extraordinary to go on m the fame breath, and fay that the houfe took „o farther cognif- - ance of the Plantations, til! the com- mencement of the civil wars " If N2 by i^ii J i8o Acts relating Part II. by "ito further cognifance," he means, no cognifance pofterior to thefe refolutions, it feems ather difficult to find a commence- ment, for the habit of acquiefcence which he infers from thence, and which he fup- pofes to have been the ground of fome King's opinion about the matter. If, on the other hand, by " no further cogni- fance," he means no cognifance pofterior to the refolution. whereby the Virginia petition was withdrawn ; then his notion muft be, that the coming to ftrong refo- lutions, and even paffing bills upon the nullity of claufes in charters granted to the Plantatidns, is taking no cognifance of the Plantations. A propofition, which it feems rather difficult to fubfcribe to. Indeed, fo far was the houfe from mean- ing to renounce its right of taking cog- nifance of the Plantations, that but one year afterwards, we find them re-aflerting their jurifdidion over them. In the year 1625 they revived the bill for a free filhe- rv Sea. Vir. TO THE CuLON.ES. .8, ry. It was brought in on the ^th •; read the fecond ,i„e, and committed on the 28th of February t; reported and ordered to be engroffed on the 4th $; read a th.rd,^andpaffedthehoufeonthe7thof TheKingrefufed,it ftouldfeem.togive h-sconfent to this bill: and we find the commut.e of grievances claffing the re- ftramt of the Englifl, fubjeas in their fifte- ry on the coafts of America among the lift or grievances jj. At the very beginning of the next Par- l^ament, this bill was again revived. Jt was read the firft time on the 24th of March; read a fecond time, and commit, ted on the 17th of April; reported on the 22d, and recommitted in order to give lord Baltimore time to be heard by his * See Journals, vol. i. p. 819. t See ib. p. 825. X See ib. p. 830. § See ib. p. 8j,. , \ I! See ib. p. 863. N3 council ^ i8a Acts relating Part II. eouncil ; read a third time, and pall the houfe on the 1 6 th of May *. I dp not fee then, in what fenfe it can be faid, that the houfe did froia that time — that is, from the time the King's letter was read by the fpeaker — take no farther cognifance of the Plantations. Surely the ftrong refolutions, and the par^ ticular bill referred to by this author; furely the reviving and pafling this laft bill in two different feflions j the hearing counfel againft it, on behalf of one of the Patentees, was taking cognifance of them. Thus then ftood the cafe, previous \.o the civil war. The Patentees and Planters, prefentdi vers petitions to the Commons of England : they are heard Iry their coun- fel : no objedion is made to the jurifdic- tion of the Houfe, except by ihcfervants of the crown. The Patentees, who were members of the upper houfe, were pre- » See Journals, vol. i. p, 874, 884, 886, 998. 7 fent hi r )- II ^i Sea.Vir. TO THE Colonies.. ,83 fcntat,hedtb«es: the Patentees whd were n>e,„bers of the loWcr houfe. wer* allowed to d.bate> ami vote, for this . , ea- fon.becaufe the matter regarded the 0«. Z"""'""' "' '""''' - '-""I'l a debate ^oncernmg a„y Englifl, County. The houfe declafe, that laws made irt P.rlifc ment were binding m the Colonies :af- ferts th«.r pow.r of p,efer$bi„g ,„ ,,^^ what produas they ftould, or /hould*^/ cultmte: diftinguifl, between the Coio- n.es and Norman pofleffions: and aaually do pa s b,lls. difpofing of the property of the colonies. r r / i That we do not meet with more fre- quent aflertions of the power of the houfe over the colonies, is eafy to beaccounted for. The intermiffions of parliament were fre- quent. When ihey met they had grievances ot a higher nature, and which touched them more nearly, to enquire into. Their own domcft.c rights , their own civil, political, perfonal, liberty, all were attacked : all N 4 called i iJJ t:J i ¥ I'll ' 1S4 ^CTS RELATING Part, U, called for the ftrongeft, and mod manly cfForts to maintain them. The a6l8 we have already cited, are at once the plaineft acknowledgements on the part of the Grantees, and the ftrongeft aflertiona on the part of Parliament, that the charters were by neither underftood to have conveyed the powers, and exemp- tions, they are now pretended to have con- veyed. SECT. hw '^^- Sea.VIi:. TO THE Colo.,,,. ,8^ SECT. VIII. ma, p,^,r did the Parliament e^ercite *'" <^'-"'l ryor to the Rejlorationt £)URINGagreatpartoftheperiod rr ;°'"Pnfed in this feilion. one or bothofHeHoureso£PaHian,en.afl-:::; ll^^eb ,esof.he,egifla.ure,ofK4 Wcls and Commons. Were the prerew hrefore a difpu,e between .he K4rd heoherbranchesofthel.egifl,ture.touch- »ng the limits of the fpna«f« ^ leparate powers each -ghtrerpeaive,,c,aimover.heCoIoniet all reference to ordinances paft during thi period would be impertinent. But the cuef -n.,.whatpowerthe.../.BritiS e-flature, m whatever hands it be vefled may conftitutionally exert over the Cblo- "-= and to this queftion. I apprehend the ?li i|t i86 Acts relating Part II. the ordinances of this Parliament are per- tinent and conclufive.. In the year 1643, in confcquence of a petition, as it is faid from one of the plan- tations, an ordinance w<^? paffed appointing Robert Earl of Warwick " Governor in ** chief, and lord high admiral of the ** Plantations belonging to the King in •* America " The powers intended to be conveyed by this ordinance feem to have been thought too cxtenfivc to be eiitrufled in the hands of one man. And therefore five Peers, and twelve members of the tower hoiife,.are appointed to aflift the Earl. In conjunction with thefe Commif- "fioners, or any four of them, the Earl is empowered to examine into the flate of the Plantations; to fend for papers and per- 'fons ; to remove iiich governors arid offi- cers as they fee fit ; " to appoint others, and to *' aflign over to them fuch part of " the power and authority, in this ordi- '* nance granted to the chief Governor ••■ *'and rnor m ;:a^dCo.n,iffione..ash.fl.,„.y„t The fame ordinance. , k„ ^,„„. ofme renewed and confirmed. '-dfrom'alVufetrt'''"^"^- from ,!.■ I • " Soods imported from this Jcngdo^n into New E„!|a„!. J;theufe.andco„fump.ion,:fth:t:J b"a„.s.hemfeIves,ando„a,goora„d -KhandifesoftheproduceofNew;;' d.mpor.edthenceintoE„gU„,..f„t ■•both /,»;,, ft„„„,^,^ 'there.ntothe««r<7ryt" In theyear .6,6 another ordinance was rf'-'^^^P'-g'he Plantations Jrn^ cuftoms. fnbfidie,, taxation • . or other duty, '/^rV''""' •heir trade Z caTed f ' ^'°"''«' • Se= Lord's Journals, vol vi „ , t See ib. vol. vii. p. ■ "• P- =9'- t See ib. vol. viii. p. 68j, It iM ? '4 a i? *i ]S8 Acts relating Part IT. It is then clear that the Parliament at that time thought they had a right to lay any tax they faw fit on the Americans. If, they had not a general right to lay taxes, they could not have a right to affix certain conditions to a general exemption from taxation ; much lefs could they have a right to adopt the particular mode of taxation prefcribed by this ordinance; a mode of all the lead experifive, it is true, but which is generally confidered as of aU the mod dangerous to liberty. In the year i6co, an adl was paft to prohibit all trade with Barbadoes, Virgi- nia, Bermudas, and Anego*. The preamble to this adt fets forth, that " in Virginia, and divers other " places in America, there are Colonies and ** Plantations, which were planted at the «♦ cojiy and fettled by the people, and by " the authority of this nation; which are^ " and ought to ho. Jub ordinate to, and de- * See Scobcl's A^s, ch. 28. (C pendent ^eaVlII. TOTHECoLONm. ,89 ^' pendent upon, England, and have tytr " fincc the planting thereof^.,.;,, and. «^/;/ " to be, Jubjeei to fuch laws, orders, and ** regulations as are. or /W/ be made by *' the Parliament of England." This declaration is ftrong and pointed. But .« no precedent (we are told •) can be "drawn from this period." The reafon affigned for this aflertion is. that " the " Parliamentadedhere, not as Legijlature, "but as Sovereign:" if therefore "the' " King could not legally exercife fuch " powers over the Colonies, confidering " the inherent, natural, and eftabliflied " rights of thecolonifts, we may, a for- " tiori, doubt the rights of thefe power* " in the two houfes, called then the Par- " liament, adling as Sovereign.*' It is not perhaps at firft fight eafy to underftand the diftindion here intended between « Sovereign" and - Legiflature " From the context only we are led to con- p. 1*26^ ^'^'"'■"'■^'^"t'O" of the Colom-es, vol. /. * 'ti qliide 190 Acts relating Part II, elude, that by " Sovereign" is meant the Ring in his executive capacity; that is, in that capacity in which he has a power ef iffuing commands concerning indivi- dual adtions, addrefTcd to individual per- fons. Burthe ordinances here referred to, ire commands concerning forts of adiona addrefled to forts of perfons. They could not therefore, it fhould feem, be ifliied by the two Eftates, as fuppofmg themfelves to ftand in the place of the King in his ex- ecutive capacity ; hut by the two Eftates, as fuppofing themfelves alonet and with- out the concurrence of the King, to be in- verted with the whole legiflative power. On this fuppofition, however falfe, it does not appear, that the two Eftates meant to affume a greater power than that which is now lodged in the three I.'latea, in the King, Lords, andCommons*;i ren rc^ ^ther. The power of the whole, taken together, is now the fame as it was then. The on- ly change effeded fince, is in the diftribu- tion of the dillind: powers of the refpec- tive Sea. Vllr. TO Tnrr T"E CoLomts. ,jj ti™ branches of the whole If,,,, , "- proceeding, of ,,,,.:,i2r /■/.» H ^ '^'y/ww/, tliat it was """ ""= e«»"»l opinion that the r„n Po-r of England, i„ „CiT7 «- power „,as lodged, had ih^^^^^^ mating laws and levying „ ■ ^ °* opinion of tho.. ti^es was t ^^^ lonies a vvavs hor] / ^"" ^"•'jeatot wV;;;.;-'' -«''■" ^'. ^''"'•HawshadtaJtilXj''"''- in view • tinf f N« r ^ "^^^ °^Je • fettlement^ other by the ftme name. Fori fang refufed to participate With the other eftate. the fovereignty over the colonie " ^"equall, true, that he took more han What., aUo«edtohimashi,fta" m he fo.ere.gn,y „^^^ be t™e. that after the Reftoration he con. rented to participate with the other eftate, the fovere,gnty over the colonies; it is equjly.true, hat he left the other ;ftate LT- T7^ "J°^™^« °^ 'heir ftare .n the fovereignty over England Whyoneofthefe cafes ftould be ftyled _an.W^,.. and the other .. Burke's fpeech on American taxa- *'°". p. 38, 39. 44. O3 men inn '111 )!;, m I ll 'I9S Act s RELATING Part II. men who fay thus are either themfelves tinder a miftake, or mean to lead otheri into one. This I may venture to fay, having proof before me : the fad is not as alledged. A parliamentary reve- nue has been thought of often ; fome- times even raifed\ raifed by parliament, and quietly fubmitted to by the colonies. Monopoly was in fome inftances extended over the colonies in favour of England, ' True ; fo was it in other inAances over England in favour of the colonies. I fhould not have the courage to contra- did an aflertion made fo folemnly, by fuch a man in fuch an aflerably, if I were not fupported by the higheft authority, no lef§ than the records of parliament. To this authority let us appeal j let us turn to the ftatutes, there we fhall fee that few parliaments have fat fince the sera of the Reftoration, which have not paft ads, not only for regulating the trade of the colonies, but alfofor ordering and limits Sea. IX. TO TBE Colonics, . ,99 ing. their internal righte. a„d for laying taxes on them. The navigation aft • has been fo often crted m this controverfy. -hat it would per- haps be Mcient barely ,0 name it J but I would wi& ,0 obferve. that the colonies ought not to confiderit barely as a rejlric "V'^a. True it is. that it lays the cc . n.es under certain refiriSU^s; but then it ■a^equally Kberal in fecuring them cenain advantages. T/.eir ftips are confidered as Engha ihips ; their mariners as Engliih manners t. So far then as the increafe of navigation and mariners was in contem- plation, the colonies participate in the be- nefits of this aa, as fully as the Englim themfelves. Confidering it as a reftr.aive aa. and .t does more than regulate the tradeofthe colonies; for it not only pre. fcnbes m what veflels, and towhatplaces, the goods of the colonies may be exported, • 12 Car. II. c. ig. t 13 & 14 Car. II. c. u. fca. 6. " O4 tut li 11 200 . AcTf REi.ATiN(j Part If . but limits one pf their ihternal rights ; it prefcribes what pcrfons may adt as raer- . chants, or faOors, in the colonies. The idea of this adl was. borrowed from the ordinances of the long parliament, and from the a€ts of Croniwell. In pur- fuance of the fame idea, three years after- wards the parliament paffed another ad, ** to maintain,'* as they exprefs them- fclves, ** a greater correfpondence and kind- ** nefs between the Colonies and England, " to keep them in a firmer dependence on " it, to make this kingdom a ftaple, not ** only of the commodities of the planta- ** tions, but alfo of the commodities of " other countries for fupplying them*." To this purpofe the ad puts their trade under farther regulations, diredting, that no European goods fliali be imported into the plantations, but fuch as {hall be fhipped in England i and proceed dircdly on board • See J 5 Car. II, c. 7. Englijh I ■ SeajX. TO THE Colonics. 20, £»«# * (hips, navigated by an E..m* matter, and with three fourths at Jcaft of .hccrew£Vj^*„,,i„„^ The penal - y.sforfe.ture of the goods and vefl-el, one ■rd to the ting „ne to the governor of the plan.at,on,,f.hefeizure is made there, undone third to the informer. And ,0 fa- cilitate the recovery of the penalties, the ■nformer has his option of ruing either in he kmg s courts of the plantation where the offence ,s committed, or in any „,,, ot renrii 10 England. As a counterbalance to thefe reflriflions. the fame ad grants them certairi privileges >" the exportation of fea coal. It confirms and increafes the penalties of a former aa T forbidding the plantation of ui.a-o in >-"gland, ..becaufe" fays the aa... the P ant.ng of it is a difcouragement to the oolomes." remarting at the fame time, * Under fh°fp f«>rmo are included Xs^U '" T ,°''"""' ^'^^^' fubJeas of rh! '" '^^ pJantations, and '""^eas of the plantations. • t i2 Car. U, c. 34. that m =ril 202 Acts RELATING Part II, that notwlthftanding the penalty impofed by the former adt oi forty poill'mgs a rod, the planting of tobacco in England dSAJiill cbntinue. — This furely was no mean facri-' fice to the welfare of America, and the fyftem of monopoly is not entirely in favor of England. Though the penalty for planting to- bacco in England or Ireland, impofed by this laft adl, was no lefs than ten pounds a rod, ftill the profits ai'Gng from it were fo great, that this provifion was infufficient to prevent the planting of it ; and there- fore, by another ad *, power is given to juftices of the peace " to pluck up and ut- ** terly deftroy '* all tobacco planted in England or Ireland. The legiflature whilft it takes thefe effi- cacious means of fecuring to the colonifts the monopoly of tobacco, repeats and en- forces its former diredions for keeping them in a firmer dependence on England, * 22 & 23 Car, II. c. 26. and \:w 1 Sea. IX. "" TO THE Colonies. 203 and preventing their trade from being di- verted elfewhere than to this fcingdon,. •which hath (fays the aft) and doth daily " fuffer great prejudice by the tranfportinff ofgreat number of the people thereof to the faid plantations for the peopling "of them." I- i- "C About three years after this, the legifla- ture went farther. I, pafled ,„ ,q , ; ^ '« for the purpofe of .^^„^ , ,,^„„, . This aa begins by allowing the impor- t.^on of train-oil. whale-fins, &c. „L, and mpo,;ed\r, Englilh v.ffels, free of all cuftoms and duties, and the importation of bu.lt la the plantations, on payment of certam ^a/,„ there named. ^ It then recites, that the liberty which W been granted, of tranfporting free of all duty the produflionsofone colony to mother, had been abufed.-that the co- lonifts were not content with enjoying this % 25 Car. II. c. 7. / t • \M frcedo im i -ffi!.. 204 Acts relating Part II. freedom from duties on goods tranfported for their own CQufumptioriy \\\ which they had a manifcft advantage over the Engii(h, who paid large duties for the fame articles, but had tranfported and vended large quan- tities of their goods /o other flutes of Eu- rope. To prevent this, it is ordered, that fe- curity fliall be given to tranfport all fuch goods dircdly to England, Wales, or Bcr- ^ wick. In default of fuch fecurity a duty is impoled on certain enumerated goods, to be coUedled there in America by ojjicers to be appointed by the commiffioners of the cuftoms in England, under the autho- rity and diredion of the lord treafurcr of England, or commiffioners of the treafury. The penalties to be the fame as for non- payment, or defrauding his majefty of his cuftoms in England. It has been very juftly remarked ♦, that the duties impofed by this ad, cannot be • Sec Controverfy between Great Britain and ker Colonies reviewed, p. i68. con- ,1 if: Part II. ifported ch they ['InglKh, articles, ;e quan- of Eu- tliat fe- all fiich or Bcr- r a duty [ goods. y ojficers oners of e autho- ifurcr of treafury. ibr non- ly of his d*, that ,nnot be itain and coh- Sea. IX. TO THE Colonies. 20; confidered as meant folcly to regtdate the trade, but arc evidently intended to raije a revenue. The reafons afligned for this af- fcrtion appear to be conclufive. The adt declared, that the Englifh fub- jeas paid duties on thefc commodities, that the trade from one colony to another was greatly increafed. This is at once affign- ing a reafon uhy the trade between one colony and another could noiv bear the impofition of duties, and pointing out the «^^^Ar. of duties to be impofed ; accord- ingly the duties impofed by this aft on goods exported from one colony to an- other, were the fame as were then paid on the fame commodities confumed in Eng- land. Thefe taxes therefore were expe^ed to be paid, and therefore were intended to raife a revenue. There is only one exception to this :— the duty on logwood carried from one co- lony to another, is fo high as t . exceed the poffiblc profits of that trade. In this in- ilance. II % if 4 2o6 Acts R£latinc? :..t- .1, Part II. ftance, therefore, and this aUne, the tax was intended to operate as a prohibition. The adl was worded very incorreSily. Of two conftruaions, the colonifts very naturally embraced that which was moft favourable to themfelves. They confidered the payment of thefe duties, as a difcharge from giving the fecurities not to go to any foreign market. This claufe is therefore explained by another adt made in the year 1696 *. It is there repeated, that thefe duties are to be paid on goods tranfported from one co- lony to another. And it is farther provid- ed, that notwithftanding the payment of fuch duty, the fame fecurity is to be given, that the goods are to be exported only to fome part of his majefty's dominions. This explanation of the former Ad af- fords a corroborating proof, that the duties impofed by that ad: were intended to raife a revenue. And as a ftill farther proof we * See7&8 Will. III. c. 22. may \m\ Uii^m , the tax libition. correBly^ lifts very vas moft >nfidered iifcharge JO to any Lined by |6*. It £3 are to- one CO- provid- nent of € given, only to ns. ha. af- le duties to raife roof we may mayobferve, that the oiBcers to «,. Aefe duties are to be TT " tne officers for coIle«;n„ j " hi« mo- n . '■"'""'ng and managins- h.s majefly W.„.„„,,... They have thf r-e powers of vinting, rearch^VnJ entering warehoufes. wharfs, &c \ 'hf officers ofthecurto™ in En'glS.""'^ '' had pafled fome laws to defeat or counteraafo^e other law ^adehr," England relating to the colonies and therefore the laft ,fl- J i '".and "law, I, , *^ "declares. « that all laws bye-laws. ufages or cuflon>s. « ^ ^«t.meorwhichWy,,,ft,„,^.„ Jh'ch are m any wife „/«^„^;,, ,„ • .,ffr-''-'-''''aws.oranyofthei <.t:tior''^^'°'^'"^'-''^'^i''p- at^ns or any of them, or which are any w.fe repugnant to this pr.fent afl ;;orto. M.Haw..^..ie:2 jn th,s Ungdom. fo far as fuch laws "•;" "'^'^ '-"!.-«- the faidpll **tations, M ! 'I 208 Acts relating Pari IL ' *' tations, Jlre illegal^ null, and void^ to all " intents arid purpofes whatfoever." Thus far the ftatute; — than \vhich a fuller and more formal exemplification and aflertion of the fupremacy of parlia- ment over the colonies, in all matters what- foever, can hardly be imagined ; and this a ftatute, one of the exprefs purpofes of which is the laying taxes for the purpofe of a revenue. The fame ad orders and limits the in- ternal rights of the colonifts ; for it pre- cludes the colonifts from alienating their lands in favour of other than natural born fubjedts. In the reign of queen Anne, an ad * was paiTed laying rice and molafles under the fame prohibition of exportation to any foreign market, as the other commodities enumerated in the 25 Car. II. c. 7. Another ad was paflfed in the fame reign, granting bounties on tar, pitch, rofin, turpentine, hemp, &c. This ad ♦ See 3 & 4 Anne, c. 5. forbids Sea. IX. TO THE Colonies. ^og forbids all the inhabitants of New Hamp. J.re Maffachufefs Baj, Rhode Ifland. &c. to cut down any pitch, pi„e, or tar trees, not aaually inclofed, and under a certain diameter §. Jhisfurely is not a bare regulation of ade:.n3.ifanythi„gc,nbe.alin,i- at.on of an mternal right of the colo- lies. - In the fame reign an aa was paired for a(certam.ng the rates of foreign coins «/„« the plantations in America ». This .00.3 the limitation of an internal right. The aat for the eftablirh,nent of a ge- neral poft-office, is clearly an aaimpoffng du..es for the purpofe of raifing a reve- m.e. The fubjefls in America, are by - aa, put under the fame reftraints as he rubjeas of England : they muft fend he,r letters by the melTengers employed by .«. common poft-mafter:muft pay the o Anne, c. 30. * t 9 Anne, c. lo. 14 rates iflj': ;ll '^ 11 il lii : ifl if, 11 2IO Acts RELATING Part IL rates ordered, and apportioned by the fame legiflature. By an ad in the very beginning of the reign of George I. the duties created by the 25th of Car. II. are mentioned under the title of " Plantation Duties," and are ordered to be paid into the Exchequer, and appropriated to purpofes prefcribed by this aft*. , Another ad pafled in the fame reign f , for the purpofe of encouraging the impor- tation of naval ftores, is equally applicable to our purpofe. Among the variety of regulations in it, fome favouring the co- lonies, j;ire others laying reftridions on them, and that in matters of internal oe- conomy. It grants a bounty upon the importation of hemp : direds that the pre-emption of it be tendered to the commiflioners of the navy : allows the importer to difpofe of it as he pleafes, if they do not con trad * X Geo. I. flat. 2. c. 12. f. 4. t 8 Geo. I. c. 12. for ■^^ Part IL 1 by the fame nrilng of the :s created by tioned under es," and are chequer, and :ribed by this ame reign f , g the impor- ly applicable le variety of ring the co- (Iridions on internal oe- ; importation :-emption of ioners of the o difpofe of not contrad Sea. IX. TO THF r THE Colonies. 2n for it within twenty days • it . bounty on wood, plankT,^™^* "^r. it regulates the rn..^v f?iP Ko conditions on which the bounty granted by an adl of n Anne to the imn. , i^ " ^*^ ^^ Qijeen ^-IdbeparrT"''^'^'^"^^-' certain ^- ^ P'ne-trees of a h nit -"^^ °"'^' ^- '-'" iii.- f 212 Acts relating Part II. plantations, (liall be imported direftly to Greaf Brit' i ; i not elfewhere.^ By anothei u^, cop^^er ore is fubjeaed to the fame regulation f . In the reign of George the Second an aa was paffed t, by which the prefervation of pine-trees in the plantations, is ftill far- ther provided for *. By another ad H all rice in general is again declared to be among the enumerat- ed commodities, which are to pay a tax on being tranfported from colony to colo- ny, and which cannot be carried direftly to any foreign market. The ad then ef- tablifhes an exception to this general rule; and allows that " any of his majefty's «' fubjeds, in any fhip or veflel, built in « Great Britain, or belonging to any of % 8 Geo. I. c. i8. I 2 Geo. II, c. 35. * On the other hand, that favour might go hand in hand with reftriaion, premiums are re- newed or extended to the importation of mafts, yards, tar, pitch, &c. from the plantations. jl 3 Geo. II. c. 28. «* his Sea. IX. TO THE Colonies. 213 - his majefty's fubjeds rcfuling In Great ** Britain, navigated according to law, and « having cleared outward in any port of *' Great Britain for the province of Caro- ♦* Hna, may fhip rice in the faid province, " and carry the fame diredly to any part ** of Europe to the fouthward of Cape Fi. " nifterre." Another ad * of the fame reign per- mits the importation of all non-enumerat- ed goods from the plantations to Ireland. Hops were among the non- enumerated goods. Clearly, therefore, by the terms of this adt, a right was given to the Ame- ricans to import hops of their own growth into Ireland. But this was not the inten- tion. \v, the next feffions, therefore, au aa was paffed, ranging hops among the ^numerated goods f. The • 4 Geo. II. c. 15. ^^ t 5 Geo. If. c. 29. The title is—." An aei " to explai,,, and amend an aci, intituled an aa " for injporting from his majelty's plantations in * 3 *' America, k:? 214 Acts relating Part IL, The fame parliament, and in the fame fcffions, exercifes two of the higheft ads of " America, goods not enumerated in any a£t, (o *' far as the faid aa relates to the importation of ** foreign hops into Ireland." 1 cite this only to fhew what pains arc taken to give awkward, and (what is worfe) untrue titles to our ads. For the aft faid to be explained, ig not at all explained. An exception only is made by the fecond aft to a general permiffion granted Jn the firft. The matter concerning which, the i€t is faid to be explained, is not once mentioned in the original aift. In the body of this explanatory aft, it is faid, «« that doubts had arifen whether the liberty of im- " porting hops was not given in the former a£i.'* Now no doubt could arife. The liberty was as clearly given as words could give it. M goods, not enumerated, might be imported. Hops were not enumerated. This is only one, out of many inftances I could cite, of this inaccur.icy in the compofition of fiift laws ; and of fomething worfe than inaccuracy in the manner of fupplying omiffions, or re<^ifyiiig miftakes in them. Had the fecond adi candidly declared that the legiflature had not recollefled that hops were not among the enumerated goods : — had it allowed the importation ;dlil 215 Sea. IX. TO THE Colonies. of internal legiflatlon. In one and the fame law it alters the ^^citure of evidence h their courts of common law ; and it alters the nature of their eftatcs, by treat- ing real eftates as chattels. The preamble of this ad declares « that " his majefty's fubjedls trading to the ." plantations. He under great difficulties. " for want of more eafy methods of prov- *'ing, recoverinjr, and levying of debts " due to them, than are now ufed in fome " of the faid plantations."-It declares the remedying of thefe inconveniencies necef- importation of f.ch of them to Ireland as fhould be fli 1 1 1 if' 1 ,;, t '&.* f4 fary >"''5 ii 2l6 Acts RELi^xiNO Part. II. fary to retrieve the credit formerly given by the inhabitahts of Great Britain to the inhabitants of the plantations f . From this preamble alone we might fairly have concluded, that the fubordi- nate legiflatures in America muft have been apprifedof thefe inconveniences, ?ind had either refufcd, or at leafl negleded to provide an adequate remedy. But, indeed, we have more pofitivc proof that this was really the cafe. The bill was brought in, in confequence of repeat- ed petitions from the merchants of Eng- land. They fet forth, that by the la-ws then in force in the plantations, the Bri- tifli fubjeds had none, or at leaft but a pre- carious remedy for the recovery of their juft debts. They fet forth, that the fame laws had laid partial duties on the Britifli fubjeds trading there ; duties higher than thofe paid by the inhabitants of the colu- nies %. t 5 Geo. II. c. 7. % See Comm. Journ. vol. xxi. p. 794. What Sea, IX. TO THE CoLONiis. a, 7 What the provincid legiflaturcs would notoratleaadidnot nation— though there were the term of donation; ftill it was «o donation. For «*it *' was an ad of prohibition, not of reve- " nue."— Should we fufped the accuracy of this honourable writer, we are referred to « the fecond printed letter of Governor " Bernard, dated in 1763." This care to mark the date of the letter, was ''Ithinkpremeditatedr-^\^ was meant to infinuate, that governor Bernard, then, in the year 1763, confidered it as an ad of 1; 'fill 1|. !