The Rights of the British Colonies
Asserted and proved.
By James Otis, Esq
Haec omnis regio et celsi plaga pinea montis
Cedat amiciliae Teucrorum: et foederis aequas
Dicamus leges, sociósque in regna vocemus.
Considant, si tantus amor, et moenia condant.
VIRG.
BOSTON: Printed and Sold by EDES and GILL, in Queen-Street.
M,DCC,LXIV.
July 30, 1764
Introduction. Of the Origin of Government.
THE origin of government has in all ages no less perplexed the heads of lawyers and politicians, than the origin of evil has embarrassed divines and philosophers: And 'tis probable the world may receive a satisfactory solution on both those points of enquiry at the same time.
The various opinions on the origin of government have been reduced to four. 1. That dominion is founded in Grace. 2. On force or meer power. 3. On compact. 4. On property.
The first of these opinions is so absurd, and the world has paid so very dear for embracing it, especially under the administration of the roman pontiffs, that mankind seem at this day to be in a great measure cured of their madness in this particular; and the notion is pretty generally exploded, and hiss'd off the stage.
To those who lay the foundation of government in force and meer brutal power, it is objected; that, their system destroys all distinction between right and wrong; that it overturns all morality, and leaves it to every man to do what is right in his own eyes; that it leads directly to scepticism, and ends in atheism. When a man's will and pleasure is his only rule and guide, what safety can there be either for him or against him, but in the point of a sword?
On the other hand the gentlemen in favor of the original compact have been often told that their system is chimerical and unsupported by reason or experience. Questions like the following have been frequently asked them, and may be again.
"When and where was the original compact for introducing government into any society, or for creating a society, made? Who were present and parties to such compact? Who acted for infants and women, or who appointed guardians for them? Had these guardians power to bind both infants and women during life, and their posterity after them? Is it in nature or reason that a guardian should by his own act perpetuate his power over his ward, and bind him, and his posterity in chains? Is not every man born as free by nature as his father? Has he not the same natural right to think and act and contract for himself? Is it possible for a man to have a natural right to make a slave of himself or of his posterity? Can a father supersede the laws of nature? What man is or ever was born free, if every man is not? What will there be to distinguish the next generation of men from their forefathers, that they should not have the same right to make original compacts as their ancestors had? If every man has such right, may there not be as many original compacts as there are men and women born or to be born? Are not women born as free as men? Would it not be infamous to assert that the ladies are all slaves by nature? If every man and woman born or to be born has, and will have, a right to be consulted, and must accede to the original compact before they can with any kind of justice be said to be bound by it, will not the compact be ever forming and never finished, ever making, but never done? Can it with propriety be called a compact original or derivative, that is ever in treaty but never concluded?"
When it has been said that each man is bound as soon as he accedes, and that the consent may be either express or tacit, it has been asked,
"What is a tacit consent or compact? Does it not appear plain that those who refuse their assent can not be bound? If one is at liberty to accede or not, is he not also at liberty to recede on the discovery of some intolerable fraud and abuse that has been palm'd upon him by the rest of the high contracting parties? Will not natural equity in several special cases rescind the original compacts of great men as effectualy as those of little men are rendered null and void in the ordinary course of a court of chancery?"
There are other questions which have been started, and a resolution of them demanded, which may perhaps be deemed indecent by those who hold the prerogatives of an earthly monarch, and even the power of a plantation government, so sacred as to think it little less than blasphemy to enquire into their origin and foundation: while the government of the supreme ruler of the universe is every day discussed with less ceremony and decency than the administration of a petty German prince. I hope the reader will consider that I am at present only mentioning such questions as have been put by high-flyers & others in church and state, who would exclude all compact between a Sovereign and his people, without offering my own sentiments upon them; this however I presume I may be allowed hereafter to do without offence. Those who want a full answer to them may consult Mr. Locke's discourses on government, M. De Vattel's law of nature and nations, and their own consciences.
"What state were Great-Britain, Ireland and the Plantations left in by the abdication of James II? Was it a state of nature or of civil government? If a state of civil government, where were the supreme legislative and executive powers from the abdication to the election of William and Mary? Could the Lords and Commons be called a complete parliament or supreme power without a King to head them? Did any law of the land or any original compact previous to the abdication provide, that on such an event, the supreme power should devolve on the two houses? Were not both houses so manifestly with the novelty and strangeness of the event, and so far from finding any act of parliament, book-case, or precedent to help them, that they disputed in solemn conferrence by what name to call the action, and at last give it one, as new in our language and in that of parliament as the thing itself was in fact?"
If on this memorable and very happy event the three kingdoms and the dominions fell back into a state of nature, it will be asked,
"Whether every man and woman were not then equal? If so, has not every one of them a natural and equitable right to be consulted in the choice of a new king, or in the formation of a new original compact or government, if any new form had been made? Might not the nation at that time have rightfully changed the monarchy into a republic or any form, that might seem best? Could any change from a state of nature take place without universal consent, or at least without the consent of the majority of the individuals? Upon the principles of the original compact as commonly explained and understood, could a few hundred men who before the dissolution of the government had been called, and in fact were, lords, knights and gentlemen, have lawfully made that glorious deliverer and defender W. 3. rightful king"?
Such an one he certainly was, and such have been all his illustrious successors to the present happy times; when we have the joy to see the sceptre sway'd in justice, wisdom and mercy, by our lawful Sovereign George the Third; a prince who glories in being a Briton born, and whom may God long preserve and prosper.
