I shall speak to the question strictly as a matter of right; for it is
a proposition in its nature so perfectly distinct from the expediency
of the tax, that it must necessarily be taken separate, if there is any
true logic in the world; but of the expediency or inexpediency I will
say nothing. It will be time enough to speak upon that subject when it
comes to be a question.
I shall also speak to the distinctions which have been taken, without
any real difference, as to the nature of the tax; and I shall point
out, lastly, the necessity there will be of exerting the force of the
superior authority of government, if opposed by the subordinate part of
it.
I am extremely sorry that the question has ever become necessary to
be agitated, and that there should be a decision upon it. No one in
this House will live long enough to see an end put to the mischief
which will be the result of the doctrine which has been inculcated;
but the arrow is shot and the wound already given. I shall certainly
avoid personal reflections. No one has had more cast upon him than
myself; but I never was biased by any consideration of applause from
without, in the discharge of my public duty; and, in giving my
sentiments according to what I thought law, I have relied upon my own
consciousness. It is with great pleasure I have heard the noble Lord
who moved the resolution express himself in so manly and sensible a
way, when he recommended a dispassionate debate, while, at the same
time, he urged the necessity of the House coming to such a resolution,
with great dignity and propriety of argument.
I shall endeavor to clear away from the question, all that mass of
dissertation and learning displayed in arguments which have been
fetched from speculative men who have written upon the subject of
government, or from ancient records, as being little to the purpose.
I shall insist that these records are no proofs of our present
Constitution. A noble Lord has taken up his argument from the
settlement of the Constitution at the revolution; I shall take up my
argument from the Constitution as it now is. The Constitution of this
country has been always in a moving state, either gaining or losing
something and with respect to the modes of taxation, when we get beyond
the reign of Edward the First, or of King John, we are all in doubt
and obscurity. The history of those times is full of uncertainties.
In regard to the writs upon record, they were issued some of them
according to law, and some not according to law; and such [_i. e._, of
the latter kind] were those concerning ship-money, to call assemblies
to tax themselves, or to compel benevolences. Other taxes were raised
from escuage, fees for knights’ service, and by other means arising
out of the feudal system. Benevolences are contrary to law; and it is
well known how people resisted the demands of the Crown in the case of
ship-money, and were persecuted by the Court; and if any set of men
were to meet now to lend the King money, it would be contrary to law,
and a breach of the rights of Parliament.
I shall now answer the noble Lord particularly upon the cases he has
quoted. With respect to the Marches of Wales, who were the borderers,
privileged for assisting the King in his war against the Welsh in the
mountains, their enjoying this privilege of taxing themselves was but
of a short duration, and during the life of Edward the First, till the
Prince of Wales came to be the King; and then they were annexed to
the Crown, and became subject to taxes like the rest of the dominions
of England; and from thence came the custom, though unnecessary, of
naming Wales and the town of Monmouth in all proclamations and in acts
of Parliament. Henry the Eighth was the first who issued writs for it
to return two members to Parliament. The Crown exercised this right _ad
libitum_, from whence arises the inequality of representation in our
Constitution at this day. Henry VIII. issued a writ to Calais to send
one burgess to Parliament. One of the counties palatine [I think he
said Durham] was taxed fifty years to subsidies, before it sent members
to Parliament. The clergy were at no time unrepresented in Parliament.
When they taxed themselves, it was done with the concurrence and
consent of Parliament, who permitted them to tax themselves upon their
petition, the Convocation sitting at the same time with the Parliament.
They had, too, their representatives always sitting in this House,
bishops and abbots; and, in the other House, they were at no time
without a right of voting singly for the election of members; so that
the argument fetched from the case of the clergy is not an argument of
any force, because they were at no time unrepresented here.