• "I . ; m iv j^m^Km %i^H ■'■') ^^^^^B Wm ^B ^1 ^ W lB B *\ 1 ^^^1 . r.:ll Eij^H W»ffi IfflH jwii !|H Irfi iH Pill Ifn yH HM 22i Acts relating Part U. of prohibition : yet certainly the governor does not fay fo.—He gives it only as his opinion y that it Was " originally defigned'^ as an ad of prohibition. But another paflage in the fame letter of the governor, will give us to underftand whether the a(a was intended to operate merely as an ad of prohibition; or whe- ther It was not intended to operate in fome meafure alfo as an ad of revenue. Let us hear his words :— « at the time of making ** the adt, (fays he) it was afferted by the *' Weft Indians, that as the Britifh Weft *• Indian plantations were capable of tak- ** ing off all the produce of North Ame- " rica, the fending fuch produce to foreign *' plantations ought to be difcouraged.— " To this theNorth Americans then anfwer- " ed, by denying (I believe with greater " truth) that the Britifh Weft Indian plan- " tations were capable of taking off all " the produce of North America, fit for •* the Weft Indian market." This Sea. JX. To Ttt„ r. TO THE Colonies. ^3 This account fets the matter clear Tl, =a was intended to operate 1 / "^ A-»^'^'>«». fo far as tffc ;;,: ^^ °^ 'ion of North A .^ • "'^ ^P'^^'^mp. -tended!: op:!" ' ""'°'" '' -" "Ponani.;;::;;^^ of revenue «a of their nrn/. ''^''"'"S'' ^"^ "-e Indian iflld; f " " '" '°"'S° ^^^«- an ,Uands, after the Britiffi Weft I„ d-an markets were fupph-ed. " "ons on which the aft ^ 1 ^ " ^'ft" page in the To , '"'*• ''''^^ 'heiroVeaiJXtr-V"^'^"^ ""dwiththeir^r '^ ''''°^"'^^'-'^' Thofew,.o:2^^r^;■"«"»PaiIi„g. ^■^enottonava ,.•,•'"'' ^'■^"'°'"e«''o '" pay a Ihiiime of th,. f„ "npofes. *" "e taxes ,t *'-:"';:::;■«■"■=«". ' To 2^4 Acts relating JPart ll. To the lift of ads already referred to, 1 might add that * which reftrains the A- mericans from creating banks ; the ads f which give the rights of natural-born fub- jeds in America, to foreign Proteftants, to the United Brethren, arid to Jews. The ad which impofes a duty of fix pence a motith on all the Britifli American failors, towards the fupport of Greenwich hofpi- tal {. The ad which grants a premium on indico imported from the plantations §. The ad allowing the free impoftatiori of raw filk from thence ]!. The ads allow- ing the free importation of pig and bar- iron, and for preventing the eredion of any mill, or other engine for flitting or rolling iron ; or plating forges worked with a tilt hammer; or furnaces for mak- i: • 14 Geo. IT. c. 37. f 13 Geo. II. c. 7. & 20 Geo. 11. 0,44, & 21 Geo. II. c. 30. X 18 Geo. II. c. 31. § 21 Geo. II. c. 30. II 23 Geo. II. c. 20. ing SdO:. TX. TO THE Colonies. 225 ing fteel in the colonies *. The ad which repeals all duties on the importation of pot and pearl afhes from America f. The aa reftraining the governors and aflem- blies of the refpedivc provinces, from making any ad, order, refolution, or vote, whereby paper bills, or bills of credit, ihall be created or iffued, under any pre- tence whatever ; or for protrading, or poftponing the times limited, or the pro^ virions made, for calling in fuch as were then adually iflued, and fubfifting J. The aa which extends to the colonies certain provifions of the ftatute againft frauds §•. The aa which diflblves the indentures of Servants enlifting in his raajeftys fcr- vice. But why fhould I multiply examples ? Why accumulate proofs in a matter fo clear ? From the aa« already cited it is * 23 Geo. ll. c. 29. & 30 deo* ir. c'. i6; t 24 Geo. II. c. 51. t 24 Geo. II. c, 53. § 25 Geo. II. c. 6i \k :-5m v iii ■I Q. evident. I 226 Acts relating Partll. evident, beyond a doubt, that the original patentees did not confider themfelves as withdrawn from the power of parlia- ment.-— that parliament has at no time confidered itfelf as precluded from exer- cifing any aft of it's fupreme authority over the colonies : that it has conftantly exercifed they^rw^ authority over them as over the of/,er fubjc^s of the realm : that, in eftablifliing its fyftcm of monopoly, it has alternately exerted,— at one time it»s foftering care, to fecure advantages to them : -at the fame time, br at another, it's reflridive power, to fecure advantages to the mother-country : that where the ads of their Subordinate legiflatures have cither omitted to fecure, or attempted to break the chain, which keeps them dependent on the mother-country,parliament has itfelf added, or replaced, the links ; the want of which would have broken the connexion and de- pendence, by prefcribing new arrange- ments, and by fetting new bounds to their mferna/ rights, privileges, and proper- ties :: ,! the original emfelves as of parlia- at no time from exer- e authority conftantly er them as Jalm: that, Jnopoly, it ic time it*s antagcs to It another, advantages lere the ads have cither o break the dent on the itfelf added, it of which on and de- r arrange - ids to their id proper- Sea. IX. TO THe GoLON,„. j,^ ceflary ,o fecure, or extend their trade parhament ha, beftowed it with a 1 S ha„d:-,hat where the increare, and flu' nftrng flate of their trade, enabled ftel to repay.. n part at ieaft, What the mother! country had thus liberal.^ advanced he fame parl,a™enr,aaing as a faithful iew- 7 tne colonifts. are neither fpe- "fically named in their charters, nor L -ffary to the e.ercife and enjoyment f fhexemp,ons and powers as are nam. ed.fone«herare.heyfuch.a,havebeen ^^er conftantly enjoyed and exercifed by *-. or ever allowed them by thepar J i it iii Q.^ SECT. 228 Acts relating Part It S E C T. X. Of the deference paid by the colonies to the authority of 'Parliament^ and to the re- quijitions of the Crown t previous to the reign of his prefent Majejiy, : ! SUCH of the ads of the laft parlia- ment, as concern the prefent quef- tion, were ads paffed for enforcing fub- miflion to a claim aflerted by the parlia- ment preceding. The policy of the ads then muft, in a great meafure, depend upon the policy of the claim. If that claim was unconftitutional, it unqueftionably, upon that account, was impolitic. In fuch cafe thefe laft ads muft be regarded as impolitic. But it might alfo, without being unconftitutional, be impolitic on other grounds : in this cafe too they ftill could not but be regarded as impolitic. If Sea. X. TO THE COLON.IS. 229 Ifthe right offupremacy in general had never been ./.,W^ ,i„ , he eo„,„,ence. 217 "VT ""'""' ""''"• '■- ^'-™ ;°" "-^ ~"^'="'ned a, novel and unconfti. '»«e/?^-/.u might at leaft be looked upon "had been claimed and exercifed, and the colonies had co.umd/j fubmitted to it, tiU man.fefled in the particular article of i„. ternal taxation; the exercife of i, in f,,h part.cular artide might be open to cen- (ure, though not as unconftitutional, vet as impolitic. If not confining their reluc- tance to this particular ^o^e of exerting 't. or this particular //Wof its being ex! erted. they have gone on in a middle way. between open conteflation, and contented obedience, the exerting of it in the parti- cular mode, and at the particular time in queftion, ihould feem to have nothing in .0-3 it in ?30 Acts relating Part lit hi ■ [ 'Ml it impolitic, ?iny more tnan unconftltu- tional. It was with a view to the conflitutiona- lity of the ads we are about to review, that we cited fo many ads of preceding parliaments, to (hew that parliament had always exercifed its fupreme power over the colonies ; putting forth more or lefs of that power, as feeme.' n ceflary to the ends of proteding them ; of maintain- ing their dependence on the mother-coun- try ; of making them contribute, in pro- portion as they were able, to the common peceffities of the whole empire. It is with a view to the policy of thefe ads, that it becomes of importance to en- ter into the queftion, how the colonies Jiave conduded themfelves under the ex- ertion of this power ; whether they have contejled the right of exercifing it ; or contentedly fubmitted to itj or whether they have not rather taken a middle way; eluding the ads of authority, jn which the Sea.X. TO THE CciomEs. ,3, •he right has been exercired. without dif- Puting the right itfelf. ,„ ,1 . ■ navigation ad (tor to that alone the gentleman chufes to con. fZcf"^ " "» ''"thority „„.. ,,, _ deputed, that it was no where difput. ed for any length of time, and on the whole, that i, was w//obferved. When- ever the afl preOed hard, many i„Jr,i. Juals mdeed evaded it. But this (he 'ays) IS nothing*." Hence I fuppofe we are ,0 undcrftand Aattheoppofitionmadetoitwasmade ■n no other way than that of unfyftema- ■calevafion, and, that of whatever na- ure .t was, it was carried on by none but ■ndmduals; that it never had the colour of authority. That the aflemblies them- fclves maintained a conftant deference tolt .3 not indeed exprefslyy.,^', but this I fupl Pofe U was deligned Ihould be inferr% * Burke's Speech, p. 43, t ^^ fronj tmi !'•■ 1^ m v.'-m ll^H u,|| |HH T f^ ^flH * "il if^^^^H m WSk a «3« Acts fflattng Part II, from the emphatic mention of indivi- duals. What truth there is in this rcprefenta-. tion the Journals of the Houfe of Com- mons will inform us. From them wo learn* that fo early as the year 1701, impediments were thrown in the way of the king's officers; combinations were formed againft thofe who had the cou-r rage to execute the trufts repofed in them with fidelity ; that the adminiftration of juftice was delayed, and the greateft uq- t willingnefs exprefled to fubmit to anycx- ercife of the fupremacy of the mother- country, and in particular to the ads of trade and navigation. At that early period a commiffion for enquiring into great irregularities and mifdemeanors in Rhode Ifland was ren- dered ineffedual. Lord Bellamont was fent out on this commiffion, *' but found * Vol. xiii, p. 502, 503, 504, 505. The par- ticulars are minutely ftatedj they were too loi\g to iiiftrt here, (fays \ I' - ...ij- i' M', Sea.X. TO THE Colonies. 23^ " (fays the commlflloners in their report '' '° '^'' h°"^^) ^"^h an oppofition to his '' '"ajefty's authority, and the ads of " ^'^^^ ^"^ navigation, that no good ef, " feds could be obtained from that com- »* million: they (the people of Rhode " Ifland) pretending by their charter to be ^« independent on the government of Ene- '* land." ^ The province of Conneaicut was, in Its corporate capacity, equally refradory. " The governor and fuperior court pe- " remptorily and publicly declared they *|would admit of no appeals from them •• to his majefty in council.'* This was neither more nor lefs than faying, that they would admit no appeals^/ all ,^ England: for however unconftitutional, as well as inefficacious this mode of appeal may be, compared toothers that might be eftabhfhed, to declare they would not ad- n^^t this, at a time when no other was ef- tabhihed, was to declare that they would admit none. What chance in fuch cafe 6 the "^■' fill \^3 o.her.cou,.yj;°:^,'^f'"-3^ unconneSed aa. nf • ' ""^"ot •>«werea&5,f'"r''^"''^'«"^ -^»P-Pore„ig,t7frt'""r mentioned- hnf \ ^' ^^''^ ^^ea "ave iiere confined myfeif °° ^^ "» ftem to have efcaped^h' "'^"^ gentleman. '^ '^' "°"=' "^ «■« Tlie otlier point tn h. . *^«e.nceU;,;:r'*"'°'' fequifitiona of the 7 "'" '" *"•« foion. ha- ,/?' "'"'•'• Tl>eferequi. «-de„:;,:;:;:;^r*econtHhn. "'""'■''^'•■"■•"^°f'.»F<,„„,T„«, for J540 Acts RELATING Part 11* for the ordina y fupport of their own ch vil government in time of peace* 3- On this head we find it with great ve- hemence aflerted, that till the fatal period of 1 764, the colonies were ever ready to contribute as far as their abilities would permit* / vj. i On the firft point, that of coritritutiohs for extraordinary fervices, we are referred to the moft refpedable authorities, tomef*- fages fent by their late and prefent ma*- jefties, and to refoiutions taken in confe*- :quence of thofe meffages by the Britifli Houfe of Commons. In thefe meflages the Kitigfets forth the zeal of his fubjeds in America j and recommends it to the houfe to recom- penfe that zeal. In compliance with this recommendation large fums were actual- ly granted by the houfe. • Much fti-efs is laid on this teftimony; nor will I leff6n it by remarking that in thefe rare ads of chearfui contribution, ihe zeal exerted by the colonics had for ita Part in • own cH great ve- tal period ready to ies would ,■ _\ . j T ■ ■ ■ '■ tritutiohs e referred 18, to mef*" efent ma*- in confe** he Bfitiik :fets forth :rica j and o recom- ; with this sre a£lual- teftimony ; ag that in ntribution, cs had for it3 m. X. TO THE (3,,oN,«. j^, 'Z ^"^f<^^. their .», i„„^i. . , enefit and advantage. Y«,hu,Lt^ I may be allowed to fay --.haf „ - j-r r.- ' P'o^e an habitual difpofition to contribute to the nnW^ k thena I m, i. ,. '° ""« PuWic bur- 'hen, I n,ay be allowed to fay. that the P-fgl.enofthefeoneortwo';ftr;*; ^cue^ratherflrongerinfavouro;::: 'lament than in favour bf the rM It proves, if you will ,h!,.t , "• j-j r » '"^t the Coloni/^o - Jat the parliament wS™ fie. it prove, not that the; rf.t ■xent >^ that it affifted then,, but it proves that it aaually^V.^^ .'her,; Mr. D/cke„fo»_« Tkat ,fc ^'-/'"W^. ,„j " particular co„c„„ or ,«„!« !""''" '""' "'' -" Nay that th. ,r„ r • '" "" '"ft »«" Afablies cited in ih. C.„, , "*''' »*» '• »; '■> P. .37. '^•"•"«"> "Viewed, boa, ^ berally. it! ■ ; fl (yf.l ll- .t li'l 242 Acts RELATiNO Part II. berally. Whether they had exerted them- felves beyond their ftrength, ftands on re- cord as a matter of opinion. 1 hat they were recompenfed Hands upon record as a matter of fa€t. As to the fecond point, that of contri- butions for the ordinary fupport of their own civil government in time of peace, inilead of proofs we have only affertions. If affertions are to weigh, thofe of Mr. Pownal will furely be allowed their weight. Let us then hear what he fays on the mat- ter ; to his teftimony no fober American can obje<5t. He tells us, that the order of the crown to require a permanent lupport for the go- vernor, *' is generally, if not univerfally, " rejected by the colonial legiflatures *." He telk as, ** that the fupport of the go- ** vernors, judges, and officers of tlic| " crown, is with-held or reduced, wlien-j , ** ever the affemblies fuppofe they havel * See Adminiftration of the Colonics, vol. i,| p. 80, 8i. ' b ■■ " reafoil Sea. IX. TO THE GoiONIES. 243 "reafon to difapprove the nomination, .. '"' P"''™'' "^ 'heconduftof there offi- cers. -Is this tlieliberaUupport of their C'v.1 government we hear fo much off To lupport a government is to preferve it in a ftate of ft,ength and aSivity : what ftrength, what aflivity can there be in that govern,nent where the executive and jud.c.al powers are fo crampt and fettered, and depend for a fcanty fubfiftence on the arburaryand annual grants of a popular alTembly ? ^ ^ Mr. Pownal, i„ the words we have cted. was fpeaking of the general and ordmary mode of providing for the fup- port of the civil government in the colo- nies. He thought it not neceflary it (hould Jeem, to cite particular proofs of an aiTer- tion confirmed by daily experience' But we know of one remarkable inftance which ftould not be paired over. Single afls of extraordinary exertion have, we have feen, been cted as triumphant proofs in favour of ^2 the ■ r r' '\l ill H4 Acts relating Part If. the colonies. It will not then be too much to prefume, that fingle a<::t8 of obflinate refufal, may militate with fomc little force againd caem. In the year 1710, the affembly of New York refufed, on fome pretext or other, to make the ufual grants for the fupport of government. This was in a time of war, of the moft expenfive war that England till then had ever waged. At that time thef councils of this nation were guided by a whig miniftry. What did the minifli y da on this refufal ? They ordered a bill to be drawn up for raifing the fame taxes, and appropriating them to the fame purpofeS'" by authority of parliament, as it appeared to them ought to have been raifed and ap- propriated by the affembly of New York. The title of the bill was ** An a^ for •* granting a revenue to her majefty, tor ** arife within the province of New York, «* in America, for the fupport of that go- **^ vernmen.t.'* In the preamble of the bill k ! ., .11: Part 11. 00 much abflinate tie force of New jther, to jport of of war, England time the led by a liftry da HI to be :es, and pufpofe* ippeared andap^ sv York. tiQ. for jcfty, tor N York, that go- • the bill it Sea. X TO THE Colonies. 34^ it is faidthe Commons « ^/W ^;^J ^^^„^ •• unto her majefty the rates, duties, ex- *• cifes, impofitions," &c. therein after mentioned *, . Thib bill (which would have been brought in had the whig miniury conti- »ued) was deferred to another year by the tory miniftry. who fucceeded at that criti- cal moment. It was deferred, as it feems, on the liberal promifes which the colonies niadc of promoting the expedition then tong out againft Canada Aa expedition which failed, as the author of The Con- troverfy reviewed, informs us, on the authority of Swift, ** partly by the acci- ♦' dents of a ftorm. and partly by the>^- « hornnefs and treachery offome in that «' colony. Jar whofe relief and at whoje in^ * See 3 r ,,y of this bill (which was figned and approved by Sir Edward Northey, and Sir Ro- bert Raymond) in The Controverfy x^n^^'^i p. 184. » R3 treaty . n • "^ ''*f^^^^B 'III \^^ 246 Acts relating Part II. ** treaty it was in fomc meafure dc-. "figned." But though the bill was deferred, there appears little realbn to doubt, but that it would have been brought in, if the colony, grown wifer, had not renewed the grant. Yet this very colony can now tell us, *' that it has always been the fenfe of the " government at home, that fuch grants " cannot be conftitutionally made *." This certainly was not at that time the fenfe of government. Yet their agent can tell us, ** that a par- " liamentary revenue was never once in " contemplation, till the unfortunate pe- riod of 1 764f . Had I the powers of his eloquence, or the privilege of his fame, I might — but I would not, — ufe his own harfh phrafe.— • I might — but I would not — fay, *• Thus " have I difpofed of \S\\% jalfihood -^^ and * See refolutions of the AfTembly of New- York, in the year 1765. f See his Speech, p, 39, when Part II. ire dc-. I, there : that it colony, grant, tell U8» : of the > grants ." This fenfe of at a par- once in late pe- Sea. X. TO THE CoL ONIES. 247 when I come to the unfortunate period of 1764, then too I might add—'* but falfe- " hood has a perennial fpring * '* us now turn to this unfortut^ate pc- Let riod. * See his Speech, p. 55, '='1 ence, or t— but I >hrafe.— *• Thus ^;»» and rew-York, R4 SECT. iik when m H^ AcT$ RELATING fart. Ijf. ml 5 E Q T, XL , 'ufihe mdugi o/pdrliament with reference ■ to the colonies from the beginning of ike prefent reign to the commencement of the lajl parliament, " ' I ^ H E grand manoeuvre in the bu- -1. finefs of new regulating the co- «* lonies (we are told) was the 1 5th aft "of the fourtH of George III. which ** opened a new principle; and here (it is " added) properly began i}ciQ fecond ^tno^ ^* of the policy of this country with re- " gard to the colonies, by which the ^* fcbeme of a regular parliamentary re- " venue, was adopted in theory, and fet-. *' tledinpradice*.*^ There is, I think, a capital miftake in this reprefentation. Hurried on by the impetuofity of his genius, this writer did ^ot Hop to ma.rk out the feveral periods of • Sec Burke's Speech, p. 50. diftina ^1 ;i fart. IJf, [. h reference ning of the nent of the in the bu- ng the co- e I jth aft [II. which here (it is •ond perioc] Y with re- which the entary re- y, and fet- miAake in on by the writer di4 periods of diAind diffina fyfle«s of poliey, ^^..h ,,, «dcd and„,.,_^^^ pe Con, led to ,nd prepared the Wayfofthe J^fte.^eftaB,i„.edbythe,aheLlfi' neobjea with hi. being to reprefenttS , f ;-'>«- of, sm„ehinnova.iont Poffile; the number of period, he n,Z «but,».To™eitfee»,thatwithfuU much reafon four diflinguiaaUe Jl ' -ay be marked out. at each of wSe P°'.cy,„„ this behalf purfued.rece'e;r Ponfiderable degree of alteration. ' Thefirftperiodlwoulddifting^iftbe- e- at the foundation of the colonies ?"<• ?nds at the G,mmonweaIth pX' meat The fole objea of the fyCa opted a„d adhered to during tli"::;: Penod, feems to have been to fecure to th! ^;on.es the monopoly of toba:: and, e;: '"^•" ^-' «^'"'"^ '<>« Of th: The fecond period began in the time of •e long parliament, but was mo ^ (developed af„r the Reftoration. The J objea: \ i f i I •'! *ii* .in imllkuiU im/M ^MH ■TV :>!&-'!' ^^H^^H •flffir ' '' lp'-*'f^-liH l# n li «ii 1 '' ^H ll^l bin km Acts relating Part lU obje(fl of the policy, during this period, was to oblige the colonies to buy from Great Britain only, all the manufadures and European goods in general which Ihc could fupply them with ; and to fell all the products they could fell to the Britifh dominions. On the other hand, during this fecond period, by way of compenfation for thefe reftraints, the monopoly given to the co- lonies, at firft in the fmgle article of to- bacco, was extended, or at leaft advan- tages nearly equal to a monopoly were granted, in a multitude of other articles ; among which we find thole of rice, hemp, raw filk, pitch, tar,, turpentine, indigo, |and naval ftores. The third period began in the fixth of Gec"ge the fecond, during which, in par- ticular inftances, taxation was fubftituted in the room of a monopoly. This period then, which began in the reign of George III. and which the orator has chofen to ftyle the fecond period, might, Sea.xr. TO THK Colonies. j^, ni'S'it. with rather mn,-. «;<^"Hree.,he«„:.:eI„r:'Ih: U rnuft be called a change, feems to have be^»Ma. gradual as an, of the former. .0 tllteSr. r .'-""''' -^"^ ftw ,h ' \ '°"'' P"'"")' 'he legiilature faw that the trade of the colonies was trau. that the profits thereof miVht fo% center in Great Britain, and bZ. ^.ed to thebenefit of the Whole empire'. W,^outaft,ng the ..,y„,„f .he colonies, they th refore eftablifted the fyften, of monopoly. ^ ^ At the beginning of the third period "■e Ieg,flature faw, that the colonies had -eafed and flonrilhed under the ffte ofmonopoly,thatthen,o„opolyi„fol bad not markets to take off all their com- • See Bernard's fifth letter. ■ i'n 3 iMi modifies. *, f. II '■'I ; i H m 252 Acts relating Part IT, jnodities, nor fiinds to fupply all their wants i and that the colonies were now in a iituation to contribute by a revenue for the liberty of relaxing the monopoly in thcfe inftances. In thefe inftances, there- fore, without afking the confent of the colonies, the legiflature fubftituted tax- ation, manifeft dired taxation, in place of ^ monopoly. At the beginning of the fourth period, the legiflature faw that thp colonies (lill increafed and flourifhed, that they were in ji fituation to contribute more large- ly to the fliare of the public burthens, greatly increafed on their account. The legiflature therefore went on, by a natural and regular gradation, to aflefs the portion of the public burthens, which they now fliould bear. In this change \t is true, the legiflature did not alk the ?onfent of the colonies. As far was it from ^fking their confent in the preceding changes. I am fpeaking of a change, but the great change was not in th^ policy of the mo- ther- Sea. XI. to THE Colonies, j^j .I.er.cou„,ry,buti„,heflreng,handfitu. anon of .he colonies,, hey were eiFeaual- ir and finally delivered from their ene- m.es; the fword, .hat from the firft hour of .he,rb.rth had hung over their heads, was broken;. hey now made a vow of in- dependence, the momen. that maintaining .tfeemedpraaicable, and that dependenc^ *as no longer neceflary. The technical terms of give and gra.f had been qfed before, in the aft of George the fecond. 1 he fame terms ara ufed m this*, but there is this difference- -In that aa the title was foreign, in thiJ correfpondent, to the ft,rv;ew. TWs fure- lycanbe no objeaion to the latter It declares it expedient, that « new provi- " '■""^ ^"^ regulations ihould be efta- _" blifted for improving the revenue 'of the kmgdom, and fecuring the naviga- " tton and commerce between Great Bri- " tain and America '■' It afligns the rea- ion why «,a, regu-.-Jons were expedient- becauft " the dominion* in America had' • 4 Q«. III. c. y.. " been '# * ft ^ ^ '\ 11 254 Acts relating Part H. ** been fo happily enlarged :'* — this furely is no objedVion to the a£t. It declares it to be juft and neceflary ** that a revenue fhould be raifed in America:" it affigns the grounds of this pofition, and the ufe to be made of the revenue fo raifed ; name- ly, ** defraying the expences of defend- **^ ing, protedUng, and fecuring the domi- «* nions fo acquired and enlarged." — Is this any objedion to the ad ? It declares, that the commons '* were defirous in the *' thenfeffions of parliament to mskejoffif *' provifion towards raifing this revenue." ■ — I fhould have thought even t/u's no great objedion to the ad. We are told, how- ever, that •« from thcfe laft words it ap- " peared to the colonies, that this ad was ** but a beg'mjiing of for rows i that every '* fefTion was to produce fomething of the '* fame kind ; that we were to go on from day to day in charging them with fiich duties as we pleafed for fuch a military " force as we fliould think proper*." * Mr. Burke's Speech, p. 51.. Thus (C (C i \ » I., m km Sea. XI to THE Colonies. s;; Thus appeared it ,o this orator; to "e. to any one, who deigned to read the ftatute book, and who chofe to fpeafc of .' " ""'* ^PP^" « the utmoil but a «„. '/»aa/««ofrorrows. All there dreadful phantoms, however •■Ppeared to the colonifts :-all were con-' jured up by thefefeemingly innocent, but "•ag,c words : _ « fo„,e provifion - _ ••prefentfeffiou"_AIas- who can an- swer for the wildnefs of an American ima- gmation. There was a time when every laundrefs. every poor negroe wench i„ New Eng- Iandftartedupancnchantrefs;fcrmid. able as thccvolcer of Samuel af Fndor- when old men outdid the wonders of the ftalked about at noon day.-Thc parox- yfms of religious madnefs are now over- a pohtical phrcnzy has fucceeded. Inftead of w,tches and demons, their imagination " "°" '""fi^'i ^"1' the grim fp eflr^s of j,r-f| sm -r ^fv 'll fl: \^es. i£6 Acts REiAl-iNO t*art it. flavcs, " fhaking their uncombed locks) and (lamping their woodien fhoes *. In this, as in the former cafe, the jphrenzy, " like fome epidemical difeafe* •* has run through the whole country :'*— now, as well is then, ** the magiftratefl " and minifters, whofe prudence ought td ** have bden employed in healing this di- •* ftemper, and afluaging its fury, thro\ 'he Char- f-pence or u-o p„ce a, „.oft ft.„„ ,. ,'^;^7 6ee the Governor's fifth letter, s to f : ♦:! ! ; iJi )Ji * I, '11 258 Acts relating I'art II. to have been cftabli(hed, if indeed it be pra£licabk, between 'the different forts of lumber; that if policy and a regard to our naval eftablilhment made it neceffary tQ reftrain the exportation of , tliat fort yvhich is ufed infljip-building to our own douiiiiions, we fhould have allowed them to export the other'fort to foreigners, fuch as ftaves, or what was fit only for houfe- building * I believe, on the fame autho- rity, that proper regulations were not made for fixing the place where the courts of admiralty were to be holden : that the .nipcje of paying the judges of the admi- raJty wa§ exgee4ii:>gly wrong f : and tend- Mto warp their judgment almoit againft the force of evidence. I believe on the ■ ■ X '^ or \ • ■ ■• ' ■' *- This reftraiot k in part taken oft" by 5 Geo. III. e. 45» t They arc paid by a poendage oi> 'of Utc ^^condemnation iponey. Thcfc two hll named .arrangements make no part of tbe ail in ^.wC- tion: but that.aa, which began this new fyftcm, ought to have correiled fuch capit; 1 dcfedts. c-; :. fame ij,.; i! !: ;j Part II. ndced it be ent forts of 1 regard to It neceflary f , tlut fort to our own lowed them igners, fuch for houfe- kme autho- were not 2 the courts i: that the the admi- : and tend- loit againll 2ve qh the ^' by 5 Geo-, out "of i\tc ' l^il named a«Sl in K^neC- I new fyftcm> dcfedts. Sea. Xr, to TttE CoiON.'tr, 4^5 fame authority. ,hat,he order to fend ^// .he money ariCng from ,hefe duties to hi, MajeftysEx<;hequerinE„gIand,wa.avery -prudentoncMhat the charges of doable 'cramance and the Hopping of the cir- cuhfonoffuchafumforfolongatime m Amenca, was an addition ,yf near one- fourth to the burthen to be borne by th. Colon-fts, and that without anfwering any one^(?(?t/pufpofe. . "^ I »m ready ,0 allow that there capital to-ftakes at the very M put&t in this new period, did oot only juftify ,he co- on,ft. m .the Tetitfon the^ prefented tt, he Hou e'.of Comtoons p„ ^ occaf.on, bat would have.entitled them «,he.heard w..h attention and favour, had they pro. Med to ra.fe by , heir own aflen^Wies a Petmanent revenue, always to bear a cer- »m adequatt proportion with what the "bjeas in Great Britain fhould pay. Or f '"^7 hun^bly petitioned to have the '■'"'y <>f fe°*ng ,0 the Britiih Parlia. "■ew.a certain number of knights and 2 burgeflcs UMh I ' *■ f' i « In, h '/i'lii IMAGE EVALUATION TEST TARGET (MT-3) A 1.0 LI 1.25 li, Uii ||22 2.0 1.4 1.6 m s k.. /i /l /. !