"If upon the abdication all were reduced to a state of nature, had not apple women and orange girls as good a right to give their respectable suffrages for a new king as the philosopher, courtier, petit maitre and politician? Were these and ten millions of others such ever more consulted on that occasion, than the multitude now are in the adjustment of that real modern farce, an election of a king of the Romans; which serves as a contrast to the grandeur of the antient republics, and shows the littleness of the modern German and some other gothic constitutions in their present degenerate state? "
"In the election of W. 3. were the votes of Ireland and the plantations ever called for or once tho't of till the affair was settled? Did the lords and commons who happened to be then in and about Westminster represent, and act, for the individuals, not only of the three kingdoms, but for all the freeborn and as yet unconquered possessors and proprietors of their own money-purchased, blood-purchased plantations, which, till lately, have been defended with little or no assistance from Great-Britain? Were not those who did not vote in or for the new model at liberty upon the principles of the compact to remain in what some call the delectable state of nature, to which by the hypothesis they were reduced, or to join themselves to any other state, whose solemn league and covenant they could subscribe? Is it not a first principle of the original compact, that all who are bound should bind themselves? Will not common sense without much learning or study dictate obvious answers to all the above questions?—and, say the opposers of the original compact and of the natural equality and liberty of mankind, will not those answers infallibly show that the doctrine is a piece of metaphysical jargon and systematical nonsense"? Perhaps not.
With regard to the fourth opinion, that dominion is founded in property, what is it but playing with words? Dominion in one sense of the term is synonimous with property, so one cannot be called the foundation of the other, but as one name may appear to be the foundation or cause of another.
Property cannot be the foundation of dominion as synonimous with government; for on the supposition that property has a precarious existence antecedent to government, and tho' it is also admitted that the security of property is one end of government, but that of little estimation even in the view of a miser when life and liberty of locomotion and further accumulation are placed in competition, it must be a very absurd way of speaking to assert that one end of government is the foundation of government. If the ends of government are to be considered as its foundation, it cannot with truth or propriety be said that government is founded on any one of those ends; and therefore government is not founded on property or its security alone, but at least on something else in conjunction. It is however true in fact and experience, as the great, the incomparable Harrington has most abundantly demonstrated in his Oceana, and other divine writings, that Empire follows the balance of property: 'Tis also certain that property in fact generally confers power, tho' the possessor of it may not have much more wit than a mole or a musquash: And this is too often the cause, that riches are sought after, without the least concern about the right application of them. But is the fault in the riches, or the general law of nature, or the unworthy possessor? It will never follow from all this, that government is rightfully founded on property, alone. What shall we say then? Is not government founded on grace? No. Nor on force? No. Nor on compact? Nor property? Not altogether on either. Has it any solid foundation? any chief corner stone, but what accident, chance or confusion may lay one moment and destroy the next? I think it has an everlasting foundation in the unchangeable will of GOD, the author of nature, whose laws never vary. The same omniscient, omnipotent, infinitely good and gracious Creator of the universe, who has been pleased to make it necessary that what we call matter should gravitate, for the celestial bodies to roll round their axes, dance their orbits and perform their various revolutions in that beautiful order and concert, which we all admire, has made it equally necessary that from Adam and Eve to these degenerate, days, the different sexes should sweetly attract each other, form societies of single families, of which larger bodies and communities are as naturally, mechanically, and necessarily combined, as the dew of Heaven and the soft distilling rain is collected by the all enliv'ning heat of the sun. Government is therefore most evidently founded on the necessities of our nature. It is by no means an arbitrary thing, depending merely on compact or human will for its existence.
We come into the world forlorn and helpless; and if left alone and to ourselves at any one period of our lives, we should soon die in want despair or destraction. So kind is that hand, tho' little known or regarded, which feeds the rich and the poor, the blind and the naked; and provides for the safety of infants by the principle of parental love, and for that of men by Government! We have a King, who neither slumbers nor sleeps, but eternally watches for our good; whose rain falls on the just and on the unjust: yet while they live, move, and have their being in him, and cannot account for either, or for any thing else, so stupid and wicked are some men, as to deny his existence, blaspheme his most evident government, and disgrace their nature.
Let no Man think I am about to commence advocate for despotism, because I affirm that government is founded on the necessity of our natures; and that an original supreme Sovereign, absolute, and uncontroulable, earthly power must exist in and preside over every society; from whose final decisions there can be no appeal but directly to Heaven. It is therefore originally and ultimately in the people. I say this supreme absolute power is originally and ultimately in the people; and they never did in fact freely, nor can they rightfully make an absolute, unlimited renunciation of this divine right. It is ever in the nature of the thing given in trust, and on a condition, the performance of which no mortal can dispence with; namely, that the person or persons on whom the sovereignty is confer'd by the people, shall incessantly consult their good. Tyranny of all kinds is to be abhor'd, whether it be in the hands of one, or of the few, or of the many.—And tho' "in the last age a generation of men sprung up that would flatter Princes with an opinion that they have a divine right to absolute power"; yet "slavery is so vile and miserable an estate of man, and so directly opposite to the generous temper and courage of our nation, that 'tis hard to be conceived that an englishman, much less a gentleman, should plead for it: Especially at a time when the finest writers of the most polite nations on the continent of Europe, are enraptured with the beauties of the civil constitution of Great-Britain; and envy her, no less for the freedom of her sons, than for her immense wealth and military glory.
But let the origin of government be placed where it may, the end of it is manifestly the good of the whole. Salus populi suprema lex esto, is of the law of nature, and part of that grand charter given the human race, (tho' too many of them are afraid to assert it,) by the only monarch in the universe, who has a clear and indisputable right to absolute power; because he is the only ONE who is omniscient as well as omnipotent.