The reasoning about the colonies of Great Britain, drawn from the
colonies of antiquity, is a mere useless display of learning; for the
colonies of the Tyrians in Africa, and of the Greeks in Asia, were
totally different from our system. No nation before ourselves formed
any regular system of colonization, but the Romans; and their system
was a military one, and of garrisons placed in the principal towns of
the conquered provinces. The States of Holland were not colonies of
Spain; they were States dependent upon the house of Austria in a feudal
dependence. Nothing could be more different from our colonies than that
flock of men, as they have been called, who came from the North and
poured into Europe. Those emigrants renounced all laws, all protection,
all connection with their mother countries. They chose their leaders,
and marched under their banners to seek their fortunes and establish
new kingdoms upon the ruins of the Roman empire.
But our colonies, on the contrary, emigrated under the sanction of the
Crown and Parliament. They were modelled gradually into their present
forms, respectively, by charters, grants, and statutes; but they were
never separated from the mother country, or so emancipated as to
become _sui juris_. There are several sorts of colonies in British
America. The charter colonies, the proprietary governments, and the
King’s colonies. The first colonies were the charter colonies, such as
the Virginia Company; and these companies had among their directors
members of the privy council and of both houses of Parliament; they
were under the authority of the privy council, and had agents resident
here, responsible for their proceedings. So much were they considered
as belonging to the Crown, and not to the King personally (for there
is a great difference, though few people attend to it), that when the
two Houses, in the time of Charles the First, were going to pass a bill
concerning the colonies, a message was sent to them by the King that
they were the King’s colonies, and that the bill was unnecessary, for
that the privy council would take order about them; and the bill never
had the royal assent. The Commonwealth Parliament, as soon as it was
settled, were very early jealous of the colonies separating themselves
from them; and passed a resolution or act (and it is a question whether
it is not in force now) to declare and establish the authority of
England over its colonies.
But if there was no express law, or reason founded upon any necessary
inference from an express law, yet the usage alone would be sufficient
to support that authority; for, have not the colonies submitted
ever since their first establishment to the jurisdiction of the
mother country? In all questions of property, the appeals from the
colonies have been to the privy council here; and such causes have
been determined, not by the law of the colonies, but by the law of
England. A very little while ago, there was an appeal on a question of
limitation in a devise of land with remainders; and, notwithstanding
the intention of the testator appeared very clear, yet the case was
determined contrary to it, and that the land should pass according
to the law of England. The colonies have been obliged to recur very
frequently to the jurisdiction here, to settle the disputes among their
own governments. I well remember several references on this head, when
the late Lord Hardwicke was attorney general, and Sir Clement Wearg
solicitor general. New Hampshire and Connecticut were in blood about
their differences; Virginia and Maryland were in arms against each
other. This shows the necessity of one superior decisive jurisdiction,
to which all subordinate jurisdictions may recur. Nothing, my Lords,
could be more fatal to the peace of the colonies at any time, than
the Parliament giving up its authority over them; for in such a case,
there must be an entire dissolution of government. Considering how the
colonies are composed, it is easy to foresee there would be no end of
feuds and factions among the several separate governments, when once
there shall be no one government here or there of sufficient force or
authority to decide their mutual differences; and, government being
dissolved, nothing remains but that the colonies must either change
their Constitution, and take some new form of government, or fall under
some foreign power. At present the several forms of their Constitution
are very various, having been produced, as all governments have been
originally, by accident and circumstances. The forms of government in
every colony were adopted, from time to time, according to the size of
the colony; and so have been extended again, from time to time, as the
numbers of their inhabitants and their commercial connections outgrew
the first model. In some colonies, at first there was only a governor
assisted by two or three counsel; then more were added; afterward
courts of justice were erected; then assemblies were created. Some
things were done by instructions from the secretaries of state; other
things were done by order of the King and council; and other things by
commissions under the great seal. It is observable, that in consequence
of these establishments from time to time, and of the dependency of
these governments upon the supreme Legislature at home, the lenity of
each government in the colonies has been extreme toward the subject;
and a great inducement has been created for people to come and settle
in them. But, if all those governments which are now independent of
each other, should become independent of the mother country, I am
afraid that the inhabitants of the colonies are very little aware of
the consequences. They would feel in that case very soon the hand of
power more heavy upon them in their own governments, than they have yet
done, or have ever imagined.
