James Otis, Jr 1725 - 1783 (wiki)
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James Otis (1725–83) was a lawyer,
colonial official, and leading advocate for the rights of his fellow
American colonists. In 1761, he resigned his post as advocate general
of the Vice Admiralty Court to protest the issuance of writs of
assistance by the Massachusetts superior court. These writs
essentially gave authorities the right to search wherever they
pleased for smuggled goods; Otis argued that they violated the rights
of Englishmen. Soon thereafter, Otis was instrumental in calling for
the Stamp Act Congress, in which he served. His public career was cut
short when, in 1769, he suffered a blow to the head in an argument
with a customs commissioner; the injury resulted in Otis’s
eventually going insane. In arguing against the Stamp Act, Otis in
this selection restates his argument that colonists in America were
entitled to the same rights as Englishmen.
The Rights of the British Colonies Asserted and Proved
Of the Political
and Civil Rights of the British Colonists↩
Here indeed opens to view a large field; but I must study
brevity—Few people have extended their enquiries after the
foundation of any of their rights, beyond a charter from the crown.
There are others who think when they have got back to old Magna
Charta, that they are at the beginning of all things. They imagine
themselves on the borders of Chaos (and so indeed in some respects
they are) and see creation rising out of the unformed mass, or from
nothing. Hence, say they, spring all the rights of men and of
citizens. . . . But liberty was better understood, and more fully
enjoyed by our ancestors, before the coming in of the first Norman
Tyrants than ever after, ’till it was found necessary, for the
salvation of the kingdom, to combat the arbitrary and wicked
proceedings of the Stuarts.
The present happy and most righteous establishment is justly built
on the ruins, which those Princes bro’t on their Family; and two
of them on their own heads—The last of the name sacrificed three
of the finest kingdoms in Europe, to the councils of bigotted old
women, priests and more weak and wicked ministers of state: He
afterward went a grazing in the fields of St. Germains, and there
died in disgrace and poverty, a terrible example of God’s
vengeance on arbitrary princes!
The deliverance under God wrought by the prince of Orange,
afterwards deservedly made King Wm. 3rd. was as joyful an event to
the colonies as to Great-Britain: In some of them steps were taken
in his favour as soon as in England.
They all immediately acknowledged King William and Queen Mary as
their lawful Sovereign. And such has been the zeal and loyalty of
the colonies ever since for that establishment, and for the
protestant succession in his Majesty’s illustrious family, that I
believe there is not one man in an hundred (except in Canada) who
does not think himself under the best national civil constitution
in the world.
Their loyalty has been abundantly proved, especially in the late
war. Their affection and reverence for their mother country is
unquestionable. They yield the most chearful and ready obedience to
her laws, particularly to the power of that august body the
parliament of Great-Britain, the supreme legislative of the kingdom
and in dominions. These I declare are my own sentiments of duty and
loyalty. I also hold it clear that the act of Queen Anne, which
makes it high treason to deny “that the King with and by the
authority of parliament, is able to make laws and statutes of
sufficient force and validity to limit and bind the
crown, and the descent, limitation, inheritance
and government thereof” is founded on the principles of
liberty and the British constitution: And he that would palm the
doctrine of unlimited passive obedience and non-resistance
upon [120] mankind, and thereby or by any other means
serve the cause of the Pretender, is not only a fool and a knave,
but a rebel against common sense, as well as the laws of God, of
Nature, and his Country.
—I also lay it down as one of the first principles from whence I
intend to deduce the civil rights of the British colonies, that all
of them are subject to, and dependent on Great-Britain; and that
therefore as over subordinate governments, the parliament of
Great-Britain has an undoubted power and lawful authority to make
acts for the general good, that by naming them, shall and ought to
be equally binding, as upon the subjects of Great-Britain within
the realm. This principle, I presume will be readily granted on the
other side of the Atlantic. It has been practiced upon for twenty
years to my knowledge, in the province of the Massachusetts-Bay;
and I have ever received it, that it has been so from the
beginning, in this and the sister provinces, thro’ the
continent. *
I am aware, some will think it is time for me to retreat, after
having expressed the power of the British parliament in quite so
strong terms. But ’tis from and under this very power and its
acts, and from the common law, that the political and civil rights
of the Colonists are derived: And upon those grand pillars of
liberty shall my defence be rested. At present therefore, the
reader may suppose, that there is not one provincial charter on the
continent; he may, if he pleases, imagine all taken away, without
fault, without forfeiture, without tryal or notice. All this really
happened to some of them in the last century. I would have the
reader carry his imagination still further, and suppose a time may
come, when instead of a process at common law, the parliament shall
give a decisive blow to every charter in America, and declare them
all void. Nay it shall also be granted, that ’tis barely
possible, the time may come, when the real interest of the whole
may require an act of parliament to annihilate all those charters.
What could follow from all this, that would shake one of the
essential, natural, civil or religious rights of the Colonists?
Nothing. They would be men, citizens and british subjects after
all. No act of parliament can deprive them of the liberties of
such, unless any will contend that an act of parliament can make
slaves not only of one, but of two millions of the commonwealth.
And if so, why not of the whole? I freely own, that I can find
nothing in the laws of my country, that would justify the
parliament in making one slave, nor did they ever professedly
undertake to make one.
Two or three innocent colony charters have been threatned with
destruction an hundred and forty years past. I wish the present
enemies of those harmless charters would reflect a moment, and be
convinced that an act of parliament that should demolish those
bugbears to the foes of liberty, would not reduce the Colonists to
a state of absolute slavery. The worst enemies of the charter
governments are by no means to be found in England. ’Tis a piece
of justice due to Great-Britain to own, they are and have ever been
natives of or residents in the colonies. A set of men in America,
without honour or love to their country, have been long grasping at
powers, which they think unattainable while these charters stand in
the way. But they will meet with insurmountable obstacles to their
project for enslaving the British colonies, should those, arising
from provincial charters be removed. It would indeed seem very hard
and severe, for those of the colonists, who have charters, with
peculiar priviledges, to loose them. They were given to their
ancestors, in consideration of their sufferings and merit, in
discovering and settling America. Our fore-fathers were soon worn
away in the toils of hard labour on their little plantations, and
in war with the Savages. They thought they were earning a sure
inheritance for their posterity. Could they imagine it would ever
be tho’t just to deprive them or theirs of their charter
priviledges! Should this ever be the case, there are, thank God,
natural, inherent and inseperable rights as men, and as citizens,
that would remain after the so much wished for catastrophe, and
which, whatever became of charters, can never be abolished de
jure, if de facto, till the general conflagration. † Our
rights as men and free born British subjects, give all the
Colonists enough to make them very happy in comparison with the
subjects of any other prince in the world.
Every British subject born on the continent of America, or in any
other of the British dominions, is by the law of God and nature, by
the common law, and by act of parliament, (exclusive of all
charters from the Crown) entitled to all the natural, essential,
inherent and inseparable rights of [121] our fellow
subjects in Great Britain. Among those rights are the following,
which it is humbly conceived no man or body of men, not excepting
the parliament, justly equitably and consistently with their own
rights and the constitution, can take away.
1st. That the supreme and subordinate powers of the
legislation should be free and sacred in the hands where the
community have once rightfully placed them.