It is evidently contrary to the first principles of reason, that supreme unlimited power should be in the hands of one man. It is the greatest "idolatry, begotten by flattery, on the body of pride," that could induce one to think that a single mortal should be able to hold so great a power, if ever so well inclined. Hence the origin of deifying princes: It was from the trick of gulling the vulgar into a belief that their tyrants were omniscient; and that it was therefore right, that they should be considered as omnipotent. Hence the Dii majorum et minorum gentium; the great, the monarchical, the little, Provincial subordinate and subaltern gods, demi-gods, and semidemi-gods, ancient and modern. Thus deities of all kinds were multiplied and increased in abundance; for every devil incarnate, who could enslave a people, acquired a title to divinity; and thus the "rabble of the skies" was made up of locusts and catterpillars; lions, tygers and harpies; and other devourers translated from plaguing the earth!
The end of government being the good of mankind, points out its great duties: It is above all things to provide for the security, the quiet, and happy enjoyment of life, liberty, and property. There is no one act which a government can have a right to make, that does not tend to the advancement of the security, tranquility and prosperity of the people. If life, liberty and property could be enjoyed in as great perfection in solitude, as in society, there would be no need of government. But the experience of ages has proved that such is the nature of man, a weak, imperfect being; that the valuable ends of life cannot be obtained, without the union and assistance of many. Hence 'tis clear that men cannot live apart or independent of each other: In solitude men would perish; and yet they cannot live together without contests. These contests require some arbitrator to determine them. The necessity of a common, indifferent and impartial judge, makes all men seek one; tho' few find him in the sovereign power, of their respective states or any where else in subordination to it.
Government is founded immediately on the necessities of human nature, and ultimately on the will of God, the author of nature; who has not left it to men in general to choose, whether they will be members of society or not, but at the hazard of their senses if not of their lives. Yet it is left to every man as he comes of age to chuse what society he will continue to belong to. Nay if one has a mind to turn Hermit, and after he has been born, nursed, and brought up in the arms of society, and acquired the habits and passions of social life, is willing to run the risque of starving alone, which is generally most unavoidable in a state of hermitage, who shall hinder him? I know of no human law, founded on the law of nature, to restrain him from separating himself from all the species, if he can find it in his heart to leave them; unless it should be said, it is against the great law of self-preservation: But of this every man will think himself his own judge.
The few Hermits and Misanthropes that have ever existed, show that those states are unnatural. If we were to take out from them, those who have made great worldly gain of their godly hermitage, and those who have been under the madness of enthusiam, or disappointed hopes in their ambitious projects, for the detriment of mankind: perhaps there might not be left ten from Adam to this day.
The form of government is by nature and by right so far left to the individuals of each society, that they may alter it from a simple democracy, or government of all over all, to any other form they please. Such alteration may and ought to be made by express compact: But how seldom this right has been asserted, history will abundantly show. For once that it has been fairly settled by compact; fraud, force or accident have determined it an hundred times. As the people have gained upon tyrants, these have been obliged to relax, only till a fairer opportunity has put it in their power to encroach again.
But if every prince since Nimrod had been a tyrant, it would not prove a right to tyranize. There can be no prescription old enough to supersede the law of nature, and the grant of GOD almighty; who has given to all men a natural right to be free, and they have it ordinarily in their power to make themselves so, if they please.
Government having been proved to be necessary by the law of nature, it makes no difference in the thing to call it from a certain period, civil. This term can only relate to form, to additions to, or deviations from, the substance of government: This being founded in nature, the superstructures and the whole administration should be conformed to the law of universal reason. A supreme legislative and a supreme executive power, must be placed somewhere in every common-wealth: Where there is no other positive provision or compact to the contrary, those powers remain in the whole body of the people. It is also evident there can be but one best way of depositing those powers; but what that way is, mankind have been disputing in peace and in war more than five thousand years. If we could suppose the individuals of a community met to deliberate, whether it were best to keep those powers in their own hands, or dispose of them in trust, the following questions would occur—Whether those two great powers of Legislation and Execution should remain united? If so, whether in the hands of the many, or jointly or severally in the hands of a few, or jointly in some one individual? If both those powers are retained in the hands of the many, where nature seems to have placed them originally, the government is a simple democracy, or a government of all over all. This can be administred, only by establishing it as a first principle, that the votes of the majority shall be taken as the voice of the whole. If those powers are lodged in the hands of a few, the government is an Aristocracy or Oligarchy. Here too the first principles of a practicable administration is that the majority rules the whole. If those great powers are both lodged in the hands of one man, the government is a simple Monarchy, commonly, though falsly called absolute, if by that term is meant a right to do as one pleases.—Sic volo, sic jubeo, stet pro ratione voluntas, belongs not of right to any mortal man.
The same law of nature and of reason is equally obligatory on a democracy, an aristrocracy, and a monarchy: Whenever the administrators, in any of those forms, deviate from truth, justice and equity, they verge towards tyranny, and are to be opposed; and if they prove incorrigible, they will be deposed by the people, if the people are not rendered too abject. Deposing the administrators of a simple democracy may found oddly, but it is done every day, and in almost every vote. A. B. & C. for example, make a democracy. To day A & B are for so vile a measure as a standing army. To morrow B & C vote it out. This is as really deposing the former administrators, as setting up and making a new king is deposing the old one. Democracy in the one case, and monarchy in the other, still remain; all that is done is to change the administration.
The first principle and great end of government being to provide for the best good of all the people, this can be done only by a supreme legislative and executive ultimately in the people, or whole community, where GOD has placed it; but the inconveniencies, not to say impossibility, attending the consultations and operations of a large body of people, have made it necessary to transfer the power of the whole to a few: This necessity gave rise to deputation, proxy or a right of representation.
A Power of legislation, without a power of execution in the same or other hands, would be futile and vain: On the other hand, a power of execution, supreme or subordinate, without an independent legislature, would be perfect despotism.
The difficulties attending an universal congress, especially when society became large, have bro't men to consent to a delegation of the power of all: The weak and the wicked have too often been found in the same interest, and in most nations have not only bro't these powers jointly, into the hands of one, or some few, of their number; but made them hereditary, in the families of despotic nobles & princes.