The Constitutions of the different colonies are thus made up of
different principles. They must remain dependent, from the necessity
of things, and their relations to the jurisdiction of the mother
country; or they must be totally dismembered from it, and form a league
of union among themselves against it, which could not be effected
without great violences. No one ever thought the contrary till the
trumpet of sedition was blown. Acts of Parliament have been made, not
only without a doubt of their legality, but with universal applause,
the great object of which has been ultimately to fix the trade of the
colonies, so as to centre in the bosom of that country from whence
they took their original. The Navigation Act shut up their intercourse
with foreign countries.[35] Their ports have been made subject to
customs and regulations which have cramped and diminished their trade.
And duties have been laid, affecting the very inmost parts of their
commerce, and, among others, that of the post; yet all these have
been submitted to peaceably, and no one ever thought till now of this
doctrine, that the colonies are not to be taxed, regulated, or bound by
Parliament. A few particular merchants were then, as now, displeased at
restrictions which did not permit them to make the greatest possible
advantages of their commerce in their own private and peculiar
branches. But, though these few merchants might think themselves losers
in articles which they had no right to gain, as being prejudicial to
the general and national system, yet I must observe that the colonies,
upon the whole, were benefited by these laws. For these restrictive
laws, founded upon principles of the most solid policy, flung a great
weight of naval force into the hands of the mother country, which
was to protect its colonies. Without a union with her, the colonies
must have been entirely weak and defenceless, but they thus became
relatively great, subordinately, and in proportion as the mother
country advanced in superiority over the rest of the maritime powers
in Europe, to which both mutually contributed, and of which both have
reaped a benefit, equal to the natural and just relation in which they
both stand reciprocally, of dependency on one side, and protection on
the other.
There can be no doubt, my Lords, but that the inhabitants of the
colonies are as much represented in Parliament, as the greatest part
of the people of England are represented; among nine millions of whom
there are eight which have no votes in electing members of Parliament.
Every objection, therefore, to the dependency of the colonies upon
Parliament, which arises to it upon the ground of representation, goes
to the whole present Constitution of Great Britain; and I suppose it is
not meant to new-model _that_ too. People may form speculative ideas
of perfection, and indulge their own fancies or those of other men.
Every man in this country has his particular notion of liberty; but
perfection never did, and never can exist in any human institution. To
what purpose, then, are arguments drawn from a distinction, in which
there is no real difference—of a virtual and actual representation?
A member of Parliament, chosen for any borough, represents not only
the constituents and inhabitants of that particular place, but he
represents the inhabitants of every other borough in Great Britain. He
represents the city of London, and all the other commons of this land,
and the inhabitants of all the colonies and dominions of Great Britain;
and is, in duty and conscience, bound to take care of their interests.
I have mentioned the customs and the post tax. This leads me to answer
another distinction, as false as the above; the distinction of internal
and external taxes. The noble Lord who quoted so much law, and denied
upon those grounds the right of the Parliament of Great Britain to
lay internal taxes upon the colonies, allowed at the same time that
restrictions upon trade, and duties upon the ports, were legal. But I
cannot see a real difference in this distinction; for I hold it to be
true, that a tax laid in any place is like a pebble falling into and
making a circle in a lake, till one circle produces and gives motion to
another, and the whole circumference is agitated from the centre. For
nothing can be more clear than that a tax of ten or twenty per cent.
laid upon tobacco, either in the ports of Virginia or London, is a duty
laid upon the inland plantations of Virginia, a hundred miles from the
sea, wheresoever the tobacco grows.
I do not deny but that a tax may be laid injudiciously and injuriously,
and that people in such a case may have a right to complain. But the
nature of the tax is not now the question; whenever it comes to be one,
I am for lenity. I would have no blood drawn. There is, I am satisfied,
no occasion for any to be drawn. A little time and experience of the
inconveniences and miseries of anarchy, may bring people to their
senses.
With respect to what has been said or written upon this subject, I
differ from the noble Lord, who spoke of Mr. Otis and his book with
contempt, though he maintained the same doctrine in some points,
while in others he carried it farther than Otis himself, who allows
everywhere the supremacy of the Crown over the colonies.[36] No man,
on such a subject, is contemptible. Otis is a man of consequence among
the people there. They have chosen him for one of their deputies at
the Congress and general meeting from the respective governments. It
was said, the man is mad. What then? One madman often makes many.
