criminal proceeding is not (at least in the present stage of our
contest) altogether expedient,--which is nothing less than the conduct
of those very persons who have seemed to adopt that mode, by lately
declaring a rebellion in Massachusetts Bay, as they had formerly
addressed to have traitors brought hither, under an act of Henry the
Eighth, for trial. For, though rebellion is declared, it is not
proceeded against as such; nor have any steps been taken towards the
apprehension or conviction of any individual offender, either on our
late or our former address; but modes of public coercion have been
adopted, and such as have much more resemblance to a sort of qualified
hostility towards an independent power than the punishment of rebellious
subjects. All this seems rather inconsistent; but it shows how
difficult it is to apply these juridical ideas to our present case.
In this situation, let us seriously and coolly ponder. What is it we
have got by all our menaces, which have been many and ferocious? What
advantage have we derived from the penal laws we have passed, and which,
for the time, have been severe and numerous? What advances have we made
towards our object, by the sending of a force, which, by land and sea,
is no contemptible strength? Has the disorder abated? Nothing
less.--When I see things in this situation, after such confident hopes,
bold promises, and active exertions, I cannot, for my life, avoid a
suspicion that the plan itself is not correctly right.
If, then, the removal of the causes of this spirit of American liberty
be, for the greater part, or rather entirely, impracticable,--if the
ideas of criminal process be inapplicable, or, if applicable, are in the
highest degree inexpedient, what way yet remains? No way is open, but
the third and last,--to comply with the American spirit as necessary,
or, if you please, to submit, to it as a necessary evil.
If we adopt this mode, if we mean to conciliate and concede, let us see
of what nature the concession ought to be. To ascertain the nature of
our concession, we must look at their complaint. The colonies complain
that they have not the characteristic mark and seal of British freedom.
They complain that they are taxed in a Parliament in which they are not
represented. If you mean to satisfy them at all, you must satisfy them
with regard to this complaint. If you mean to please any people, you
must give them the boon which they ask,--not what you may think better
for them, but of a kind totally different. Such an act may be a wise
regulation, but it is no concession; whereas our present theme is the
mode of giving satisfaction.
Sir, I think you must perceive that I am resolved this day to have
nothing at all to do with the question of the right of taxation. Some
gentlemen startle,--but it is true: I put it totally out of the
question. It is less than nothing in my consideration. I do not indeed
wonder, nor will you, Sir, that gentlemen of profound learning are fond
of displaying it on this profound subject. But my consideration is
narrow, confined, and wholly limited to the policy of the question. I do
not examine whether the giving away a man's money be a power excepted
and reserved out of the general trust of government, and how far all
mankind, in all forms of polity, are entitled to an exercise of that
right by the charter of Nature,--or whether, on the contrary, a right of
taxation is necessarily involved in the general principle of
legislation, and inseparable from the ordinary supreme power. These are
deep questions, where great names militate against each other, where
reason is perplexed, and an appeal to authorities only thickens the
confusion: for high and reverend authorities lift up their heads on both
sides, and there is no sure footing in the middle. This point is the
_great Serbonian bog, betwixt Damiata and Mount Casius old, where armies
whole have sunk_. I do not intend to be overwhelmed in that bog, though
in such respectable company. The question with me is, not whether you
have a right to render your people miserable, but whether it is not your
interest to make them happy. It is not what a lawyer tells me I _may_
do, but what humanity, reason, and justice tell me I ought to do. Is a
politic act the worse for being a generous one? Is no concession proper,
but that which is made from your want of right to keep what you grant?
Or does it lessen the grace or dignity of relaxing in the exercise of an
odious claim, because you have your evidence-room full of titles, and
your magazines stuffed with arms to enforce them? What signify all those
titles and all those arms? Of what avail are they, when the reason of
the thing tells me that the assertion of my title is the loss of my
suit, and that I could do nothing but wound myself by the use of my own
weapons?
Such is steadfastly my opinion of the absolute necessity of keeping up
the concord of this empire by a unity of spirit, though in a diversity
of operations, that, if I were sure the colonists had, at their leaving
this country, sealed a regular compact of servitude, that they had
solemnly abjured all the rights of citizens, that they had made a vow to
renounce all ideas of liberty for them and their posterity to all
generations, yet I should hold myself obliged to conform to the temper I
found universally prevalent in my own day, and to govern two million of
men, impatient of servitude, on the principles of freedom. I am not
determining a point of law; I am restoring tranquillity: and the general
character and situation of a people must determine what sort of
government is fitted for them. That point nothing else can or ought to
determine.
My idea, therefore, without considering whether we yield as matter of
right or grant as matter of favor, is, _to admit the people of our
colonies into an interest in the Constitution_, and, by recording that
admission in the journals of Parliament, to give them as strong an
assurance as the nature of the thing will admit that we mean forever to
adhere to that solemn declaration of systematic indulgence.