^J ^^^^ 7W Photographic Sciences Corporation "'^^ ^\ "^^ 23 WiST MAIN STREET WEBSTER, N.Y. 14530 (716) 872-4503 1," <^ .A. o % 26 o Acts relating ParrU. burgefles to reprefcnt the condition of the colonies * .^^^ ^^^^^^ .^^.^^ That the miniftry were difpofed to lift- en to cither of thefe .propofitjons is clear from the moft indifputable authority — That the colonies were av^rfe tp 1^9tj)ji is dear from the fapie authority. , , , }. la a letter from. Mr. Grenville to Mr. Pownal t» ^^ expreffes himfelf in ^he fol- lowing ftrong and pointed terms : ' - ■ ...],. ♦ As the great objedl here to be confidered in the conduA of parliament toward the colonies 4ince the acceflten 9S his prcftht tdajefty^ is th» ileps parliameot has tak?r> to aflert its right of in- ternal taxation m the colonies, I pafs over the afts madfe for encouraging the communication and trade widi the motherrcountry, fuch as 4 Geo. IIL c. 26. granting a bounty on hemp and flax. ^Gep. III. c. 27. granting a lilyerty of- exporting rice from South Carolina and Georgia, to any part of America fouthward of thofe' colonies; and to any part of Europe to the fouthward of Cape Fi- nifterre. ,4 Geo, III. c. 29., for the encourage- ment of the whale fifljery. 5. Geo. III. c. 45. ' for encouraging the trade of the colonics, &c. &c. t See Appendix to the Adminiftration of the Colonies, No. li j.. . . .- ' .: "As yiliil N a Parr U. ondition of the Se^.Xt. TO THE Colonies. ^g, -" As to the gl-eat^ueftion of our par- ' "l^ament's granting, to America a com. " petent number- of reprefentatives to fit " ^^ our Houfe of- Common., you are n« " ftrang^r to the declararions I re;>e-ate^y "made in the Houfe, at the time when' " the repeal of the Stamp AcS was agitat- •" ed .—that if fuch an application ftould "fee properly made by the colonies to " parliamem, in the fame manner as thofe "Which were made from Chefter and '* Durham, and probably from Wales, it " would in my opinion be intitled to the "moft ferious and /^^;.«r^^/, confidera- " tion. But I am mucj^ afraid that nei- "thor the peopJe of Great Britain nor '' thofe of America are fufficiently ap. " prifed of the danger which threatens "both from rfie prefent ftate of things, "to adopt a meafure to which both the' " one and the Other feem indifpofed. Some " of the co/omesy in their addrefs to the " c^own againft fome late a<3s of parlia " "^ent have, if J miftake not, .xprejlydif^ ^ 3 " dainea ,11 ?62 Acts jielating Part 11. »* Gained \ti,md I do; not f///«iit. has been *» kinMy received in Great Pritaifi *." . This ; was a fgdt which could not have efcaped the knowledge of a celjebrated orator, Tet in his account of Mr. Cren- ville's adp^iniftration he did not find it con- yenicftt tOvrcmcmber it, To fpeak the w/io/e truth may fouietimes hurt a caufe. But it w^s cafier fpr a miniiler to in- fure fucceis to the other propofai, *♦ That ♦' the Colonies ihould be allowed to tax ♦* thenifelves on requifuion." — ^This there, fore Mr, GrenVille pot only propofed, but warmly recommended ta the colonies. The defign of laying oti a Stamp Duty v^as announced in parliament fo early a$ thQ month of March 1 764. The Houfc came to a refolution on the propriety and fojihle expcdiencjr of fuch 4 tax. Put the , * The reader will attend tq the difference marl^ed by Mr. Qrenville as to the manner in which this notion was received in Great Britain and the polonies. By her he thinks it was not kindly re- f eiyed j by then? ix was ex-prtfily difiaimi. - paflin^ all 'f-g ^G Part n. 'nk it' has been ritain *." )um not have a ceIjE:brate4 3f Mr. Cren- ot find it con- ro fpeak the iiurt a caufe. linifter to in- pofai, *♦ That llowed to tax —This there-T propofed, but I colonies. I Stamp Duty nt fo caf-ly a$ Thp Houfc propriety and tax. 1^\A the the difference najiner in which Britain and the as not kindly re- ^siwd. • ' paffing Sea. XI. TO THE CotONIES. 263 pafling thi, refolntioa into an ^& w« de- ftrred with the '>cpr>/s purfofioU\U>^\^. the colonies time to propofe .„y other mode of taxation equally produfiive. The agent, of the colonies conferred with Mr. Grenville>;>«r«,,^ on this fuhiefl'.- They conferred with him on it in a body. He told them, what one of them at leaft declares he had heard Mr. Grenville far m the Houfe,-.. That the war had found .'r{'T-^* "•"^ft "« morethana /•unJnd and forty millhn. in debf- " that the American civil and militarjr "cftabhftment after the peace of Aixli "Chapelle was only /^«^ ,^^^ P"""'"- year, but wa. now increafef •' to three hundred and fifty thoufind^ " ''"''" "•'« "'ss a great additional es- " ?*="'« '"'""-^d oa the American ac " ™"M— That he did not expeS the co- •' lon.ee to raife the W,«l.. but feme part " °^ " ••= ""ought they ought to raife. " '^'■^ •>« -'"<'ge«l this method of raifing "the money the eafieft and moftequit- S 4 " able: \i \ IJ .1 M 264 Acts relating Part II. "able: —that it was a tax which would ** fi^ll only oivproperty, would be colleutkept only to general terms^ which fecured no- rthing to Englatid, obliged themfelves to nothing. -** time \ %k. 'tid Sea. XI. trB.TBBCotO«IE8, tij I ':"* "» "^"^ Aeir^Oimblie. fer.«„. ■■tiCBlarpowor»«J'i;.,,;r,, , *^ It is clear, however, that he JiJmA^ the pr»pofi.|,.h.t,h. colonies had ,i„,e «beco^rit«i.. that they „,„^„f„„, ;, • "•" f""' of ">«■» abfolutely rejcOed thepropofal: the othera would give no precife aofwer to it; ^ ° n^eL"^" 7 f'^ ' '"'''■' compliment tea member oftheHoufe of Commons than he pa.d to tJ, h,o,her members. Jrom 2s""!r" J"'" '"^'■^ mifreprerenu. ., ;•""'«'" '"'™'d with a „.^^„,„, ,^: ■ '""m; but I „,„,, ,„,ib„,, ^ _ , -tr;"'"fv°''""''°''''''^*^'^»« tiiing uithehoufef." Upon this refufaJ of the colonies the Stamp Aa was paffed. ^. While it was depending, petition, wer* Prefentedagainftitbyfouroftheco," *'"• There petitions, for the firftdme. eallcd w m-i i I lit ^! a^€ AcTi RELATING Part If. li: I I i:!f!' I iiiiii csAkd . directly , in queftion the power of parliament to irnpofc taxes on the colo- fues. Nothing is more common than ^o rejedl motions * for receiving petitions againft bills ; more particularly when the prin- ♦ I opened the Journals, and in a /ingle feflion in the reign of William III. I find no le/s than ftvcn motions for receiving petitions rtjcdled :— petition* too from bodies, many of them, without difparagemcnt to the colonies, as refpcc^able as the colonies of Rhode Ifland, Connefticut, Virginia, and Carolina. One from merchants trading to New England, New York, and Penlylvania, touching rhe dutifss on whale-fins from, the faid colonies. Com. Journ, vol. xii, p. 336. One from the town of Altcar in Lancafhirc, ib. p. 146. One relating to a bill for granting certain duties on coal and culm, ib. 240. Another on the fame £ubje£l, ib. p. 246. Another on the fame fubje^, by people who fet forth th;ac they h^ advanced 564,700 1. on the credi't of a former aft, ib. p. ^8. ■ One from the county of Northumberland, relating to copper money, ib, p. 254. Another from merchants trading to Scotland, relating to duties laid on Scotch linen, ib. p. 336. There is fcarce a feflions of parliament where motions for receiving petitions do not pafs in the negative. ' '' ' ciple SaajX. TO THE CoioNiE,. a6() "ple of the bills ha, been already difcuffU «d : ft.ll more when the objeaions againft then, arq drawn from topics which the hpufe will not allow to be brought in queftiOB., I, could haiJly be expefled, I ftppofe, .h« the houfe would aHow th« fopreme authority of parliament, or the extent of their power, to Be canvaffed b,^ counfel at their bar.-Yet what cannot a great genius effefl? By force of the fingle vrord "fiornfully-' ihU rejeaion of peti- tions has been branded as inequitaWt and unparliaihentary't.j;,,,^, , . ^„„.^ .. Thisaa, itUtruei was folJowtd-by great idifturbance, in America; diftUrli- oncca which by the accounts we have «f them ftem to have beenof a nature ampfy tojuftify thephrafes maide-ufeof in,he refolution of the houfe «, jhc vn\,^ :I)ecembet ,765, which ftigmatifed diem by the title of "outrageous tumults and ••mfiirreaions;" as " a refiftance given .'Tii'j.i'j * Burke's Sp«e(?h, p. 56. ic • 173 by 1 V ,1*11 ■ ( ■ ■1: i .' ' ■ ■• ' fl.i ::h lft;ni "' ! zyo Acts SELAtiNb pAvi it* *• by open and rebeUioui force :*^ clifttifb«» tnces the complisxion of which feemv not improperly fuiqiinied u{t in the (Irong ex^ prefflons ufcd by general Gage, iw hU l«t'-i ter written on the 4th of Novttfttbei' of the fame year ; ** that all from iIk! high- •* eft to the lowcft were acceffaf y to thia •* itifurredtionif* in .the threats '* to p^utt* ♦* der and murlfccr thofe who fhould take *' the Ramps ♦." Some we arc told have faid, that ** all ** the d^fturbances io America were creat* " ed by the repeal of the Stamp Aft." Ba« « the wifehood, bafoicfe, and" abfurdity •* of this aflertionf" ihas raiftdfiibh a tu*^ xbufU of iodigaation iritthebreaft of the ^eat orator^ as would harrddwn acom^ jnoiii man to * pieces .w—Witk' fttbihinioft Jbo^^ficver, tfiemiffkkBJScall hk omhi, No mstr ^5rer meant ^^^tb arttribiite scprcftcdeAl ^-:I; ?!? ;;'*'>• * The reader qiay Sipe an ai^pjc accomit ofthefe dirturba'nces prefixed to the Coile^lion of Charters^, printed for Almon. f Mr. Burke's Spt«h, p.'tf. 2 *' difturbance ,1 1 " difturUnce to , fubfa,„e„, ,r,eafu„.H noma„ev'■ ^^'^ '"'' «uft all hed.fturb^,.,h,,h«vcf««cM A™! howev« violent were tl« dinurb«.K« -red b, ,be s«„p ^a. „,, ^ j-;;^ ofanatu.e,obel,m„g;.hey„igh.eafily h«v« been quelled.-^WJ, h,d ,w . ' q"el|cd..he^Mion8 made here, both in and " out of pMiament, to the ftamj) aflat « the time of «8 paffing," whatever ef. fed they might be intended to ha^e, had m the event that of « encouraging the '* Americans to their refiftance."— I ha^g not acceft to « all the papers which load- • "cd the table of the houde." Uid not hear « the vaft crowd of verbal witneffes • Mr. Burke's Speech, p. 7,. T « that 274 Acts relating Part. Il, ««that appeared at thelt bar*" But I have, I think, a tolerable pi'oof that this idea is founded. ih s:5i^X3 > ' In the account of thefe difturbances, referred to above f, I fee the Ameri- cans were diligent in informing thein- ftlveS how their oppofition was looked up- on in th6 mother-counti'y. I fee that on the 1 8 th of September, near tv^o months before general Gage's letter was written, ' a committee was appointed at Bofton, ** to draw up, and tranfmit to Mr. Con- " way and colonel Barrer addreffes of ' " thanks for their patriotic fpeeches in " parliament in favour of the rights aiid ■ "* privileges of the colonifts ; and 'to defire ' " correct copies thereof to be p'laced among - " their nioft precious archives'." 1 learn too ' from the fame account " that they voted ^' " the pictures of thefe gentlemen to be placed in their town-hall." This feertis t( PI * Mr. Burke's Speech, p. 71. f See the account prefixed to the Charters, p. 7* a com- iiSW oof that this :o the Charters, Seaxr, T.O;THE Colonies. 27^ ^.complio^ent rather extraordinary than. Qtherwife,. tp.be paid to fpeakejrs in « fo "languid:a: debate^'. t^.p,,t^rs^\. ^j^; ' ^^fpoke -wfhfo great areferve, and fo \*j-emar|cable a temper*'' m -:I do pot know how. this gentleman's . excellent and honourable friends" took the compliment paid to /heir; languor. -A compliment himfelf appears feldom to have .been, ambitious . of , obtaining : ^hoqgh it Ijas feemed at times as if a little moryeferve, and a little more te,^per, might have done him no^iflervice. Had he poflefled this temper and re- ferve, he might have fpared to his own delicacy the pain of uttering, and to the dehcacy of his auditors the pain of hear- ing another ./W^r/^^^/ ufhg ^^^^^^^ *' and diftributors of falfehoods, fays he " have with their ufualiqduflry circulated ^' another lie, of the fame nature with the "former. It is this, that the diflurban- * ^'^•■. Burke's Speech, p. 7,, .2. T 2 (( ;•■■! nwi'n ces « C( 2y6 Acts relating PartH^ *» ces arofc from the nccouM which had «« been received irt America retenfions ; tt flood en- at no body fail to per- manifefting )ntribute to n hardly be fuppofed. 6ea.xr. TO THE CoiomEi. jg, fuppofet The utmoft ftrctch that poll, t-cal charity can „,ake, is to hope that •hofe Eog,UH„e, who entourage" Z: oppofitioa of the American,, by the ef- Poufaloftheircaufe.did„otwLtofce anrmoremifchiefdone, anymore out- ■•^ees committed, than what might be „e- «ffary to bring abow , evolution, ac- cordmg to their notion, fodeGrable: and »f>« .here might be fbme among them, who, defireable a, thi, revolution feemed to them, might not think it worth pur- ^hafing at .«, price. Among thefe laft, Jet us hope to find our orator. Be this as it may. thus much is indif- Putab.e. that the Americans expeSed a f;"f ;^ ""■"■•%' -d that it was th hope of contributing to a change, pro- m.<-g to be fo favourable to their prefen- f-ons, tha, encouraged them, if nono be- S'n.atleafttoperfevereintheirrefiftance. ofTJr "P'.'^'"'"" ^" fulfilled. A change ma terlr d-d '~'™'" ^''' ^^"'"^ '» - paterul. did accordingly take place. The 28i Acts reiating Part 11. The flibrt period bf the fucceeding ad-r rairviftration defervcs a particular attea- tion, and happily no adminiftration ever poffeffed a better hiftorian, or a more able apologift, had an apologift been want- ing to a minifter ** who fought no apo- logy *». • This gentleman, " whofe fituation, he «* tells us, enabled him to fee as well as*,'* and whofe difcernment we cannot but believe, enabled him to perceive much better than *' others, what was going on, *> did fee in the noble lord who then pre- «* fided at the treafury, fuch found princi- «' pies, fuch an enlargement of mind, fuch ** clear and fagacious fenfe, and fuch un- « (haken fortitude,'* as might well give room to hope, that if the empire could be faved, it muft be by his hand. To the gods, and to the citizens of London, it feemed otherwifef* - ThQ * Mr. Burke's Speech,. p. 644 ^-^ . * lb. p. S7- ■■ . , - i '-., t See their acldrefs pr'efentcd to the Icing on the iSkit;! --.'Th§ fnmlgn iff wbidi ,thc poble lord ftood at this moment was, no doubt, «♦ 3. V trym one j^^but it was furely a more favo^ra^le ope than that in which his pre. ^ece% Imd llood, A .great p,rt of the iu' tumour, arifing from domeftic caufes, hM fubfided. The minds of the people at home were in a great meafure quieted. The marquis, and his friends,' flood clear of the odium of unpopular meafures. The city of London only excepted, the reft of the nation was prepoflefTed in their favor. The man, whofe fufferings had excited the ftron^eft popular difcontent, and whofe talents were nicely calculated to put him at the head of a faaion, was ready to fue for pardon j as he did afterwards fue for pardon to a great man who was then an the 25th of Auguft 1765. I„ vvhich they fay, that whenever a h.ppy eJiabUjhment of public ^ meafures fliall prefent ^favourable occafion, they will be ready to exert their utmoft abilities in fupportof fuch wife councils, as apparently tend to render his majefty'. reign happy and gb. I' J nous. •J-G 3«j ,15X1:^: a/i; afTociate, ;-(.;: \t^ \ .' at* Acts xzlatino^ f$in II. AfTociate, and afterwards fueceflbr to the noble marquis. This then was as favourable a moment aa tfould well be hoped for ; not merely to Je- dare but to vindicate, and eftablifli on a {)ermanent foundation, the rights of the Britifli parliameAt. There are three points on which the Americans pretended* that the miniftrf had grofly mifunderftood, or wantonly fa- crificed the interefts of the colonies : their commercial regulations, the fuppreflioa of their paper money, and palling the ftamp ac\. Thefe then were the objefls which demanded the immediate attention of the marquis. As to the firft of them, a fcrupulous at- tention to treaties with foreign ftates, and a partial attachment to the letter of the na- vigation ads, had, it fhcmld feem, midf^ his predeceflbr. The noble marquis we ui s. told, ** faw his way clear before him ; ** though, on the one hand, treaties and i 'illic law i Qn the other, the ad of na- ** vigation, *,i Sea. XI. TO THI COIONHS. aSj ;; ■'ig^'ion. and the whole Corp. of trads I.W., were drawn up i„ array againft ■ him; he knew « in fubftance." that «hey ^ere not direSly againft him. But he d.rf not choofe to " determine ralhly." be chore to know a. much" formally Ld •oiEcuIIy." By way of form then the •ttorney general', opinion was aikedj that once obt«„ed.« the noble marquis imme. diately difpatched orders for the redref. of «hefe grievances." Orders, it Ihould feem, which, among other good effefls, pre- vented the total ruin which was threatened « the Spaniflt trade. ;, / . Here then, one wSuld think, wasa vaft fund of popularity acquired in America: aa acquifition. one wouW have hoped. that might have done " knight's fervice" might have conciliated the opinions and aifeaionsofmen*. As to the fecond of tiefe objeas, the regulation of the paper money of the co- ' I .^3^3 * lb. p. 6j. ionieSj '226 Acts REtATING ••P^rtir. ionies, this hofmeft wa^ left by the ndble marquis as' he fbiind if. On the cortclllfion of the Spaiiifli" bitfi- hefs, the noliie marquis turned himfeif to the confideratibn of tlie third^f thefe ob- jeds, the ftamp ad/ Arid "after weigh- " ing the matter as its difficuhies and" itn- "pbrtance required,'* determined on the repeal of it. And here it is, ' tliat the pa- negyrift of this miniftry puts iforth'thte full ftrehgth of lii^ amazing poVvers.'-«^^* A partial repeal, a ' modificatidri, 'might have fatisfied a timid, unfyflematic, pro- craftinating miniftry :" but the noble lordi and hisfrierids, were riot afVuated >« by a weak and undecided mind : —by a ;« majority that will redeem allaOs ever «* done by majorities in parliani^nt,"ln thte « teeth of all the old mercenary Swifs, « in defiance of the whole embattled legion ** of veteran penfioners ; — fteadily look- « ing in the face that glaring and daz- ♦* zling influence, at which the eyes of « eagles oft blenched ; looking in the y " face <( C( (( :henc»ble irnbiXfi- Imfeif tb tiiefe ob- :r weigh- ahd" iin- i-6n tbe t the pa- ti'thtefall i, 'iii\^ atidjpro- he libblc afVuated i : —by a aOs ever ftt,'1ii the •y Swiis, led legion lily look- and daz- ; eyes of g in the " face Sea. XL TO THE GoIONlES. 'zSy "face one of the ableft, and not moft " fcrupulous oppolitions : " and what is more than-that, " even looking lord Ghat- *^ ham in the face-- ^hilft earth below "Oiwk, heaven above ^nenaced, and all **^th'e elements of minifterial fafety were ** diflblved ;"-they .fought ; . they con- « quertd : they preferved the authority « of Grfiat Britain ;. they, preferved :the « equityJof Great Britain :: they made the •*' declaratory ad j they repealed the itimp ' : ^y ^o^o^i burned wltHIii me as I liften- e^lto the orator,— V, ii^^oiujjj^^^, j^^^^^. ^^ ''gratitude and tranfport,^ broke from -me^ 'I wondered only how the authority of Great Britain, having been thus mira- loully preferwd, ihould all at once be lojl -again. i turned to the ftatute book ; I found the repealing ad as full as words could make it. I examined the declaratory aft, * See Speech from p. 60 top. 66. m H, ' and !l I ! r ! i aI 286 Acts HEtATiaci Part Ih ftnd it id iiideed a declaratory ad. It pxt" ferved the authority of Great Britain. How? By declaripg it to be preferved. What elfedoes it ? Juft nothing. — It exads to recognition of that authority. It pre- fcrtbes no means of enforcing it. What a victory ! -what dangers furraounted! '• -what giants vanquifhed ! I hope the ora- tor will forgive mc y but I could not help «3cdainiing with lord Grizzle to Dollal- loUa, I tell you, madam, it h all a trick. He made the giants tirft, and then he tilled them*. At bcft the noble lord miftook the ob- jea of his attack- He thought all was done iwrhen he had out-talked and out- voted •' an unfcrupulous oppofition :" this -was done, but was nothing that ought to hvte been ^done procraftinated ? Was it ** fyftematic ** wholly to take away the * Tragedy of Tragedies, or the Hiftory of Tom Thumb. tax. Sea. XI. TO THE Colonies. 2^9 tax,, and declare oUr right to lay it ? to', tear up a tree which if watered migjbt' have « ;^ie;dea fruit,'* for no other pur,^^ pofe than to « plant what was called in " America a barren yew, cafting a noxious *' f^ade bver tl^b cploniea*?" Was it not timid to aflert at home a right, of which he dared riot exad a recognition on tlie other fid^; tlicr Atlantic ? Is" not feeing every thmg to be decided hereafter, to' procraftinate? This vaunted && « ofjpirit " and>r//^«^:'»— « of fiipreMe liiagna^ « nimity,'* what was' li: after * afi, more than the unmeaning rhodomantade o£ ambafladors, who iiyle their mafters kings of France, or of Jerufalem?thefe titles do not fecuri2 a foot of land; the declara- tory adt does not fecure an atom of autho- nty. '^^ If the colonies had objeded to the flamp aa on principles of expediency, oix mere coWiriefcial princrples,'it might have * See Farmer's Letters, p. 77. u been v-HHif t ^1 290 Acts relating Part.II^ been altered; the oppreflive provifions, if any fuch there were, or even the whole adt, might have been fafcly repealed. But the colonies now objeded to it on very different principles: they denied; the rights of the parliament to tax them^ To repeal the bill abfolutely, totally, and unconditionally, was therefore to give up that right. To fay that fuch. a repeal was grounded on commercial principles, was it not nugatory? To affert the right in parliament, without infifting on a recog- nition of that right in the colonies j with- out infifting even on the poor fatisfadion of arefcifllon of the colonial refolves a- gainft tjie right, was this the ad « of fpirit •* ^ad fortitude" fp much boafted of ? What was he to do then ? Give up the right ? This would be »« cutting indeed "the Gprdian knot:"— though hardly " with a fword :" not much «« in tht he- « roic ftyle ♦." To yieli requires little • Sec Mr. Burke's Speech, p. 60, 61. he- Part.ir^ Jfovifions, the whole repealed., to it on y denied :ax them» tally, and give up epeal was pies, was right in 1 a recog- esj with- L.tisfadion :folyes a- "offpirit I of? ve up the ig indeed i hardly n the he- Ires little I. he- hefoifm. Iftheknotwas^'ibbeciitb^^ yiddmg,th f,j^^^ might have done the Woi'k is well fwl'V^r' '"^''''' '^^ ^^ ^ ^^^ -nd iwoiy ? I cannot perfuade mjrfttf that fire and fword would have been neceffary. Bu^ I would fuppofc the noBle marquis and his friends td have been adtuated by greater views.. I would fuppofe them to have been an,sious to follow the dilate* of that •« equity, by Which we are bound " ^' °*"^^ ad pdffible to extend the fpirit "and benefit of the British eonftitution to ' every part of the Britifh dominions*" This indeed w.u/J have been an objeft worthy of fuch a man as the noble lord's panegyrift has defcribed him. He had officiahnformation, that there was no fixed Idea of the relation between Great Britain and America. This relation /hould have been fixed. The fupreme authority of the parliament had been openly J.^„/,a by th(- *- See Burke's Speech, p. 60, 6l U2 Ame- f. iiT il a fdi 2^? ACT& RELATINC Part II. Americans : thi? flxould haye been aiferted^ vindicated, and recogm'zidi) , ^ r^^ The powers of the fubordinate legifla* tjures were- vague, a^d ,ii:\^termincd : thefe fl»9uld\ have been .^ecifely inarked out,/';-^3;i n ■ ' ^^ '••-:•■ The, mjo^ of taxation wj^^ difpiatedj tliis ih reprefe&t'. the condition of^ the? colonies in! the Britift p«rl}ftment> vtrap-.tfeje^t^^^ ground on which the e^uiijf^ c^; jk<,p^la'^entary- taxaticMi cp^^d b^ difputed^i [th^ fhould havebe^n- obviated, , .-L- :o : ;lnftead."0£ obtaining #»yv.pCth^e Im> portant- points, what di4: ^k " He r£- " pealed the ftamp a . - But though this aa of >W/, fortitude, and magnanifnif^^ fliould be found to hive dorxe nothing to#ird fecurmg the dignity, or authority c^ Britain, the ad of concef- fion we are required to Irdieve reftored tranquility to the colonies— « They were ^* tjuiet." What are we to undcrftand by their being - quiet?" Is it only, that having forced -frorn us that which they demanded, they were quiet till another opportunity of refiliing fhould prefent it- felf ?— .We allow the faft ; make the moft of it. Or are we to imderftand by it, that they were ready to fubmit to the principle of the declaratory ad; to yield a ready obedience to the other laws, enaded by Great Britain ? fo the orator feems to underftand the phrafe, and undertakes to prove, that they were *« not only "quiet, but fhewed many unequivocal *' marks of acknowledgment and grati- *' tude :" he gives us every advantage : he U 3 feleds 't' f '^in ! i \ • u t#ii 5^94 Acts relating PartU. C?\eSti " the obnoxioqs colony of MaflTa- •* chufet's Bay.' He calls on us to hear *• how thefe rugged people can ei^prefs ?* themfclves on a mealure of concelfion." ^* If it is not in our power (fay they in " their addrefs to governor Bernard) in fo f' full a manner as will be expedted, to *' fhew our refpedful gratitude to the mo- ?* ther- country, or to mak^ a dutiful and ^* affedionate return ^o the indulgence of ^' the king and parliament} it ihall be nq ?* fault of ours : for this we intend, and " hope we fhall be fuljy able to eflfed.** This is quQted as the genuine ej^preflion of their real fenti^lents, as originating from themfelyes*. — What then will be the feelings of the reader, when, he learns that thefe pretended exprei^ons of the Boftoni^ns were no expreflions of their own : that they are only ve-echoed back from the fpecch of the governor: that; the aflembly refufed fo much as to take into confideration the very r.ieafures to * Mr. Burke's Speech, p. 75. which IF' 29; S^a.XI. TO THE Colonies. which thefe words had been applied by him : that the whole tenor of the addrefs is perhaps one of the foureft, moll fullen, moft furijr, that ever was prefented to a governor *^Yet fome men Tcruple not to complain of « an unfcrupulous oppo- "pofition!" Might a minifterial advocate indulge himfelf in like liberties, he might lay with this orator, clianging but a fingle word, " Thus are blown away the infeft race of "^ factious falfehoods I thus perrfti the mi- " ferable inventions of the wretdhed run- " ners for a wretched caufe, which they « have fly blown into every weak and '« rotten part of the country, in vain hopes "that when their maggots had taken « wing, their importunate buzzing might •* found fomething like the public voice f. * See the governor's fpeech, and the addrefs in aiifwer to it, in the Appendix to the Annual Rc- gifter, vol, ix. p. 176, 179. t Mr. Burke's Speech, p. 74. U4 The ^1 i ' A w ,' *^'!t z^6 Acts relating P^iftJI* ., Tt^e noble ni»r(|vii^ refigned his place to a noblp duke, who had been a compa- nion of hU battles, and a partner in his vjdories. The poble duke was aflifted by the chief, .^hp h^d led " the phalanx" in the lowej: hpufe, and ** infpired even the *' meanefl: of them with courage.'* — The people's J^wyer, the great defender of Britifh and Aijierican liberty, held the feals : s^nd /ije, wjbo was alone a hoi);, not pi^ly 4f i^Jt^fd to put the miniftry 'n ar- r^y, bi|t fjondefcpnded to take his poft aijjppg them. No doubt he diji it on mature deliberation. He pould not haftily give his cpnfidence, ** confidence he had "before ^irerte4 in U^e houfe — was a ** plant of flow growth in an agecl bolom.'' l^e was pad the feafon of credulity, Who could have imagined, tbat in his adminiftration, any fubjed of contention could pofTibly have arifen between Great Britain, and her colonies. — Yet fo it was. Very early in this adminiftra- tion, the demon of difcord again flept forth : I; ill ' 9«a. Xr. TO THE CotOKt^s. 297 forth:, nor has ^ny m^^^ y,, j,^ found to lay him. ..,.i.,, ,.. , ^ V^rjr e^r|y,ia the y^^t i^^y, the colony of N^w York prefented a remarkable pe^ tition, m which they fet forth, that not- wuhftanding the tender regard for their happin.