The wiser and more virtuous states, have always provided that the representation of the people should be numerous. Nothing but life and liberty are naturally hereditable: this has never been considered by those, who have tamely given up both into the hands of a tyrannical Oligarchy or despotic Monarchy.
The analogy between the natural, or material, as it is called, and the moral world is very obvious; GOD himself appears to us at some times to cause the intervention or combination of a number of simple principles, tho' never when one will answer the end; gravitation and attraction have place in the revolution of the planets, because the one would fix them to a centre, and the other would carry them off indefinitely; so in the moral world, the first simple principle is equality and the power of the whole. This will answer in small numbers; so will a tolerably virtuous Oligarchy or a Monarchy. But when the society grows in bulk, none of them will answer well singly, and none worse than absolute monarchy. It becomes necessary therefore as numbers increase, to have those several powers properly combined; so as from the whole to produce that harmony of government so often talked of and wished for, but too seldom found in ancient or modern states. The grand political problem in all ages has been to invent the best combination or distribution of the supreme powers of legislation and execution. Those states have ever made the greatest figure, and have been most durable, in which those powers have not only been separated from each other, but placed each in more hands than one, or a few. The Romans are the most shining example; but they never had a balance between the senate and the people, and the want of this, is generally agreed by the few who know any thing of the matter, to have been the cause of their fall. The British constitution in theory and in the present administration of it, in general comes nearest the idea of perfection, of any that has been reduced to practice; and if the principles of it are adhered to, it will according to the infallible prediction of Harrington, always keep the Britons uppermost in Europe, 'till their only rival nation shall either embrace that perfect model of a common wealth given us by that author, or come as near it as Great Britain is. Then indeed and not till then, will that rival & our nation either be eternal confederates, or contend in greater earnest than they have ever yet done, till one of them shall sink under the power of the other, and rise no more.
Great Britain has at present, most evidently the advantage, and such opportunities of honest wealth and grandeur, as perhaps no state ever had before, at least not unce the days of Julius Caesar, the destroyer of the roman glory and grandeur; at a time when but for him and his adherents both might have been rendered immortal.
We have said that the form and mode of government is to be settled by compact, as it was rightfully done by the convention after the abdication of James II, and assented to by the first representative of the nation chosen afterwards, and by every parliament, and by almost every man ever since, but the bigots, to the indefeasible power of tyrants civil and ecclesiastic. There was neither time for, nor occasion to call the whole people together: If they had not liked the proceedings it was in their power to controul them; as it would be should the supreme legislative or executive powers ever again attempt to enslave them. The people will bear a great deal, before they will even murmur against their rulers: But when once they are thoroughly roused, and in earnest, against those who would be glad to enslave them, their power is irrestible.
At the abdication of King James, every step was taken that natural justice and equity could require; and all was done that was possible, at least in the wretched state in which he left the nation. Those very noble and worthy patriots, the lords spiritual and temporal of that day, and the principal persons of the commons, advised the prince, who in consequence thereof caused letters to be "written to the lords spiritual and temporal, being protestants, and other letters to the several counties, cities, universities, boroughs and cinque ports, for the choosing such persons to represent them as were of right to be sent to parliament, to meet at Westminster upon the 22d of January 1688, in order to such an establishment, as that their religion, laws and liberties might not again be in danger of being subversed." See W & M. sess, 1. C. 1.
Upon this elections were made, and thereupon the said lords spiritual and temporal and commons met, and proceeded to assert their rights and liberties, and to the election of the Prince and Princess of Orange to be King and Queen of England, France and Ireland, and the dominions thereto belonging. The kingdom of Scotland agreed in the same choice: These proceedings were drawn into the form of acts of parliament, and are the basis of the acts of union and succession since made, and which all together are the sure foundation of that indisputable right which his present Majesty has to the Crown of Great-Britain and the dominions thereto belonging; which right 'tis the greatest folly to doubt of, as well as the blackest treason to deny. The present establishment founded on the law of GOD, and of nature, was began by the convention, with a professed and real view, in all parts of the British empire, to put the liberties of the people out of the reach of arbitrary power in all times to come.
But the grandeur, as well as justice, equity and goodness of the proceedings of the nation on that memorable occasion, never have been nor can be so well represented as in the words of those great men who composed the convention; for which reason partly, but principally because they shew the rights of all British subjects, both at home and abroad, and should therefore be in as many hands as possible, I have transcribed the following clauses.
1 Wm. & M. Sess. 1. Chap. I preamble & sec 1—entituled—
"An act for removing and preventing all questions and disputes concerning the assembling and sitting of this present parliament.
For preventing all doubts and scruples which may in any wise arise concerning the meeting, sitting and proceeding of this present parliament; be it declared and enacted by the King's and Queen's most excellent Majesty's, by and with the advice and consent of the lords spiritual and temporal, and commons, now assembled, and by authority of the same:
IIdly. That the lords spiritual and temporal, and commons, convened at Westminster, the two and twentieth day of January A.D. 1688, and there sitting the 13th of February following, are the two houses of parliament, and so shall be and are hereby declared, enacted and adjudged to be, to all intents, constructions, and purposes whatsoever, notwithstanding any want of writ or writs of summons, or any other defect of form or default whatsoever, as if they had been summoned according to the usual form.
1 of W. & M. Sess. 2. Chap. 2. Sec. 3, 4, 5, 6, 11, 12.
An act declaring the rights and liberties of the subject, and settling the succession of the Crown.
Whereas the lords spiritual and temporal, and commons, assembled at Westminster, lawfully, fully and freely representing all the estates of the people of this realm, did upon the 13th of February A.D. 1688, present unto their Majesties, then called and known by the names and stile of William and Mary, Prince and Princess of Orange, being present in their proper persons, a certain declaration in writing, made by the said lords and commons in the words following; viz.