2dly. The supreme national legislative cannot be altered
justly ’till the commonwealth is dissolved, nor a subordinate
legislative taken away without forfeiture or other good cause. Nor
then can the subjects in the subordinate government be reduced to a
state of slavery, and subject to the despotic rule of others. A
state has no right to make slaves of the conquered. Even when the
subordinate right of legislature is forfeited, and so declared,
this cannot affect the natural persons either of those who were
invested with it, or the inhabitants, * so far as to
deprive them of the rights of subjects and of men—The colonists
will have an equitable right notwithstanding any such forfeiture of
charter, to be represented in Parliament, or to have some new
subordinate legislature among themselves. It would be best if they
had both. Deprived however of their common rights as subjects, they
cannot lawfully be, while they remain such. A representation in
Parliament from the several Colonies, since they are become so
large and numerous, as to be called on not to maintain provincial
government, civil and military among themselves, for this they have
chearfully done, but to contribute towards the support of a
national standing army, by reason of the heavy national debt, when
they themselves owe a large one, contracted in the common cause,
can’t be tho’t an unreasonable thing, nor if asked, could it be
called an immodest request. Qui sentis commodum sentire debet
et onus, has been tho’t a maxim of equity. But that a man should
bear a burthen for other people, as well as himself, without a
return, never long found a place in any law-book or decrees, but
those of the most despotic princes. Besides the equity of an
American representation in parliament, a thousand advantages would
result from it. It would be the most effectual means of giving
those of both countries a thorough knowledge of each others
interests; as well as that of the whole, which are inseparable.
Were this representation allowed; instead of the scandalous
memorials and depositions that have been sometimes, in days of old,
privately cooked up in an inquisitorial manner, by persons of bad
minds and wicked views, and sent from America to the several
boards, persons of the first reputation among their countrymen,
might be on the spot, from the several colonies, truly to represent
them. Future ministers need not, like some of their predecessors,
have recourse for information in American affairs, to every
vagabond stroller, that has run or rid post thro’ America, from
his creditors, or to people of no kind of reputation from the
colonies; some of whom, at the time of administring their sage
advice, have been as ignorant of the state of the country, as of
the regions in Jupiter and Saturn.
No representation of the Colonies in parliament alone, would
however be equivalent to a subordinate legislative among
themselves; nor so well answer the ends of increasing their
prosperity and the commerce of Great-Britain. It would be
impossible for the parliament to judge so well, of their abilities
to bear taxes, impositions on trade, and other duties and burthens,
or of the local laws that might be really needful, as a legislative
here.
It would be a most manifest contradiction, for a free legislative,
like that of Great-Britain, to make itself arbitrary.
4thly. The supreme legislative cannot justly assume a power of
ruling by extempore arbitrary decrees, but is bound to dispense
justice by known settled rules, and by duly authorized independant
judges.
5thly. The supreme power cannot take from any man any part of
his property, without his consent in person, or by representation.
These are their bounds, which by God and nature are fixed, hitherto
have they a right to come, and no further.
These are the first principles of law and justice, and the great
barriers of a free state, and of the British constitution in
particular. I ask, I want no more —Now let it be shown [122] how
’tis reconcileable with these principles, or to many other
fundamental maxims of the British constitution, as well as the
natural and civil rights, which by the laws of their country, all
British subjects are intitled to, as their best inheritance and
birth-right, that all the northern colonies, who are without one
representative in the house of Commons, should be taxed by the
British parliament.
That the colonists, black and white, born here, are free born
British subjects, and entitled to all the essential civil rights of
such, is a truth not only manifest from the provincial charters,
from the principles of the common law, and acts of parliament; but
from the British constitution, which was reestablished at the
revolution, with a professed design to lecture the liberties of all
the subjects to all generations. *
In the 12 and 13 of Wm. cited above, the liberties of the subject
are spoken of as their best birth-rights—No one ever dreamt,
surely, that these liberties were confined to the realm. At that
rate, no British subjects in the dominions could, without a
manifest contradiction, be declared entitled to all the privileges
of subjects born within the realm, to all intents and purposes,
which are rightly given foreigners, by parliament, after residing
seven years. These expressions of parliament, as well as of the
charters, must be vain and empty sounds, unless we are allowed the
essential rights of our fellow-subjects in Great-Britain.
Now can there be any liberty, where property is taken away without
consent? Can it with any colour of truth, justice or equity, be
affirmed, that the northern colonies are represented in parliament?
Has this whole continent of near three thousand miles in length,
and in which and his other American dominions, his Majesty has, or
very soon will have, some millions of as good, loyal and useful
subjects, white and black, as any in the three kingdoms, the
election of one member of the house of commons?
Is there the least difference, as to the consent of the Colonists,
whether taxes and impositions are laid on their trade, and other
property, by the crown alone, or by the parliament? As it is agreed
on all hands, the Crown alone cannot impost them. We should be
justifiable in refusing to pay them, but must and ought to yield
obedience to an act of parliament, tho’ erroneous, ’till
repealed.
I can see no reason to doubt, but that the imposition of taxes,
whether on trade, or on land, or houses, or ships, on real or
personal, fixed or floating property, in the colonies, is
absolutely irreconcileable with the rights of the Colonists, as
British subjects, and as men. I say men, for in a state of nature,
no man can take my property from me, without my consent: If he
does, he deprives me of my liberty, and makes me a slave. If such a
proceeding is a breach of the law of nature, no law of society can
make it just—The very act of taxing, exercised over those who are
not represented, appears to me to be depriving them of one of their
most essential rights, as freemen; and if continued, seems to be in
effect an entire disfranchisement of every civil right. For what
one civil right is worth a rush, after a man’s property is
subject to be taken from him at pleasure, without his consent? If a
man is not his own assessor in person, or by deputy, his
liberty is gone, or lays intirely at the mercy of others.
I think I have heard it said, that when the Dutch are asked why
they enslave their colonies, their answer is, that the liberty of
Dutchmen is confined to Holland; and that it was never intended for
Provincials in America, or anywhere else. A sentiment this, very
worthy of modern Dutchmen; but if their brave and worthy ancestors
had entertained such narrow ideas of liberty, seven poor and
distressed provinces would never have asserted their rights against
the whole Spanish monarchy, of which the present is but a shadow.
It is to be hoped, none of our fellow subjects of Britain, great or
small, have borrowed this Dutch maxim of plantation politics; if
they have, they had better return it from whence it came; indeed
they had. Modern Dutch or French maxims of state, never will suit
with a British constitution. It is a maxim, that the King can do no
wrong; and every good subject is bound to believe his King is not
inclined to do any. We are blessed with a prince who has given
abundant demonstrations, that in all his actions, he studies the
good of his people, and the true glory of his crown, which are
inseparable. It would therefore, be the highest degree of impudence
and disloyalty to imagine that the King, at the head of his
parliament, could have any, but the most pure and perfect
intentions of justice, goodness and truth, that human nature is
capable of. All this I say and believe of the King and parliament,
in all their acts; even in that which so nearly affects the
interest of the colonists; and that a most perfect and ready
obedience is to be yielded to it, while it remains in force. I will
go further, and readily admit, that the intention of the ministry
was not only to promote the public good, by this act; but
that [123] Mr. Chancellor of the Exchequer had therein a
particular view to the “ease, the quiet, and the good will of the
Colonies,” he having made this declaration more than once. Yet I
hold that ’tis possible he may have erred in his kind intentions
towards the Colonies, and taken away our fish and given us a stone.
With regard to the parliament, as infallability belongs not to
mortals, ’tis possible they may have been misinformed
and deceived. The power of parliament is uncontroulable, but by
themselves, and we must obey. They only can repeal their own acts.
There would be an end of all government, if one or a number of
subjects or subordinate provinces should take upon them so far to
judge of the justice of an act of parliament, as to refuse
obedience to it. If there was nothing else to restrain such a step,
prudence ought to do it, for forceably resisting the parliament and
the King’s laws, is high treason. Therefore let the parliament
lay what burthens they please on us, we must, it is our duty to
submit and patiently bear them, till they will be pleased to
relieve us. And tis to be presumed, the wisdom and justice of that
august assembly, always will afford us relief by repealing such
acts, as through mistake, or other human infirmities, have been
suffered to pass, if they can be convinced that their proceedings
are not constitutional, or not for the common good.
