from slavery, must they not a little suspect the offer of freedom from
that very nation which has sold them to their present masters?--from
that nation, one of whose causes of quarrel [Footnote: 37] with those
masters is their refusal to deal any more in that inhuman traffic? An
offer of freedom from England would come rather oddly, shipped to
them in an African vessel which is refused an entry into the ports of
Virginia or Carolina with a cargo of three hundred Angola negroes.
It would be curious to see the Guinea captain attempting at the same
instant to publish his proclamation of liberty, and to advertise his
sale of slaves.
But let us suppose all these moral difficulties got over. The ocean
remains. You cannot pump this dry; and as long as it continues in its
present bed, so long all the causes which weaken authority by distance
will continue.
"Ye gods, annihilate but space and time,
And make two lovers happy!"
was a pious and passionate prayer; but just as reasonable as many of the
serious wishes of grave and solemn politicians.
If then, Sir, it seems almost desperate to think of any alterative
course for changing the moral causes, and not quite easy to remove the
natural, which produce prejudices irreconcilable to the late exercise
of our authority--but that the spirit infallibly will continue, and,
continuing, will produce such effects as now embarrass us--the second
mode under consideration is to prosecute that spirit in its overt acts
as criminal.
At this proposition I must pause a moment. The thing seems a great
deal too big for my ideas of jurisprudence. It should seem to my way of
conceiving such matters that there is a very wide difference, in reason
and policy, between the mode of proceeding on the irregular conduct of
scattered individuals, or even of bands of men who disturb order within
the state, and the civil dissensions which may, from time to time, on
great questions, agitate the several communities which compose a great
empire. It looks to me to be narrow and pedantic to apply the ordinary
ideas of criminal justice to this great public contest. I do not know
the method of drawing up an indictment against a whole people. I cannot
insult and ridicule the feelings of millions of my fellow-creatures as
Sir Edward Coke insulted one excellent individual (Sir Walter Raleigh)
at the bar. I hope I am not ripe to pass sentence on the gravest public
bodies, intrusted with magistracies of great authority and dignity, and
charged with the safety of their fellow-citizens, upon the very
same title that I am. I really think that, for wise men, this is not
judicious; for sober men, not decent; for minds tinctured with humanity,
not mild and merciful.
Perhaps, Sir, I am mistaken in my idea of an empire, as distinguished
from a single state or kingdom. But my idea of it is this; that an
empire is the aggregate of many states under one common head, whether
this head be a monarch or a presiding republic. It does, in such
constitutions, frequently happen--and nothing but the dismal, cold, dead
uniformity of servitude can prevent its happening--that the subordinate
parts have many local privileges and immunities. Between these
privileges and the supreme common authority the line may be extremely
nice. Of course disputes, often, too, very bitter disputes, and much ill
blood, will arise. But though every privilege is an exemption, in the
case, from the ordinary exercise of the supreme authority, it is no
denial of it. The claim of a privilege seems rather, ex vi termini,
[Footnote: 38] to imply a superior power; for to talk of the privileges
of a state or of a person who has no superior is hardly any better than
speaking nonsense. Now, in such unfortunate quarrels among the component
parts of a great political union of communities, I can scarcely conceive
anything more completely imprudent than for the head of the empire to
insist that, if any privilege is pleaded against his will or his acts,
his whole authority is denied; instantly to proclaim rebellion, to beat
to arms, and to put the offending provinces under the ban. Will not
this, Sir, very soon teach the provinces to make no distinctions on
their part? Will it not teach them that the government, against which a
claim of liberty is tantamount to high treason, is a government to
which submission is equivalent to slavery? It may not always be quite
convenient to impress dependent communities with such an idea.
We are, indeed, in all disputes with the Colonies, by the necessity of
things, the judge. It is true, Sir. But I confess that the character of
judge in my own cause is a thing that frightens me. Instead of filling
me with pride, I am exceedingly humbled by it. I cannot proceed with a
stern, assured, judicial confidence, until I find myself in something
more like a judicial character. I must have these hesitations as long
as I am compelled to recollect that, in my little reading upon such
contests as these, the sense of mankind has at least as often decided
against the superior as the subordinate power. Sir, let me add, too,
that the opinion of my having some abstract right [Footnote: 39] in my
favor would not put me much at my ease in passing sentence, unless I
could be sure that there were no rights which, in their exercise under
certain circumstances, were not the most odious of all wrongs and the
most vexatious of all injustice. Sir, these considerations have great
weight with me when I find things so circumstanced, that I see the
same party at once a civil litigant against me in point of right and a
culprit before me, while I sit as a criminal judge on acts of his whose
moral quality is to be decided upon the merits of that very litigation.
Men are every now and then put, by the complexity of human affairs, into
strange situations; but justice is the same, let the judge be in what
situation he will.
There is, Sir, also a circumstance which convinces me that this mode
of 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, [Footnote: 40] 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. [Footnote: 41]
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 start--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."
[Footnote: 42]
I do not intend to be overwhelmed in that bog, though in such
respectable company. The question [Footnote: 43] 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 an 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 [Footnote: 44] 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. [Footnote: 45] 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 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 in
the blue ribbon shall tell you that the restraints on trade are futile
and useless--of no advantage to us, and of no burthen 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 counterguard 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 speculation
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, [Footnote: 46] 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 antiquaries; 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 a 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 liberties had
exactly the same boundaries. Your standard could never be advanced an
inch before your privileges. Sir John Davis 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;
[Footnote: 47] 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 burthen 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 [Footnote: 48]--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 terms, 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.