Some years ago, the repeal of a revenue act, upon its understood
principle, might have served to show that we intended an unconditional
abatement of the exercise of a taxing power. Such a measure was then
sufficient to remove all suspicion and to give perfect content. But
unfortunate events since that time may make something further
necessary,--and not more necessary for the satisfaction of the colonies
than for the dignity and consistency of our own future proceedings.
I have taken a very incorrect measure of the disposition of the House,
if this proposal in itself would be received with dislike. I think, Sir,
we have few American financiers. But our misfortune is, we are too
acute, we are too exquisite in our conjectures of the future, for men
oppressed with such great and present evils. The more moderate among the
opposers of Parliamentary concession freely confess that they hope no
good from taxation; but they apprehend the colonists have further views,
and if this point were conceded, they would instantly attack the trade
laws. These gentlemen are convinced that this was the intention from the
beginning, and the quarrel of the Americans with taxation was no more
than a cloak and cover to this design. Such has been the language even
of a gentleman[23] of real moderation, and of a natural temper well
adjusted to fair and equal government. I am, however, Sir, not a little
surprised at this kind of discourse, whenever I hear it; and I am the
more surprised on account of the arguments which I constantly find in
company with it, and which are often urged from the same mouths and on
the same day.
For instance, when we allege that it is against reason to tax a people
under so many restraints in trade as the Americans, the noble lord[24]
in the blue riband shall tell you that the restraints on trade are
futile and useless, of no advantage to us, and of no burden to those on
whom they are imposed,--that the trade to America is not secured by the
Acts of Navigation, but by the natural and irresistible advantage of a
commercial preference.
Such is the merit of the trade laws in this posture of the debate. But
when strong internal circumstances are urged against the taxes,--when
the scheme is dissected,--when experience and the nature of things are
brought to prove, and do prove, the utter impossibility of obtaining an
effective revenue from the colonies,--when these things are pressed, or
rather press themselves, so as to drive the advocates of colony taxes to
a clear admission of the futility of the scheme,--then, Sir, the
sleeping trade laws revive from their trance, and this useless taxation
is to be kept sacred, not for its own sake, but as a counter-guard and
security of the laws of trade.
Then, Sir, you keep up revenue laws which are mischievous in order to
preserve trade laws that are useless. Such is the wisdom of our plan in
both its members. They are separately given up as of no value; and yet
one is always to be defended for the sake of the other. But I cannot
agree with the noble lord, nor with the pamphlet from whence he seems to
have borrowed these ideas concerning the inutility of the trade laws.
For, without idolizing them, I am sure they are still, in many ways, of
great use to us; and in former times they have been of the greatest.
They do confine, and they do greatly narrow, the market for the
Americans. But my perfect conviction of this does not help me in the
least to discern how the revenue laws form any security whatsoever to
the commercial regulations,--or that these commercial regulations are
the true ground of the quarrel,--or that the giving way, in any one
instance, of authority is to lose all that may remain unconceded.
One fact is clear and indisputable: the public and avowed origin of this
quarrel was on taxation. This quarrel has, indeed, brought on new
disputes on new questions, but certainly the least bitter, and the
fewest of all, on the trade laws. To judge which of the two be the real,
radical cause of quarrel, we have to see whether the commercial dispute
did, in order of time, precede the dispute on taxation. There is not a
shadow of evidence for it. Next, to enable us to judge whether at this
moment a dislike to the trade laws be the real cause of quarrel, it is
absolutely necessary to put the taxes out of the question by a repeal.
See how the Americans act in this position, and then you will be able to
discern correctly what is the true object of the controversy, or whether
any controversy at all will remain. Unless you consent to remove this
cause of difference, it is impossible, with decency, to assert that the
dispute is not upon what it is avowed to be. And I would, Sir, recommend
to your serious consideration, whether it be prudent to form a rule for
punishing people, not on their own acts, but on your conjectures. Surely
it is preposterous, at the very best. It is not justifying your anger
by their misconduct, but it is converting your ill-will into their
delinquency.
But the colonies will go further.--Alas! alas! when will this
speculating against fact and reason end? What will quiet these panic
fears which we entertain of the hostile effect of a conciliatory
conduct? Is it true that no case can exist in which it is proper for the
sovereign to accede to the desires of his discontented subjects? Is
there anything peculiar in this case, to make a rule for itself? Is all
authority of course lost, when it is not pushed to the extreme? Is it a
certain maxim, that, the fewer causes of dissatisfaction are left by
government, the more the subject will be inclined to resist and rebel?
All these objections being in fact no more than suspicions, conjectures,
divinations, formed in defiance of fact and experience, they did not,
Sir, discourage me from entertaining the idea of a conciliatory
concession, founded on the principles which I have just stated.