The parliament may be deceived, they may have been misinformed of
facts, and the colonies may in many respects be misrepresented to
the King, his parliament, and his ministry. In some instances, I am
well assured the colonies have been very strangely misrepresented
in England. I have now before me a pamphlet, called the
“administration of the colonies,” said to be written by a
gentleman who formerly commanded in chief in one of them. I suppose
this book was designed for public information and use. There are in
it many good regulations proposed, which no power can enforce but
the parliament. From all which I infer, that if our hands are tied
by the passing of an act of parliament, our mouths are not stoped,
provided we speak of that transcendent body with decency, as I have
endeavoured always to do; and should any thing have escaped me, or
hereafter fall from my pen, that bears the least aspect but that of
obedience, duty and loyalty to the King & parliament, and the
highest respect for the ministry, the candid will impute it to the
agony of my heart, rather than to the pravity of my will. If I have
one ambitious wish, ’tis to see Great-Britain at the head of the
world, and to see my King, under God, the father of mankind. I
pretend neither to the spirit of prophecy, nor any uncommon skill
in predicting a Crisis, much less to tell when it begins to be
“nascent” or is fairly midwiv’d into the world. But if I were
to fix a meaning to the two first paragraphs of the administrations
of the colonies, tho’ I do not collect it from them, I should say
the world was at the eve of the highest scene of earthly power and
grandeur that has been ever yet displayed to the view of mankind.
The cards are shuffling fast thro’ all Europe. Who will win the
prize is with God. This however I know detur digniori. The
next universal monarchy will be favourable to the human race, for
it must be founded on the principles of equity, moderation and
justice. No country has been more distinguished for these
principles than Great-Britain, since the revolution. I take it,
every subject has a right to give his sentiments to the public, of
the utility or inutility of any act whatsoever, even after it is
passed, as well as while it is pending.—The equity and justice of
a bill may be questioned, with per-fect submission to the
legislature. Reasons may be given, why an act ought to be repeal’d,
& yet obedience must be yielded to it till that repeal takes
place. If the reasons that can be given against an act, are such as
plainly demonstrate that it is against naturalequity, the
executive courts will adjudge such acts void. It may be questioned
by some, tho’ I make no doubt of it, whether they are not obliged
by their oaths to adjudge such acts void. If there is not a right
of private judgement to be exercised, so far at least as to
petition for a repeal, or to determine the expediency of risking a
trial at law, the parliament might make itself arbitrary, which it
is conceived it can not by the constitution.—I think every man
has a right to examine as freely into the origin, spring and
foundation of every power and measure in a commonwealth, as into a
piece of curious machinery, or a remarkable phenomenon in nature;
and that it ought to give no more offence to say, the parliament
have erred, or are mistaken, in a matter of fact, or of right, than
to say it of a private man, if it is true of both. If the assertion
can be proved with regard to either, it is a kindness done them to
show them the truth. With regard to the public, it is the duty of
every good citizen to point out what he thinks erroneous in the
commonwealth.
I have waited years in hopes to see some one friend of the colonies
pleading in publick for them. I have waited in vain. One priviledge
is taken away after another, and where we shall be landed, God
knows, and I trust will protect and provide for us even should we
be driven and persecuted [124] into a more western
wilderness, on the score of liberty, civil and religious, as many
of our ancestors were, to these once inhospitable shores of
America. I had formed great expectations from a gentleman, who
published his first volume in quarto on the rights of the colonies
two years since; but, as he foresaw, the state of his health and
affairs have prevented his further progress. The misfortune is,
gentlemen in America, the best qualified in every respect to state
the rights of the colonists, have reasons that prevent them from
engaging: Some of them have good ones. There are many infinitely
better able to serve this cause than I pretend to be; but from
indolence, from timidity, or by necessary engagements, they are
prevented. There has been a most profound, and I think shameful
silence, till it seems almost too late to assert our indisputable
rights as men and as citizens. What must posterity think of us. The
trade of the whole continent taxed by parliament, stamps and other
internal duties and taxes as they are called, talked of, and not
one petition to the King and Parliament for relief.
I cannot but observe here, that if the parliament have an equitable
right to tax our trade, ’tis indisputable that they have as good
an one to tax the lands, and every thing else. The taxing trade
furnishes one reason why the other should be taxed, or else the
burdens of the province will be unequally born, upon a supposition
that a tax on trade is not a tax on the whole. But take it either
way, there is no foundation for the distinction some make in
England, between an internal and an external tax on the colonies.
By the first is meant a tax on trade, by the latter a tax on land,
and the things on it. A tax on trade is either a tax of every man
in the province, or ’tis not. If ’tis not a tax on the whole,
’tis unequal and unjust, that a heavy burden should be laid on
the trade of the colonies, to maintain an army of soldiers,
custom-house officers, and fleets of guard-ships; all which, the
incomes of both trade and land would not furnish means to support
so lately as the last war, when all was at stake, and the colonies
were reimbursed in part by parliament. How can it be supposed that
all of a sudden the trade of the colonies alone can bear all this
terrible burden. The late acquisitions in America, as glorious as
they have been, and as beneficial as they are to Great-Britain, are
only a security to these colonies against the ravages of the French
and Indians. Our trade upon the whole is not, I believe, benefited
by them one groat. All the time the French Islands were in our
hands, the fine sugars, &c. were all shipped home. None as I
have been informed were allowed to be bro’t to the colonies. They
were too delicious a morsel for a North American palate. If it be
said that a tax on the trade of the colonies is an equal and just
tax on the whole of the inhabitants: What then becomes of the
notable distinction between external and internal taxes? Why may
not the parliament lay stamps, land taxes, establish tythes to the
church of England, and so indefinitely. I know of no bounds. I do
not mention the tythes out of any disrespect to the church of
England, which I esteem by far the best national church,
and to have had as ornaments of it many of the greatest and best
men in the world. But to those colonies who in general dissent from
a principle of conscience, it would seem a little hard to pay
towards the support of a worship, whose modes they cannot conform
to.
If an army must be kept in America, at the expence of the colonies,
it would not seem quite so hard if after the parliament had
determined the sum to be raised, and apportioned it, to have
allowed each colony to assess its quota, and raise it as easily to
themselves as might be. But to have the whole levied and collected
without our consent is extraordinary. ’Tis allowed even
to tributaries, and those laid under military contribution,
to assess and collect the sums demanded. The case of the provinces
is certainly likely to be the hardest that can be instanced in
story. Will it not equal any thing but down right military
execution? Was there ever a tribute imposed even on the conquered?
A fleet, an army of soldiers, and another of taxgatherers kept up,
and not a single office either for securing or collecting the duty
in the gift of the tributary state.
I am aware it will be objected, that the parliament of England,
and of Great Britain, since the union, have from early days to this
time, made acts to bind if not to tax Ireland: I answer, Ireland is
a conquered country. I do not, however, lay so much
stress on this; for it is my opinion, that a conqueredcountry
has, upon submission and good behaviour, the same right to be free,
under a conqueror, as the rest of his subjects. But the old notion
of the right of conquest, has been, in most nations, the cause
of many severities and heinous breaches of the law of nature: If
any such have taken place with regard to Ireland, they should
form no precedent for the colonies. The subordination and
dependency of Irelandto Great Britain, is expresly
declared [125] by act of parliament, in the reign of G.
1st. The subordination of the Colonies to Great Britain,
never was doubted, by a Lawyer, if at all; unless perhaps by the
author of the administration of the colonies: He indeed seems to
make a moot point of it, whether the colony legislative power is as
independent “as the legislative Great Britain holds by its
constitution, and under the great charter.” —The people hold
under the great charter, as ’tis vulgarly expressed from our
law-books: But that the King and parliament should be said to hold
under Magna Charta, is as new to me, as it is to question
whether the colonies are subordinate to Great Britain.
The provincial legislative is unquestionably subordinate to that of
Great Britain. I shall endeavour more fully to explain the nature
of that subordination, which has puzzled so many in their
enquiries. It is often very difficult for great lovers of power and
great lovers of liberty, neither of whom may have been used to the
study of law, in any of its branches, to see the difference between
subordination, absolute slavery and subjection, on one side; and
liberty, independence and licenciousness, on the other. We should
endeavour to find the middle road, and confine ourselves to it. The
laws, the proceedings of parliament, and the decisions of the
judges, relating to Ireland, will reflect light on this
subject, rendered intricate only by art.