>ft. manifelled in the laft fcffions of parliament. " yet the commercial re. " gulatw)n8 then enaded, inftead of re^ '» medying, AaJ increafed the heavy bur^ " thms, under which the colony already "laboured *.'» Thefe regulations were regulations made under the very adminif- tration of our panegyrift'g hero. So im- poflihie was it for that noble perfon, with all his penetration, and all his patriotifm, to perfuade this untoward people of his being able to difcern their true intereft, and willing to purfue them. ,.. But if this colony coyld not bring itfelf to approve the wifdom of parliament in Its commercial regulations, mych lefs * See Commoiis Journals, vol. x^xi. p. ,60! could h •\l ''i 2^3 Acts helating Part It* could it bear any application of the prin- ciple of the declaratory a€t. Two years before, an kSt had paft a- mong other purpofea, for that of better quartering his majefty's troops in North America. The aflembly of New York did not like the mode prefcribed by that a£t : they therefore pad an ad of their own, directing another mode, inconfiftent with the provifions made by parliament. The parliament on this occafion deter- mined to inforce the principle laid down in the declaratory aft, and vindicate its power of making laws binding on the co- lonies. An a£l was accordingly paft, fuf- pending the aflembly of New York, till the provifions of the former aft ihould be complied with *. What ideas the Americans entertained of this exertion of power; what aconqueft the magnanimous aflertion of the decla- ratory ad had gained over them; how * 7 Geo. III. c. 59. fully &>a.XI. TO TBE COLONIE.. ^ fulljr the authority of Britain was prr. firved by it, wa. now apparent. « An "*a. of parliament, fay the colonift,* .,~'"7"*''6""° do "^r/.,), thing. 'f 'the. any validity, i. a ta« upon u, tor the expence that accrues in comply- -« -"h it." Hence they argjl The aflemWy of New York either had, or had not. , H^h, ,o r,/^, f„b„iffi<,„ tothataa-Iftheyhad-andlima, „ !'"'■ '°'"'""" 'W« writer, no Ame- "ncan will fay thev l,^A , "«>,,„ I- ■ ^ " ""' — then , ^ the parhament had « n^^, ,„ them to execute it." The ide,s of liberty are diiferent on the other fide the Atlantic from thofe we en! -t».„ on the border, of the ThTme:. Had the crown by its prerogative ref- tramed the governor from caili„g tn. ^JTcntty ,o,et/,er-- all it feems would '"'"''^'''-^'ft. but that parliament ♦ See F„mer-. Le,,e„, p. 8, . t See ,b. f. J, ,(,. «• fliould , It ' es 3<>o Acts rIla^tinms JPart JI, ihenild inteffcre, and puaifh an jidt ^.^ of «f /difobedience \o tke. authof itf bif the. «« Bririiftilegiflaiture:' cawks uitlj r*,'**con- *'^ l«|!uences, vaftly mote r affieAmg ^.'• And why fo.?i^^* Because if is « f^ylUmin- i* Ury d^r/^»^' th«'-'*fapreni€P Mthorlty "of the Britiifli l^iftiiture, ovfeir thefe co- «> lonies in tbc- part of tdfcathn :" — and is intended "to compel New York into a fubmiffion to thit authority." One would think then that a reftrUtion from the king, under the fame circumftances, Would have httn z. royal affertion oi the fupreme au- thority of the king over the colonies in the part of taxation; an aflertion which to Engliflimen would appear to have *' con- " fequences vaftly more affedting." — One thing isunqueftionable; that to " reftrain *' the governor from calling the ajfembly" till the affembly fhould comply with the ads ; to prevent their meeting till they fhould have met, and done what was wanted of them ; however pradlicable it § See Farmer's Letters, p. 9, 10. might >art Ii; TtVof ot the. '**.ojri- ithorlty iefe co- "— and c into a 3 would le kiog, lid have ;me au- es in the ?hich to ; *' con- ."— One * reftrain fembly," with the till they rhat was Hcable it might SeavlX. TO Tirs Colonies. odt might aplJeaivin Amerita; is-what wouM appear totally impradicable in Eng- land-, r. boh ? ,':, ■ -riimifj^ -idt '■ " T/he principle of thed^dlamtory aft was ag^n: catJed- foi^h: .fen'.^nmhef oecaiion. Tfter pirliam^t- ftftirffKa*; tJit coldtiiea ^vouldra'dr.grdnt ao^pwiii^^nt and ade- (Juate >-dTiii0H if(» tlk^eh«r^»' of the ati- n^iniffeki(9fl. of ^jwftl'^^,lancl t^e fupport of civile go^rnmij^e.-'-tfif^ liowfe ther hiu-r L ■ Tile very next day^ ah 'order was rtiade to bring in a-'bill for enabling his majefly to puttheciaAoms;, and-other duties, in the Bi^itiftv dominions in America, and the execution of laws relating to trade therd; under the management of commiflioners to be appointed ^or that purpoib, and ttj be refident there f. In conformity . to * Sea Com J^urn. vol. xxxi. p. 392. t See ib. p, 3^^, thefe 5i; ^i 3oa Acts relatino Part in thefe two refolutions two adll were paffed *. The aeople f "— That parliament muft either give up all power of compelling the Americans to contribute towards the fupport of the public burthens of the empire: or elfe muft fix a conftitutional mode of com- pelling them to fuch contribution ; and having once fixed it, muft inforce it by firm and unrelenting meafures. Such was the fituation of the colonies at the diffolution oJf the twelfth parliament of Great Britain. • See Bernard's Letters, p. 42. f See ib, p. 62. PART Sea. I. TO THE Colonies. 307 3 M il PART III. EXAMINATION OF THE ACTS PAST BY THE THIRTEENTH PARLIAMENT OF GREAT BRITAIN RELATING TO THE COLONIES. S E G T. I. Advantages of the periodical renewal of the legijlative body, Ufe which this parlia^ ment might have made of them in the American affairs, THE periodical renewal of the fu- preme legiflature of Great Britain, is on all hands allowed to be a circum- ftanqe very favourable to the people. It puts into their hands the falutary power of excluding thofe from one branch of the X 2 legifla- ( ; 3o8 Acts r el at i no PartllL ture, who fliall have been found unequal to the talk, or unfaithful to the truft. By an attentive exercife of this power the people may root up fuch evils as happen to refult, not fo mucb from any vice in the government, as from the bad inten- tions, or miftaken views of individuals. They may corrca> or fortify the principle of the government without endangering its eflence. But what is not commonly attended ta, this circumrtance is fcarcely more favour- able to the people, than it is to government itfelf. By a movement thus regular and tranquil, the operations of government are facilitated, and its dignity preferved. When the fovereign authority refts undivided in a permanent urn hanging body, the diffi- culty of reformation is extreme. An er- roneous fyflem once begun muft be per- fifted in; fince to recede from it would carry that confeffion of fallibility which is fo galling to the pride of power. That pride is an obftacle rarely to be furmount- - ed Se« It laid it down a8 a principle, that it was expedient to raife a revenue in America : it paft an adl in confequence of this prin- ciple, without having fufficiently, or in- deed at all, prepared the way for its recep- tion. It then abandoned the principle, and repealed the adb, without doing any thing efFedual for the fupport of its own dignity, or the recognition of its own au- thority. It then again recurred to its firft principle, and paft another aft in confor- mity to it, without having taken a llngle ftep towards obviating the augmented dif- ficulties that now ftood in the way of its reception. — Hence a matter, not yet. clearly underftood, was involved in greater per- plexity : and an enterprize which, at any- time required great Ikill and addrefs to fuc- ceed in, was rendered tenfold lefs eafy of execution. But on the other hand, from the colli - fion of thefe different plans, lights had been ftruck out which might ferve to X 4 guide '■y: f^f 'i\:h: 312 Acts relating Part HI. guide a new parliament through the laby- rinth, which this very diverfity of plans had rendered fo intricate. The very works which each party had thrown up in its own defence, were fo many vantage grounds, from whdnce a new parliament taking a comprehenfive view of the coun- try all around, might have direded its meafures with a certainty of fuccefs. The great objeds before the parliament, were to fix the relation between Britain and her colonies : to examine into the right of the Britifli parliament to impofe taxes on the colonies : to enquire whe- ther it was grounded on the conftitution : if it was not, to give it up : if it was, to affert it ; and regulate and fix the mode in which it fhould be exerted : to confider whether the prefent were a fea- fonable time : to poftpone accordingly, or give prefent efFe(St to fuch regulations for that purpofe as ftiould be concluded on ; and then to do, what after the fet- tling PHI ,1 t Part III. jh the laby- ty of plans The very thrown up any vantage parliament if the coun- direded its iccefs. J parliament, veen Britain inc into the It to impofe nquire whe- conftitution: » : if it was, and fix the exerted : to t were a fea- accordingly, ti regulations be concluded after the fet- tling Sea A. TO THE Colonies. 313 tling of thefe moft contefted points would have followed as of courfe ; to fix on pro- per regulations for vindicating the unlimit- ed fupremacy of the Britifli parliament in all points whatever. Whether this parliament attained all, or any of thefe important objedls, will beft appear from its own afts. SECT. 314 Acts relating fart III. it SECT. It. Proceedings of the fecond feffions of the thir,- teenth parliament. THE firftfeffions of this parliament was very ftiort, and, except th? pafling the corn ad, and continuing the expiring laws, was wholly taken up in the choice of a fpeaker, adminiftering the oaths to members, and taking fucli other arrangements as ags taken of courfe by a new parliament, for the unfolding of its , powers. It was the fecond meeting that was the firPc of bufmefs ; and that of America, as might be expeded, took the lead. The feffions was opened by a fpeech from the throne, in which his maiefty ex- preffes *' his concern that the fpirit of " fadion h d broken out afrefli in fome of «« his colonies in North America ; and in « one of them had proceeded even to ads of Sc*a. II. TO THE Colonies. 31S " of violence, and refiftance, to the execu- " tion of the law." — The parliament is told, " that the capital town of this colo- ** ny had proceeded to meafures fubverfive ** of the conftitution ; and attended with ** circumftances that nlanifefted a difpofi- " tioD to throw off their dependence on " Great Britain." The houfe in return anfwered his ma- jefty, that they participated with him in the concern he felt at feeing " that the arts " of wicked and defigning men had re-kin- ** died the flame of fedition in America ; *' that they fliould ever be ready to hear ** and redrefs any real grievance of his ma- ** jejiysfiibjecls in America^ but would ne- ** ver betray the truft repofed in them ; *' would always confider it as one of their ** moft important duties to maintain in- *' tire and inviolable, the fupreme autho- *' rity of Great Britain over every part of ** the Britiih empire." So far all was well. To affert the fu- preme authority of Great Britain over the colo- YA a ' I' ( i 1 1 \\k HI 111 i4. 3i6 Acts relating Part III. colonies feemed due to their own dignity ; to proipife a redrefs of real grievances, if any fuch fhould be found, was due to their own juftice. The firft ftep towards afcertaining the bounds, if any bounds there be, to the au- thority of parliament oyer the colonies, was to enquire into the powers and ex- emptionjs which had been originally grant- ed them. Before the houfe could proceed to the redrefs of grievances, it was necef- 'fary, that it fliould know, if any griev- ances did exift; and then from what fource it was they proceeded. It feemed, therefore, a very proper mo- tion, that all letters patent and charters, that all commiffions, orders, and inftruc- tions ilTued by the crown, that all official letters and affidavits, received from Ame- rica fince the firft rife of the difturbances complained of, fliould be laid before the houfe. And one cannot fee without a mixture of vexation and furprife, that fuch a motion, without any amendment or expla- :\W, Sed. II. TO THE Colonies. ^ly explanation being offered, pafled abfo- lutely in the negative *. The documents thus moved for, fland diftributed, we may obferve, into three claOes. The firft contains fuch as were proper to be confidered with a view to the" queftion of the right : the fecond, fuch as were proper to be confidered with a view to the policy, that had been hitherto ob- ferved in the enforcement of it : the third was to furnifli fuch evidences of the tem- per of the people as feemed neceflary, with a view to the policy that fliould be obferved in future. To with -hold the firft was very confiftent in thofe who, fatisfied with the determina- tion of the preceding parliament, wifhed not to enter into any frefli difcuffions. The misfortune here is, that the determination of that preceding parliament had been made without any regard to thofe feemingly ne- ceflary materials. * See Com. Journ. voJ, xxxii. p. 92, 93. j! tit' With f >4 318 Acts RELATING Part III. With refpea: to thofe of the third clafs, thefe again are diftinguiftiable into fuch informations, relations of matter of fad, or expreffions of opinion, as had been communicated by the governors of the re- fpedlive colonies, and fuch as had been communicated by private perfons. With refped to the latter, it might be alledged, and it fhould feem with juftice, that to make them public would be to facrifice the informants to the fury of a people not very backward to take revenge, nor very deli- cate in the mode of taking it ; that the con- fequence, in regard to the informant, would be the deftrudion of a number of perfons, for what, with refped to this country at leaft, could not but be deemed a merit; and in regard to the public that no information would ever be given in fu- ture *. * An obvious expedient is to leave the names in . blank ; but this would not hold good in thofe cafes where the nature of the intelligence is fuf&cicat to betray the perfon who has furnilhed it. Se nition of your own injuftice and ufurpa- tion. — Nor is all the venom of this infidi- ous proceeding apparent on the face of It. The main purpofe of it, which it was refolved to accompUJby though it dared not to aiiowt was to give fandlion to meafures that were concerted by the miniftry, foi feizing obnoxious perfons in the colonies, and tranfporting them over to England : a meafure too odious to be trufled to opea debate j too unpopular to be warranted by a law, to be now made for it on purpofe ; too atrocious even to have entered into the breail li W' Se£l. 11. TO THE Colonies, 32c breaft of the arbitrary monarch upon whom it is now attempted to be fathered. Even that defpot, under all the anxiety which didated the extenfion of the penal- ties of treafon to ads done out of his do- minions, thought not of puniriiing them any otherwife, than in the perfons of fuch as fliould happen to be found in this his kingdom; for as to bringing over by force perfons refiding out of it, no fuch power is given : that power is now, it feems, by fome forced and unnatural conftrudion, for the firft time to be af- fumed. To thefe arguments, as being once my own, I hope I have done no injuftice. The anfwer that might be, and was I fuppofe made to them, feems notwithftanding fa- tisfadory. The preamble, without doubt, may be, and fometimes is of ufe in direding us> when the words are ambiguous, to the meaning of a ftatute, as men ought to give attention ^o all circumft^nces tha; y 3 promife 326 Acts relating Part III. n ' promife to throw light upon the inten- tions of a legiflator when they are ob- fcure. But it neither is * nor ought to be a rule of law, when the preamble fpeaks of a particular cafe, and the enadting part eftablifiics a general provifion, that the amplitude of the enadling part be limited by the narrownefs of the preamble. It is in the preamble generally that we find an intimation of the particular mifchief that called forth the exertion of the legiflator's will : it is the body of the law (that is, the only part of the difcourfe to which with propriety belongs the name of law) that contains the provifion made againil mif- chief s of the like kind in general. The views of legiflators, it is to be confefled, have been apt in general to be too con- traded ; they have been too apt to con- tent themfelves with applying a particular and narrow remedy to the individual mif- chief that happened to have ftruck them, • rti ipfi '«P' i-- * See Bacon's Abridgement, Title Statute, and half a dozen au(horities there <;ite4. But SeQ:. II. TO the Colonies. 327 But if by good fortune they have done in one inftance what they ought to do in all, and given to the expreflion of their will that generality which is capable of ex- tending the remedy to other fituations of things than that particular one, in which the individual mifchief happened tofpring up ; it neither ought to be, nor has it been the rule, that the providence or felicity of preceding legiflators ftiould be fruftrat- ed by fucceeding interpreters. Too much, indeed, would it be to fay, and very hard upon the unlettered fubjed, were he never to know what obedience he fhould pay to a law, unlefs he knew the hiftory of the times it paffed in. The ftatute in queftion feems to have been by no means inconfiderately penned : it points in the preamble to fome in- dividual cafe or cafes, as having been the occafion of that general provifion which it was prepared in the body to eftabliih. It fpeaks of " doubts that had been moved '» concerning ceriain kinds of treafons, &c, Y4 "an4 f M I 'I 328 Acts relating Part IlL 5* and thofe committed not only out of ?* the king^s realm of England, but out ?* of other his grace's dominions, that .** thefe could not be determined or ea- M quired of within his faid realm of Eng- •* land.'* Thus particular is the preamble: the enafling part is full and general, and meaning, as it fliouid feem, to do more than make an ex poJifaSto regulation, meaning to eftablifh a permanent ^ro-y^^/z; it fpeaks of offences, not only fuch as were ** al- ?» ready made and declared treafons,'* and fo forth, but fuch as (hould be hereafter made, and declared fo, by any the laws of the realm (meaning the common law) or ftatutes ; and here the words, " other *f his grace's dominions,^'' are dropped de- fignediy, and confiderately dropped (as I, feeing other marks of defign and confidera- tion, cannot but fuppofe), in order to give that amplitude to the provifion in re- fped of territory^ which by the word hereafter^ it was unqueftionably meant to give it in point of timei and it is then it 6ca. ir. TO THE Colonies. 329 it goes on, and fays, that all fuch '< trea- ■*' fons, &c. fhall be from henceforth en^ ** quired of and determined Sefore the « juftices of the King's Bench, 6y a jury " of the fliire where the faid bench fliall •*fit, or dfe/5.>r. fuch commifTioners, *' and in fuch Ihire of the realm as ihall *' be affigned by the king's commiffion, «and fy a jury of the fame fliire j and " this, in like manner and form, and to ** all intents and purpofes, as if fuch trea- •" fons, &c. had been committed within ^* the fame (hire where they fliall fo be en- '* quired of and determined." It is true, that at that time there were no Englifli colonies in America; but it is alfo true, that America then, as now, was ouf of this realm of England, and confe- quently by the letter of the aft, treafons thereafter committed f/iere, might be tried as if committed /lere. It is alfo true, that though there were no dominions of the king at that time in Ame- rica, yet there were dominions of the king. 'i id \ i ^ lliii H:A 330 Acts relating Part III. '!•> king, which as the American dominions are now, were dominions of the king, al- though out of" this his realm of England.*' There were the iflands of Jerfey, Guern- fey, Sark, and Alderney, parcels of the duchy of Normandy ; there was the town of Calais, parcel of his realm (as it is call- ed) of France. If America has courts of its own now, in which treafons there com- mitted may be tried, fo had Calais, and the iflands then ; yet it is plain, that for treafons committed in Calais, or in the iflands, a man might, by virtue of that a£t, have been trie:* in England, becaufe the ad provides for the trying in England of treafons committed wherefoever elfe a treafon can be committed, fince there is no exception. For the fame reafon, there- fore, it cannot but be underfliood to have provided for the trial of treafons commit- ed in America. Thus much as to the trial of the crimes in queftion ; the taking order for which was the avowed and fpecified n I ii i'lk . ff" 11 Sedt. II. TO THE Colonies. 331 fpecified objed of this proceeding of the two houfes. As to the meafure o^ bringmg over the offenders; this, though not fpecifically re- commended by the addrefs, is alledged to have been in contemplation of thofe who framed it j and, it mult be confeffed, that nothing cairbe more natural than to fuppofe it wa6 ; but for what reafon ? be- caufe it is apparent, that without this meafure, the other could not in the na- ture of things, I will not fay have any effed, but could not be fo much as put in pradice. To think of fuppreffing an infurredion, or putting a flop to a courfe of treafonablerefiftance prevailing in Ame- rica, or in the Norman ifles, by thepunifh- ment of fuch of the perfons concerned in it, as fhould from time to time come vo- luntarily and offer their heads to be cut off in England, is what no man in his fenfes could piopofe to himfelf ; yet fure- ly, from any thing the ad has faid, there is no good ground for prefuming the penners 11 Mill y 332 Acts relating Part Ilf. ■'. I"' penners of it to have been otherwife than in their fenfes. This one (hould have thought might have led the objetflors to fufpedt, that the exprefs mention of the power of arrefting, and bringing over, was not fo neceffary to be made, either by thofe who framed the adt, or by thofe •who recommended it to be enforced. If the power of arrefting for treafon is vir- tUcilly and implicitly given by the provi- lion that gives a power of trying for trea- fon; given in this inftance, as in any other, virtually, implicitly, and of courfe ; to give it by exprefs words is at beft un- necelfary: it is perhaps nugatory; to fay nothing of its being impolitic, which is a matter of diftind conlideration. Now that this power was thus given is what feems to be the cafe. A general and well known maxim of law is, that where a right or power is given, every thing is given that is necef- fary to the exercife of it. A more parti- cular rule of law, applied to felony (and I ^ all irm |Tir- Scd-IL TO THE Colonies. 333 all treafon is felony) is, that every ftatute making that fort of aft felony, which was not fo before, eftabliflies, ipfo facio, all thefe acceffary provifions, which are in- cident to the main provifions againft felony eftablifhed by common law* Without faying any thing of accomplices, it fubjeds the accomplice to the punifli- raent to which accomplices in original common law felonies are fubjea : it fub- jeds both principals and accomplices to the penalties of forfeiture and attainder, without faying any thing about forfeiture or attainder : a fortiori, it muft be un- derftood to eftablifh that mode of profe- • « As to the fecond point, viz. what is im- ^^ nicdiately i„,plied in every ftatute making aa offence felony, it feems clear (fays Hawkins) that every fuch ftatute does by neceflary confe. ", quence fubjea the oftender to the like attainder *'^ forfeiture, &c. and alfo does require the like conftruilion as to thofe who fiiall be accounted ,. ^•^"'Taries before or after, and to aU other inUnU and purpofes, as are incident to a felony at com- " mon law." Hawkins, b. i. ch. iv. .eft. iv. ). \A\ ■I kw ;ii; ' / •) i \ '' (.• iit, I- « 'i J:k cution 334 Acts relating Part III. cution, which is in ufe for felony, al- though it fays nothing of any mode of profecution, a fortiori^ Hill muft it be un- derftood to eftablifh thefe firft fteps, which are porfuable in every profecution for felony, where it authorifes by exprefs appointment othcrr) that come after them. What inftance, in fhort, is there of a claufe in any ftatute to warrant the arreft- ing of a perfon for a felony committed againft that or any ' other ftatute ? I verily believe none : certainly not many ; yet was it ever thought that for fuch felonies men were not arreftable ? By the common law, therefore, perfons committing treafons in America may be arrefted there. By the ftatute law, viz. by the ftatute we are fpeaking of, they may "be tried here. Was it neceflary to fay that being to be tried here they fliall be brought here f I think hardly. There "Would be no end of legiflative babbling, if men muft be eter:^;illy fpecifying what is neceffarily implied. Jf this power then of Sea. II. TO THE Colonies. 335 of bringing offenders over, is a power that followed necelTarily and of courfe, from that of putting them on their trial; if it was not neceffary to be mentioned even in a law at large, to what purpofe it fhould have been fpecified in a ihort and general addrefs, is more than I can fee. And if, however neceffary, it was formidable and unpopular, I fee not why that fhould have been a reafon for bringing it into view. " But the application of the flatute; of " this power, and every thing clfe belong- " ing to it, if not illegal, it has been faid, " would be harfh and cruel: as ameafure, « therefore that would not, and perhaps ^* ought not to be borne, the recommen- « dation of it was impolitic. Are there *' not courts of criminal jurifdidion in '* America?— Profecute in them."— «Pro- " fecute in America for the treafons of *' America !" This a man may bring him- lelf to put on paper; becaufe the paper ftews no blufhes. But that any man fliould be aWe to fay this in a firm tone, and 1* u '^f! m"x 33^ Acts relating Part III. i fh' ■ ,' > r ' and with a fteady countenance, is more than I can conceive. The Golden Legend, or fome other bif- tory equal authentic, fpeaks of a time when this might have been done. It was a time brought into remembrance by an ingenious pleader *, at an aera when thefe authorities were in high repute for the purpofe of proving what a man in thofe days would not have thought of proving from any other than fuch authorities ; that a man may without inconvenience be judge in his own caufe. A certain pope, infallible as all popes are, was by fome flrange ac> cident found to have done fomething that he ought not to have done. This put men in a great perplexity. For who ihould judge the judge of judg ,, God's lord lieutenant upon earth ? the cardinals being the next perfons in the world, he wanted the cardinal^ to judge him. — Ni * See a paflage of the Year Books, eked in III. BUckft. Comm. c. 20, p. 299. they Sed. II. TO THE Colonies. 337 they begged to be excufed. What is to be done then ? faid the pope. To be done ? replied the cardinals. Why you muft e'en judge yourfelf. Agreed, faid the pope. I fentence myfelf to be burnt; and burnt he was accordingly. For fo generous a piece of complaifance, the lead thing they could do was to make a faint of him ; and a faint he was. But the Bofton faints are not of this ftamp. Thus much as to what was done in this feffion towards maintaining the authority of Great Britain. But parliament had pro- fefled, that it would be ready to redrefs the grievances of America. To be ready at all times to hear com- plaints of grievances, is no more than one expeds from a -Houfe of Commons. They had been at the pains, we fee, of exprefsly profeffmg fuch a readinefs on this particu- lar occafion. After thefe profeffions, when complaints were preferred, if couched in decent terms, it was natural to expedl that a decent attention fliould be paid them. Z Yet iwni r,^ Acts Ri;tAfi:^a Partltt, Ytt a petitron from the major part of the doutlctl of Maffachufet'a Bay was near be- img rcjedfced, becaufe it was not pafled in a Ibgal aflembly of the council ; though the diflblution of the general court rendered ft impofBble to addrefs the houfe m their fegi(latii;c capacity, — It was at laft received i6 a petition from the individuals who firgned it. But though couched in very moderate terms, and glancing only ob- liquely at the want of conftitutional right m the parliament to lay internal faxe* on the coibnies, it was ordered to lie upon the tabic *. A petition frcwn the agent of Maffachu- fel's Bay, and a reprefentation from the genera! aifemWy of New York, tverc of- fered to the houfe. But as tbefe addreffe* direflly denied the right of taxingy they were with better reafon rejected. Towards the clofe of the feiSions, a mo- tion was made* that the houfe fliould re- ♦ See Com. Journ. Vol. xxxii. p. 136, 137. folve 8t^. It. to tttE GotONlESi 33^ folve itfc!f into a committee, in order to take the feft American ad into confidera- tion. The dcfign was, as it feemcd, to pave th« way to a repeal of th adt. But the motion was over-ruled *j and in a man- n«r rather flighting, by calling for the or- der of the day. In the fpecch which clofed the feflions, his majefty thus addreffes himfelf to his parliament;--'* The meafures which I had *' taken regarding the late unhappy dif- *' turbanccs in North Amei iea, have been ** already laid before you* They have ** received your approbation, and yoii ** have aflured me of your firin fuppOrt id ** the profecution of themf.'