Whereas the late King James the second, by the assistance of divers evil counsellors, judges, and ministers employed by him, did endeavour to subvert and extirpate the protestant religion, and the laws and liberties of this kingdom.
1. By assuming and exercising a power of dispensing with and suspending of laws, and the execution of laws, without consent of parliament.
2. By committing and prosecuting divers worthy prelates, for humbly petitioning to be excused from concuring to the said assumed power.
3. By issuing and causing to be executed a commission under the great seal for erecting a court called, The court of commissioners for ecclesiastical causes.
4. By levying money for and to the use of the crown, by pretence of prerogative, for other time, and in other manner, than the same was granted by parliament.
5. By raising and keeping a standing army within this kingdom in time of peace, without consent of parliament, and quartering soldiers contrary to law.
6. By causing several good subjects, being protestants, to be disarmed, at the same time when papists were both armed and employed, contrary to law.
7. By violating the freedom of election of members to serve in parliament.
8. By prosecutions in the court of king's bench, for matters and causes cognizable only in parliament; and by divers other arbitrary and illegal courses.
9. And whereas of late years, partial, corrupt and unqualified persons, have been returned and served on juries in trials, and particularly divers jurors in trials for high treason, which were not freeholders.
10. And excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects.
11. And excessive fines have been imposed; and illegal and cruel punishments inflicted.
12. And several grants and promises made of fines and forfeitures, before any conviction or judgment against the persons, upon whom the same were to be levied.
All which are utterly and directly contrary to the known laws and statutes, and freedom of this realm—
And whereas the said late King James the second having abdicated the Government, and the throne being thereby vacant, his highness the prince of Orange (whom it hath pleased Almighty GOD to make the glorious instrument of delivering this kingdom from popery and arbitrary power) did (by the advice of the Lords spiritual and temporal, and divers principal persons of the commons) cause letters to be written to the lords spiritual and temporal, being protestants, and other letters to the several counties, cities, universities, boroughs, and cinque-ports, for the choosing of such persons to represent them, as were of right to be sent to parliament, to meet and sit at Westminster upon the two and twentieth of January in this year 1688, in order to such an establishment, as that their religion, laws and liberties might not again be in danger of being subverted. Upon which letters, elections having been accordingly made:
And thereupon the said lords spiritual and temporal and commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid; do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties, declare,
1. That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.
2. That the pretended power of dispensing with laws, or the execution of laws, by regal authority, as it hath been assumed and exercised of late, is illegal.
3. That the commission for creating the late court of commissioners for ecclesiastical causes, and all other commissions and courts of like nature, are illegal and pernicious.
4. That levying money for or to the use of the crown, by pretence of prerogative, without grant of parliament, for longer time, or in other manner, than the same is or shall be granted, is illegal.
5. That it is the right of the subjects to petition the King; and all commitments and prosecutions for such petitioning are illegal.
6. That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law.
7. That the subjects which are protestants, may have arms for their defence, suitable to their conditions, and as allowed by law.
8. That election of members of parliament ought to be free.
9. That the freedom of speech, and debates, or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament.
10. That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.
11. That jurors ought to be duly impannelled and returned; and jurors which pass upon mens trials for high treason, ought to be freeholders.
12. That all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void.
13. And that for redress of all grievances, and for the amending, strengthening, and preserving of the laws, parliaments ought to be held frequently.
And they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties; and that no, declarations, judgments, doings, or proceedings, to the prejudice of the people in any of the said premises, ought in any wise to be drawn hereafter into consequence or example:
To which demand of their rights they are particularly encouraged by the declaration of his Highness the Prince of Orange, as being the only means for obtaining a full redress and remedy therein—
Having therefore an entire confidence, that his said Highness the Prince of Orange, will perfect the deliverance so far advanced by him, and will still preserve them from the violation of their rights, which they have here asserted, and from all other attempts upon their religion, rights and liberties.
II. The said Lords spiritual and temporal, and commons assembled at Westminster, do resolve that William & Mary Prince and Princess of Orange be, and be declared, King and Queen of England, France and Ireland, and the dominions thereunto belonging, to hold the crown and royal dignity of the said kingdoms and dominions to them the said Prince and Princess, during their lives, and the life of the survivor of them; and that the sole and full exercise of the regal power be only in, and executed by the said Prince of Orange, in the names of the said prince and princess, during their joint lives; and after their deceases, the said crown and royal dignity of the said kingdoms and dominions to be to the heirs of the body of the said princess; and for default of such issue, to the princess Anne of Denmark, and the heirs of her body; and for default of such issue, to the heirs of the body of the said prince of Orange. And the Lords spiritual and temporal, and commons, do pray the said prince and princess to accept the same accordingly.
IV. Upon which their said Majesties did accept the crown and royal dignity of the kingdom of England, France and Ireland, and the dominions thereunto belonging, according to the resolutions and desire of the said lords and commons, contained in the said declaration.
V. And thereupon their Majesties were pleased, that the said Lords spiritual and temporal, and commons, being the two houses of parliament, should continue to sit, and with their Majesties royal concurrence, make effectual provision for the settlement of the religion, laws and liberties of this kingdom; so that the same for the future might not be in danger again of being subverted; to which the said lords spiritual and temporal, and commons, did agree and proceed to act accordingly.
VI. Now in pursuance of the premises, the said lords spiritual and temporal and commons, in parliament assembled, for the ratifying, confirming and establishing the said declaration, and the articles, clauses, matters and things therein contained, by the force of a law made in due form by authority of parliament, do pray that it may be declared and enacted. That all and singular the rights and liberties asserted and claimed in the said declaration, are the true, ancient and indubitable rights and liberties of the people of this kingdom, and so shall be esteemed, allowed, adjudged, deemed, and taken to be; and that all and every the particulars aforesaid, shall be firmly and strictly holden and observed, as they are expressed in the said declaration; and all officers and ministers whatsoever shall serve their Majesties and their successors according to the same in all times to come.