Masaniello was mad. Nobody doubts it; yet, for all that, he overturned
the government of Naples. Madness is catching in all popular assemblies
and upon all popular matters. The book is full of wildness. I never
read it till a few days ago, for I seldom look into such things. I
never was actually acquainted with the contents of the Stamp Act, till
I sent for it on purpose to read it before the debate was expected.
With respect to authorities in _another House_, I know nothing of them.
I believe that I have not been in that House more than once since I had
the honor to be called up to this; and, if I did know any thing that
passed in the other House, I could not, and would not, mention it as
an authority here. I ought not to mention any such authority. I should
think it beneath my own and your Lordship’s dignity to speak of it.
I am far from bearing any ill will to the Americans; they are a very
good people, and I have long known them. I began life with them, and
owe much to them, having been much concerned in the plantation causes
before the privy council; and so I became a good deal acquainted with
American affairs and people. I dare say, their heat will soon be over,
when they come to feel a little the consequences of their opposition
to the Legislature. Anarchy always cures itself; but the ferment will
continue so much the longer, while hot-headed men there find that there
are persons of weight and character to support and justify them here.
Indeed, if the disturbances should continue for a great length of
time, force must be the consequence, an application adequate to the
mischief, and arising out of the necessity of the case; for force is
only the difference between a superior and subordinate jurisdiction. In
the former, the whole force of the Legislature resides collectively,
and when it ceases to reside, the whole connection is dissolved. It
will, indeed, be to very little purpose that we sit here enacting
laws, and making resolutions, if the inferior will not obey them, or
if we neither can nor dare enforce them; for then, and then, I say, of
necessity, the matter comes to the sword. If the offspring are grown
too big and too resolute to obey the parent, you must try which is the
strongest, and exert all the powers of the mother country to decide the
contest.
I am satisfied, notwithstanding, that time and a wise and steady
conduct may prevent those extremities which would be fatal to both.
I remember well when it was the violent humor of the times to decry
standing armies and garrisons as dangerous, and incompatible with the
liberty of the subject. Nothing would do but a regular militia. The
militia are embodied; they march; and no sooner was the militia law
thus put into execution, but it was then said to be an intolerable
burden upon the subject, and that it would fall, sooner or later,
into the hands of the Crown. That was the language, and many counties
petitioned against it. This may be the case with the colonies. In many
places they begin already to feel the effects of their resistence
to government. Interest very soon divides mercantile people; and,
although there may be some mad, enthusiastic, or ill-designing people
in the colonies, yet I am convinced that the greatest bulk, who have
understanding and property, are still well affected to the mother
country. You have, my Lords, many friends still in the colonies; and
take care that you do not, by abdicating your own authority, desert
them and yourselves, and lose them forever.
In all popular tumults, the worst men bear the sway at first. Moderate
and good men are often silent for fear or modesty, who, in good time,
may declare themselves. Those who have any property to lose are
sufficiently alarmed already at the progress of these public violences
and violations, to which every man’s dwelling, person, and property
are hourly exposed. Numbers of such valuable men and good subjects are
ready and willing to declare themselves for the support of government
in due time, if government does not fling away its own authority.
My Lords, the Parliament of Great Britain has its rights over the
colonies; but it may abdicate its rights.
There was a thing which I forgot to mention. I mean, the manuscript
quoted by the noble Lord. He tells you that it is there said, that
if the act concerning Ireland had passed, the Parliament might have
abdicated its rights as to Ireland. In the first place, I heartily
wish, my Lords, that Ireland had not been named, at a time when that
country is of a temper and in a situation so difficult to be governed;
and when we have already here so much weight upon our hands, encumbered
with the extensiveness, variety, and importance of so many objects
in a vast and too busy empire, and the national system shattered and
exhausted by a long, bloody, and expensive war, but more so by our
divisions at home, and a fluctuation of counsels. I wish Ireland,
therefore, had never been named.