* What approbation was due to the mea^ fures taken by his majefty, I pretend not to determine. But furely the meafures taken by parliament during Xuii feffiow afford not miKih fcope for panegyric^ * See Com< Journ. vol. xxxli. p. 42 1« f See ib, p. 453. Z 2 i»ro4 iii M\ 340 Acts relating Part III. -" Mff Promifcs had been made of hearing and redreffing grievances : when the time came they would fcarcely hear complaints of grievances. Promifes had been made of maintaining the fupreme authority of Great Britain : the way thefe promifes were fulfilled, was by invefting his majefty with a power, which, according to them, he was invefted with before. What elfe did they do ? juft nothing. Things were left in the fame ftate of uncertainty and confufion at the end as at the beginning of the fciTions. If parliament was backward in fpeaking out, the fame could not be objeded to the miniftry. It was no longer than five days after the prorogation of parliament, that a circular letter was written by lord Hillf- borough, then fecretary of ftate for the co- lonies. In this letter, after reciting the fubftance of the king's fpeech, the fecre- tary fays : " I can take upon me to affure you, " notwithftanding infinuations to the con- -ori j g t'trary, U S'c(a. II. TO THE Colonies. 341 '» trary, from men with fadtious and fe- " ditious views, that his majefty's pre- *' fent adminiftration have at no time ** entertained a defign to propofe to par- " liament, to lay any further taxes upon " America for the purpofe of raifing a " revenue ; and that it is at prefent their " intention to propofe, in the next feffions, «* to parliament to take off the duties upon ** glafs, paper, and colours ; upon con- " fideration of fuch duties having been " laid contrary to the true principles of " commerce *." I cannot aflent to many of the fevere ftridures which have been made upon this letter. — It is unfair to call it, as it has been called f '* the promife of a peer, re- *' lative to the repeal of taxes.'* — The letter was written officially ; by a fecretary who indeed happened to be a peer. But whofe was the promife ? the promife not of the per^ but of the fecretary. Nor is it a * See Buike's Speech, p. 24, 25, t lb. p. 26. Z3 pro- t 1 1 ; i'mi M ! r I iv A % 1 'i ' ■ ( 11 34« Acts relatik© Part lil. promife to repml a tax 5 but a promife only tlj« tbe repeal fliall be profajed to the boufe. Nor does it imply, as it has been feid to imply *, «' that the idea of ♦♦ taxing Anner ica for the purpofe of raif- ♦• ing £^ revenue, is an abominable pro- »« jea;*— Nor does it reje£l the principle, or deny the right, of taxing for a revenue, It decljires only, that it is not the inten- tention of the prefent miniftry to propofe ^e making of any further- ufe of that right; to exert it by the impofition of any new tax ; it proipifes only, that the miniftry will endeavour to obtain ^ repeal pf part of the duties impofed on that principle ; not becaufe the principle was falfe, but becaufe the right had in this in- ^ance been fo exerted as to violate another fet of principles j the principles of com-f flacrce.-^Thefe mif-ftatings however are not uncommon with *• unfcrupulops oppofj- »* tions/* * Mr. Burke'* Speech, p. 27. But ^ea. II, TO TflJE €0L0NJE«. J43 But in vMidicating the letter from un^ juji cenfifres and unfair ^oijftruaions, it h inipoffible notio xx)nfefs that the writing -of Aich a letter, at fiich ^ time, feemed on .«|any accounts reprchenable. A ftrao&e ilight feeined to be put upon parliament. .Sentiments appear to be attributed to if, ^ot only which it had not manifefted, but direaiy oppofite to thofe which it had ma- i^ifefted. If it was the opinion of par- iiament to repeal the duties, how came a niotion made for that very purpofe to \s, rejeded ? By this letter, fubjeas were taught to iiwait their deftiny, not from therefolves of parliament, but from the good pleafbre of ^he crown. With parliament every thing ^vas to originate,^ which carried the face >of feverity ; with the miniftry, every thing of grace and favour. That the refolutions made hy parlia- ment, and the plan announced in the let- ter of the fecretary, were at leaft difcor- 'dant, will, I think hardly be denied. ^ 4 What / m i A Acts relating Part. III. What conclufions would the colonifts draw from thence ? either, they would fay, par- liament in the next feffions will controul the minifterj and then no faith is to be given to the promifes held out in this letter: or the minifter will manage par- liament, and then we may laugh at its thunders ; in vain it points them : the mi- nifter will not fuffer them to be hurled. Whether of the two conclufions was drawn, the effeds of the letter could not but be hurtful. On the one hand the mi- niftry, on the other the parliament, was brought into difgracc. SECT. Sea. III. TO THE Colonies. 345 SECT. III. Proceedings of the third fejjions. THE efFedsof the letter mentioned at the end of the laft fedion, appear to have been precifely fuch as might have been expedted. It feems to have been at- tributed, as well it might, to the fears of government. The authority of parlia- ment was ftill more defpifed : the preten- fions of the colonies rofe ftill higher. No- thing lefs would now ferve them, to judge from the difcourfe of one of their leaders in Bofton, than the total repeal of all the revenue afts from the fifteenth of Charles II. This leader muft, incomparifon of the reft, have been a man of fmgular modera- tion, not to fay a falfe brother : fince if we may believe an officer of rank of that province, writing from New York*, it %\ % 1! * See Hutchinfon and Oliver's Letters, p. 38, 39- was f 34^ '.r Acts relating fart III. was by this time univerfally underftood in the laft mentioned place, that not thefe afts alone, but a// ads of parliament what- foever, made concerning the colonies, were ipfofaao void ; all exercife of par- iiamentary authority over them, an ufurp- ation ab initio, «* That they were bound *• by none made fince their emigration, '* but fuch as they chofe to fubmit to for '* their own ponvenience ;" thai is by none at all. In this fituation were the affaire of America when the third feifion of this parliament was opened by a fpeech from the throne, which muft fiaw be mention- ed. In this fpeech his majefty * begins with recommending to the ferious attention of his parliament the ftate of his government m America. He declares that he had en. deavoured on hi« part, by every means, to l>ring back his fubjeds there to th^jr duty, * Jan. 9, ,770. and 347 ^61.111. TO THE Colonies. And to a due fenfeof lawful authority ; but he adds with concern, that his endeavours had not anfwered his expeaations j that in fome of his colonies many perlbns had embarked in meafures highly unwcrrant^ able, and calculated to deftroy the commer^ (ial connedion between them and the mo- Jther-country. This fpeech, compared with that which had opened the preceding feffion, cannot but appear extraordinary. In that we had been told of- a ftate of difobedience to all " law and government " prevailing in one *' of the colonies ; of «« a fpirit of fadion" being prevalent in more ; of circumftances that " manifefted a difpofition to throw ** off their dependence )'* and « of a fteady •^ perfeverance that had been refolved on ia '* confequence, for the purpofe of fup- " porting the conftitution, and inducing '» a due obedience to the authority of the " legiflature." This was the language- Mf«; '-And now, without any thir,g ji^ving %pened to indicate, that that i!ate had changed Ji |i' i\ I' 348 Acts relating Part III. changed, unlefs it were for the worfe ; or that that fpirit had been, as was vainly- hoped, " extinguifhed," without any mea- fure having been taken to give that fupport, or to induce that obedience. Now that the colonies had voted the proceedings of the laft feflions of parliament, with refped to them, to be illegal and unconftitutional ; we hear of un warrantable meafures to de- firoy — what ? — coc the dependence on the mulhcr-cuuntry, but a certain " commer- *' cial connedion.'* When the anfwer to this fpeech^came to be debated, a proportion was made, in the way of amendment, to intimate an inten- tion of '* enquiring into the caufes of the •« unhappy difcontents which prevail (fays " the amendment) in every part of his ma- "jefty's dominions." Of a propofition thus generally worded, the defign feemed to be full as much to promote the difcontents themfelves, as an enquiry into the caufes of them. If in- flead of " every part of his majefty's do- *' minions," Seft. III. TO THE Colonies. 349 *' minions," the words had been " his ma- *' jelly's American dominions," the propo- rtion might have been more difficult to combat. Howfoever it was in any other part of his majefty's dominions, in Ame- rica, and on account of America, difcon- tents moft certainly did prevail ; difcon- tents the moft violent in their degree, and the moft univerfal in their extent ; difcon- tents in comparifon of which any others that might happen to prevail in the metro- polis, or a few counties, fcarcely deferved the name. Difcontents, into the caufes of which, no enquiry, even in this late period, had as yet been made : an enquiry which has never been yet made, fpeaking even of the prefent moment ; but which muftbe made, and that thoroughly, in order to give any chance for quieting them. A provident and determined minifter, one fhould have thought, might himfelf have propofed the enquiry under fuch a limitation ; fo, however, it happened, that as the oppofition was content to propofe it in i! 1 if ill V ifll pt '■hi I m 4 :;tkH,,i!: 350 Acts itEtAtiJjo PartltU in the lump, foWas the miniilry to throw it out. The amendment was not amended, but over-ruled. And on this occafion ond can hardly help acknowledging of the mi* niftry, in the words of their fevere accufer, that they had not hitherto given «» any •• proof of large, and liberal ideas ** in the management " of this great concern ) '* that they had never looked at the whole *« of our complicated interefts in one con- •* nea:ed view j never feemed in Ihort to "have any kind of fyftem right of «« wrong*." I wifh this had been as ill founded as many of his other charges, f But though the houfe would not engage to enquire into the caufes of the difcon- tents in America, they acknowledged* that the Hate of his majefty's government there did •* undoubtedly well deferve the • Mr. Burke's Speech, p. 17* t In allowing the truth of this charge, it is but fair to remind the reader of its being equally true of the miniftry with whom this gentleman a Sc:^ ^4\^ « r /> •» ^"^ Hiotograpljic Sciences Corpomtion 23 WEST MAIN STREET WEBSTER, N.Y. 1458r> (716) 873-4503 354 Acts relating ?arrIIT. Had this meafure, however originated' in parliament itfelf, had not the merit of it been foreftalled Hy its being announced beforehand in a minifterial letter, it might perhaps have done fomething, though but little, towards conciliating the minds of | the colonifts. But thus announced it feem- cd rather to proceed from complailance to the minifter, than from a defire of giving fatisfaflion to the colonies. For precifely fo much of the obnoxious ad: was repealed j as the fecretary had promifed ihould be j repealed, and no more. Mean time the idea that the parliament was only fubfervient to the minifter j( that it I was not even a legal parliament, was openly maintained by the malecontents at home. In a remonftrance to the throne it was de- clared, that " reprefentatives of tEe people •' were eflential to the making of laws: •' that there is. a time when it is morally ** demonftrable that men ceafe to be re-j *' prefentatives : t/iat time (add the remon- ♦' ftrants) is now arrived; the prefent "houfe SbA. lit. to THE Coi-ONIES. 355 " houfe of commons does not reprefent ** the people *.'* The fame idea was carefully commli- nicated to the colonies by a felf-created fo- ciety, which called itfelf " the Society of ** the Bill of Rights." Sums were col- le£ted for the fupport of the council and aflemblies, who refilled the execution of the ads of parliament : with thefe fumS were tranfmitted letters from 21 committee of this fociety, figned by members of th^ Britifli parliament f, exhorting thefe af- femblies to perfevere in their refiftance to the laws of that very parliament ; which they declared to be no parliament, though the writers fate and voted in it. •* Property (fay thefe able fenators and ** acute lawyers) is the natural right of *• mankind. The connexion between * See Commons Journals, vol. xxxii. p. 804, •{■ See Annual Regifter, vol, xiii. p. 224, 225. The names are John Glynn, Richard Oliver, John Trevanian, Robert Bernard,, Jpfeoh Mawbey, James Townfend, and John Sawbridge, A a 2 " tax.- Ifg B 11" II w 1 ''^H m SS^ Acts relating Partia " taxation and reprefentation is its ^^ecef ">ry confequence. This connexion i. *' "°^ ^^°^^^ ^°d taxes are attempted to " be levied both in England and America, ** by men who are not their refpeaive re- " prefentatives. Our caufe is one. Our " enemies are the fame. We truft our « conftancy and coudu^ will not differ. « Demands which are made without au^ *' f/ionty fhould be heard without o6ed:^ " ence.'* Thus encouraged to refift and defpife parliament, was it likely that thecolonifta ihould be contented with a partial repeal of the obnoxious aa? A repeal which retained the principle, and left a duty ta be levied which had been impofed on that principle. During the courfe of the feffions a fe- cond attempt was made to obtain anabfo- lute repeal of the obnoxious ^a. But that too failed*. And toward the clofeofthe * Sec CpoHn. Journ. voJ. xxxif. p. S76. fame Sea. Bit. TO THE CotONIES. 357 fame feffions another attempt was made to induce the parliament to conform to the direaions of the ting, and to fuJ611 «8own engagements, by entering into a full and ferious conf.deration of the ftate of the government in America. The commiffions of the governor of Maflachufefs bay, and of the - .-nmand- ers in chief of the force, in North Ame- nca, fome meffages from the alTembly to the governor, an," the governor's antwers were Jaid before the houfe. As foon as they had been read it was moved to pre- fent an addrefs to his majefty, to thant h>m for the communication of thefe pa- pers, and for having thus referred to his parliament the ftate of hi. government in America; to affurehim that the houfe had entered into a ferious confideration of the matter thus referred to them, to repre- lent to h,m, that milunderliandings and difputes had arifen in almoft every part of h.5 dominions in America between the '■"1 government and military command. A » 3 ers I !» 35'^ Acts relating Part III, ; 'L,i ■if) t'A ■ If! ft ers, fince the appointment of a commands er in chief; that the reprefentatives of the people in general cQurf had complained, that according to the arrangement of com- mands in America, the>e was a mili-p tary power without any check by th? power of the civil government, and un- controllable by the fupreme executive power of the provmce; to flate their o- pinioii, that this unhappy ftate of doubts and difputes had long called for a clear and explicit definition of the powers and n'lthorities- granted to the governors and commanders in chief of the provinces and colonies, and to the commanders in chief of the military forces in North America: - — and did require ibme exprefs diredions and innrudjons as to the exercife of the faid powers. — And therefore to befeech hi? Majefly to give diredions that the powers jand authorities granted in the refpedive commilTions, orders, and inftrudions plight be amended in fuch cafes whcrp Ifhey claQi with each oth^r, or contained povyers 5«£t. m. TO THE Colonies. 359 powers not warranted by law and the con- ftitution *. Never furely was a lefs exceptionable motion made in parliament. Had thofe who took the lead been really inclined to do what they liad folemnly engaged to do^ had they n^eant to take the ftate of Ame- rica into ferious confideration, what one fhould have expeded is, that inftead of ftifling the motion, they would have pro- moted a full ennuiry. If the momentary eftablifliment of a commander in chief, independent of the civil magiftrate, was at all tobe juftified, it muft be becaufe, under the prefent conftitution of the provincial government, the power of the civil magif- trate had been found too weak for the fup- port of the civil government. If this was .not the cafe the eftablifhment of fuch a . commander fliould be revoked : if it was the cafe, it was the duty of thofe who ad- vifed this eftablifhment to point out this * See Com. Journ. vol. xxxii. p. 967. A a 4 con- p ni h iwl i 1 ^'H>\: y u hi Vi 3^0 Acts relating par^ jjj^ conftitutional weaknefs, to call on par- liament to apply a conftitutional remedy. Here then was offered as good an oppor- tunity as could be offered, to have the whole fyftem of American government fairly canvaffed. and to prepare the way for a general conftitutional reform. Parliament could have grounded that reform on a popular idea : in ftrengthen- ing the hands of the civil magiftrate, they would not fo much have feemed to have been laying new reftraints on the colo- nics, as fhielding them from the danger of feeing the military ereaed into execu- tors of the law. But fo it was, parliament chofe rather to fit ftill and fee every art. While fotf] corruption running all beneath, «* Unfcen, infeded".^ sM 'jt t.' SECT. •jl 362 Acts kelating P^irtlli;. SECT. IV. Proceedings of the feventhfejpms. HOW little attention, during the fe- cond and third fellions, was paid to the affairs of America, ftrong as were the terms in which they had been recom- mended from the throne, we have already feen. The three fucceeding feffions paff- ed away, as if they had been equally for- gotten both by the crown and by the two houfes. Early however in the concluding fef- fions an incident happened which roufed the ruling powers from their lethargy. A melfage accordingly was fent from his majefty to the two houfes, together with certain papers. The mefllige con- tained two requifitions ; the one of a more particular purport, that he might be en- abled to put an end to the difturbances then fubfifting; the other in general 6 terms. Se6t. IV. TO THE Colonies. 363 terms, that he might be enabled to fecurc the dependence of the colonies. The pa- pers contained a hiftory of the difturb-^ ances. The duty, payable in America, that had been impofed on the article of tea by the laft parliament, this duty, we may re- member, continued unrepealed. An alter- ation indeed had been made refpeding that article in the feflions preceding this, tho* of a nature very different from taxation. The duties paid here in England under the name of cuftom, upon its original im- portation, was by a drawback remitted upon all teas exported to America; whe- ther exported by the company diredly, or by fuch private adventurers as fhould have purchafed it at their fales*. No- tliing was added on this account to the duties payable in America. By this ope- ration the charge upon the only article tiiut continued the objed of a tax payable * 13 (ko III. c. 44. • ^n '^■* ..-.-• !i 364 Acts RELATING Part Ilf. in America, was reduced to a pitch below that at which it fubiiftcd here in Eng- land. The degree of prefent eafe thus given to the Americans, it was hoped, would completely calm their anxieties for the future. The policy however was not fo refined, as to pafs upon a people, in whofc minds fufpicidn had been rivetted by a ten years ftruggle. This operation would have made it plain to them beyond a doubt, though it had not been fo before, that the profits of that fpecific tax were not the reafon of impofing it, and that the only purpofe of its being kept alive was to let in an indefinite train of others that were to follow. Indeed it was now rendered impoflible for the moft credulous to be- lieve what had been fo folemnly averred, that *' his majefty's minifters," allowing that they once might have been, were then without any defign to lay any farther taxes upon « America for the purpofe of * ** raifing lik Sea. IV. TO THE CoiONJES. 36; "raifinga revenue V The mod „». tural concluf.on to men in their temper ofmmdwa., that hi, majefty'a minifter. were never to be depended upon j the moft charitable concluf.on, that they were not now Any definite fyftem of taxes, to fuch an amount as eould appear to con- tarn in itfelf a fufficient reafon for efta- W.aing it, and could ferve to mark «/ the limits of the prefent e.xigencies; any delin.te fyftem of taxes, however heavy would have affc-aed them lefs fenfibly.* than that indefinite and endlefs train which their imagination painted to them as a- bout to be grounded on this infidious ma- ' noeuvre. The effedts of th/s perfuafion foon ma- nifefted themfelves in action. The Eaft India Company, who had not that ftronr mterefl which the Americans had to quicken their apprchenfions with rcfped Mr. Burke's Speech, p. 25. in 'V i, ta 3 1 f|i-CM »' ' i'tvl u I lira i i ' \S II '1 ."iiji I lljHl, .1 3^6 Acts relatin'6 PaftiH, to the coniequences of this manoeuvre, had been alhired by the profpedt of a co- pious fale, and againft the opinion of a great many of its members, fhipped for the colonies large quantities of the ob* noxious drug. The firft cargo that canie to Bofton found the inhabitants determined at all events not to iufFer it to be landed. The refolution was communicated to the con- fignees. A committee of inhabitants af- fcciated to fee to the obfcrvance of it : and the neceflity of returning without land- ing any part of the cargo was fignified to the perfons who Lad the charge of it, in the ftrongeft terms. The alacrity of thofe i^ whom this fingular mandate was ad- drefled, not correfponding with the im- patience of thofe who iflued it, the nego- ciation was terminated by a company of perfons in difguife; who after making themfelves mafters of the veflels on board of which the commodity had been ftowcd, emptied the lading into the fea. Of &a.lV. TO THE Colonies. 36^ Of this nature were the difturbances, of "which the papers communicated by his' majefl-y contained the hiftory. In confequence of thefe advices, and the meffage that accompanied them, four feveral adts were paft. One to difcontinue, fc^r a certain time, the landmg or lading any goods at the town, or within the harbour of Bofton *. A feccnd, for the impartial adminiftra- tion of juftice, in the cafes of perfons quef- tioned fcr any ads done by them in the execution of the law, or for the fuppref- fion of riots and tumults in the province of Maflachufet's Bayf. A third for the better providing fuitable quarters for the officers and foldiers in North America J. And • 14 Geo. III. c. 19, t 14 Geo. III. c. 39. t 14 Geo. III. c. 54. — As this a\i 27^ Acts relating Part III, * t tentlon to lade or land any goods^ and which fliould depart within fourteen days. Power is given to his majefty in his privy council, whenever it fhall there be made to appear to him, that peace and obe- dience to the laws are Jo far reftored, as that trade may be fafely carried on, and the cuftoms duly colleded, to fix the ex- tent and bounds of the harbour, and fuch quays and wharfs therein for landing or lading goods ; and to appoint fuch a num- ber of officers of the cuftoms as he fees fit; which quays and wharfs, and no other, fhall be open for the landing or lading of goods. This power however is not to be exer- eifed till his majefty fhall be duly inform- ed in council, that full fatisfadion has been made to the Eaft India company for the tea deftroyed ; as well as to the cuf- tom-houfe officers, and others, for the da- mage they may have fuftained by the in- furrcdions in the preceding months of December and January, This Sc^. y. TO THE Colonies. 373 . This is a temporary ad of coercion : ^nd I cannot fee that any reafonable ob- j^aion lies againft it. Two ohjeaions were however made to it —That it condemned t;he town unheard j and that it involved the innocent with the guilty. As to the firft of thefe objedions, what pccafion was there to hear the town of Bofton? were not the fafls fuiEciently notorious? that from the beginning of November to the feventeenth of Decem- l?er, affociations h^d been formed at Bof- ton, denying the power or efficacy of adte of parliament : that at public meetings, confifting of many of the principal inha- bitants of Bofton, nightly watches had been appointed to prevent the landing of the tea : that from thefe meetings, orders had been fent to the conf^gnees not to re- ceive it; to the mafters of the ihips not to unlade it, but to return back to Eng- land with it : that atlaft, ^yhen the tea had lain fo long in the harbour without clear, ance, that it would the next day hay^ B b 3 beca ' w i¥vs^ ,.'. 1 !l "! \\\ m^^ m ilfl ^iiil mmm 374 Acts relating Part 111, ;!■. been liable to be feized, and fo landed by the officers of the cuftoms, it was public- ly and openly deftroyed ; deftroyed by perfons in difguife indeed, but ading to all appearance under the guidance of thefe public mep*^5ngs : — All thefe were circum- llances that appeared from accounts pub- liflied by order of their meetings; in pa- pers under their own diredtion. Thefe accounts indeed fpeak of thofc who deftroyed the tea, as of perfons who by a difguife they had affumed had rendered themfelves undiftinguifhable ; but this was a veil too thin to conceal, nay we may venture to fay, was never meant to conceal the real authors. The outrage committed, if fo they will have it, by unknown in- dividuals, was adopted by the public : and the deflruflion of the odious weed was openly juftified, as the only means which now remained to prevent its landing. In truth, if the ad impofing the duty on this commodity, was in their opinion fuch an infringement on their liberties as juftified W ^ • S^a. V. TO TfiE Colonies. 375 juftified refiftance, they could not well have done lefa than what they did. But the j thought proper to maintain it. Let us put the cafe of a foreigh prince : fuppofe the kingof Spain. He thinks fit to interpret an article of treaty, as if it ex- cluded Britifli fhips from trading to any given port, or in any given commodity: to which port, and in which commodity, the treaty, according to our interpretation, gave us a full right of trading;— a fecre- tary of ftate receives intelligence that the Spaniards had aded precifely in the fame manner, as the Boftonians have done: this account comes to him from the •^ " 4 owners I'ill »>• ^7^ Acts relating P^rt IIJ owners of the fliips, from the confignecf 9t the fadlory, and is moreover confirmed to him by the papers regularly publiflied under the authority and infpedtion of the Spaniards. Will any man f^y this is not fufficient evidence, fufficient notoriety, tq proceed upon ? Upon one half of that evi- dence, Mr. Pitt's advice would have been to fit out a fleet, and demand fatisfadlion at the cannon's mouth. What farthef evidence therefore could reafonably be required, is more than I can perceive ; and unlefs parliament meant to give up its rights entirely, I fee not how ^t could have proceeded in a milder ftrain. The officers of the cuftoms had been forcibly debarred from the exercife of theif ^uty. What could the ad do lefs than recal thofe officers from a ftation, in which the violence of the people had rendered their prefence ufelefs ? Having done thus much, how could it do otherwife than put a total flop to the commerce of the |)lace, ujilefs by giving to it a total exemp- tion 6c(£t. V. TO THE Colonies. 377 tion from the burthen of thofe impofts, of which the officers had the charge, it re- warded where it meant to punifli? His majefty's Britifh fubjeas (to fay nothing of the deftruaion of the fubjeft matter of their trade) had been debarred, by the A- mericans, the common liberty of trading. What could be more confonant to all the ordinary notions of juftice current among mankind, than to punifli the authors of this oppreffion, by giving the oppreflbrs tfiemfelves a tafte of it ? Care is taken, in the mean time, to pre- vent the punifliment from running into excefs, ^nd beyond what feemed neceflary, for the purpofe of prevention, as to the meafure, the objea, or the continuance of it. The means are alfo given of fele£^ng fpom amongft the croud of delinquents thofe whom a pre-eminence in delinquency might render fitobjedls for a pre-eminence \p. punifliment, whofe ftronger bias re- quired a ftronger balance to correa it. * Care 2yB Acts relating Part JII. Care, for example, is taken to leave the port open for provifions ; to prevent (hips already there from fuffering by a regula- tion they could not be apprlfed of. The duration of the aft depends on the Boftoni- ans themfelves ; and the power left in tin.' hands of the crown of appointing the wharfs and quays, where exclufively goods are thereafter to be laden or unladen, is only a power of diredling the greateft weight of punifhment againfl: the greateft body of delinquency. This power indeed may be abuftd ; and fo may any power, in the cxercife of which the king, or any other magiftrate, may ufe his difcretion. In whatever hands it had been lodged, it was liable to abufe ; yet the fame power has been given to the crown here in Eng- land, by different adts of the legiflature, where the fame reafons Jd not fubfift*. • See I Eliz. c. ir. 13 & 14 Car. 11. c. 11. Blackfton'e's Commentaries, Book I, c, 7. But ¥ ' Sfiifl. V. TO THE Colonies. 