“Ireland being of itself a distinct dominion, and no part of the
kingdom of England (as directly appeareth by many authorities in
Calvin’s case) was to have Parliaments holden there as in
England.” 4 Inst. 349.
Why should not the colonies have, why are they not entitled to
their assemblies, or parliaments, at least, as well as a conquered
dominion?
“Wales, after the conquest of it, by Edward, the first, was
annexed to England, jure proprietatis, 12 Ed. 1. by the statute of
Rutland only, and after, more really by 27 H. 8. and 34, but at
first received laws from England, as Ireland did; but writs
proceeded not out of the English chancery, but they had a Chancery
of their own, as Ireland hath; was not bound by the laws of
England, unnamed until 27 H. 8. no more than Ireland is.
Ireland in nothing differs from it, but having a parliament gratia
Regis (i.e. upon the old notion of conquest) subject (truly
however) to the parliament of England. None doubts Ireland as much
conquered as it; and as much subject to the parliament of
England, if it please.”
A very strong argument arises from this authority, in favour of
the unconquered plantations. If since Wales was annexed
to England, they have had a representation in parliament, as they
have to this day; and if the parliament of England does not
tax Ireland, can it be right they should tax us, who have
never been conquered, but came from England to colonize,
and have always remained good subjects to this day?
I cannot find any instance of a tax laid by the English parliament
on Ireland. “Sometimes the King of England called his Nobles
of Ireland, to come to his parliament of England, &c. and by
special words, the parliament of England may bind the subjects of
Ireland”—3 Inst. 350—.
The following makes it clear to me, the parliament of Great Britain
do not tax Ireland, “The parliament of Ireland having been
prorogued to the month of August next, before they had
provided for the maintenance of the government in that kingdom, a
project was set on foot here to supply that defect, by
retrenching the drawbacks upon goods exported thither from England.
According to this scheme, the 22d, the house in a grand committee,
considered the present laws with respect to drawbacks upon
tobaccoes, muslins, and East India silks, carried to Ireland; and
came to two resolutions, which were reported the next day, and with
an amendment to one of them agreed to by the house, as follows,
Viz. 1. That three pence pr pound, part of the drawback on tobacco
to be exported from Great Britain for Ireland, be taken off.
2. That the said diminution of the drawback do take effect upon all
tobacco exported for Ireland, after the 24 of March 1713, and
continue until the additional duty of three pence half penny per
pound upon tobacco in Ireland, expiring on the said 24th of March,
be regranted: And ordered a bill to be brought in, upon the
said resolutions.”
This was constitutional; there is an infinite difference between
taking off British drawbacks, and imposing Irish or other
Provincial duties.
“Ireland is considered as a provincial government, subordinate
to, but no part of the Realm of England,” Mich. 11. G. 2. in case
of Otway and Ramsay—“Acts of parliament made here, (i.e. in
England) extend not to Ireland, unless particularly named; much
less judgments obtained in the courts here; nor is it possible they
should, because we have no officers to carry them into execution
there.” ib.
[126]
The first part seems to be applicable to the plantations in
general, the latter is not; for by reason of charter reservations
and particular acts of parliament, some judgments in England may be
executed here, as final judgments, before his Majesty in council on
a plantation appeal, and so from the admiralty.
It seems to have been disputed in Ireland, so lately as the 6 Geo.
1. Whether any act of the British parliament bound Ireland; or at
least it was apprehended, that the undoubted right of the British
parliament to bind Ireland, was in danger of being shaken: This, I
presume, occasioned the act of that year, which declares, that “the
kingdom of Ireland ought to be subordinate unto and dependent upon
the Imperial Crown of Great Britain, as being inseparably united
thereto. And the King’s Majesty, with the consent of the lords
and commons of Great Britain in parliament, hath power to make laws
to bind the people of Ireland.”—This parliamentary power must
have some bounds, even as to Ireland, as well as the colonies
who are admitted to be subordinate ab initio to Great
Britain; not as conquered, but as emigrant subjects.
If this act should be said to be a declaration not only of the
general, but of the universal power of parliament, and that they
may tax Ireland, I ask, Why it has never been done? If it had been
done a thousand times, it would be a contradiction to the
principles of a free government; and what is worse, destroy all
subordination consistent with freedom, and reduce the people
to slavery.
To say the parliament is absolute and arbitrary, is a
contradiction. The parliament cannot make 2 and 2, 5; Omnipotency
cannot do it. The supreme power in a state, is jus
dicere only;—jus dare, strictly speaking, belongs alone to
God. Parliaments are in all cases to declare what is
parliament that makes it so: There must be in every instance, a
higher authority, viz. GOD. Should an act of parliament be against
any of his natural laws, which are immutably true,
their declaration would be contrary to eternal truth, equity and
justice, and consequently void: and so it would be adjudged by the
parliament itself, when convinced of their mistake. Upon this great
principle, parliaments repeal such acts, as soon as they find they
have been mistaken, in having declared them to be for the public
good, when in fact they were not so. When such mistake is evident
and palpable, as in the instances in the appendix, the judges of
the executive courts have declared the act “of a whole parliament
void.” See here the grandeur of the British constitution! See the
wisdom of our ancestors! The supreme legislative, and the
supreme executive, are a perpetual check and balance to each
other. If the supreme executive errs, it is informed by the supreme
legislative in parliament: If the supreme legislative errs, it is
informed by the supreme executive in the King’s courts of law.
—Here, the King appears, as represented by his judges, in the
highest lustre and majesty, as supreme executor of the
commonwealth; and he never shines brighter, but on his Throne, at
the head of the supreme legislative. This is government! This, is a
constitution! to preserve which, either from foreign or domestic
foes, has cost oceans of blood and treasure in every age; and the
blood and the treasure have upon the whole been well spent. British
America, hath been bleeding in this cause from its settlement: We
have spent all we could raise, and more; for notwithstanding the
parliamentary reimbursement of part, we still remain much in debt.
The province of the Massachusetts, I believe, has expended
more men and money in war since the year 1620, when a few families
first landed at Plymouth, in proportion to their ability, than the
three Kingdoms together. The same, I believe, may be truly
affirmed, of many of the other colonies; tho’
the Massachusetts has undoubtedly had the heaviest
burthen. This may be thought incredible: but materials are
collecting; and tho’ some are lost, enough may remain, to
demonstrate it to the world. I have reason to hope at least, that
the public will soon see such proofs exhibited, as will show, that
I do not speak quite at random.
Why then is it thought so heinous by the author of the
administration of the colonies, and others, that the colonists
should aspire after “a one whole legislative power” not
independent of, but subordinate to the laws and parliament of
Great-Britain? . . . It is a mistake in this author, to bring so
heavy a charge as high treason against some of the
colonists, which he does in effect in this place, * by
representing them as “claiming in fact or indeed, the same full
free independent unrestrained power and legislative will, in their
several corporations, and under the King’s commission, and their
respective charters, as the government and legislature of
Great-Britain holds by its constitution and under the great
charter.” No such claim was ever tho’t of by any of the
colonists. They are all better men and better subjects; and many of
them too well versed in the laws of nature and nations, and the law
and constitution of Great-Britain, to think they have a right to
more than a provincial [127] subordinate
legislative. All power is of GOD. Next and only subordinate to him,
in the present state of the well-formed, beautifully constructed
British monarchy, standing where I hope it ever will stand, for the
pillars are fixed in judgment, righteousness and truth, is the King
and Parliament. Under these, it seems easy to conceive subordinate
powers in gradation, till we descend to the legislative of a town
council, or even a private social club. These have each “a one
whole legislative” subordinate, which, when it don’t conteract
the laws of any of its superiors, is to be indulged. Even when the
laws of subordination are transgressed, the superior does not
destroy the subordinate, but will negative its acts, as it may in
all cases when disapproved. This right of negative is essential,
and may be inforced: But in no case are the essential rights of the
subjects, inhabiting the subordinate dominions, to be destroyed.
