our "defence," those who are the judges in levying it, must also
be the judges in applying it. Of consequence, the money said to
be taken from us for our defence, may be employed to our injury.
We may be chained in by a line of fortifications: obliged to pay
for building and maintaining them; and be told that they are for
our defence. With what face can we dispute the fact, after having
granted, that those who apply the money, had a right to levy it;
for, surely, it is much easier for their wisdom to understand how to
apply it in the best manner, than how to levy it in the best manner.
Besides, the right of levying is of infinitely more consequence,
than that of applying it. The people of England, that would burst
out into fury, if the crown should attempt to levy money by its own
authority, have assigned to the crown the application of money.
As to "the administration of justice"--the judges ought, in a well
regulated state, to be equally independant of the legislative
powers. Thus, in England, judges hold their commissions from the
crown "during good behaviour;" and have salaries, suitable to their
dignity, settled on them by parliament. The purity of the courts of
law, since this establishment, is a proof of the wisdom with which
it was made.
But, in these colonies, how fruitless has been every attempt to have
the judges appointed during good behaviour; yet whoever considers
the matter will soon perceive, that such commissions are beyond
all comparison more necessary in these colonies, than they are in
England.
The chief danger to the subject there, arose from the arbitrary
designs of the crown; but here, the time may come, when we may
have to contend with the designs of the crown, and of a mighty
kingdom. What then will be our chance, when the laws of life and
death, are to be spoken by judges, totally dependant on that crown
and kingdom--sent over, perhaps, from thence--filled with British
prejudice--and backed by a standing army, supported out of our
own pockets, to "assert and maintain" our own "dependance and
obedience."
But supposing, that through the extreme lenity that will prevail in
the government, through all future ages, these colonies never will
behold any thing like the campaign of chief justice Jeffereys, yet
what innumerable acts of injustice may be committed, and how fatally
may the principles of liberty be sapped by a succession of judges
utterly independant of the people? Before such judges, the supple
wretches, who cheerfully join in avowing sentiments inconsistent
with freedom, will always meet with smiles: while the honest and
brave men, who disdain to sacrifice their native land to their own
advantage, but on every occasion, boldly vindicate her cause, will
constantly be regarded with frowns.
There are two other considerations, relating to this head, that
deserve the most serious attention.
By the late act the officers of the customs are impowered "to enter
into any house, warehouse, shop, cellar, or other place, in the
British colonies or plantations in America, to search for, or seize
prohibited or unaccustomed goods," &c. on "writs granted by the
inferior or supreme court of justice, having jurisdiction within
such colony or plantation respectively."
If we only reflect that the judges of these courts are to be _during
pleasure_--that they are to have "_adequate provision_" made for
them, which is to continue during their _complisant behaviour_--that
they may be stranger to these colonies--what an engine of
oppression may this authority be in such hands?
I am well aware that writs of this kind may be granted at home,
under the seal of the court of exchequer: But I know also that
the greatest asserters of the rights of Englishmen, have always
strenuously contended, that such a power was dangerous to freedom,
and expressly contrary to the common law, which ever regarded a
man's house, as his castle, or a place of perfect security.
If such a power is in the least degree dangerous there, it must be
utterly destructive to liberty here.--For the people there have two
securities against the undue exercise of this power by the crown,
which are wanting with us, if the late act takes place. In the first
place, if any injustice is done there, the person injured may bring
his action against the offender, and have it tried by independant
judges, who are[38] no parties in committing the injury. Here he must
have it tried before dependant judges, being the men who granted the
writ.
[38] The writs for searching houses in England are to be granted
under the seal of the court of exchequer, according to the
statute--and that seal is kept by the chancellor of the exchequer. 4
Inst.
To say that the cause is to be tried by a jury can never reconcile
men, who have any idea of freedom to such a power.--For we know,
that sheriffs in almost every colony on this continent, are totally
dependant on the crown; and packing of juries has been frequently
practiced even in the capital of the British empire. Even if juries
are well inclined, we have too many instances of the influence of
overbearing unjust judges upon them. The brave and wise men who
accomplished the revolution, thought the independency of judges
essential to freedom.
The other security which the people have at home, but which we shall
want here, is this.--If this power is abused there, the parliament,
the grand resource of the opprest people, is ready to afford relief.
Redress of grievances must precede grants of money. But what regard
can we expect to have paid to our assemblies, when they will not
hold even the puny privilege of French parliaments----that of
registering the edicts, that take away our money, before they are
put in execution.