XI. All which their Majesties are contented and pleased shall be declared, enacted, and established by authority of this present parliament, and shall stand remain and be the law of this realm for ever; and the same are by their said Majesties, by and with the advice and consent of the Lords spiritual and temporal, and commons, in parliament assembled, and by the authority of the same, declared, enacted, and established accordingly.
XII. And be it further declared and enacted by the authority aforesaid, that from and after this present session of parliament, no dispensation by non obstant of or to any statute or any part thereof, shall be allowed; but that the same shall be held void and of no effect, except a dispensation be allowed in such statutes, and except in such cases as shall be specially provided for by one or more bill or bills to be passed during this present session of parliament.
12 & 13 of William 3d, Chap. 2. sec. 3 & 4.
"Whereas it is necessary that further provision be made for securing our religion, laws and liberties, after the death of his Majesty and the Princess Anne of Denmark, and in default of issue of the body of the said Princess, and of his Majesty respectively; it is enacted,
That after the said limitation shall take effect, judges commissions be made quamdiu se bene gefferint, and their salaries ascertained and established; but upon the address of both houses parliament, it may be lawful to remove them;
That no pardon under the great seal of England be pleaded to an impeachment by the commons in parliament.
Whereas the laws of England are the birth-right of the people thereof, and all the Kings and Queens, who shall ascend the throne of this realm, ought to administer the government of the same according to the said laws, and all their officers and ministers ought to serve them according to the same; all the laws and statutes of this realm for securing the established religion, and the rights and liberties of the people, and all other laws and statutes now in force, are by his Majesty with the advice and consent of the lords spiritual and temporal, and commons, ratified and confirmed."
I shall close this introduction with a passage from Mr. Locke.
"Tho', says he, "in a constituted common wealth, standing upon its own basis, and acting according to its own nature, that is, acting for the preservation of the community, there can be but one supreme power which is the legislative, to which all the rest are and must be subordinate; yet the legislative being only a fiduciary power, to act for certain ends, there remains still, "in the people, a supreme power to remove, or alter, the legislative when they find the legislative act contrary to the trust reposed in them." For all power given, with trust for the attaining an end, being limited by that end, whenever that end is manifestly neglected, or opposed, the trust must necessarily be forfeited, and the power devolve into the hands of those who gave it, who may place it anew where they shall think best, for their safety and security. And thus the community perpetually retains a supreme power of saving themselves from the attempts and designs of any body, even of their legislators whenever they shall be so foolish, or so wicked, as to lay and carry on designs, against the liberties and properties of the subject. For no man or society of men having a power to deliver up their preservation or consequently the means of it to the absolute will and arbitrary dominion of another; whenever any one shall go about to bring them into such a slavish condition, they will always have a right to preserve what they have not a power to part with; and to rid themselves of those who invade this fundamental, sacred and unalterable law of self preservation, for which they entered into society.
And thus the community may be said in this respect to be always the supreme power, but not as considered under any form of government, because this power of the people can never take place, till the government be dissolved." Locke on Government, B. 11. C. 13.
This he says may be done, "from without by conquest; from within, 1st. When the legislative is altered. Which is often by the prince, but sometimes by the whole legislative. As by invading the property of the subject, and making themselves arbitrary disposers of the lives, liberties and fortunes of the people; reducing them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any further obedience, and are left to the common refuge which GOD hath provided for all men, against force and violence. Whensoever therefore, the legislative shall transgress this fundamental rule of society; and either by ambition, fear, folly or corruption, endeavour to gain themselves, or put into the hands of any other an absolute power over the lives, liberties and estates of the people, by this breach of trust, they forfeit the power the people had put into their hands for quite contrary ends, and it devolves to the people, who have a right to resume their original liberty, and by the establishment of a new legislative (such as they shall think fit) provide for their own safety and security, which is the end for which they are in society." Idem Chap.9.
Of Colonies in general.
THIS subject has never been very clearly and fully handled by any modern writer, that I have had the good fortune to meet with; and to do it justice, would require much greater abilities than I pretend to, and more leisure than I ever expect will fall to my share. Even the English writers and lawyers, have either intirely wav'd any consideration of the nature of Colonies, or very lightly touched upon it, for the people of England never discovered much concern for the prosperity of the Colonies, 'till the revolution; and even now some of their great men and writers, by their discourses of, and conduct towards them, consider them all rather as a parcel of little insignificant conquered islands, than as a very extensive settlement on the continent. Even their law-books and very dictionaries of law, in editions so late as 1750, speak of the British plantations abroad as consisting chiefly of islands; and they are reckoned up in some of them in this order—Jamaica, Barbados, Virginia, Maryland, New-England, New-York, Carolina, Bermudas. At the head of all these Islands (for there is no distinction made) stands Jamaica, in truth a conquered island; and as such, this and all the other little West-India islands deserve to be treated, for the conduct of their inhabitants and proprietors with regard to the Northern Colonies: Divers of these colonies are larger than all those islands together; and are well settled, not as the common people of England foolishly imagine, with a compound mongrel mixture of English, Indian and Negro, but with freeborn British white subjects, whose loyalty has never yet been suspected.
There is a man now living, or but lately dead, who once was a secretary of state; during whose wonderful conduct of national affairs, without knowing whether Jamaica lay in the Mediterranean, the Baltic, or in the Moon, letters were often received, directed to the Governor of the island of New-England. Which island of New-England is a part of the continent of North-America, comprehending two provinces and two colonies; and according to the undoubted bounds of their charters, containing more land than there is in the three kingdoms. But I must confine myself to matters of more importance than detecting the geographical blunders, or refuting the errors of dead, superannuated or any otherwise stupified secretaries of state, who are now all out of place.