379 But againft this adt there is yet another objedlion : in one common punifhment it involves both guilty and innocent j and it h therefore, we are told, unjuft. He who urges this topic of accufation, — and none has been urged more unlver- fally, or with greater vehemence — does not rightly confider the end of punifhment. It may feem ftrange at firft fight, yet it is moft certainly true, that this plea, le- velled as it is agsiinii/eveneyy and urged on behalf of /enity, is built on the favage principle of vengeance. If vengeance be the end of punifhment, that puniihment which ads upon him who did not do the obnoxious ai5l, as well as upon thofe who di'J it, is certainly impro- per. If it is with A I am angry ; the fufFerings of A may give me fatisfadion, but the fufFering of B, with -.hom I am not angry, will give me none. Were I to beat A, who had angered me, my beha- viour might perhaps, according to the cir- cumftances of the quarrel, be approved t were !, »! ■'i I r 1 ' ! 1- h ' i. '1 !I !J^.^ »■, . f-'i PI 3«o Acts kelating Part III, were ^. to beat B, or any other perfon who had not angered me, I fhould certainly be conden*ned ; eve"/ moiith would exclaim, and with reaion, thai my behaviour wa» unJLft. Individuals obeying the impulfe of paf- fion, ading on the felfifh principle, punifh becaufe they are angry, and within cer-^ tain bounds, upon certain occafions ; the flifFrage of mankind in general allows them to do fo. But fiirely governments, maglftrates, aj fuch, do iOt puni(h, becaufe they are an- gry, — at leaft xhey ought not. Thus much at leaft will, I fuppofe, be acknowledged on all hands, that were it certain, that in any inftance, the legiflature punifhed a man, or fet of men, becaufe the members who compofed the legiflature were angry with them, and for no other reafon, every man would certainly cry fliame on fuch a legiflature. The end, the only defenfible end, of pu- niQiment inflicted by public handa, is the fup- ' Sea. V. TO THE Colonies. ^^i fupprefTion of mifchief ; of that particular mifchief, the fenfe of which was the caufo of punifhment being thought of. Now whether this end, the fupprefTion of mif. chief, be obtained by the punifhment of A, who was the author of it, or of B» who was not the author of it, does not make fo material a diflference, as at firlt fight, we are apt to think: provided always, that the fum of evil introduced by the pu- nifhment, be in neither cafe greater than what 16 neceffary for the fuppreffion of the mifchief. True it is, that the fuffering of B, who is not guilty, is a thing by no means to be wifhed J but neither is the fuffering of A, who ts guilty, a thing at all to be wifhed, unlefs upon the principle of vengeance, which we have reprobated above. That the mifchief could be fuppreffed without the fuffering either of the innocent, or the guilty, were a thing devoptly to be wifhed. It W''^p v\i ^■^^. m ss -til r li Acts relating Part III. It is alfo true, that were a man to chufe^ it is againft A, who is guilty, that he would level the punifhment, much rather than againft B, who is not guilty. He woul4 do this for the eafe of his own mo- ral feelings. He would do it to fave that dilTatisfadion, which reafonable or unrea- fonable, is fure to arife in the breafts of the multitude, from the principles above fet forth. A diiTatisfadion, which increafes the fum of evil, introduced by the punifti- ment, and which therefore is to be de- duced from the total account of the utility of the meafure. But if, after all, the evil of the punifh- ment in this mode can be lefs than the evil of the mifchief, and there be no other way in which the mifchief can be fup- preffed, at a lefs, or equal, expence of pu- nifliment ; the magiftrate has but one mode of condud to purfue, if he would do his duty. He muft punifh the inno- cent, or betray his duty. One Sea. V. TO THE Colonies. 383 One confideration may help to recon- cile him to this irkfome neceffity. Taking the whole fum of innocence into the ac- count, that 18, the whole number of in- nocent perfons affefted, either by the in- fliaion of the punifhment, or the conti- nuance of the mifchief, it will appear, that lefs detriment accrues to, lefs fuffer- ing is laid on, innocence by this compli- ance, than would be laid on, or accrue to it, in refufing to comply. Innocence fuf- fers, it is true, by the inflidion of punifli- ment ; but innocence would alfo fufFer, and that by a fuppofition to a degree ftill greater, by a continuance of the mifchief; for if the evil of the mifchief be not greater than the evil of the punifhmeiit, no pu- nifliment, no ad: of power, ought to be exerted. The benefit of the meafure cal- culated for relief, will not bear the ex- pence of it *. • Every adl of authority of one man over another, for which there is not an abfoluts neceffity, is ty- rannical. Beccaria. He ' is 3^4 Acts reiatino Part 111; He wKo fliould extend, or think I meant to extend, this idea fo far as to confound innocence and guilt, or to mete out to both alike, in any cafe where a diftindlion can poffibly be drawn, the fame meafure of favour or difcountenance, would either argue very ill himfelf, or make a very unfair ufe of my principles. It is only the impradicability of fevering the innocent from the guilty, nor even that fingly, that can juftify the involving of them in one common punifhment. Not to make a diftindion, where it is practicable to make a diftinCtion, between guilt and innocence, is to deftroy -the efficacy of punifliment as a fpur to adion. To pu- nifli the innocent, where the continuance of the mifchief to be prevented by punifh- ment, would not be a greater evil to the innocent, than the evil they fuffer by the punifhment, we have already faid, and mufl again repeat, would be an arbitrary and cruel exertion of power. Under t feedt. V. TO THE Colonies. 38^ Under thefe leftriaions let us apply this maxim to the a.a before us. There are but two ways of punifhing : — mdividually. or colleaively. To pu- nifli individually, you muft punifh judi- cially J and to punifh judicially, there "luft be a trial. But it is vain to try, where you are fure 'before-hand there can be conviaion. There can be no affurance bfconvidion, be the guilt ever fo indif. putable, where the probability is, that the jury are accomplices with the culprits. Accomplides will not convidl one another, tvhen they can avoid it. Juries will not convid, as for an ad of guilt, for an ad m which they arc perfuaded ia their con- fcience, there is ;.. guilt, much lefs for an ad, which they are perfuaded is merito- rious. Could it be expeded, that a jury of Jacobites would convid a man of high treafon for adhering to the Pretender ? Conceive the Pretender, by a miracle of an avenging deity, placed on the throne of thefe kingdoms, would a free jury of ^ c whig Vf.''^ ':'), 386 Acts relating Part III. whigs convidl a man of high treafon for adhering to king George ? Juft as foon would a jury of Boftonians have convidled the Mohawks of guilt for deftroying the tea. In difproof of this laft affertion, indeed, a precedent is cited : the acquittal of cap- tain Prefton was urged in an addrefs to the houfe againft this very biU, as a proof that the diie courfe of law held out redrefs for any injury fuftained in America : but however it may feem, on a fuperficial view, a little attention will convince us, that the cafes are not pa^rallel. There is furely a wide difference between abfolving a man, who being charged with an ad of enmity^ appears after all not to have com- mitted it; and the deftrudion of a friend for the very ad, whereby he proved him- felf a friend. In fuch a cafe it can hardly be con- ceived, that thofe who contend againft colledive punifhment can really mean any thing but univerfal impunity : — thinking 8 the Sed. V. TO THE CoLONIEi ^^7 the Araericans in the right to refifl, quo^ cunque modo, they of courfe are againft their being punilhed at all. But when it was already decided, that they fhould be puniflied,-and fuch was the opinion of the whole houfe .-—when the only queflion was how they fhould be puniflied, it is but aBum agere to con. id againft this, or that mode of punilhment, without attempting to point out a better. Suppofing it even erroneous,or criminal, to have adopted compulfive meafures; yet to urge that as a new crime, which was the neceflary cbnfequence of fuch a refolution once adopted, is but a piece of party difm- genuity, eafier to be excufed than juftified. A difcriminating punifhment we have already feen could not' be exercifed, becaufe all convidion of the guilty appeared im- poffible. A colledive puniOiment became therefore necefTary ; that is, a punifhment ;vhich involves, to a certain degree at leafl. the innocent with the guilty. C c 2 j^or \t' ' !il .88 Acts relating Part IIP. Nor Is this mode of punifhment, how- ever it may have been exclaimed againft on the prefent occafion, unknown to or in* frequent in our law. By the inftitution oi frank fledge^ attri- buted, I think, to Alfred, every man was made refponfible, that is, was to a certain degree punifhable, for the delinquency of every other man in the fame decennary.* The whole fyftem of the law on forfei- tures for high treafon is built upon this principle of colledive, or vicarious, pu- nifhment. And the only objection to this application of the principle in this parti- cular cafe is, that here it is eafy to fever the father from the children, the guilty from the innocent. Corporations, where this feVeration cannot be made, are often puniflied for the mifdemeanors of their members. And no man thinks it unjuft. "3- * See Clackftone's Commentaries, vol. i. p. Hun- Scd. V. TO THE Colonies. 389 Hundreds are charged for damage fuf- tained in the maiming of ca'ttle*, &c, and^ for robberies committed between fun and fun f . Hufbands, in the opinion of HawkinsJ, are anfwerable for their wives in the pe- ciiniary penalty inflifted by a penal fta- ' tute. A mafter is indidable for a nuifance done by his fervants § ; he is refponfible for his fervant in publifliing a libel j[. Though a flierifF cannot be punifhed as for a felony, for a voluntary efcape of a felon permitted by thegoaler; yet, ** whe- " ther the efcape be voluntary, or negll- ' gent, the flierifF may be indided for it fo as to fubjea him to a great fine and « (( * 9 Geo. I. c. 22. A 7. t 27 Eliz. c. 13. 29 Gw. II. c. 36. f. 9. t See I. p. 3. § Lord Raymond, 264. Burn on Servants, xxiii. 146. Bacon's Abridgment, tit. Mafter and Servant. li See three flrong cafes, in 2 Se/T, Cafes, 33. C c 3 «« impii,. Ill I 1',:' I. li ,» : r ii ww\ ./Tl IlIJi I *; '3 l%k »; 390 Acts relating Tart III. '* imprifonment, for the offence of his *' goaler, though not to make him guilty ** of felony *." And this it fhould be ot- ferved, is a much ftronger cafe than that of a mafter being criminally refponfible for , the aa of his fervant, efpecially if a me- nial fervant, over whom he is fuppofed to have a much greater and more conftant in- fluence, than what a flieriif has over his goaler. By the conventicle ad f, in cafe of the poverty of one perfon prefent at a conven- ticle, and therefore fubjedl to a fine of five ihillings for the firft, and ten (hillings for the fecond, offence, the penalty is direded to be levied on any other perfon prefent, fo that no one bear more than ten pounds. By the Mutiny h^X, if a foldier de- ftroys game, the commanding officer for- feits twenty fhillings ; and if, after con- • I Holt. C. P. 5q7. Dalton, c. 106. Doc- tor and Student, 42. + 21 Car. II. c. I. r. 2, 3. X S:c Dialogue on Game Laws, 34. 14. ** vi, ,. • f lit I 1 394 Acts relating Partlll, flif magiftrates In fupport of whom, fuch 3(3 s had been done. It is then enaded, that if any inquifi- tion, or indictment ihall be found or any appeal fued againft any perfon for mur- ther, or other capital offence in Maffa- chufet's bay; and it fhall appear by infor- mation given upon oat/i to the governor, that the fad was committed by the per- fon accufed, either in the execution of his duty as a magiftrate, for the fuppreflion of riots, or in fupport of the laws of the revenue j or in the difcharge of his duty as an officer of revenue — or under the di- redion, or order of a magiftrate : and if it ihall alfo appear by the fatisfadion of the governor, that an indifferent trial cannot be had within the province, then the governor, with the advice of /it's coun- cil^ may fend the party accufed to be tried either in fome other colony, or in Great Britain. The witn;;fres, whofe evidence fhall be deiired, either by the profecutor, or the culprit, *'l Sea. VI. TO THE Colonies. 395 culprit, are to be bound over to give evi- dence at the time, and place of trial. And the governor is to aflefs a reafonable al- lowance to the witnefles fo bound over : to be paid by the officers of the cuftoms. The witneffcs are to be free from all arrefts, and reftraints, in any adion or fuit, during the time of their going to, flaying at, and returning from the place of trial. The perfons accufed are to be admitted to bail. Judges are to poftpone the trial of fuch perfons, and admit them to bail for a reafonable time, if they fignify their defire of applying to the governor for the benefit of this ad:. Care is taken to obviate the failure of juftice from indidlments quafhed, or ad- judged bad upon demurrer. The ad is to continue for three years. A more ftridly neceffary aft than this can fcarcely be imagined. Yet the terms la which it has been fpoken of are per- feaiy aftoniihing: thofe who employed them. I -:'!.• lli '. M %: i I,' I'!' I I r- !1) urn nil'' 396 Acts relating Part III. <( i( tt ti them, one fhould think, had together with all temper put away all fliame. In their pe- tition to the king the American Congrefs exprefs themfelves perfedly fatisfied that the efFeds of it will be " that offenders " will efcape legal punifhment." In their addrefs to the " good people of England ' they go fo far as to call it, « an a^ to proted, indemnify, and fcreen from punifhment, fuch as might be guilty even of murther, in endeavouring to carry the oppreffive edids of parliament *' into execution*." — In their addrefs to the inhabitants of the colonies they rife if poffible ftill higher in their extravagance, and flyle it " an adl for indemnifying the " murderers of the inhabitants of Maffa- " chufet's Bay f." In the ad we have feen, what can there be to deferve thefe frantic appellations ? — What is it that it does, more than con- * See Votes and Proceedings of the American Continental Congrefs, p. 37, t See ib. p. 59. vey Scdt.VI. TO THE Colonies. 3^7 vey a general fecurity to the officers of the executive power ? It does not alter the mode of trjal; the trial is ftill to be by a jury. In this cafe indeed, the jury cannot be of the vicin- age. But that circumftance is, or is not an advantage, as it may happen. It may, or may not, be right that they be " next ** neighbours." It is, and muft always be right that they be fuch, as to ufe the words of anantient ftatute, Ihall be " mod " fufficient, and leaft fufpicious *."— "Were an officer of the revenue to be ac- cufed of murder in the dllcharge of his duty here in England — would it be right to have a jury from a town inhabited only by fmuglers, merely on account of their being of the vicinage ? In difputes between individual and in- dividual, though the fubjed matter be of no higher importance than fome trifling claim of property, or a demand cf fatis- 28 Ed. I. c, 9. fadion It ■ i:i w. % li ; i 1. .; 1 398 Acts relating Partllf. faaion for fome petty perfonal injury • if it appear, that « a cry is raifedj that 'the « pafEons of the multitude are inflamed ; « that one party is popular, and the other " a ftranger, and obnoxious ♦:»' it is the conftant pra^ice under our law, by means of fome expedient or other, by the autho- rity of fome court or other, to change thq icene of tria], and the perfons of the triers. Can there be lefs reafon for fuch a pradicc ma cafe of blood, where the caufe of one man is the caufe of the very people, who, were it not for fuch provifion. would be to try it ? Nor even in capital caufea is a provifion of this nature without example in our fta- tute book. Murders and felonies, com- mitted in any part of Wales, ftiay be tried an the next Englifh county f. By a fta- tute. of George the Second, offences of liigh treafon committed in certain coun- ties in Scotland might be tried in any * Blackftone's Coram. III. 384, t I Strange 553, m Se^. VL TO THE Colonies. 399 other county in Scotland *. And if the whole kingdom of Scotland had been a» warmly attached to the interefts of the Pretender, or as refolute to deny all obe- dience to the lawful fovereign as thofe counties were, who can doubt but that the legiflature would have gone further, and fhifted even into England the fcene of trial ? Nor let it be forgotten, that in the cuie of Scotland, the legiflature exert- ed its power for the ftern purpofe of in- fiiding punifliment on the guilty : where- as in the ad before us, the fame power is exerted for the benign end of faving the innocent from undeferved, or the guilty from exceffive punifliment. It may be faid indeed that America is removed at fuch a diftance from Eng- land, that the cafes are not parallel. But this local difl^erence was neither created by parliament, nor is it changeable by it. Parliament can neither fwallow the wa- ^ Sti I') * ai Geo. II. c. ig. i!i ters i' ir u I i ■400 Acts reIating Pah IIP. ters of the Atlantic, nor build a bridge over them. Nay farther,-if any one colony car be found, where an indifferent trial can ,-. 1, it is not required that ei- ther the cuiprit or the witnefles fhould be made to crofs the Teas. It-has been urged, that the acquittal of captain Prefton is here at leaft a cafe in point, to prove the needleffnefs of the pre- cautions taken by this adl againft par- tiality in the local judicature. But it is not fo by any means.-— At t/iaf time the judges affumed as the ground work of their charge —that Prefton was in the king's peace : — was doing a legal adt, in difcharge of a legal duty : — they from thence deduced, that he was illegally af- faulted ; illegally put in fear of his life ; and therefore aded only Je defe?idendo. They muft now affume another principle: the ftationing of foldiers in the colonies is now declared illegal and unconftitutional : the appointment of a board of cuftoms is ^ now f -■? ill !. \f iie(^. Vf. to THE Colonies. 401 riow iSecikrtd fllegal ahd uticonftitutional : the tax tb be levied by the officers of ihiat board re now declared illegal and ttnconftltiitlbnal : the order, by which the governor afnd council ihay require the aid 6f the miiitary, miift now be ille- gal and ^conftitutlorilal, fince the ap- libintmeni of the cbuncil itfelf is declared to beib. If it be afllriiiiia as Taw (atid in the pre- fbiit teittper ahd difpofition of things, if the judges do riot lay it down as law, it is manifeft the jury will aflume it) that the Klhg his rib Hght to fend troops toBoftbnj on that iuppofitibri, neither can the officer of thofeti'boj[JS have any right to pldce cen- tirieh ; nor can i centlhel ft) placed be faid to be in the Kihg's peace. Nbr can any aft he does in defending his poft be a le- gal a 'i ;'|' i'rl H '^ 1 ^■'1 i| ^^H^' VM might be to the model of thfe conftituti6n which obtains in the motHer-icountry. Had this objedl been in vie\^/ if is pro- bable, that what fo many governoxs had recommended would have been complied with. Two councils would then have been appointed : one a conftltuent branch of the legiflature, equally independent of the governor and the people*. The other a council of ftate, to be appointed, and removeable either diredly by the king, or by the governor in the name of the king. And that this laft council might be able to fupply inftrudion relative to every department of adminiftration, we might have expeded to have feen it com- pofed promifcuoufly of men taken from every department; of fome in military, of others in judicial ftations; of others again in each of the two branches of le- * <' A true middle legiflative power, appoint- *« ed by the king for li/ef znd/eparate from the " frivy council.'* Bernard's lyctters, p. 36. giflative, giflatiy?, p.^t %^ ^el\a\/«, before /aid to tkk #?Pti9j ^fj5,a, k tli?\co^ftitutioh of' this goyerjinjipnt. %he aft befpre ^u^im applied no remedy whai;ever. ' ^^'\ ^ '^'■' The elecf^ion pf this council^b^ the houfe of repreie.nta.tive§ had been frequently C9^D|^i^^4 of l|y (Ji^rent governors * Th^y ^^4, vfopwd, it highly inconvementj, th^ \6forC U5 , appUfi^ a leraecJy, Aiph:^ a§ jt- is, (p tliis Qvil. 05 . raja^er it created another evil to fubfiifM^e, iw. the H^9pef9rvy'i^^^he member* of the C9yi^-; cil, are nqtonlyr^p ,be nam^d by his, ma- j^fty, but a;-e..tohQld. their ofiices no longer tha^ 4^ring^i>^/(?^«rf. This indeed was taking away^hgir dependence on the jiemo-» crafeioajf part of gpvcrnix^entj but it was nei^hjer rendering then> indepcndeiiti . noir feci^ring them thai ^^pe^^ whic]^ alone could niake them, ufefiii. . If they "sv^efe liabJie to coqtempt v^hM, thiey, y^ere conft- dered only the \nfttivneiits of the /wu^ of repre/l^tatives^ they i^yflif.expjea to meet, as indeed they I^ave met witl^ ab^horrence, as well as conteippt, appearing t:o b^ thp inftruments of tjie^r^ww. Ko doubt the outrages countenanced, or at leaft con- nived at, under the former demqqratic go- vernment, did require for the prefent, 8 that; -f ktti4!e.ffi!d« *mw its t«r(feiglit into ^hd ^te *t»* t^Tbm. Bttt Aeft tfeat vir^rgftl in which cafe tfe6 ifldlftftiltiM ef it wdiiM havt? b^eh'ftytttetftirtg>fti trbiiit of inttu- eticfe^fe Wdl ia^^6W6h Such tdiftancfe m it mi^ht M taat dife ^ t?6" tfte ^xtravk^ gances of the democratic partj, might then have been confldefced as the efFea of Inter- nal cohviaib"^. > The beJief of that con^ viaion might, then liave operated oii ci- thers; .,•• -v. >■■■■ ■'■'■..■ ' ' Had they been appointed for life, or at leaft had j)rpoAinat idorivii^Ibh ^f ^^^j, praaice neceflWiiy preceded their remov- al or fafpenfioni thcj would, at once have acquired a degree of ffighity, which they could never acquire whilft they wereeled- ed by the reprefentatives ; and a degree of cdrtfidence which they never can hope to acqliire whilft they are removeable at the pleafure of the crown. And they would, befides, have had fomcthiffg worth con- tending j » Im W i*^' 414 Acts RELATitJG -PartllL tending for themfelves ; they would have had a real and a permanent interefl:, iu^. cient to incite them to labour earneftly and efFedlually, to check the encroachments either of the crown or people * » 3 ,{ : , ' , This fecond defed in the law before us was perhaps a confequence of the ori- ginal error, of confounding together the •-.s • Mr. Oliver obfervea^ the honour of being a Jegiflative counfellor could not be hereditary in MafTachufet's Bay, becaufe eftates are partable af- ter the death of the proprietor : but recommends it warmly that they be appointed ^uam diu fe bent gejferint. Or as a farther check upoii the exor- bitance of the democratic power he propofes an order of noblelTe, who fliould ele£fc counfellors out of their own body, as the Scotch peers eleft out of their body lords of parliament, referring only a negative to the crown. See Letters, p. 31, 32. Such a fcheme, coming from a man fo well ac- quairfted with the country, furely deferved atten- tion.-— It (hould feem befides to be of fuch a na- ture, as either to meet with little, or overcome all refiftance. Efpeclally if the crown had given up— as 1 think it might fafely have done— the ' right of putting a negative upon all vacancies to be fupplied, after the Aril nomination. legiflative Sea. VII. TO JTHB Colonies. 415 legiflative council, and the council of ftate. From the fame fource perhaps fprung another defcft. Among the quaiifica^ tions of the counfellors, they are required 10 he proprietors of land, or inhabitants within the, province. A member of the council of ftate ftands in a refponfible of- fice:— many officers of the crown, who are mere inhabitants, may with propri- ety, nay ought perhaps to be called to this board: but furely the members of the legiflative council ought to have a na- turah as well as a political relation to the country. Territorial pofTeffions feem an indifpenfible qualification to a member of the legiflature. Hitherto the a6l feems to have confidcr-^ cd this council merely as a council of ftate. And neither requires fuch qualifications as ihould have been required of,nor gives fuch a degree of independence as fhould have been given to, members who were to form a diftind • ;'a ' n ^^H ,1 ff ■ ■ ■ I MMHH :^H Wk I I t'' '■ it J 1 . / I'f-. I. 4i ill ! 422 Acts relating part lU the clerk of the court ; and out of the per^ quifites of the court they had a falary of three or four Ihillings a day *. " This method lay. open to manage^ "ment;» fo at leaft we learn from a great law officer of the province : " who, ♦' ever pleafes (fays he) nominates them *«at our town-meetings." As a p^oof how very open they lay to manage- ment, he adds, «' that by this means one « who was fuppofed to be a principal in ^' the riots of the loth of June (preceding *' his letter) was upon that jury, whofe bu-r ♦* fmefs it was to enquire into them f. That an inftitution, which was not only fo liable to a^u/e^ but had adually been thus aSu/ed, called fpr reformation, will, I fuppofe, be readily allowed. To efta- blifli that reformation is a bufinefs of ^ large part of this aft. Particular direaion? « ''.«- * See Appendix to Nealc's Hiftory of New England, vol. ii. No. 4. Article Juries. I Sec Hutchinfon and Oliver's letters, p. 31. are Sed. VII. TO THE Colonies. 4213 are given about making out the lifts of perfons qualified to ferve on juries ; but as to the qualification itfelf, the ad is totally filent. About the time of iffuing the fum- mons for jurors ;^about the manner of fup- plying the want of jurors, where a fuffi- cient number do not appear, or ha v mg ap- peared, are reduced to an infufficient num- ber, by challenges, or otherwife ; about the mode of afcertaining the number, and of drawing the names of jurors, the ad is full and particular ; and appears to be li- able to no objedion.-T^ Not fo with refped to the officer who is to fummon the jurors. They are to be fummoned by the Jheriffs. — Names are powerful things. — Nine tenths' of the world are governed by them. Had the ad provided for the fufficiency and in- dependence of the officer, who is to fum- mon juries, it would have been a matter of prudence, and allowable policy, to call him 2ijheriff\ but was it allowable to give this name to a needy dependent, liable'to F- P 4 be m .1,!- i|?4 Acts j^ej-atjno Part I J F, tw difojiffed at any time, for r^o affignaWe reafon, by the fervant of the crown, and a council which itfclC is only an inftru- ment of the crown ? A Oieriff in England muft have lands in tljie county where he ferves*. For ought that appears by thj^aa, a governor may name his own footman to belheriff. A fherifF in Englan4 is ap. pointed for a year f ; for ought that appears by this a&y one man may be flieriff fo^ life. A iheriff in England is to take an oath of office I ; no oath, no engagement whatever, is prefcribed by this ad. A AerifF in England is punilhable by fine, orotherwife, if proof be given of negli, gencc or partiality, in the return of juries J j ♦ 9 Ed. IU{\. 2. Ed. III. c. 4, 4 Ed. III. c. 9. 5 Ed. III. c. 4. ' ^ - t9E^ thefe lifts : fuppofe him to impanel, or return perfons to ferve in juries, who are not named in thefe lifts, to what punifhment is he liable ?— To be difplaced by the go* vernor and council. He would meet thi* puniftiment, no doubt of it, if fuch falfi- fication, or untrue return, be difadvanta- geous to government, oi- hurtful to the go- vernor or his friends *. ' This * In fpeakJng of the council— this aft provides, that the members fliall take he fame oaths, &c. as heretofore.— In fpeaking of the fherifF, no fuch provifion is made.— None of the provincial laws if any fuck there be, which fix the qualificatioh for a flicriff, or his oath of office, arc confirmed by this '■1 m '11 M X '- :i 11 !i' li 426 Acts RELATING Part IIL •I J This a£l then, fo far as it relates to the nomination, and functions of thefherlfFs, feems to be at once unjuft and impolitic : unjuft, becaufe it does not fecure the rights of the people ; impolitic, becaufe it defeats one at leaft of its own ends. For the ends which theiegiflature had, or ought to have had, in view, were firft to fecure to the colonifts, and to convince them, that it was intended to fecure to them, an impartial adminiftration of juf- tice, by providing efFedually for the re- turn of a fufficient and indifferent jury. And in the next p^ace to convince them, that the legiflature, in the changes efFefted in their conftitution, meant only to bring it nearer to what themfelves boaft to be its original model, the conftitution of the mo- ther-country. — Now will the people ever believe, that a jury fummoned by fuch an officer as this, who gives no pledge, no this aft, or even fo much as noticed —Nor is the governor required to take notice of them. fecurity Scdk. Vn. TO THE Colonies. 