This would put it in the power of the superior to reduce the
inferior to a state of slavery; which cannot be rightfully done,
even with conquered enemies and rebels. After
satisfaction and security is obtained of the former, and examples
are made of so many of the latter, as the ends of government
require, the rest are to be restored to all the essential rights of
men and of citizens. This is the great law of nature: and agreeable
to this law, is the constant practice of all good and mild
governments. This lenity and humanity has no where been carried
further than in Great Britain. The Colonies have been so remarkable
for loyalty, that there never has been any instance of rebellion or
treason in them. This loyalty is in very handsome terms
acknowledged by the author of the administration of the colonies.
“It has been often suggested that care should be taken in the
administration of the plantations, lest, in some future time, these
colonies should become independent of the mother country. But
perhaps it may be proper on this occasion, and, it is justice to
say it, that if, by becoming independent, is meant a revolt,
nothing is further from their nature, their interest, their
thoughts. If a defection from the alliance of the mother
country be suggested, it ought to be, and can be truly said, that
their spirit abhors the sense of such; their attachment to the
protestant succession in the house of Hanover, will ever stand
unshaken; and nothing can eradicate from their hearts their natural
and almost mechanical, affection to Great Britain, which they
conceive under no other sense nor call by any other name than that
of home. Any such suggestion, therefore, is a false and unjust
aspersion on their principles and affections; and can arise from
nothing but an intire ignorance of their circumstances.” * After
all this loyalty, it is a little hard to be charged with claiming,
and represented as aspiring after, independency. The inconsistency
of this I leave. We have said that the loyalty of the colonies has
never been suspected; this must be restricted to a just suspicion.
For it seems there have long been groundless suspicions of us in
the minds of individuals. And there have always been those who have
endeavoured to magnify these chimerical fears. I find Mr. Dummer
complaining of this many years since.
“There is, says he, one thing more I have heard often urged
against the charter colonies, and indeed tis what one meets with
from people of all conditions and qualities, tho’ with due
respect to their better judgments, I can see neither reason nor
colour for it. ’Tis said that their increasing numbers and
wealth, joined to their great distance from Britain, will give them
an opportunity, in the course of some years, to throw off their
dependence on the nation, and declare themselves a free state, if
not curb’d in time, by being made entirely subject to the
crown.” †
This jealousy has been so long talked of, that many seems to
believe it really well grounded. Not that there is danger of a
“revolt,” even in the opinion of the author of the
administration, but that the colonists will by fraud or force avail
themselves, in “fact or in deed,” of an independent
legislature. This, I think, would be a revolting with a vengeance.
What higher revolt can there be, than for a province to assume the
right of an independent legislative, or state? I must therefore
think this a greater aspersion on the Colonists, than to charge
them with a design to revolt, in the sense in which the Gentleman
allows they have been abused: It is a more artful and dangerous way
of attacking our liberties, than to charge us with being in open
rebellion. That could be confuted instantly: but this seeming
indirect way of charging the colonies, with a desire of throwing
off their dependency, requires more pains to confute it than the
other, therefore it has been recurred to. The truth is, Gentlemen
have had departments in America, the functions of which they have
not been fortunate in executing. The people have by these means
been rendered uneasy, at bad Provincial measures. They have been
represented as factious, seditious, and inclined to democracy
whenever they have refused passive obedience to provincial
mandates, [128] as arbitrary as those of a Turkish
Bashaw: I say, Provincial mandates; for to the King and Parliament
they have been ever submissive and obedient.
These representations of us, many of the good people of England
swallow with as much ease, as they would a bottle-bubble, or any
other story of a cock and a bull; and the worst of it is, among
some of the most credulous, have been found Stars and Garters.
However, they may all rest assured, the Colonists, who do not
pretend to understand themselves so well as the people of England;
tho’ the author of the Administration makes them the fine
compliment, to say, they “know their business much better,”
yet, will never think of independency. Were they inclined to it,
they know the blood and the treasure it would cost, if ever
effected; and when done, it would be a thousand to one if their
liberties did not fall a sacrifice to the victor.
We all think ourselves happy under Great-Britain. We love, esteem
and reverence our mother country, and adore our King. And could the
choice of independency be offered the colonies, or subjection to
Great-Britain upon any terms above absolute slavery, I am convinced
they would accept the latter. The ministry, in all future
generations may rely on it, that British America will never prove
undutiful, till driven to it, as the last fatal resort against
ministerial oppression, which will make the wisest mad, and the
weakest strong.
These colonies are and always have been, “entirely subject to the
crown,” in the legal sense of the terms. But if any politician of
“ *tampering activity, of wrongheaded inexperience, misted
to be meddling,” means, by “curbing the colonies in time,”
and by “being made entirely subject to the crown;” that this
subjection should be absolute, and confined to the crown, he had
better have suppressed his wishes. This never will nor can be done,
without making the colonists vassals of the crown. Subjects they
are; their lands they hold of the crown, by common soccage, the
freest feudal tennure, by which any hold their lands in England, or
any where else. Would these gentlemen carry us back to the state of
the Goths and Vandals, and revive all the military tenures and
bondage which our fore-fathers could not bear? It may be worth
nothing here, that few if any instances can be given, where
colonies have been disposed to forsake or disobey a tender mother:
But history is full of examples, that armies, stationed as guards
over provinces, have seized the prey for their general, and given
him a crown at the expence of his master. Are all ambitious
generals dead? Will no more rise up hereafter? The danger of a
standing army in remote provinces is much greater to the
metropolis, than at home. Rome found the truth of this assertion,
in her Sylla’s, her Pompey’s and Caesars; but she found it too
late: Eighteen hundred years have roll’d away since her ruin. A
continuation of the same liberties that have been enjoyed by the
colonists since the revolution, and the same moderation of
government exercised towards them, will bind them in perpetual
lawful and willing subjection, obedience and love to Great-Britain:
She and her colonies will both prosper and flourish: The monarchy
will remain in sound health and full vigor at that blessed period,
when the proud arbitrary tyrants of the continent shall either
unite in the deliverance of the human race, or resign their crowns.
Rescued, human nature must and will be, from the general slavery
that has so long triumphed over the species. Great-Britain has done
much towards it: What a Glory will it be for her to complete the
work throughout the world!
The author of the Administration (page 54) “describes” the
defects of the “provincial courts,” by a “very description,”
the first trait of which is, “The ignorance of the judges.”
Whether the description, or the description of the description,
are verily true, either as applied by Lord Hale, or the
Administrator, is left to the reader. I only ask, who makes the
judges in the provinces? I know of but two colonies, viz.
Connecticut and Rhode-Island, where they are chosen by the people.
In all other colonies, they are either immediately appointed by the
crown, or by his Majesty’s governor, with the advice of what the
Administrator calls, the “governor’s council of state.” And
if they are in general such ignorant creatures, as the
Administrator describes them, ’tis the misfortune, not the fault,
of the people, in the colonies. However, I believe, justice in
general, is as well administered in the colonies, as it will be
when every thing is devolved upon a court of admiralty, general or
provincial. The following is very remarkable. “In those popular
governments, and where every executive officer is under a
dependence for a temporary, wretched, and I had almost said
arbitrary support, on the deputies of the people.” †
Why is the temporary support found fault with? Would it be wise to
give a governor a salary for a longer time than [129] his
political life? As this is quite as uncertain as his natural life,
it has been granted annually. So every governor has the chance of
one year’s salary after he is dead. All the King’s officers,
are not even in the charter provinces “dependent on the people”
for support. The judges of the admiralty, those mirrors of justice,
to be trusted, when none of the common law courts are, have all
their commissions from home. These, besides other fees, have so
much per cent on all they condemn, be it right or wrong, and
this by act of parliament. Yet so great is their integrity, that it
never was suspected that 50 per cent, if allowed, would have any
influence on their decrees.