If I were to define the modern Colonists, I should say, they are the noble discoverers and settlers of a new world; from whence as from an endless source, wealth, and plenty, the means of power, grandeur and glory, in a degree unknown to the hungry chiefs of former ages, have been pouring into Europe for 300 years past; In return for which those Colonists have received from the several states of Europe, except from Great-Britain, only since the revolution, nothing but ill-usage, slavery and chains, as fast as the riches of their own earning, could furnish the means of forging them.
A plantation or colony, is a settlement of subjects in a territory disjoined or remove from the mother country, and may be made by private adventurers or the public; but in both cases the Colonists are entitled to as ample rights, liberties and priviledges as the subjects of the mother country are, and in some respects to more.
Of the natural Rights of Colonists.
THOSE who expect to find any thing very satisfactory on this subject in particular, or with regard to the law of nature in general, in the writings of such authors as Grotius and Pufendorf, will find themselves much mistaken. It is their constant practice to establish the matter of right on the matter of fact: This the celebrated Rousseau expresly says of Grotius, and with the same reason be might have added an hundred others. "The learned researches into the laws of nature and nations are often nothing more than the history of ancient abuses, so that it is a ridiculous infatuation to be too fond of studying them." "This was exactly the case with Grotius" The sentiments on this subject have therefore been chiefly drawn from the purer fountains of one or two of our English writers, particularly from Mr. Locke, to whom might be added a few of other nations; for I have seen but a few of any country, and of all I have seen, there are not ten worth reading. Grotius B. 3. C. 1. sec. 21. discoursing of confederates on unequal terms according to his manner says, "to the inequality in question may be referred some of those rights which are now called right of protection, right of patronage, and a right termed mundiburgium; as also that which mother cities had over their colonies among the Grecians. For as Thucydides says, those colonies enjoyed the same rights of liberty with the other cities, but they owed a reverence to the city whence they derived their origin, and were obliged to render her respect and certain expressions of honor, so long as the colony was well treated"
Grotius de jure belli, &c. B. 1. C. 3. 21.
"Hitherto also (says he) may be referred that separation which is made when people by one consent, go to form colonies. For this is the original of a new and independent state. They are not content to be slaves, but to enjoy equal priviledges and freedom says Thucydides. And King Tullius in Dion, Hali, says, we look upon it to be neither truth nor justice, that mother cities ought of necessity and by the law of nature to rule over their colonies."
B. 2. C. 9. sec. 10.
"Colonies, says Pufendorf, are settled in different methods. For either the colony continues a part of the common-wealth it was sent out from, or else is obliged to pay a dutiful respect to the mother common-wealth, and to be in readiness to defend and vindicate its honor, and so is united to it by a sort of unequal confederacy, or lastly is erected into a separate commonwealth, and assumes the same rights with the state it is descended from."
Pufend. B. 8. C. 11.6.
"Different common wealths may be formed out of one by common consent, by sending out colonies in the manner usual in old Greece. For the Romans afterwards when they sent a colony abroad, continued it under the jurisdiction of the mother commonwealth, or greater country. But the colonies planted by the Greeks, and after their method, constituted particular commonwealths, which were obliged only to pay a kind of deference and dutiful submission to the mother commonwealth."
Pufend, B. 8. C. 12. sec. 5.
From which passages tis manifest that these two great men only state facts, and the opinions of others, without giving their own upon the subject: And all that can be collected from those facts or opinions, is, that Greece was more generous, and a better mother to her colonies than Rome. The conduct of Rome towards her colonies and the corruptions and oppressions tolerated in her provincial officers of all denominations, was one great cause of the downfall of that proud republic.
Dr. Strahan says, "there is a great affinity between the British colonies and those of the Spaniards and other nations, who have made settlements among the Indians in those parts: For the grants made by our Kings of tracts of lands in that country, for the planting of colonies, and making settlements therein, appear to have been made in imitation of grants made by the Kings of Spain to the proprietors of lands in the Spanish colonies, upon the very same conditions, and in consideration of the same services to be performed by the grantees. So that the government of the Spanish colonies and the rights of the proprietors of lands therein, depending, chiefly on the rules of civil and feudal law, as may be seen by the learned treatise of Solorzanus. de indi jure, the knowledge of the said laws must be of service likewise for determining any controversy that may arise touching the duties or forfeitures of the proprietors of lands in our English colonies.
Pref. to translat. of Domat.
With submission to so great an authority as Dr. Strahan, tis humbly hoped that the British colonists do not hold their lands as well as liberties by so slippery a tenure as do the Spaniards and French. The will of the Prince is the only tenure by which they hold; and the government of the Spanish and French settlements is in every respect despotic.
'Tis well known that the first American grants were by the Bulls of the Popes. The Roman Pontiffs had for ages usurped the most abominable power over princes: They granted away the kingdoms of the earth with as little ceremony as a man would lease a sheep-cot. Now according to Dr. Strahans's logic, it may be inferred, that the canon law, and the Popes Bulls, must be of Service likewise, for determining any controversy that may arise, touching the duties or forfeitures of the proprietors of lands in the British colonies. And indeed it must be owned, if we were to judge of some late proceedings by this rule, we must allow that they savor more of modern Rome and the Inquisition, than of the common law of England and the constitution of Great-Britain.