I pay as much respect as any man to the memory of Lord Chief Justice
Hale; but I did not know that he had ever written upon the subject;
and I differ very much from thinking with the noble Lord, that this
manuscript ought to be published. So far am I from it, that I wish the
manuscript had never been named; for Ireland is too tender a subject to
be touched. The case of Ireland is as different as possible from that
of our colonies. Ireland was a conquered country; it had its _pacta
conventa_ and its _regalia_. But to what purpose is it to mention the
manuscript? It is but the opinion of one man. When it was written, or
for what particular object it was written, does not appear. It might
possibly be only a work of youth, or an exercise of the understanding,
in sounding and trying a question problematically. All people, when
they first enter professions, make their collections pretty early in
life; and the manuscript may be of that sort. However, be it what it
may, the opinion is but problematical; for the act to which the writer
refers never passed, and Lord Hale only said, that if it had passed,
the Parliament might have abdicated their right.
But, my Lords, I shall make this application of it. You may abdicate
your right over the colonies. Take care, my Lords, how you do so, for
such an act will be irrevocable. Proceed, then, my Lords, with spirit
and firmness; and, when you shall have established your authority,
it will then be a time to show your lenity. The Americans, as I said
before, are a very good people, and I wish them exceedingly well;
but they are heated and inflamed. The noble Lord who spoke before
ended with a prayer. I cannot end better than by saying to it Amen;
and in the words of Maurice, Prince of Orange, concerning the
Hollanders: “_God bless this industrious, frugal, and well-meaning, but
easily-deluded people._”
The Stamp Act was repealed, and the Declaratory Act, thus advocated
by Lord Mansfield, was also passed by a large majority.
The positions taken by Lord Mansfield were answered in a variety of
ways by the colonists. What may be called the American Case, was
carefully stated in a “Declaration of Rights and Grievances,” passed
by the New York Congress, October 19, 1765. The substance of the
American claims may be summarized in the following propositions:
1. They owed their existence not to Parliament, but to the Crown.
The King, in the exercise of the high sovereignty then conceded to
him, had made them by charter _complete civil communities_, with
legislatures of their own having power to lay taxes and do all
other acts which were necessary to their subsistence as distinct
governments. Hence,
2. They stood substantially on the same footing as Scotland previous
to the Union. Like her they were subject to the Navigation Act, and
similar regulations touching the _external_ relations of the empire;
and like her the ordinary legislation of England did not reach them,
nor did the common law any farther than they chose to adopt it. Hence,
3. They held themselves amenable in their internal concerns, not to
Parliament, but to the Crown alone. It was to the _King_ in council
or to _his_ courts that they made those occasional references and
appeals, which Lord Mansfield endeavors to draw into precedents. So
“the post tax” spoken of above, did not originate in Parliament,
but in a charter to an individual which afterward reverted to the
Crown, and it was in this way alone that the post-office in America
became connected with that of England. Even the American Declaration
of Independence does not once refer to the British Parliament. The
colonists held that they owed allegiance to the King only, and hence
it was the King’s conduct alone that was regarded as a just reason
for their renouncing their allegiance. One of their grievances was,
that he confederated with others in “_pretended acts of legislation_.”
The Colonists supported their argument by an appeal to
“long-continued usage.” Burke acknowledged the force of this
position, though he drew from it the conclusion merely that, “to
introduce a change now, is both inexpedient and unwise.” The
Colonists, on the contrary, held: “You have no right to lay the
taxes.” The attitude of the colonies is best studied in the volume of
“Prior Documents to Almon’s Remembrancer,” where all the important
papers and the resolutions of the several colonies are given. See,
also, Pilkin’s “Political History,” Marshall’s “American Colonies,”
and vol. i. of Story, “On the Constitution.” There is an excellent
summary of the debate in the English Parliament, probably written by
Burke, in the _Annual Register_, vol. ix., pp. 35–48; and a still
fuller one embracing the examination of Franklin, in Hansard’s
“Parliamentary History,” vol. xvi., pp. 90–200.