Custom-house officers universally, and Naval-officers, in all but
two or three of the colonies, are, I believe, appointed directly
from home, or by instruction to the Governor: and take just what
they please, for any restraint they are under by the provincial
acts. But on whom should a Governor depend for his honorable
support, but the people? Is not the King fed from the field, and
from the labor of his people? Does not his Majesty himself receive
his aids from the free grant of his parliament? Do not all these
originate in the house of commons? Did the house of Lords ever
originate a grant? Do not our law books inform us that the Lords
only assent or dissent, but never so much as propose an amendment,
on a money bill? The King can take no more than the Parliament will
give him, and yet some of his Governors have tho’t it an
insufferable hardship, that they could not take what they pleased.
To take leave of the administrator, there are in his book some good
hints, but a multiplicity of mistakes in fact, and errors in
matters of right, which I have not time to mention particularly.
Ireland is a conquered kingdom; and yet have tho’t they received
very hard measure in some of the prohibitions and restrictions of
their trade. But were the colonies ever conquered? Have they not
been subjects and obedient, and loyal from their settlement? Were
not the settlements made under the British laws and constitution?
But if the colonies were all to be considered as conquered, they
are entitled to the essential rights of men and citizens. And
therefore admitting the right of prohibition, in its utmost extent
and latitude; a right of taxation can never be infer’d from that.
It may be for the good of the whole, that a certain commodity
should be prohibited: But this power should be exercised, with
great moderation and impartiality, over dominions, which
are not represented, in the national parliament. I had however
rather see this carried with a high hand, to the utmost rigor, than
have a tax of one shilling taken from me without my consent. A
people may be very happy; free and easy among themselves, without a
particular branch of foreign trade: I am sure these colonies have
the natural means of every manufacture in Europe, and some
that are out of their power to make or produce. It will scarcely be
believed a hundred years hence, that the American manufactures
could have been brought to such perfection, as they will then
probably be in, if the present measures are pushed. One single act
of parliament, we find has set people a thinking, in six months,
more than they had done in their whole lives before. It should be
remembered, that the most famous and flourishing manufactures, of
wool, in France, were begun by Lewis 14, not an
hundred years ago; and they now bid fair to rival the English,
in every port abroad. All the manufactures that Great-Britain could
make, would be consumed in America, and in her own plantations, if
put on a right footing; for which a greater profit in return would
be made, than she will ever see again for woollen sent to any part
of Europe.
But tho’ it be allow’d, that liberty may be enjoy’d in a
comfortable measure, where prohibitions are laid on the
trade of a kingdom or province; yet if taxes are laid on
either, without consent, they cannot be said to be free.
This barrier of liberty being once broken down, all is lost. If a
shilling in the pound may be taken from me against my will, why may
not twenty shillings; and if so, why not my liberty or my life?
Merchants were always particularly favor’d by the
common law—“All merchants, except enemies, may safely come
into England, with their goods and merchandize”—2 Inst.
28.—And why not as well to the plantations? Are they not
entitled to all the British privileges? No. they must be confined
in their imports and exports to the good of the metropolis. Very
well, we have submitted to this. The act of navigation is a good
act, so are all that exclude foreign manufactures from the
plantations, and every honest man will readily subscribe to them.
Moreover, “Merchant strangers, are also to come into the realm
and depart at pleasure; and they are to be friendly entertained.”
2 Ri. C. 1. But to promote the manufactures of England, ’tis
tho’t best to shut up the colonies in a manner from all
the world. Right as to Europe: But for God’s sake, must we have
no trade with other colonies? In some cases the trade
betwen British colony and colony is prohibited, as in
wool, &c. Granting all this to be right, is it not enough? No.
duties and taxes must be paid without any [130] consent
or representation in parliament. The common law, that
inestimable privilege of a jury, is also taken away in all trials
in the colonies, relating to the revenue, if the informers have a
mind to go the admiralty; as they ever have done, and ever will do,
for very obvious reasons. “It has ever been boasted, says Mr.
Dummer in his defence of the charters, as the peculiar privilege of
an Englishman, and the security of his property, to be tryed by his
country, and the laws of the land: Whereas this admiralty method
deprives him of both, as it puts his estate in the disposal of a
single person, and makes the civil law the rule of judgment; which
tho’ it may not properly be called foreign being the law of
nations, yet ’tis what he has not consented to himself, nor his
representative for him. A jurisdiction therefore so founded, ought
not to extend beyond what necessity requires”—“If
some bounds are not set to the jurisdiction of the admiralty,
beyond which it shall not pass, it may in time, like the element to
which it ought to be confin’d, grow outrageous, and overflow the
banks of all the other courts of justice.” I believe it has never
been doubted by one sound, common lawyer of England, whether a
court of admiralty ever answer’d many good ends; “the court of
King’s bench has a power to restrain the court of admiralty in
England; and the reasons for such restraining power are as strong
in New England as in Great-Britain,” and in some respects more
so; Yet Mr. Dummer mentions, a clamour that was raised at home by a
judge of the admiralty for New England, who complain’d “that
the common law courts by granting prohibitions, weaken, and in a
manner suppress the authority of this court, and all the good ends
for which it was constituted.” Thus we see, that the court of
admiralty long ago discover’d, no very friendly disposition
towards the common law courts here; and the records of the house of
Representatives afford us a notable instance of one, who was
expelled the house, of which he had been an unworthy member, for
the abusive misrepresentations of the province, by him secretly
made.
Trade and traffick, says Lord Coke, “is the livelihood of a
merchant, the life of the commonwealth, wherein the King and every
subject hath interest; for the merchant is the good Bailiff of the
realm, to export and vent the native commodities of the realm, and
to import and bring in, the necessary commodities for the defence
and benefit of the Realm—2 Inst. 28. reading on Magna Charta. C.
15—And are not the merchants of British America entitled to a
livelihood also? Are they not British subjects? Are not an infinity
of commodities carried from hence for the benefit of the
realm, for which in return come an infinity of trifles, which
we could do without? Manufactures we must go into if our trade is
cut off; our country is too cold to go naked in, and we shall soon
be unable to make returns to England even for necessaries.
“When any law or custom of parliament is broken, and the crown
possessed of a precedent, how difficult a thing is it to restore
the subject again to his former freedom and safety?” 2. Inst. on
the confirmation of the great charter—which provides in these
words: “And for so much as divers people of our realm, are in
fear, that the aids and talks which they have given to us before
time, towards our wars, and other business of their own grant and
good will (howsoever they were made) might turn to a
bondage to them and their heirs, because they might be at
another time found in the rolls, and likewise for the prices taken
throughout the realm by our ministers; We have granted for us and
our heirs, that we shall not draw such aids, talks nor prices into
a custom, for any thing that hath been done heretofore, be it by
roll, or any other precedent that may be founden.”