427 fecurity whatever to the public for his good condua, who may be, for ought that Appears, without a foot of land in the pro- vince, who takes no oath, enters into no recognizance for the impartial difcharge of his duty, and who holds his place at the will of the governor, will be a fufficient and indifferent jufy ? Willjnot any jury he can fummon in any caufe, where the rights of the crown, or the interefts of its officers, are concerned, be at leaft fufpeded ? Will they hereafter truft to your profeffions of wifhing to communicate to the colonies, the bleffings of the Britift conftitution ? Wiii they not refent as a mockery, this af- fixing the name of an officer refpeaable in England, to a creature fo totally diffi- milar in America ? There is no more re- femblance between an Englifh fheriff, and the Iheriff appointed by this afl, than be- twct-- a conj'ul commanding the troops of the moft powerful ftate in the world, and A c(?«>/ fettling difputes about figs and rai- fip^, at Smyrna. Another I : U] / / 428 Acts relating I > r^\ Part llh Another bbjea of this aft is, to regulate the annual and occafional meetings of the freemen. Thefe meetings, it feems, had been perverted from the original purpofe for which they were inftituted, and, in- ftcad of confining themfelves to their own municipal bufinefs, « had been milled " fays the ad, " to treat upon matters of ** the mcrfl general concern, and to pafs «» many dangerous and unwarrantable re- "folves." To remedy this abufe, two provifions are made ; both of which appear impoli- tic, and one of them impradicable. It i-s enaded, that no occafional meet- ing, that is, no meeting, except the an- nual ones for the eleaion of officers, and tthofe for the eledion of reprefentatives, ihall be fummoned without the confent of the governor. This, no doubt, is pradi- cablc, but i^ it juft or politic ? Thus much is, I believe, certain, that here in Eng- land, the frequent meetings of the gentry and freeholdcfs, have always been confi- dered If! Sfa.VI|. TO THE Colonies. 429 dered as one of thegreateft fupport$ of our liberties.— Our petit and grand feifi©ns> our a^zes, are upon this accjount, as welt as other?, of real aad falutary i?aportaac€| nay» if the Reftoration is to he ranlped among the national bleffings, even cock- matches and hofie-races may claim fomcs iharc of the praife of utility ; there it wa» the royalifts held their confultation* *, Nor was the prohibition of thefe divert fions the leaft galling a^ of CromweH'f tyranny. Nor is there perhaps a xneafuf«; that woujd be mor^ likely tp roufe the jeai* loufy, or inflame the paffions of Engliflj-, men, th*n an attempt to put the power of meeting, pr the exclufive prefcriptjoa o€ the matters to be canvafled when, met, io, the arbitrary difpoJOutioa of the fervantft of the crown. No doubt it was true, as the a/St aflerts, — •* that great abufes had been ma«le of " the power of calling fuch. meetings ;"•*-» j ■ ii't * Dalrymplc's Memoirs, vol. i. p. 74. No I 430 Acts relating Part III. No doubt «* the inhabitants had paflecf ** many unwatrantable refolvesj" but docs it therefore follow, that free meet- ings fliould be difallowed, beeaufe free meetings had been abufed ?•— What is it that may not be abufed ? — Convivial meet- ings may be abufed ; they often are fo i would you therefore pafs a law, that no man (hould give or receive a dinner, with- out the permiffion of government ? Bring the cafe nearer home : however dange- rous and unwarrantable the refolves of the town-meetings may have been in Mafla- chufet*8 Bay, they were certainly neither more dangerous, nor more unwarrantable, than many refolves pafled in the town- meetings at London. Why did not go- vernment apply the fame remjdy to the fame evil, exifting and operating ut^der its own eye ? He would furely be miftaken who fup- pofed, that the towq-meetings raif^J the fpirit of difcontent : they did not raife, they found it. Men were not called together to _ meet, S«<5t VII. TO THE Colonies. 43 « meet, and pafs refolves, in order* that they might grow difcontented with government; but they met and paffed thefe refolves bc- caufc they were already difcontented. Where the meafures of government arc diredly contrary to the interefts, and de- ftruaive of the happinefs, of the whole community, no doubt public meetings arc dangerous to government ; and for that very reafon they are beneficial to the community, grievances are mutually communicated ; plans of redreft are con^ certed i fupport is mutually promifed.— This plea, I fuppofc, will not be fet up in defence of the provifions of this a«a ; yet upon no other plea can I conceive them to be defenfible. For where the meafures of government arc levelled not againft the intereft of the community in general, but againft the views and interefts of aifa^m only, it is there at moft an equal chance, whether public meetings will, or wiH not be attended with inconvenience. Butfup- pofe the worft r fuppofe the prevailing *• •• ^ faction \l I 'HI '? I'- r I si' 43* Acts RELAtiii& Partiif< faaion for a time to take the lead, what thcii i Why opinions will be propagated j refolutions will be paffcd, which are un- warrantable } and which, if carried into execution, wnuM he dangerous* This has been the cafe in New iingland j thii has beea the cafe in London. But to opine o^ refolve is one thing; to a£b in confequence of thofe refolutions, or opinions, is anotheri The citi:?ens of London, for inftance, re- folved io fome of their public meetings* that the laft parliament was no parliament : —nay, they went a ftep farther, they de- clared as much in an addrefs to the throne* What effedt did this declaration produce? The parliament ikt as ufual, pafled its ads as ufual, and was obeyed as ufual. One gCBtleman went farther;— < he refufed td pay a tax impofed by that parliament, What was the confequence ? The officers appointed to collet the taiE, feized his gooda for non-payment, as they would have feized mine, or any other pcrfons* who from any other caufe or motive had » refufed^. SeO. VU. TO THE CoLONIEf. 43 j rcfufed, or neglefted, to pay the tax. The gentleman applied to a court of jufticc for I tlrefs againft the officera. The court juf- tified the officers, and the gentleman paid the expences of the fuit. What fhock did governmeu receive from thence ? The people of Maffachufct'a have dc-* dared the counfellore, or affiftants, ap- pointed in conformity to the ad before lis, to be no council. — They have aflem- bled, and forced the new counfcllors, as many of them as they could get at, to en-, gage themfelves by oath to throw up, what the infurgents called an illegal of- , fice. — « See here," it may be faid, «* the " dangerous effeds of public meetings.*' But the public meetings were prohibited by this very adt, previoufly to the eleftion of thefe very counfellors. " True,'* it will be anfwcred, ** but the aft was not "enforced the public meetings afletn- " bled notwithftanding." And why was it not enforced?—" Becaufe government was too weak to enforce it." Here then F f was m I 434 Acts relating Part. IIL li M fr? I;-;-^ I' -J was the defed, in the weaknefs of govern- ment; and here only the remedy (houldhave been applied. The fame ftrength which would have fufficed to fupprefs the public meetings, would have fufficed to give ac- tivity to the new council ; and had the hew council been able to ad, there would have been nothing to fear from the pub- lie meetings. In general, that government mufl: bo very weak, or very arbitrary, which has any thing to fear from public meetings ;, or which makes a point, of fuppreffing them. It is farther enaded, that at the annual Ineetings for elections, no other bufmefs Ihall be done than that of the eledions; and that at occafional meetings, no other bufi- nefs fhall be done, except the bufinefs ex- prefled in the leave given by the governor to convoke fuch aflemblles. This provl- fion appears to me to be as little confonant to juftice, or to policy, as the former j and withal impradicable. Had Se£l. Vir. TO THE Colonies. 43^ Hadr it indeed been confined to the me- tropolis, it might have been faid, that the governor * was always at hand, always acceflible ; that it would be eafy to explain to him the, bufinfs intended to be done at the meeting, and if that bufinefs were con- ftitutional, he would certainly confent to it ; but the fad is, that the pro\ifions ex- tend to all the towns and diftrids in the province. Now thefe towns are fome of them at one, two, or even three hundred miles diftance from the capital. Almofl all the municipal bufinefs is regularly done at thefe town-meetings. Is it not peculiar- ly hard, that all the municipal bufinefs of thefe towns ihould be at a ftand, 'till difpatches can be fent to his excellency the governor, explaining the circumftances of each particular bufinefs to be canvafled ; * Wherever the word governor Is ufed in the re- marks on this aft, it is ufed to mean, the perfon who prrftdes in the province for the time being ; whether governor, or lieutenant-governor. The provifions of the aft being fo extended. V f 2 ' tin li V . 436 Acts relating Part III. till his excellency fhall have read thefedif. patches -, fhall have fent back perhaps for explanations ; fliall at laft, having made himfelf mafter of the bufinefs, fent back other difpatches, granting licence to meet? What muft be the authority of a govern- ment reduced to fuch precautions as thefe ? Would it be thought to add greatly to the fecurity of the throne, if not a veftry £0uld be fummoned in England without licence from the king ? The policy of this provifion feems to ftand upon no better footing, than the juftice of it. A town- meeting affembles with leave of the governor j its bufinefs is precifely marked out. In the courfe of the bufinefs the friends of government ob- ferve a turn in the tide of the popular opinions ; they wifh to take advantage of it J to propofe refolutions, to form aflbci- ations for counterading the manoeuvres of the fadious, and ill difpofed j for fup- porting government, and for giving force, and efficacy, to the laws.—'* No," fays this (( S^d. VII. TO THE COLONIEC. 437 this ad, *< you fhall not do ft : this is not ** the bufinefs of the meeting ; it is not expreffcd in the licence to meet ; your ** refolutions are null ; your affociatjons " illegal.-*. The beft defence of this provifion, per- haps, is, that it is impradicable.— When the aflembly is met, either for eledions, or for any municipal purpofe, who fliall with-hold them from proceeding to fuch bufinefs as they fee fit ? In all aflemblies the will of the majority, controuls the will of the whole. If the majority of thefe aflemblies be not difafFeded to govern- ment, there would be no danger in leav- ing them free to vote and refolve as they pleafed. if the majority be difaffeded, there will be no means of preventing them from voting and refolving as they pleafe, unlefs by preventing their coming toge- ther at all. A s,'- Ff SECT. la^l^i 438 Acts relating Part III, SECT. VIII. The ^icbec A5i. ITS \ fell J 1^1 IK •I ^11 ii A3 TH E firft objed propofed by this ad is to defcribe the boundaries of what is hereafter to be called the province of Quebec. For it feems all that had been hitherto done towards fettling either the limits or the government of this colony, fince its firft acquifition, was by a procla- mation ifllied by the king in the third year of his reign. And fo wifely and carefully was this proclamation drawa up, that (as the ad fets forth) « a large " extent of country, within which were *' feveral colonies and fettlements of the '* fubjeds of France, who claimed to re- ** main there under the faith of the treaty " of Paris, was left without any provi- ■*' vifion being made for the adminiftra* *' tion cf civil government therein ; and ♦* certain parts of the territory of Canada, *• wher^ JiSedt. Vin. TO THE Colonies. 439 " where fedentary iiiherles had been efta- " bliflied, and carried on by the fubjeds ** of France, inhabitants of the province ** of Canada, under grants and concef- ** fions of the government thereof, were ** annexed to the government of New- " foundland, and thereby fubjeded to re- ** gulations inconfiftent with the nature "of fuch fiflieries." — Thefe certainly were great inconveniences : and it is won- derful that during a fpace of eleven years no remedy had been applied to them. At the end of this period, the adt be- fore ut; provides a remedy. It extends and defcribes the boundaries of the pro- vinces, including within thofe boundaries the colonics, aiid back fettlements, for which no civil government had been pro- vided by the proclamation j and the La- bradore coaft, which by that proclama- tion had been affe(5ted to the government of Newfoundland ; providing at the fame time, by a claufe, which feems to contra- did the defcrlption itfelf, that nothing F f 4 herein II, ii M fm ^ wm i![l».i ■n .1^ ' ■fll: 'i jf i' 'i 44* Acts Ablating Part III. herein contained *• Ihall in any mfe affeft '♦ the boundaries of any other colony.*'^ Saving likewife all rights derived from preceding grants and conveyances. Having thus fixed, if indeed the aft can be faid to have fixed, what are the territories and people, whom the legifla- ture has in contemplation, the ad goes on tp appoint the civil government of the province. For this purpofe it firft repeals all the provifions made by the proclama- tion cited above, fo far as it relates to the province of Quebec, or to the commiffion, under the authority of which the govern, ment of the province - had been hitherto adminiftered; it repeals all the ordinances hitherto made by the governor and coun, cil, relative to the civil government, and all commiffions granted to judges and other officers. All thefe provifions are repealed, becaufe aa it is declared, - they are inapplicable '* to the ftate and circumfiances of the " province/* Two grounds are ailigned fQK ■ -t ' m IJ.. .... am Sea. VIII. TO THE Colonies, 441 for thift ferere cenfure on the king's pro- clamation. The one " that the inhabitants **of this province did, at the time of its ** being conquered, amount to above fix- " ty-fivc thoufand perfons profefling the *• religion of the church of Rome:"— the other, *' that they did then enjoy an cfta- *• bliflied form of conftitution, and fyftem " of laws, by which their perfons and •* property had been proteded, governed, «* and ordered for a long feries of years." Combining the cenfure on the royal proclamation, and the grounds affigned for it together, we muft conclude, that the proclamation was looked upon as faulty, in not having fufficiently provided for the fecurity of the inhabitants who profeffed the Roman catholic religion ; and in hav- ing wantonly, and without rcafon, broken in upon the ancient fyftem of laws. And thefe are the faults which the ad endea- vours to redify. It provides that his majefty's fubjeas, profefling the religion «^ of the church of " Rome, w\^ II mk. 'II' m 44^^- Acts relating Part III. r. . i . '!i (' " Rome, of, and in the faid province of ** Quebec *, may have, hold, and enjoy, ** the free exercife of the religion of the " church of Rome, fubjea: to the king's *''' fupremacy^ declared, and eftablifhed, by ' " an ad made in the firft year of the " reign of queen Elizabeth over all the ** countries which then did, or hereafter " fhoiild belong f to the imperial crown of *' this realm." The clergy of the church of Rome are confirmed in the enjoyment of their accuftomed dues and rights, with refped to fuch perfons only, as fhall pro- fefs the faid religion. Out of the reft of fuch accuftomed dues and rights, his ma-^ jefty is empowered to make fuch provifion as he fhall think expedient for the encou- * Such is the uncouth phrafeology of the a£l j fo that one might be tempted to imagine the reli- gion of the church of Rome was one thing at QiJebec, and a difFerent thing clfewhere. t The words '* hereafter /hall be^'' occur in the xvi. fe£i:. of the aft of Elizabeth ; the intent of which is to " extinguifli " all foreign power in countries within the dominion of England j but are dropt in the xix, feit. which impofes the oaih of fupremacy. ragement Scfl:. VIII. TO THE Colonies. 443 ragement of the proteftant religion, and the maintenance of a proteftant clergy. Such of the inhabitants as adhere to the Romilh church, are neither to take the oath prefcribed by the ftatute of Elizabeth, nor any oath hitherto fubftituted for it ; but another oath is prefcribed in this aft. Thofe who refufe or negled: to take this oath, are made liable to the fame penal- ties as by the ad of Elizabeth would have been incurred for refufing to take the Qath prefcribed in that ad. • The ad then goes on to fecure his ma- jefty*s Canadian fubjeds in Quebec (" the " religious orders and communities only " excepted) in all their properties and pof- " feffions, together with all the cuftoms " and ufages relative thereto, and all other ^* their civil rights, in as large, ample, *' and beneficial a manner, as if the fald ** proclamation, commiffions, ordinances, " and other ads and inftruments had not " been made, and as may confift with ** with their allegiance to his majefty, and *• fubjedion If a I i tflffl'n I I i- I 444. Acts Helating PartllT. «* fubjeaion to the king and parliament of '* Great Britain." It ordains that all controverfies relative to property and civil right» fhall be de- cided by the laws and cuftoms of Canada, t»n altered by any ordinance of the gover- nor, with the advice and confent of the le- gifktive council. To this claufe two provifoe« are annex- ed. The one, that it fhall not extend to any lands which already *re, or hereafter may be granted by the king in free and common foccage. The other, that it fhall not preclude any perfon who has a right to alienate his lands, goods, or credits, in his life time, by deed of fale or gift, or otherwife, from devifing, or bequeath- ing them at his death by his laft will or teftament. The aa then remarks, that the certain- ty and lenity of the criminal law of Eng- land, and the benefits and advantages re- fiihing from the ufe of it, had been kn- fibly felt by the inhabitants from an ex- perience Se£V.Vin. TO THE COLCNIES. 445 perience of more than nine years, during which it had been uniformly adminiftered j and therefore ena^s, that the fame law ihall continue to be adminiftered, and ob. ferved, as well in the defcription and qua- lity of the offence, p. in the method of profecution and trial ; and the punifhmcnts and forfeitures thereby infliaed to the ex- clufion of every other rule of criminal law, fubjea neverthelefs to fuch alterations and amendments as the governor, with the ad- vice and confent of the legiflative councU, fliall from time to time caufe to be made therein. So much power is left to this legiflative council, that great part of the merit, or demerit of this ad, will depend on the conftitution given by it to this body. ,, The ad acknowledges, that the power of making many regulations for the future welfare and good government of the pro- vince, muft of neceffity be intruded for a certain time— (and it might have been faid at .' ! i) >¥ -v^^^ IMAGE EVALUATION TEST TARGET (MT-3) // ,«?C^ 1.0 I.I ■50 "^^ llMH la 1^ 112.2 u ii4 lU 1^ lli^ Sciences Corporation 2jO 1.6 ^^ ^q ►»' ,\ ^ \ *% ^\ ^"^ "3 WEST MAIN STREET WEBSTER N.Y. 14580 (716) 873-4S03 r w 448 Acts xelatino Partllf. that the proclamation publilhed in the third year of his majefty'i reign, was in- applicable to the ftate of the province. Is it poffible that parliament fKould have fate iix long years before it made this difco- yerf ? The confufion which prevailed in the reft of the American continent was at- tributed by thofe who were beft informed, to the want of a parliamentary fettlemcnt. Why was the fettlemcnt ctf Quebec fo long delayed? The laws and cuftoms, the tem- per and manners, of the people, muft fure- ly have been learned by the miniftry in the courfc of five years, which preceded the cxiftence of the laft parliament. It cannot then but appear fingular. that an aa of this nature Aould have been deferred to the very latter end of the Jaft feffions of the parliament before us. It was furely an »^ of wanton cruelty to fuffer the province to groan for f« whole years under a form of government, *• inconfifknt with their •* commercial interells, and inapplicable to «th# Se(St. VIII. TO THE Colonies. 449 i •* the ftate and circumftances of the coun- « try." To atone for this, I muft call it culp* able negligence, we may with reafon ex- pea, that the regulation which fo much time was taken to digeft, was well adapt- ed to the ftate and circumftanceSj and conducive to a/I the interefts of the pro- vince. We have the more reafon to ex- pert this, as here at leaft parliament had it's hands at liberty. No contending and oppofite claims had it to adjuft, no grants to fteer clear of, or revoke. All the peculiar privileges which the. inhabitants of Quebec could claim, were comprifed in a fhort capitulation, and a fingle article of a treaty of peace. Let us fee now if the juftice and policy of the a£t are fuch, as to atone for the aftoni/hing tardinefs in palling it. With regard to the extenfion of the boundaries of the province, I think all the objedions againft it, have been fully and ably anfwered by an author, who feems to Gg have I! I i !i;. i fi iiiti i 4S<> Acts relating Paft III have written upon full information, and a thorough knowledge of the fubjedt *. But the loudeft clamours have* been raifed againft othei parte of this ad. Re- ligious prejudices are, of all, theftrongeft and moft likely to work upon the minds of the people. Thie topic was, therefore, greedily feized by oppofition. The horrid crime, and the dreadful danger of efta- blilhing popery in fo large a part of his majefty's dominions, has been thundered in the ears of the king, lords, and com. mons in remonftrances from very re/igious magiftrates, and echoed back again to the public with all the clamour and turbulence of an enraged and mifguideJ populace. Meantime the defenders of the bill feemed afraid of fpeaking out. They were wilU ing to allow any thing, to have re- * See this part of the bill ably defended by the author of « the Appeal to the Public, ftat- « ing and confidcring the Objcftions to thcQue- 30 to the end* courfe Sed. Vlir. TO THE Colonies. 451 courfe to any fubterfuge, rather than con- fefs that the Romifli religion was ejia- blijhed by this adt. — Jt is tolerated they faid, but not ejiablijhed, — Nay one writer found out, that the church of England was efta- bliflied by it. " For the Canadians (fays " he) are to acknowledge the king to be *« fapreme head of the church in Quebec, " by the authority of the aft of Elizabeth: *' of whatever churchy then the firft of E- ** lizabeth declares the king to be fupreme " head, that muft be the church eftabhilied «* in Quebec by this aft *.'* If this gentleman had turned to the a£l of Elizabeth, he would have found that it. does not declare the queen to be the head of any particular church. He might have recolled^ed too, that what is now called the church of England, did not then exift. The aft of uniformity was not paiT- ed ; the queen is fimply declared ** fu- i- r, * See Juftice and Policy of this Aft afferted and proved, p. 50. Gg2 ** preme rt' I 452 Acts relating Pift IIL « prcmc governor of thefc realms, as well in matters ectlcfiatfiaftldal a^ civil." A very- different thing from being head of this or that particular church. By virtue of this ia, I fuppofe, the king is head of the churches of the anabap.tifts and prefbyte- rians, and of our fober honeft friends,' the Quakers, aswrell as of the church of Edg. land. This author indeed does allow— "that the point might have been made more clfear". Alk him why it was not, and he gravely tellj you; " u.en there would " have been danger of undbing what the « claufe fets ouf with theprofeffed purpofe " of doing.— the giving eafe ixudi fecurity « to the minds of the Canadians *" How theCitnadianS would ftart and flirinkat fuch a plea as this !— « You fet out (they would •'fay) with profeffing to eftablifli our ** church ; and lo ! by an ungenerous fub- • See Juflice and Policy of this ASt afferted and proved, p. 51. •* terfuge h Seft. VIII. TO THE GOLONIES. 453 C( terfuge, it is the church of Englapd you '* ipean all the timetoeftabiifh."—- If the adls of the legifjature are to be de- fended, let it not by arguments like thefe. —To utter dark fayings ; to fpeak uijin- tejligibly, would be difgraceful enough to a legiHature ; but to fpeak deceitful words, to ufe words which have two meanings', with the profeffed purpofe of deceiving:— . for that I cannot find a name. No ! let us fpeak out, let us boldly acknowledge the truth : — the a(fl has fjiablijhed the religion of Rome at Quebec. Why torture our- ielyes to explain away a truth that is fo clear ? or why hefitate to acknowledge a fadt, that needs no apology ? If there be any force in treaties ; if any faith is due to them ; if they can convey a right ; the Canadians had a right to this eftablifli- ment. By tlie 27th article of the capitulation between general Amherft and the marquis de Vaudrucil, it is ftipulated, that " thp ^Zl ^ :*frce I jti Iff .'' '.f 454 Acts relating Part III. " free exercife of the Roman religion (hall « fubfift intire, in fuch manner, that all « the dates and people, of the towns and "countries, places, and diftant poftg, (hall *• continue to aflemble in the churches, «* and to frequent the facraments as here- " tofore, without being molelled in any " manner, diredly or indireaiy." In the fecond article of the definicive treaty of Paris, « his Britannic majefty agrees to " grant to the inhabitants of Canada the « liberty of the Catholic religion;" and engages « to give the moft exad and moft «» eflPeaual orders, that his new Roman " Catholic fubjeas may profefs the wor- « fhip of their religion, according to the ** rites of the Romifh church, as far as the « laws of Great Britain permit.'*— Now furely the laws of Great Britain permit him, with the advice and confent of his parliament, to fecure to his Canadian fub- jedts every thing that the capitulation had granted them. To interpret thelaftun- neceflary It- Sed. VIII, TO THE Colonies. 455 neceflfary claufe, fo as to annul the tenor and purport of the whole, might be re- ceived as a legitimate mode of interpreta- tion in the fchoola of Berlin or Vienna ; but I hope it is a mode that will never be adopted in England. By the terms of capitulation, by the plain meaning of the treaty, the Canadians had a right to an eftablifliment.— The Roman Catholics in Quebec are, as to this point, in the fame fituation as the Proteftant diffenters ir> England. The capitulation, and the trea- ty, operate \v\th. refped to the one, juft as the toleration ad operates with refped to the other. In truth, it was t/iey that rendered that which " in Britifh fubjeds would have ^* been illegal without them, thenceforth le- f gal ; by them this way of worfliip was f ' permitted and allowed : it was not only (' exempted from puniflimentjbut rendered f* innocent and lawful." In a word, as lord Mansfield nobly declared of the way pf wprijiip of the diffenters,— " It was G g 4 f« efta- I. I rw .■ t 456 Acts relating part HI. " eftabliflied *." And what has the ad done more, than barely confirm what the capitulation and treaty had folemnly grant- ed before? But it is faid the Roman religion is not only ejiablijlied^ it is even endowed, by this ad. True, it is fo. And to feme endowment too the Canadians had a right by the fame capi- tulation. In the article already cited, it was *' demanded, that the people fhould be ob- '* liged by the Englifh government to pay " tothcpriefts the tythes, and all the taxes " they were ufed to pay under the govern- " ment of the moa chriftian king." The ge- neral's anfwer was, **That theobligationof *♦ paying the tythes to thepriefts, muft de- *' pend on the king's pleafure." After the place had furrendered, the king's pleafure * See lord Mansfield's fpeech in the Houfe of Lords, in the cafe of the chamberlain of London, againft Allen Evans, Efq. printed at the end of Dr. Furneaux's Letters to Mr. Juftice Blackftone. a fpeech which is more worth than whole volumes of Commentaries. could Sc'. 