In forming a plan for this purpose, I endeavored to put myself in that
frame of mind which was the most natural and the most reasonable, and
which was certainly the most probable means of securing me from all
error. I set out with a perfect distrust of my own abilities, a total
renunciation of every speculation of my own, and with a profound
reverence for the wisdom of our ancestors, who have left us the
inheritance of so happy a Constitution and so flourishing an empire,
and, what is a thousand times more valuable, the treasury of the maxims
and principles which formed the one and obtained the other.
During the reigns of the kings of Spain of the Austrian family,
whenever they were at a loss in the Spanish councils, it was common for
their statesmen to say that they ought to consult the genius of Philip
the Second. The genius of Philip the Second might mislead them; and the
issue of their affairs showed that they had not chosen the most perfect
standard. But, Sir, I am sure that I shall not be misled, when, in a
case of constitutional difficulty, I consult the genius of the English
Constitution. Consulting at that oracle, (it was with all due humility
and piety,) I found four capital examples in a similar case before me:
those of Ireland, Wales, Chester, and Durham.
Ireland, before the English conquest, though never governed by a
despotic power, had no Parliament. How far the English Parliament itself
was at that time modelled according to the present form is disputed
among antiquarians. But we have all the reason in the world to be
assured, that a form of Parliament, such as England then enjoyed, she
instantly communicated to Ireland; and we are equally sure that almost
every successive improvement in constitutional liberty, as fast as it
was made here, was transmitted thither. The feudal baronage, and the
feudal knighthood, the roots of our primitive Constitution, were early
transplanted into that soil, and grew and flourished there. Magna
Charta, if it did not give us originally the House of Commons, gave us
at least an House of Commons of weight and consequence. But your
ancestors did not churlishly sit down alone to the feast of Magna
Charta. Ireland was made immediately a partaker. This benefit of English
laws and liberties, I confess, was not at first extended to _all_
Ireland. Mark the consequence. English authority and English liberty had
exactly the same boundaries. Your standard could never be advanced an
inch before your privileges. Sir John Davies shows beyond a doubt, that
the refusal of a general communication of these rights was the true
cause why Ireland was five hundred years in subduing; and after the vain
projects of a military government, attempted in the reign of Queen
Elizabeth, it was soon discovered that nothing could make that country
English, in civility and allegiance, but your laws and your forms of
legislature. It was not English arms, but the English Constitution, that
conquered Ireland. From that time, Ireland has ever had a general
Parliament, as she had before a partial Parliament. You changed the
people, you altered the religion, but you never touched the form or the
vital substance of free government in that kingdom. You deposed kings;
you restored them; you altered the succession to theirs, as well as to
your own crown; but you never altered their Constitution, the principle
of which was respected by usurpation, restored with the restoration of
monarchy, and established, I trust, forever by the glorious Revolution.
This has made Ireland the great and flourishing kingdom that it is, and,
from a disgrace and a burden intolerable to this nation, has rendered
her a principal part of our strength and ornament. This country cannot
be said to have ever formally taxed her. The irregular things done in
the confusion of mighty troubles, and on the hinge of great revolutions,
even if all were done that is said to have been done, form no example.
If they have any effect in argument, they make an exception to prove the
rule. None of your own liberties could stand a moment, if the casual
deviations from them, at such times, were suffered to be used as proofs
of their nullity. By the lucrative amount of such casual breaches in
the Constitution, judge what the stated and fixed rule of supply has
been in that kingdom. Your Irish pensioners would starve, if they had no
other fund to live on than taxes granted by English authority. Turn your
eyes to those popular grants from whence all your great supplies are
come, and learn to respect that only source of public wealth in the
British empire.
My next example is Wales. This country was said to be reduced by Henry
the Third. It was said more truly to be so by Edward the First. But
though then conquered, it was not looked upon as any part of the realm
of England. Its old Constitution, whatever that might have been, was
destroyed; and no good one was substituted in its place. The care of
that tract was put into the hands of Lords Marchers: a form of
government of a very singular kind; a strange, heterogeneous monster,
something between hostility and government: perhaps it has a sort of
resemblance, according to the modes of those times, to that of
commander-in-chief at present, to whom all civil power is granted as
secondary. The manners of the Welsh nation followed the genius of the
government: the people were ferocious, restive, savage, and
uncultivated; sometimes composed, never pacified. Wales, within itself,
was in perpetual disorder; and it kept the frontier of England in
perpetual alarm. Benefits from it to the state there were none. Wales
was only known to England by incursion and invasion.