The second consideration above hinted at, is this--There is a
confusion in our laws that is quite unknown in Great-Britain. As
this cannot be described in a more clear or exact manner, than has
been done by the ingenious author of the history of New-York, I
beg leave to use his words. "The state of our laws opens a door
to much controversy. The uncertainty which respect them, renders
property precarious, and greatly exposes us to the arbitrary
decision of unjust judges. The common law of England is generally
received, together with such statutes, as were enacted before we
had a legislature of our own; but our courts exercise a sovereign
authority, in determining what parts of the common and statute law
ought to be extended: For it must be admitted, that the difference
of circumstances necessarily requires us, in some cases, to reject
the determination of both. In many instances they have also extended
even acts of parliament, passed since we had a distinct legislature,
which is greatly adding to our confusion. The practice of our courts
is no less uncertain than the law. Some of the English rules are
adopted, others rejected. Two things therefore seem to be absolutely
necessary for the public security. First the passing an act for
settling the extent of the English laws. Secondly, that the courts
ordain a general set of rules for the regulation of the practice."
How easy will it be under this "state of our laws" for an artful
judge to act in the most arbitrary manner, and yet cover his conduct
under specious pretences, and how difficult will it be for the
injured people to obtain redress, may be readily perceived. We may
take a voyage of three thousand miles to complain; and after the
trouble and hazard we have undergone, we may be told, that the
collection of the revenue and maintenance of the prerogative, must
not be discouraged.----And if the misbehaviour is so gross as to
admit of no justification, it may be said that it was an error in
judgment only, arising from the confusion of our laws, and the zeal
of the King's servants to do their duty.
If the commissions of judges are during the pleasure of the crown,
yet if their salaries are during the pleasure of the people, there
will be some check upon their conduct. Few men will consent to draw
on themselves the hatred and contempt of those among whom we live,
for the empty honour of being judges. It is the sordid love of gain
that tempts men to turn their backs on virtue, and pay their homage
where they ought not.
As to the third particular, the "support of civil government," few
words will be sufficient. Every man of the least understanding
must know, that the executive power may be exercised in a manner
so disagreeable and harassing to the people, that it is absolutely
requisite, they should be enabled by the gentlest method which
human policy has yet been ingenious enough to invent, that is by
the shutting their hands, to "admonish" (as Mr. Hume says) certain
persons "of their duty."
What shall we now think, when, upon looking into the late act, we
find the assemblies of these provinces thereby stript of their
authority on these several heads? The declared intention of that act
is, "that a revenue should be raised in his Majesty's dominions
in America, for making a more certain and adequate provision for
defraying the charge of the administration of justice, and the
support of civil government, in such provinces where it shall be
found necessary; and towards further defraying the expences of
defending, protecting, and securing the said dominions," &c.
Let the reader pause here one moment, and reflect--whether the
colony in which he lives, has not made such "certain and adequate
provisions" for these purposes, as is by the colony judged suitable
to its abilities, and all other circumstances. Then let him
reflect--whether, if this act takes place, money is not to be raised
on that colony without its consent to make provision for these
purposes, which it does not judge to be suitable to its abilities,
and all other circumstances. Lastly, let him reflect--whether
the people of that country are not in a state of the most abject
slavery, whose property may be taken from them under the notion
of right, when they have refused to give it. For my part, I think
I have good reason for vindicating the honour of the assemblies
on this continent, by publicly asserting, that they have made as
"certain and adequate provision" for the purposes above-mentioned,
as they ought to have made; and that it should not be presumed,
that they will not do it hereafter. Why then should these most
important truths be wrested out of their hands? Why should they not
now be permitted to enjoy that authority, which they have exercised
from the first settlement of these colonies? Why should they be
scandalized by this innovation, when their respective provinces
are now, and will be for several years, labouring under loads of
debts imposed on them for the very purposes now spoken of? Why
should the inhabitants of all these colonies be with the utmost
indignity treated, as a herd of despicable wretches, so utterly void
of common sense, that they will not even make "adequate provision"
for the "administration of justice" and "the support of civil
government" among them, for their "own defence"--though without
such "provision" every people must inevitably be overwhelmed with
anarchy and destruction? Is it possible to form an idea of slavery
more complete, more miserable, more disgraceful, than that of a
people, where justice is administered, government exercised, and
a standing army maintained, at the expence of the people, and yet
without the least dependance upon them? If we can find no relief
from this infamous situation, let Mr. Grenville set his fertile
fancy again to work, and as by one exertion of it, he has stripped
us of our property and liberty, let him by another deprive us of our
understanding too, that unconscious of what we have been or are,
and ungoaded by tormenting reflections, we may tamely bow down our
necks with all the stupid serenity of servitude, to any drudgery,
which our lords and masters may please to command.--
When the "charges of the administration of justice,"--"the support
of civil government;"--and "the expences of defending protecting and
securing" us, are provided for, I should be glad to know upon what
occasion the crown will ever call our assemblies together. Some few
of them may meet of their own accord, by virtue of their charters:
But what will they have to do when they are met? To what shadows
will they be reduced? The men, whose deliberations heretofore had an
influence on every matter relating to the liberty and happiness of
themselves and their constituents, and whose authority in domestic
affairs, at least, might well be compared to that of Roman senators,
will now find their deliberations of no more consequence than those
of constables.--They may perhaps be allowed to make laws for yoking
of hogs, or pounding of stray cattle. Their influence will hardly
be permitted to extend so high as the keeping roads in repair, as
that business may more properly be executed by those who receive the
public cash.