4^o Acts RELATING Part III, oat/n are of no ufe, no validity in thi§ ^afe. The religious principle can never have force fufficient to bind a firm be- liever in the plenitude of power in the inr- faitible to an)^ adt, by which that plenitudq of power is aclcriowiedged to be circura- fcribablc. • - Here then the aft fhould have beeri more explicit ; it Ihould plainly have de-. fined what was meant by the king-s {kX" prema-y. It ihould have prohibited all appeals to the court of Rome in xuy caufe or on any pretence whatever: itfiioiiM have '^ftablifhed courts for the decifion of " ever to the contrary." The member who brought in this oath muft, one fliouM think, have known, that U'hocver was ftaunch papift cnou>h to believe the nnnc has the power of difpenfing with obedience to the eath^ muft believe too, that he had power enough to difpenfe with the remnel- ation. An ' it fcems. therefore, injudicious in the legiflature, to let the Canadians fee, that it aven fuppoled it puflible they fliould be capable of hold- ing a tenet which would deftroy th; fanflion of all oaths. If, indeed, the fandlion of an oath be of that ufe it is generally fuppofed to be. all Sta.VJII. TO THE Colonies. 461 all ecclefiaftical caufes, which, like all our other courts, (hould hkve Tat arid aft* ed in the name, and by the authority of the king. It fhould have guarded thefe , provifions by pains and penahies clearly exprefled, and eafy to be inflifted. As the aft now ftands, how is the Canadian to know what is the fupremacy u which he is iubjeft, or what are the penalties under which he is to fubmit to it ? He is to find it out, if he can, in the firft of Elizabeth, a ftatute which is a repeal, or a revivor of no Ief3 than fixteen other ftatutes, which itfeif has been altered, and in part repeal- ed by eight or ten later ftatutes. A fta- tute, therefore* which we may venture to %, not one Englifhman in a thoufand underftands, which, therefore, it cannot be reafonable to expeft the Canadians fliould ever underftand. The celibacy of the Roman clergy is another point, in which the welfare of the civil fociety is more deeply interefted than many may at firft fight imagine. Men 4^2 Acts reiating Part III. ir,! Men who arc debarred from being huf- bands or fathers, have not the fame mc^ lives to be good citizens as the reft of man- kind ; they cannot give the fame pledges to fociety for their good condudl in it. The fpirit of the citizen is abforbed* «* dans refprit du corps. ''^ " But what, we " fliall be afked, would you have the ** clergy conftrained to marry ?" No> fure- ly. Nay, it was better perhaps not ta give them permiffion to marry in ex- prefs and direm edging any military: that it ihall be forb,d to trouble them i„ .heir reli- _^8~erciIe.ortoe„terthe,Vmo„af. The fame privileges were demanded* but refufed, " with regard to the coml mumfes of Jefuits .nd Recolets, and ;;ofthehoufeoftheprieftsofSt.Sul- p.cet. Sret the communities and all the pr^ftsare to preferve their moveables, and the property and revenues of the %-„es, and other e«ates which they poiTefs m the colony; and the fame eftatesaretobeprefervedintheirpri! vdege^. nghts, honours, and exemp- "tions." In the definitive treaty of peace "Ota fyllable is faid about thefea'i" Here then a queflion may arife, whether ''/^'""'"^"-'"^ capitulation are to be confidered as ;>..^.,«,/^ ti„,i ; • *"• ^™I- t A.r. XXXIV. only I ■ ' n '"( 464 Acts relating Part III. f I XlM: only in foree till the definitive treaty be iigned, and to lofe all farther validity un- lefs confirmed there, either by exprefs or general terma ? This latter feems to have been the idea adopted by parliament ; for, ilotwithftand- ing the XXXIVth article of the capitula- tion, recited above, the religious orders and communities, are excepted from the number of thofe, who afe to hold their property and poffeffions, with all the cuf- toras and ufages relative thereto. Now if grants conveyed by a capitulation of them- felves, and without any fubfequent con- firmation by the definitive treaty, be of permanent validity, then it fliould feem that parliament did an ad of injuftice to the religious orders in not confirming them in all their pofleffions and rights. If, on the other hand, the grants made by a capitulation be only temporary grants. and lofe all fubfequent validity, unlefs confirmed by the definitive treaty, then it will be difficult to vindicate the prudence of Scia.VIir. TO THE Colonies. 465 of parliament for flopping Ihort where it , did, and negleaing to pave the way for a certain and total diflblution of thefc Orders. We have feen prii^ces of the Romifh fed, the moft>M>/ king, the catholic. Ifcing, with even the eldeft fon of the church, unite \n forcing their fpiritual.pa- rent to fupprefs one religious order: other cathdlic princes have, by their own author rity. fupprefled other orders in their own dominions. Why a proteftant fovereign fliould be more fcrupulous on this head, I own does not readily appear. Heaven forbid we fhould imitate the circumftances of cruelty and injuftice which attended the fuppreflion of the Je- fuits. But furely parliament might have prohibited thefe orders from receiving any more novices; have obliged them to give in an exaft account of their eftates, have divided thefe eftates into certain por- tions, have affigned a competent portion to each of the prefent members j and as K^ they- K \\ ?i "* I IL 466 Acts relating PartllL they died oflF, it might have appropriat- ed their refpedive fliares to the build- ing and endowing of fchools, to the mak^ ing of roads, to the maintenance of a^ proteftant cjergy, apd to other works of public utility. It may bie urged perhaps, that fuch an arrangement ijvould havp fliojcked or re- volted the Cs^nadians ; but is tlji^re any . thing more fiiocking^ or r^vpUiog, %^m the cruel Aate of dependence in whkh the a/eJe; a French gentleman finds himfelf humbled by feeing a rotuner put on a par with his dignity. If the inftitution of juries would tend to check this pride, fo inconfi/lent with the fpirit of freedom, that very cir- cumftance is the Arongeft argument why juries fhould be permitted in civ?' • -^vCes, If the gentleman thinks his propn.y .^a, iu the hands of the judges, becaufe they are nearer his rank, the plebeianwill think his Scfl.VIII. TO THE Colonies. 473 his property fecurer in the determination of a jury, for they are nearer his rank. Now the law which beft fepures the pro- *pcrty of the greateft number, is furely the hen law. The law which gives the greateft accefllon of fecurity, where there is naturally the greateft weaknefs, is furc- ly the beft law. It was urged too, that the Canadians did not wifli for an Englifli jury j for they neither doated on the number twelve, nor expedcd a jury to be what many think in their confcience they feldom are, though they muft pretend to be, unanimous. They therefore wiOied their juries to con- fift of uneven numbers, and the decifions to be colleded from a plurality of voices. This furely did not prove their dillike to juries; it proved only, that they had feen a defea: in the conftitution of our juries, to which habit and cuftom has bl-nded us, and that they wiflied to have a remedy for that defea. Inftead of refufing them a jury on this account, fome have thought it ji\ . / 474 Acts relating PartllL it would have been wifer, and better to have modelled ont own juries in the jjlaii they held out lo us. Another very ftrong objedion was urged againft this general extenfion of the laws and cuftoms of ^anadk in all matters rela- tive to property and civil n'g/its ^. By the laws and cuftoms ot Canada, the gover- nor was intrufted with blank lettres de ca- chet, which he. might fill up at his dif- cretion, and commit the party, whofe name he inferted, to prifon duri.ig plea- fure. By this claufe of the ad then a king of England may give blank lettres de ca- chet to his governor, and his governor may make the fame ufe of them : for if his majefty's Canadian fubjedts are to be governed by the ancient laws and cuftoms 1l ■! Hf -1 * See the examination of Mr. Ma feres in tfi'e Parliamentary Debates, Vol. IX. p. 317, &c. Though this book is of no authority, and in many places faulty, yet the accounts of this, and fome other examinations, feemed to he pretty accurately taken. of ill k V/l Sed. VIII. TO THE Colonies. 475 of Canada.: if this mode of iffuing let- tres de cachet be among thofe ancient laws and cuftoms, how can it be proved illegal in the king to iffiie them, or in the'governor to apply them ? Or what punifhment can you inflia on the minifter who Ihould ad- vife the king to exercife, or on the gover- nor whofhould ad.ually exercife, a power which parliament thus declares to be legal ? Or what remedy could a fubjed, injured by a wanton exercife of that power, ob- tain in the courts of Canada ? Perfonal li- berty is 2i civil right. — ^The laws of Cana- da are to provide the remedy againft a civil wrong. If they give no remedy, no remedy is to be had. And it is, 1 fuppofe, out of doubt, that the laws of Canada pro- vided no remedy againft this abufe of power in a governor. It was therefore infinuated by the very refpedable witnefs, who during the courfe of his examination urged thefe arguments, that a claufe fhould be inferted granting the benefit of the Habeas Corpus Ad to his 1 i I f i li 476 Acts relating Part III. his majefty's fubjefts in Canada. The cJaufe however was «o/ inferted, becaufe it was faid, that it was not probable that ' lettres de achet fhould ever be made ufe of. A reafon, which if it has any weight, would operate to the tearing up all the fences fet about our liberty *. The introduaion, or rather confirma- tion of the criminal law of England, is certainly one of the moft laudable parts of the ad ; the realbns affigned for it are fuch as do honour to the legiflature; but there is an inaccuracy, fhall I call it, or a fal- lacy, which perhaps ^fcaped the legiila- • In criminal profecutions, I take it for granted the Canadians are entitled to the benefit of this afl • but this does not juftify the author of the Appeal in calling "arguments ifTuing from the idea of the «' non-extenfionofthe writ of Habeas Corpus, mere « moonftine," p. 34. He js wonderfully miftaken when he fuppofes, that " the liberty of the fub- *♦ jca " is not concerned in civil aftions. Or that in Qivil aaions « the crown may not gain an oppor- *• tunity of interfering to the oppreffion of the fub- «* jc -This queftion perhaps did not occur to the framers of the aft; if it had, I per- fuade myfelf the benefits intended by this provilion would have been better fecured than they are. All crimes are objefls of the criminal law. So it may be faid - but what are crimes in the eye of the law > -Many aflions may be confidered, at the option of the plaintilF. as public or as pri- vate wrongs, as crimes or as civil injuries. The fame aSions therefore may be pro- ceeded againft in different courts, be Tried bydifferent laws,juftashepleares;fo that the provifion Ihrinks to this. If you profecute another criminally, you fhall do It m the method prefcribed by the crimi- nal law of England. As « to the defcrip- " "°° """J quality of the offence," the Enghlh law is no farther a rule than as it may be alledged to prevent a greater de- gree of criminality being attributed to any aa, for which a man is proceeded againft criminally, % I 47^ Acts relating Part III. cnminally, than the crirhitial law of Ehg- land attributes to it. Manflaughter, for inftance, fhall not be called murther, iior ihall mifprifion of trcafon fwell into trea- ibn. But to have made this claufc a& bene- ficial to the fubject as it feetrts probable the legiflature intended to make it, the ad: fliould have defined what ad ions were to be confidered as prhatd what as public wrongs ; but no fuch definition is there. Sec, therefore, how the cafe ftands now : a Canadian noble takes it into his hfead to attempt to feduce the wife, or the daugh- ter of a pcafant, the peafant comes in» hears the perfuafive tongue urging his wife or daughter to difllottour ; fired With jefentment, he beftows on the culprit the chaftifement he deferves. What is the noble to do ? If he indids him for an af- fault, fuch is the lenity of the Englifh law, fuch are the prejudices of a jury, that the man will be let off without any punifhment, ©r at moft for a trifling fine, or a fhort im- prifonmcnt. Sea:. VIII. TO THE Colonies. 479 prifonment. The noble feels that his dig- nity will be Aifer in the hands of a Cana- dian judge,, than of a plebeian jury ; he, therefore, reje^s the mode of indiament as for a public wrong, and brings an a^ion as for a civil injury. An Englifh- man takes it in his head to write againft one of the legiflative council that undefin- able thing called a libel. If the EngKfli- man be indidted for a crime, a jury may perhaps find the fuppofed libel to be no libel ; or at worft will fend him fora fliort time to prifon. No, fays the counfellor, this Canaille of a jury have not the fine feelings of honour.— I will fue the man for damages : that way I can throw him into prifon for life. But the moft exceptionable part of the aft, that which I conceive it impoflible to defend, that which deftroys, or at leaft may be ufed to deftroy, all the beneficial provifions which precede it, is the confti- tution of the legiflative council. 7 The Hi 'f.i i 480 Acts Ablating Part III* Thcmajority of feventeen men, in whom no earthly qualification 13 required, but that they be rclident in the province of Quebec ; who, for ought appears by this ai 484 Plan op i ^Ij 5S'"-1 in the very fame iinfettled ftate in which it found them, rather than for having done what is fcarce po0ible, put them in-« to a worfe, A propofition once avowed by a quon- dam houfe of commons is, ** that it is a 1* very unsafe thing, in any fettled govern- ♦* ment» to argue thp reafons of the funda- •* njici^tal cpnftitutions, for that can tend M, IQ nothing that is profitable to the •*whol€*.'* A maxim of the very ftamp of thofe, behind which all bigots either in religion or politics intrench themfelves ; as if a government could be faid to be fettled, or at Icaft well fettled, that could not bear to have the reafons of its eftabliihments en-t quired into. One cannot but be forry at obferving a parliament in this more en- lightened age aduated by the fame fear of jilt II • Sec Com. Journ. vol. ix. p. 243. tl weaken- Reconciliation. 485 weakening the fundamentals, if they en- deavoured to explain them. It appeared by all the proceedings of the Americans, by the votes of their af- femblies, by the books in greateft repute among them, that the Americans had no precifc ideas of the relation in which they ftand to the mother country. Thefe ac- .counts were confirmed by repeated advices from the fervants of the crown j yet till that relation was fixed, nothing permanent could be done. Inftead of fetting about this bufinefs, what was the parliament employed about for fix long years ? They were at the pains of giving their fan^flion to a power, which by their own fliewing needed no fuch thing, and which after it had that fandion, it was thought, and that without any change of circumftances, not fafe, or not prudent to exert. To threaten a punifhment, and that of the firft magnitude, which you dare not in~ flid, is wanting only to grafp all the , I i 3 odium ■h^tpr-W^MV^MM 486 Plan O F 1 i Odium Of fcvcnV, without one Of its ad. vantages. At the time thefe impraaicUe threat. were,hrow„out..nu„„ce.ofco„ceflion. n fome pom,, were given in a manner. th« even a left haughty people might have a.t„buted to fear. Conceffion, were aaually made, by which the greater pare of the profits of the obnoxious meafures were abandoned, at the fame time .hat a" the odium of them was retained A redrefs of grievances wa, promifed. which. when the ,.me came, they could not bear to loolc ,„,o: parliament feeming.ll a- Jong as much afraid of entering Into the quellion of American grievances, or of it, own rights, as a zealous catholic i. afraid of examining the foundation of the power ofthech„eh.Whatwa.theconfequence? Whdft parliament was fo caution, of rea- fonmg about fundamental conftitution,. the Americans reafoned fo long, and fo Wildly, that at length they found out. there Reconciliation. ^487 riiere were no common fundamentals be- tween us at all J and as parliament had crudely aflerted its own fupreme power over the colonies in all cafes, they came at laft as fully and flatly to deny it ♦. Then it was indeed that parliament awoke, and for a time put on the appear- ance at leaft of vigour. But from the review we have taken of the ads of this laft feffion of it, two only appear to have been intended as parts of a regular plan, or permanent fyftem ; the other two are mere tem-porary expedients, fet on foot upon the fpur of neceffity, to check rather than remedy fudden and unexpea- ed evils. In neither of thefe temporary laws how- ever, does it appear that parliament has exerted any unconftitutional powers. The laws indeed have been branded with every ignominious title, but furely they are fully juftified by the mifchiefs that called » See Tucker's Fifth Traa, p. 47. I i 4 for I In. i; .^J^ \ 488 Plan o F 11 for them; mifchiefs, if not created, yet moft certainly precipitated by th6 very men who clamoured againft the remedies. As to the two permanent laws, we may upon the whole perhaps, in fome mealure excafe, but we cannot praife them : they might be, we mufl fuppofe they were well meant j but that is their chief merit. To the deep policy, to the comprehenfive wifdom of an enlightened legiilature, their pretences furely are but flender. " Cy une choje bien facile (fays fome " one) que d' etrejdge apres coup^ And no doubt when a plan has been tried, and has mifcarried, it is eafy to deceive our- fehes, and to imagine we Ihould have forefcen the inconveniencies which the ex- periment only has difcovered j yet in this cafe it does appear, that the fcheme of parliament was defedive. To repeal a part of an uncommercial regulation, up- on motives profeffedly commercial, and yet to retain the obnoxious principle, without any qualification whatever, could never Reconciliation. 489 sever ky the foundation of a regular per- manent fyftem. The foundation of fuch a fyftem could be laid only in a bill of American rights. This bill fhould have afferted the fupre- macy of the Brififh parliament, and its power to make laws binding over the co-^ lonies— not in the ftyle of the Rocking- ham aa, ** in all cafes whatever.'*--This the colonies derided at the time as a mere brutumfulmen^ and have fmce declared to be unconftitutional. But in all cafes, ex^ cept taxation, abfolutely and uncondi- tionally. With refped to taxation, it had bren urged in the laft parliament on behalf of the Americans, " that parliament had no " light to lay internal taxes on them, be- ** caufe they have no reprefentatives in " parliament ; but that it had a right to " impofe port duties, or external taxes, •* becaufe fuch duties are for the regula- " tion of trade." The difference between taxes external and internal was, at the fame M .}„ •'m<«*«al!-iii*-- 4^o LAN OP :n iame time declared to be this, that the di- rea 6bjea: of the former clafs was to re- gulate trade, and that any revenue arifmg therefrom was incidental ; that the pro- feflcd objedfc of the other was to raife a re- venue, and the regulation of tfade lerved only as the mode of getting at the re- venue. The Americans admitted the diftine- tion, and hence concluded, that port du- ties impofed for the raifing of a revenue WGTQ internal X.2ixe%{ that port duties, the produce of which was to be paid into the exchequer, were impofed for the purpofc of raifing a revenue. The produce of all port duties in America, th^y added, was ordered to be paid into the exchequer, therefore all port duties wee internal taxes*. - ^^ Nay, they went farther ; if inftead of ^ impofing port duties, another mode of taxation had been adopted ; if the duties See Bernard's Letters, p. 55, 56. had Reconch.atiob. 49, fc»d been made payable on the exporta- fon of the commodities from England. > Mnd not on iheir importation into Ame- rica, they declared it would be all one • this mode they declared would be equally burthenfome on their purfes, and equally .deflruaive -of their rights •. ■ In thefe arguments, allowing them Jhe,r utmoft force, there was nothing from whence it could fairly be inferred that the Americans ought not to be taxed at all. nor even that parliament ought not to have taxed them. All that could be mferred was. that, previoufly to their be- mg taxed, they ought to be put on an equal footing intliis refpefl with the other fubjeas of the empire, either by being permitted to fend reprefentatives. or if that be not praajcable, by fome other mode. Here ,he„ the propofed bill of right, ihould have refpeaed their opinions, and * ^" Faraia's Utters, p. ,9. iliould 492 LAN O P fi , 1 'hi fhould have put them on the fame footing as the othej* fubjeds of the empire. Thefe were two modes of doing this ; the moft obvious and natu»-al, and which to a man deeply learned in American af- fairs *, feems to have appeared preferable to any other that can be propofed, is that juft mentioned. An obje^ion indeed has been made to U on account of the liumber which thd houfe muft then confift of, in ordfer fbr that of the new members to bear a due proportion to that of the old. But that pl-opottlon need not have been large, if the idea of a reprefentative were taken from the defcription of his fundlon, given in an ancient ftatute, the Durham ad, in xvhich he is defcribed as a *' man lent to " reprefcnt the condition of the country." This fundion, a number comparatively fmall would have been fufficient to dif- charge, nor need it mount by any means to Dr. Tucker's '' goodly number of Hi * See Governor Bernard's Letters, paffim, *' two R-ECONClLlAT'lONi 4n *? two thouf^nd feven hundred and nine-^ «* ty ;" an afTembly whereof " the decency, «* order, wifdom, and gravity," appear- ed fo tempting an objea of ridicule to th^ worthy dean *. If this plan, from local circumftances, or from mutual difinclination had beeii found inadmiffible, there feemed yet an- other; which fubftituted in the room of the former, or combined with it, might have compafTed the end in view. If the Americans' could not, or would hot fend reprefentatives to the Britifh par- liament, and yet if the good of the whole empire required that parliament fhould aflefe the portion they were to pay of the J)ubHc expence, fuch a mode might have been prefcribed to the exercife of this right, as would have fecured in the article of taxes, a// the beneficial pur- pofes of reprefentation. parliament, though it fhould be thought no^ to have See his Four Trafts, p. 107. found, 494 L A I^ O li* t 1 ih found, might, however, have created th^ fame relation between itfelf and the co- lonies, as between ■' -'^ p,ad ilie inhabi- tants of Great Britau./ ' To communicate, and for ever to fecure to the Americans all the bleffings of the Britifh conftitution, fo far as their local circumftances would permit, the bill might have laid down certain fundamental rules, wiiich fliould for ever be obferved in the laying of impofts or duties. Thefe duties are laid either upon goods imported from America into Great Bri- tain, or on goods exported from Great Britain to America, or on goods tranf- ported from one colony to another, or on goods exported or imported to or from places out of the king's dominions. As to thefirft clafs of goods, thofe im- ported from America into Great Britain, parliament might have left itfelf at full liberty to impofe what duties it pleafcd on the importation of them here in Eng- land. Whatever duties were thus impof- td. Reconciliation. 495 ed, would not have been impofed on the Americans who exported, but on the Britifh fubjefts who confumed them. As to the fecond clafs, namely, goods exported from Great Britain to Ame- rica, the bill might have provided, that no other duty fliould be laid on goods of this clafs, than on the fame goods con- fumed in Great Britain. As to the third and fourth clafs, goods tranfported from one colony to another, and goods exported or imported to or from places out of the king's dominions ; parliament muft have referved the full rights of impofingfuch duties as it faw fit, becaufe that right is effential to the re- gulation of trade. That thefe imports however might not be called internal taxes, the bill might have provided, that the monies arifing from thefe duties fliould not be paid into the exchequer here, but to treafurers to be appointed by the crown, and accountable tc^ the provincial legif- ^ Uture$ \ '1 •A J k mmem^m^ 496 LAN 6 |r il i' I'll i,lt latures there i the fums to be by the fame legiflatures appropriated to the refpedive fervices of American government. , Out of thefe fums, and fuch taxes as the provincial legiflatures fliould impofe> an adequate provifion ihould have been inade for the admlniftration of juftice, and the fupport of civil government. Ade- quate and permanent falaries fhould have been fixed on the governors and judges, and fuch other officers appointed by the crown as have permanent falaries in Eng- land. The quantum of the falaries to have borne a certain propof tion to the fa- laries paid to fimilar officers in England. Neither thefe, nor any other offices, to be given to non-refidents. Thefe expences regard only their own internal government ; but the colonies are to be confidered yet in another light j as members of the empire. Confidering them in this light, they are benefited by the million, and reception of foreign minifters j by the troops kept '7 up Reconciliation, 497 up for the general defence, by the general fuod of warlike ftores, and, above all, by the navy. If they receive their fhare of the benefit arifing from thefe eftablifli- ments, it is but juft they fhouldpay their fliarcoftheexpences that are to fupport them. Parliament therefore has the fame right of demanding that the Americans fhould contribute their proportion, as that we fliould contribute ours. The only difficulty here would have been, to prevent the parliament from ex- ceeding that proportion. And furely this difficulty i& not of fuch a nature but that it might have been furmounted. Any given tax or fum to be raifed in England might have been taken as the ftandard. The land-tax would have bcea th« pro- pcreft ftandard, bccaule that is a tax, ia which of all others it is the moft difficult for a minifter to ftretch beyond a certain point. A cert^n proportion ihould have beei^ fixed, fo that when Great Britain raifed ^ ^ any i '^ ' I^J 498 Plan o 9 rl : *ny given fum by a land-tax, the colonies ihould raife each a proportionate Turn : the mode of levying this tax to be left entirely to the provincial legillatures j the appro- priation of it to be left to parliament. By this mode the fame relation would have been created between the houfe of comlnons, and the colonies, as between the houfe of commons and the inhabitants of Great Britain. The houfe of commons could not tax i^em any more than they can »/, without at the fame time taxing themfelves. The houfe of commons might with the fame propriety have given and granted their money as they now do ours. Every man of landed eftates in England would have been as ftrenuous a guardian of their properties as of his own. Both muft have flood, or fallen together. If at the beginning of the laft parliament the matter of taxation had been fixed upon this footing— and furely this would have !l{{ i%> Reconciliation. 499 have been a conftitutional footing to have fixed it on — the recognition of the fupreme authority of parliament in all other points, would have met with little difficulty. The neceflary alterations in their in- ternal conftitution, and in their commer- cial fyftem, might then have been fub- mitted to with lefs difficulty. At the fame time, to put an end to that patch-work, which fo difgraces our law in general: a total repeal of all the laws relating to the iiolonies niight have been effeiaed; and the thirteenth parliament might have had the glory of forming one comprehenfive conneded code, fuited to the fituation of things fubfifting. That we muft either give up the colo- nies, or ftrike out feme method of recon- ciling Britifh fuperiority with American " liberty," feems to be allowed on all hands. In the mean time thofe who tell us, that " both may yet be prefervedj" who promife to make this ** the great *• obje<^ i .ii&k: t3 *% W- \ S(if> 1* X, A N, &c* u ojyc^f tbdr care%- have waited nothing fp^ert^ t|B*Wttg pi|#^e : nothing he|X)i^ ^ pl«^ whMl Ihtf f®lo^ mcs have already f^edcd ai mwpn^u. tional. In fuch a ^aoment a man of far Icfa abUities may be fecufcd if he throws % hia v^e. The pl^m, of which «. rude outline is here IketelnNl out, appcaratpme at Icaft to have been zn eligible plan J in- deed, for aught I can fee. the only eligi- ble one which the cafe admits of I think it was not then, I hope it is not now im- po^ible. * 5" Mr. Bufkc'i Speech at Briftol aft«r )h9 EN1> ^ fim FIRST VOLUMf. ^ ***--.- i \ I I .■