Sir, during that state of things, Parliament was not idle. They
attempted to subdue the fierce spirit of the Welsh by all sorts of
rigorous laws. They prohibited by statute the sending all sorts of arms
into Wales, as you prohibit by proclamation (with something more of
doubt on the legality) the sending arms to America. They disarmed the
Welsh by statute, as you attempted (but still with more question on the
legality) to disarm New England by an instruction. They made an act to
drag offenders from Wales into England for trial, as you have done (but
with more hardship) with regard to America. By another act, where one of
the parties was an Englishman, they ordained that his trial should be
always by English. They made acts to restrain trade, as you do; and they
prevented the Welsh from the use of fairs and markets, as you do the
Americans from fisheries and foreign ports. In short, when the
statute-book was not quite so much swelled as it is now, you find no
less than fifteen acts of penal regulation on the subject of Wales.
Here we rub our hands,--A fine body of precedents for the authority of
Parliament and the use of it!--I admit it fully; and pray add likewise
to these precedents, that all the while Wales rid this kingdom like an
_incubus_; that it was an unprofitable and oppressive burden; and that
an Englishman travelling in that country could not go six yards from the
highroad without being murdered.
The march of the human mind is slow. Sir, it was not until after two
hundred years discovered, that, by an eternal law, Providence had
decreed vexation to violence, and poverty to rapine. Your ancestors did,
however, at length open their eyes to the ill husbandry of injustice.
They found that the tyranny of a free people could of all tyrannies the
least be endured, and that laws made against an whole nation were not
the most effectual methods for securing its obedience. Accordingly, in
the twenty-seventh year of Henry the Eighth the course was entirely
altered. With a preamble stating the entire and perfect rights of the
crown of England, it gave to the Welsh all the rights and privileges of
English subjects. A political order was established; the military power
gave way to the civil; the marches were turned into counties. But that a
nation should have a right to English liberties, and yet no share at all
in the fundamental security of these liberties,--the grant of their own
property,--seemed a thing so incongruous, that eight years after, that
is, in the thirty-fifth of that reign, a complete and not
ill-proportioned representation by counties and boroughs was bestowed
upon Wales by act of Parliament. From that moment, as by a charm, the
tumults subsided; obedience was restored; peace, order, and civilization
followed in the train of liberty. When the day-star of the English
Constitution had arisen in their hearts, all was harmony within and
without:--
Simul alba nautis
Stella refulsit,
Defluit saxis agitatus humor,
Concidunt venti, fugiuntque nubes,
Et minax (quod sic voluere) ponto
Unda recumbit.
The very same year the County Palatine of Chester received the same
relief from its oppressions, and the same remedy to its disorders.
Before this time Chester was little less distempered than Wales. The
inhabitants, without rights themselves, were the fittest to destroy the
rights of others; and from thence Richard the Second drew the standing
army of archers with which for a time he oppressed England. The people
of Chester applied to Parliament in a petition penned as I shall read to
you.
"To the king our sovereign lord, in most humble wise shown unto your
most excellent Majesty, the inhabitants of your Grace's County Palatine
of Chester: That where the said County Palatine of Chester is and hath
been alway hitherto exempt, excluded, and separated out and from your
high court of Parliament, to have any knights and burgesses within the
said court; by reason whereof the said inhabitants have hitherto
sustained manifold disherisons, losses, and damages, as well in their
lands, goods, and bodies, as in the good, civil, and politic governance
and maintenance of the common wealth of their said country: And
forasmuch as the said inhabitants have always hitherto been bound by the
acts and statutes made and ordained by your said Highness, and your most
noble progenitors, by authority of the said court, as far forth as other
counties, cities, and boroughs have been, that have had their knights
and burgesses within your said court of Parliament, and yet have had
neither knight no burgess there for the said County Palatine; the said
inhabitants, for lack thereof, have been oftentimes touched and grieved
with acts and statutes made within the said court, as well derogatory
unto the most ancient jurisdictions, liberties, and privileges of your
said County Palatine, as prejudicial unto the common wealth, quietness,
rest, and peace of your Grace's most bounden subjects inhabiting within
the same."
What did Parliament with this audacious address?--Reject it as a libel?
Treat it as an affront to government? Spurn it as a derogation from the
rights of legislature? Did they toss it over the table? Did they burn
it by the hands of the common hangman?--They took the petition of
grievance, all rugged as it was, without softening or temperament,
unpurged of the original bitterness and indignation of complaint; they
made it the very preamble to their act of redress, and consecrated its
principle to all ages in the sanctuary of legislation.
Here is my third example. It was attended with the success of the two
former. Chester, civilized as well as Wales, has demonstrated that
freedom, and not servitude, is the cure of anarchy; as religion, and not
atheism, is the true remedy for superstition. Sir, this pattern of
Chester was followed in the reign of Charles the Second with regard to
the County Palatine of Durham, which is my fourth example. This county
had long lain out of the pale of free legislation. So scrupulously was
the example of Chester followed, that the style of the preamble is
nearly the came with that of the Chester act; and, without affecting the
abstract extent of the authority of Parliament, it recognizes the equity
of not suffering any considerable district, in which the British
subjects may act as a body, to be taxed without their own voice in the
grant.