One most memorable example in history is so applicable to the
point now insisted on, that it will form a just conclusion of the
observations that have been made.
Spain was once free. Their _Cortes_ resembled our parliament. No
money could be raised on the subject, without their consent. One
of their Kings having received a grant from them to maintain a war
against the Moors, desired, that if the sum which they had given,
should not be sufficient, he might be allowed for that emergency
only, to have more money, without assembling the _Cortes_. The
request was violently opposed by the best and wisest men in the
assembly. It was however, complied with by the votes of a majority;
and this single concession was a precedent for other concessions
of the like kinds, until, at last, the crown obtained a general
power for raising money in cases of necessity. From that period the
_Cortes_ ceased to be useful, and the people ceased to be free.
_Venienti occurrite morbo._
Oppose a disease at its beginning.--
A FARMER.
LETTER X.
_Beloved Countrymen_,
The consequences, mentioned in the last letter, will not be the
utmost limits of our misery and infamy. We feel too sensibly that
any[39] ministerial measures, relating to these colonies, are soon
carried successfully thro' the parliament. Certain prejudices
operate there so strongly against us, that it might justly be
questioned, whether all the provinces united, will ever be able
effectually to call to an account, before the parliament, any
minister who shall abuse the power by the late act given to the
crown in America. He may divide the spoils torn from us, in
what manner he pleases; and we shall have no way of making him
responsible. If he should order, that every Governor, should have a
yearly salary of 5000_l._ sterling, every chief justice of 3000_l._
every inferior officer in proportion; and should then reward the
most profligate, ignorant, or needy dependants on himself, or his
friends with places of the greatest trust because they were of the
greatest profit, this would be called an arrangement in consequence
of the "adequate provision for defraying the charge of the
administration of justice, and the support of the civil government."
And if the taxes should prove at any time insufficient to answer all
the expences of the numberless offices, which ministers may please
to create, surely the house of Commons would be too "modest" to
contradict a minister who should tell them, it was become necessary
to lay a new tax upon the colonies, for the laudable purpose of
"defraying the charges of the administration of justice, and the
support of civil government" among them. Thus in fact we shall be
taxed by ministers.[40]
[39] The gentleman must not wonder he was not contradicted,
when, as the minister, he asserted the right of parliament to
tax America. I know not how it is, but there is a modesty in
this house, which does not chuse to contradict a minister. I
wish gentlemen would get the better of that modesty. If they
do not, perhaps the collective body may begin to abate of its
respect for the representative.
Mr. Pitt's speech.
[40] "Within this act, (_statute de tallagio non concedendo_)
are all new offices erected with new fees, or old offices with
new fees, for that is a tallage put upon the subject, which
cannot be done without common assent by act of parliament."
2 Inst. 533.
We may perceive, from the example of Ireland, how eager ministers
are to seize upon any settled revenue, and apply it in supporting
their own power.----Happy are the men, and happy are the people,
who grow wise by the misfortune of others. Earnestly, my dear
countrymen, do I beseech the author of all good gifts, that you may
grow wise in this manner: And, if I may be allowed to take the
liberty, I beg leave to recommend to you in general, as the best
method of obtaining wisdom, diligently to study the histories of
other countries. You will there find all the arts, that can possibly
be practiced by cunning rulers, or false patriots among yourselves,
so fully delineated, that changing names, the account would serve
for your own times.
It is pretty well known on this continent, that Ireland has,
with a regular consistence of injustice, been cruelly treated by
ministers in the article of pensions; but there are some alarming
circumstances relating to that subject, which I wish to have better
known among us.
[41]The revenue of the crown there, arises principally from the
excise granted "for pay of the army, and defraying other public
charges in defence and preservation of the kingdom"--from the
tonnage and additional poundage granted "for protecting the trade
of the kingdom at sea, and augmenting the public revenue" from the
hearth-money granted, as a "public revenue for public charges and
expences." There are some other branches of the revenue, concerning
which there is not any express appropriation of them for public
service, but which were plainly so intended.
[41] An enquiry into the legality of the pensions on the Irish
establishment, by Alexander M'Auley, Esq; one of the King's
Council, &c.
Of these branches of the revenue, the crown is only a trustee for
the public. They are unalienable; they are inapplicable to any other
purposes, but those for which they were established; and therefore
are not legally chargeable with pensions.