By the first chapter of this act, the great charter is declared to
be the common law. I would ask, whether we have not reason to fear,
that the great aids, freely given by these provinces in the late
war, will in like manner turn to our bondage, if they are to
be kept on and increased during a peace, for the
maintenance of a standing army here?—If tis said those
aids were given for our own immediate defence, and that
England spent millions in the same cause; I answer: The names of
his present Majesty, and his royal Grand-father, will be ever dear
to every loyal British American, for the protection they afforded
us, and the salvation, under God, effected by their arms; but with
regard to our fellow-subjects of Britain, we never were a whit
behind hand with them. The New England Colonies in particular, were
not only settled without the least expence to the mother country,
but they have all along defended themselves against the frequent
incursions of the most inhuman Salvages, perhaps on the face of the
whole earth, at their own cost: Those more than brutal men,
spirited and directed by the most inveterate, as well as most
powerful enemy of Great Britain, have been constantly annoying our
infant settlements for more than a century; spreading terror and
desolation and sometimes depopulating whole villages in a night:
yet amidst the fatigues of labor, and the horrors of [131] war
and bloodshed, Heaven vouchsaf’d its smiles. Behold, an extensive
territory, settled, defended, and secured to his Majesty, I repeat
it, without the least expence to the mother country, till
within twenty years past! —When Louisbourg was reduced
to his late Majesty, by the valor of his New-England subjects,
the parliament, it must be own’d, saw meet to refund part of
the charges: And every one knows the importance of Louisbourg,
in the consultations of Aix la Chapple; but for the loss of
our young men, the riches and strength of a country, not indeed
slain by the enemy, but overborn by the uncommon hardships of the
siege, and their confinement in garrison afterwards, there could be
no recompence made.—In the late war, the northern
colonies not only rais’d their full quota of men, but they
went even beyond their ability: they are still deeply in debt,
notwithstanding the parliamentary grants, annually made them, in
part of their expences, in the common, national, cause:
Had it not been for those grants, they had all been bankrupt long
ago; while the sugar colonies, have born little or no share in
it: They indeed sent a company or two of Negroes and Molattoes,
if this be worth mentioning, to the sieges of Gaudaloupe, Martineco
and the Havanna: I do not recollect any thing else that they have
done; while the flower of our youth were annually pressed
by ten thousands into the service, and there treated but little
better, as we have been told, than hewers of wood and drawers of
water. Provincial acts for impressing were obtained, only by
letters of requisition from a secretary of state to a Governor;
requiring him to use his influence to raise men; and sometimes,
more than were asked for or wanted, were pressed, to give a figure
to the Governor, and shew his influence; a remarkable instance of
which might be mentioned. I would further observe, that
Great-Britain was as immediately interested in the late war in
America, as the colonies were. Was she not threatned with an
invasion at the same time we were? Has she not an immense trade to
the colonies? The British writers say, more than half her
profitable trade is to America: All the profits of our trade
center there, and is little enough to pay for the goods we import.
A prodigious revenue arises to the Crown on American exports to
Great-Britain, which in general is not murmured at: No manufacture
of Europe besides British, can be lawfully bro’t here; and no
honest man desires they ever should, if the laws were put in
execution upon all. With regard to a few Dutch imports that have
made such a noise, the truth is, very little has been or could be
run, before the apparatus of guardships; for the officers of some
ports did their duty, while others may have made a monopoly of
smuggling, for a few of their friends, who probably paid them large
contributions; for it has been observed, that a very small office
in the customs in America has raised a man a fortune sooner than a
Government. The truth is, the acts of trade have been too often
evaded; but by whom? Not by the American merchants in general, but
by some former custom-house officers, their friends and partizans.
I name no man, not being about to turn informer: But it has been a
notorious grievance, that when the King himself cannot dispense
with an act of parliament, there have been custom-house officers
who have practiced it for years together, in favor of those towards
whom they were graciously disposed. But to return to the subject of
taxation: I find that
“the lords and commons cannot be charged with anything for the
defence of the realm, for the safe-guard of the sea, &c. unless
by their will in parliament.”
“Impositions neither in time of war, or other the greatest
necessity or occasion, that may be, much less in the time of peace,
neither upon foreign or inland commodities, of what nature soever,
be they never so superfluous or unnecessary, neither upon
merchants, strangers, nor denizens, may be laid by the King’s
absolute power, without assent of parliament, be it never for so
short a time.”
“In the reign of Edward 3, the black Prince of Wales
having Aquitain granted to him, did lay an imposition of
suage or socage a soco, upon his subjects of that dukedom,
viz. a shilling for every fire, called hearth silver, which was of
so great discontentment and odious to them, that it made them
revolt. And nothing since this time has been imposed by pretext of
any prerogative, upon merchandizes, imported into or exported out
of this realm, until Queen Mary’s time.”2 Inst. 61.
Nor has any thing of that kind taken place since the revolution.
King Charles 1. his ship-money every one has heard of.
[132]
It may be said that these authorities will not serve the colonists,
because the duties laid on them are by parliament. I acknowledge
the difference of fact; but cannot see the great difference in
equity, while the colonists are not represented in the house of
commons: And therefore with all humble deference I apprehend, that
’till the colonists are so represented, the spirit of all these
authorities will argue strongly in their favour. When the
parliament shall think fit to allow the colonists a representation
in the house of commons, the equity of their taxing the colonies,
will be as clear as their power is at present of doing it without,
if they please. When Mr. Dummer wrote his defence of the charters,
there was a talk of taking them away, by act of parliament. This
defence is dedicated to the right honourable the Ld. Carteret, then
one of this Majesty’s principal secretaries of state, since Earl
of Granville. His third proposition is, that “it is not for the
interest of the crown to resume the charters, if forfeited.” This
he proves; as also that it would be more for the interest of Great
Britain to enlarge rather than diminish, the privilege of all the
colonists. His last proposition is, that it “seems inconsistent
with justice to disfranchise the charter colonies by an act of
parliament.”
“It seems therefore, says he, a severity without a precedent,
that a people, who have the misfortune of being a thousand leagues
distant from their sovereign, a misfortune great enough in itself,
should, unsummoned, unheard, in one day, be deprived of their
valuable privileges, which they and their fathers have enjoyed for
near a hundred years.” ’Tis true, as he observes, “the
legislative power is absolute and unaccountable, and King, lords
and commons, may do what they please; but the question here is not
about power, but right” (or rather equity) “and shall
not the supreme judicature of all the nation do right?” “One
may say, that what the parliament cannot do justly, they cannot do
at all. In maximis minima est licentia. The higher the power
is, the greater caution is to be used in the execution of it;
because the sufferer is helpless and without resort.” I never
heard that this reasoning gave any offence. Why should it? Is it
not exactly agreable to the decisions of parliament and the
determinations of the highest executive courts? But if it was
thought hard that charter privileges should be taken away by act of
parliament, is it not much harder to be in part, or in whole,
disfranchised of rights, that have been always tho’t inherent to
a British subject, namely, to be free from all taxes, but what he
consents to in person, or by his representative? This right, if it
could be traced no higher than Magna Charta, is part of the common
law, part of a British subjects birthright, and as inherent and
perpetual, as the duty of allegiance; both which have been bro’t
to these colonies, and have been hitherto held sacred and
inviolable, and I hope and trust ever will. ’Tis humbly
conceived, that the British colonists (except only the conquered,
if any) are, by Magna Charta, as well entitled to have a voice in
their taxes, as the subjects within the realm. Are we not as really
deprived of that right, by the parliament assessing us before we
are represented in the house of commons, as if the King should do
it by his prerogative? Can it be said with any colour of truth or
justice, that we are represented in parliament?
As to the colonists being represented by the provincial agents, I
know of no power ever given them but to appear before his Majesty,
and his ministry. Sometimes they have been directed to petition the
parliament: But they none of them have, and I hope never will have,
a power given them, by the colonists, to act as representatives,
and to consent to taxes; and if they should make any concessions to
the ministry, especially without order, the provinces could not by
that be considered as represented in parliament.
Hibernia habet Parliamenta et faciunt leges et nostra statuta non
ligant eos quia non mittant milites ad Parliamentum, sed personae
eorum sunt subjecti Regis, sicut inhabitantes Calinae Gasconiae et
Guienae.
“Ireland hath parliaments, and makes laws, and our statutes do
not bind them, because they send no Knights to parliament; but
their persons are subjects, of the King, as the inhabitants of
Guiene, Gascony, &c.”
Yet, if specially named, or by general words included as within any
of the King’s dominions, Ireland, says Ld. Coke, might be bound.4
Inst. 351.