There is another kind of revenue, which is a private revenue. This
is not limited to any public uses; but the crown has the same
property in it, that any person has in his estate. This does not
amount at the most to fifteen thousand pounds a year, probably not
to seven; and it is the only revenue that can legally be charged
with pensions. If ministers were accustomed to regard the rights
or happiness of the people, the pensions in Ireland would not
exceed the sum just mentioned: but long since have they exceeded
that limit, and in December, 1765, a motion was made in the House
of Commons in that kingdom, to address his Majesty, on the great
increase of pensions on the Irish establishment, amounting to the
sum of £.158,685 in the last two years.
Attempts have been made to gloss over these gross incroachments,
by this specious argument,--"That expending a competent part of
the public revenue in pensions, from a principle of charity or
generosity, adds to the dignity of the crown, and is, therefore,
useful to the public." To give this argument any weight, it must
appear that the pensions proceed from "charity or generosity"
only--And that it "adds to the dignity of the crown" to act directly
contrary to law.
From this conduct towards Ireland, in open violation of law, we may
easily foresee what we may expect, when a minister will have the
whole revenue of America, in his own hands, to be disposed of at his
own pleasure. For all the monies raised by the late act are to be
"applied, by virtue of warrants under the sign manual, countersigned
by the high treasurer, or any three of the commissioners of the
treasury." The "residue" indeed, is to be paid "into the receipt
of the exchequer, and to be disposed of by parliament." So that a
minister will have nothing to do but to take care that there shall
be no "residue," and he is superior to all controul.
Besides the burden of pensions in Ireland, which have enormously
encreased within these few years, almost all the offices, in that
poor kingdom, have, since the commencement of the present century,
and now are bestowed upon strangers. For though the merit of those
born there justly raises them to places of high trust, when they go
abroad, as all Europe can witness, yet he is an uncommonly lucky
Irishman, who can get a good post in his native country.
When I consider the [42]manner in which that island has been
uniformly depressed for so many years past, with this pernicious
particularity of their parliament continuing[43] as long as the
crown pleases, I am astonished to observe such a love of liberty
still animating that loyal and generous nation; and nothing can
raise higher my idea of the integrity and public spirit of the
people[44] who have preserved the sacred fire of freedom from being
extinguished though the altar, on which it burned, has been thrown
down.
[42] In Charles II's time, the House of Commons, influenced
by some factious demagogues, were resolved to prohibit the
importation of Irish cattle into England. Among other arguments
in favour of Ireland, it was insisted "That by cutting off
almost entirely the trade between the kingdoms, all the natural
bands of union were dissolved, and nothing remained to keep the
Irish in their duty, but force and violence.
"The King (says Mr. Hume in his History of England) was so
convinced of the justice of these reasons, that he used all
his interest to oppose the bill, and he openly declared, that
he could not give his assent to it with a safe conscience. But
the Commons were resolute in their purpose. And the spirit of
tyranny, of which nations are as susceptible as individuals,
had animated the English extremely to exert their superiority
over their dependant state. No affair could be conducted with
greater violence that this, by the Commons. They even went so
far in the preamble of the bill, as to declare the importation
of Irish cattle to be a nuisance. By this expression they
gave scope to their passion, and at the same time, barred the
King's prerogative, by which he might think himself intitled to
dispense with a law so full of injustice and bad policy. The
lords expunged the word, but as the King was sensible that no
supply would be given by the Commons, unless they were gratified
in all their prejudices, he was obliged both to employ his
interest with the Peers to make the bill pass, and to give the
Royal assent to it. He could not however forbear expressing his
displeasure, at the jealousy entertained against him, and at
the intention which the Commons discovered of retrenching his
prerogative."
This law brought great distress for sometime upon Ireland,
but it occasioned their applying with great industry to
manufactures, and has proved, in the issue, beneficial to that
kingdom.
Perhaps the same reason occasioned the "barring the King's
prerogative" in the late act suspending the legislation of
New-York.
This we may be assured of, that we are as dear to his Majesty,
as the people of Great-Britain are. We are his subjects as well
as they, and as faithful subjects; and his Majesty has given too
many, too constant proofs of his piety and virtue, for any man,
to think it possible, that such a Prince can make any unjust
distinction between such subjects. It makes no difference to
his Majesty, whether supplies are raised in Great-Britain, or
America: but it makes some difference, to the Commons of that
kingdom.
To speak plainly as becomes an honest man on such important
occasions, all our misfortunes are owing to a lust of power
in men of abilities and influence. This prompts them to seek
popularity, by expedients profitable to themselves, though ever
so destructive to their country.
Such is the accursed nature of lawless ambition, and yet--what
heart but melts at the thought?--Such false detestable patriots
in every nation have led their blind confiding country, shouting
their applauses, into the jaws of shame and ruin. May the wisdom
and goodness of the people of Great-Britain, save them from the
usual fate of nations.