From all which, it seems plain, that the reason why Ireland and the
plantations are not bound, unless named by an Act of Parliament,
is, because they are not represented in the British
parliament. Yet, in special cases, the British parliament has an
undoubted right, as well as power, to bind both by their acts. But
whether this can be extended to an indefinite taxation of both, is
the greater question. I conceive the spirit of the British
constitution must make an exception of all taxes, until it is tho’t
fit to unite a dominion to the realm. Such taxation must be
considered either as uniting the dominions to the realm, or
disfranchising [133] them. If they are united, they will
be intitled to a representation, as well as Wales; if they are so
taxed without a union, or representation, they are so far
disfranchised.
I don’t find anything that looks like a duty on the colonies
before the 25th of C. 2. c. 7. imposing a duty on enumerated
commodities. The liberty of the subject was little attended to in
that reign. If the nation could not fully assert their rights till
the revolution, the colonies could not expect to be heard. I look
on this act rather as a precedent of power, than of right and
equity; if ’tis such, it will not affect my argument. The act
appointing a tax on all mariners, of a certain sum per month, to be
deducted out of their wages, is not to be compared with this.
Mariners are not inhabitants of any part of the dominions: The sea
is their element, till they are decrepit, and then the hospital is
open for all mariners who are British subjects without exception.
The general post-office established thro’ the dominions, is for
the convenience of trade and commerce: It is not laying any burthen
upon it; for besides that it is upon the whole cheaper to
correspond in this way than any other, every one is at liberty to
send his own letters by a friend. The act of the 6th of his late
Majesty, tho’ it imposes a duty in terms, has been said
to be designed for a prohibition; which is probable from the
sums imposed; and ’tis pity it had not been so expressed, as
there is not the least doubt of the just and equitable right of the
parliament to lay prohibitions thro’ the dominions, when they
think the good of the whole requires it. But as has been said,
there is an infinite difference between that and the exercise of
unlimited power of taxation, over the dominions, without allowing
them a representation:—It is said that the duties imposed by the
new act will amount to a prohibition: Time only can ascertain this.
The utility of this act is so fully examined in the appendix that I
shall add nothing on that head here. It may be said that the
colonies ought to bear their proportion of the national burdens:
’Tis just they should, and I think I have proved they have always
done it freely and chearfully, and I know no reason to doubt but
that they ever will.
Sometimes we have been considered only as the corporations in
England: And it may be urged that it is no harder upon us to be
taxed by parliament for the general cause than for them, who
besides are at the expence of their corporate subordinate
government. * I answer. 1. Those corporations
are representedin parliament. 2. The colonies are and have
been at great expence in raising men, building forts, and
supporting the King’s civil government here. Now I read of no
governors and other officers of his Majesty’s nomination, that
the city of London taxes its inhabitants to support; I know of no
forts and garrisons that the city of London has lately built at its
own expence, or of any annual levies that they have raised for the
King’s service and the common cause. These are things very
fitting and proper to be done by a subordinate dominion, and tis
their duty to do all they are able; but it seems but equal they
should be allowed to assess the charges of it themselves. The rules
of equity and the principles of the constitution seem to require
this. Those who judge of the reciprocal rights that subsist between
a supreme and subordinate state or dominion, by no higher rules
than are applied to a corporation of button-makers, will never have
a very comprehensive view of them. Yet sorry am I to say it, many
elaborate writers on the administration of the colonies,
seem to me never to rise higher in their notions, than what might
be expected from a secretary to one of the quorum. If I should
be ranked among this number, I shall have this consolation, that I
have fallen into what is called very good company, and among some
who have seen very high life below stairs. I agree with the
Administrator, that of whatever revenues raised in the colonies, if
they must be raised without our consent, “the first and special
appropriation of them ought to be to the paying the Governors, and
all the other Crown officers;” for it would be hard for the
Colonists to be obliged to pay them after this. It was on this
principle that at the last assembly of this province, I moved to
stop every grant to the officers of the crown; more especially as I
know some who have built very much upon the fine salaries they
shall receive from the plantation branch of the revenue. Nor can I
think it “injustice to the frame of human nature,” † to
suppose, if I did not know it, that with similar views several
officers of the Crown in some of the colonies have been pushing for
such an act for many years. They have obtained their wish, and much
good it will do them: But I would not give much for all that will
center neat in the exchequer, after deducting the costs attending
the execution of it, and the appropriations to the several officers
proposed by the Administrator. What will be the unavoidable
consequence of all this, suppose another war should happen, and it
should be necessary to employ as many provincials in America as in
the last? Would it be [134] possible for the colonies,
after being burthened in their trade, perhaps after it is ruined,
to raise men? Is it probable that they would have spirit enough to
exert themselves? If ’tis said the French will never try for
America, or if they should, regular troops are only to be employed,
I grant our regular troops are the best in the world, and that the
experience of the present officers shews that they are capable of
every species of American service; yet we should guard against the
worst. If another tryal for Canada should take place, which from
the known temper of France, we may judge she will bring on the
first fair opportunity, it might require 30 or 40,000 regulars to
secure his Majesty’s just rights. If it should be said, that
other American duties must then be levied, besides the
impossibility of our being able to pay them, the danger recurs of a
large standing army so remote from home. Whereas a good provincial
militia, with such occasional succours from the mother country, as
exigencies may require, never was, and never will be attended with
hazard. The experience of past times will show, that an army of 20
or 30,000 veterans, half 3000 miles from Rome, were very apt
to proclaim Cesars. The first of the name, the assassin of his
country owed his false glory, to stealing the affections of an army
from the commonwealth. I hope these hints will not be taken amiss;
they seem to occur from the nature of the subject I am upon: They
are delivered in pure affection to my King and country, and amount
to no reflection on any man. The best army, and the best men, we
may hereafter have, may be led into temptation; all I think is,
that a prevention of evil is much easier than a deliverance from
it.
The sum of my argument is, That civil government is of God: That
the administrators of it were originally the whole people: That
they might have devolved it on whom they pleased: That this
devolution is fiduciary, for the good of the whole; That by the
British constitution, this devolution is on the King, lords and
commons, the supreme, sacred and uncontroulable legislative power,
not only in the realm, but thro’ the dominions: That by the
abdication, the original compact was broken to pieces: That by the
revolution, it was renewed, and more firmly established, and the
rights and liberties of the subject in all parts of the dominions,
more fully explained and confirmed: That in consequence of this
establishment, and the acts of succession and union his Majesty
GEORGE III. is rightful king and sovereign, and with his
parliament, the supreme legislative of Great Britain; France and
Ireland, and the dominions thereto belonging: That this
constitution is the most free one, and by far the best, now
existing on earth: That by this constitution, every man in the
dominion is a free man: That no parts of his Majesty’s dominions
can be taxed without their consent: That every part has a right to
be represented in the supreme or some subordinate legislature: That
the refusal of this, would seem to be a contradiction in practice
to the theory of the constitution: That the colonies are
subordinate dominions, and are now in such a state, as to make it
best for the good of the whole, that they should not only be
continued in the enjoyment of subordinate legislation, but be also
represented in some proportion to their number and estates, in the
grand legislature of the nation: That this would firmly unite all
parts of the British empire, in the greatest peace and prosperity;
and render it invulnerable and perpetual.
----------------------------------------
Considerations On Behalf of the Colonists 1765 (A response to this British Pamphlet -- see page 7 ignoring the British Constitution and pleading the corruption of Britain itself as the exception that breaks the rule)
My Lord,
IH
A V E read the Opu/cklum of the
celebrated Mr. J-——s, called " Ob^^
jedions to the taxation of , the colonics
by the legiflature of Great-Britairtj briefly
confidered." In obediencelto your lordihips
icommandsi I have thrown a few thoughts
on paper, all indeed that 1 have patience
bn this anelancholy occafion to cplleift. Thd
gentleman thinks it is "abfurd and infolent'^
to queflion the expediency and utility of a
public tneafure. He Teems to be an utter
enemy to the freedom of enquiry aft^r
truth, jufticc and equity. He is not only
ft zealous advocate for pufilanimous and
paflive obedience, but for the mod implicit
faith in the didatorial mandates of power.
The *< feveral patriotic favorite wor
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