In order to form an idea of the natural rights of the Colonists, I presume it will be granted that they are men, the common children of the same Creator with their brethren of Great-Britain. Nature has placed all such in a state of equality and perfect freedom, to act within the bounds of the laws of nature and reason, without consulting the will or regarding the humor, the passions or whims of any other man, unless they are formed into a society or body politic. This it must be confessed is rather an abstract way of considering men than agreeable to the real and general course of nature. The truth is, as has been shown, men come into the world and into society at the same instant. But this hinders not but that the natural and original rights of each individual may be illustrated and explained in this way better than in any other. We see here by the way a probability, that this abstract consideration of men, which has its use in reasoning on the principles of government, has insensibly led some of the greatest men to imagine, some real general state of nature, agreeable to this abstract conception, antecedent to and independent of society. This is certainly not the case in general, for most men become members of society from their birth, tho' seperate independent states are really in the condition of perfect freedom and equality with regard to each other; and so are any number of individuals who separate themselves from a society of which they have formerly been members, for ill treatment, or other good cause, with express design to found another. If in such case, there is a real interval, between the separation and the new conjunction, during such interval, the individuals are as much detached, and under the law of nature only, as would be two men who should chance to meet on a desolate island.
The Colonists are by the law of nature free born, as indeed all men are, white or black. No better reasons can be given, for enslaving those of any color than such as baron Montesquieu has humorously given; as the foundation of that cruel slavery exercised over the poor Ethiopians; which threatens one day to reduce both Europe and America to the ignorance and barbarity of the darkest ages. Does it follow that tis right to enslave a man because he is black? Will short curl'd hair like wool, instead of christian hair, as tis called by those, whose hearts, are as hard as the nether millstone, help the argument? Can any logical inference in favour of slavery, be drawn from a flat nose, a long or a short face. Nothing better can be said in favor of a trade, that is the most shocking violation of the law of nature, has a direct tendency to diminish the idea of the inestimable value of liberty, and makes every dealer in it a tyrant, from the director of an African company to the petty chapman in needles and pins on the unhappy coast. It is a clear truth, that those who every day barter away other mens liberty, will soon care little for their own. To this cause must be imputed that ferosity▪ cruelty and brutal barbarity that has long marked the general character of the sugar-islanders. They can in general form no idea of government but that which in person, or by an overseer, the joint and several proper representative of a Creole and of the D—I, is exercised over ten thousands of their fellow men, born with the same right to freedom, and the sweet enjoyments of liberty and life, as their unrelenting task-masters, the overseers and planters.
Is it to be wondered at, if, when people of the stamp of a Creolian planter get into power, they will not stick for a little present gain, at making their own posterity, white as well as black, worse slaves if possible than those already mentioned.
There is nothing more evident says Mr. Locke, than "that creatures of the same species and rank promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one among another, without subordination and subjection, unless the master of them all should by any manifest declaration of his will set one above another, and confer on him by an evident and clear appointment, an undoubted right to dominion and sovereignty." "The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but only to have the law of nature for his rule". This is the liberty of independant states; this is the liberty of every man out of society, and who has a mind to live so; which liberty is only abridged in certain instances, not lost to those who are born in or voluntarily enter into society; this gift of God cannot be annihilated.
The Colonists being men, have a right to be considered as equally entitled to all the rights of nature with the Europeans, and they are not to be restrained, in the exercise of any of these rights, but for the evident good of the whole community.
By being or becoming members of society, they have not renounced their natural liberty in any greater degree than other good citizens, and if tis taken from them without their consent, they are so far enslaved.
They have an undoubted right to expect, that their best good will ever be consulted by their rulers, supreme and subordinate, without any partial views confined to the particular interest of one island or another. Neither the riches of Jamaica, nor the luxury of a metropolis, should ever have weight enough to break the balance of truth and justice. Truth and faith belong to men as men, from men, and if they are disappointed in their just expectations of them in one society, they will at least with for them in another. If the love of truth and justice, the only spring of sound policy in any state, is not strong enough to prevent certain causes from taking place, the arts of fraud and force will not prevent the most fatal effects.
In the long run, those who fall on arbitrary measures, will meet with their deserved fate. The law of nature, was not of man's making, nor is it in his power to mend it, or alter its course. He can only perform and keep, or disobey and break it. The last is never done with impunity, even in this life, if it is any punishment for a man to feel himself depraved; to find himself degraded by his own folly and wickedness from the rank of a virtuous and good man, to that of a brute; or to be transformed from the friend, perhaps father of his country, to a devouring Lion or Tyger.
The unhappy revolutions which for ages have distressed the human race, have been all owing to the want of a little wisdom, common sense and integrity, in the administration of those, whom by their stations, God had in kindness to the world, rendered able to do a great deal, for the benefit of mankind, with the exertion of a small portion of private and public vertue.
Of the Political and Civil Rights of the British Colonists.
HERE indeed opens to view a large field; but I must study brevity—Few people have extended their enquiries after the foundation of any of their rights, beyond a charter from the crown. There are others who think when they have got back to old Magna Charta, that they are at the beginning of all things. They imagine themselves on the borders of Chaos (and so indeed in some respects they are) and see creation rising out of the unformed mass, or from nothing. Hence, say they, spring all the rights of men and of citizens.—But liberty was better understood, and more fully enjoyed by our ancestors, before the coming in of the first Norman Tyrants than ever after, 'till it was found necessary, for the salvation of the kingdom, to combat the arbitrary and wicked proceedings of the Stuarts.
The present happy and most righteous establishment is justly built on the ruins, which those Princes bro't on their Family; and two of them on their own heads—The last of the name sacrificed three of the finest kingdoms in Europe, rope, to the councils of bigotted old women, priests, and more weak and wicked ministers of state: He afterward went a grazing in the fields of St. Germains, and there died in disgrace and poverty, a terrible example of God's vengeance on arbitrary princes!
The deliverance under God wrought by the prince of Orange, afterwards deservedly made King Wm. 3d. was as joyful an event to the colonies as to Great-Britain: In some of them, steps were taken in his favour as soon as in England.
They all immediately acknowledged King William and Queen Mary as their lawful Sovereign. And such has been the zeal and loyalty of the colonies ever since for that establishment, and for the protestant succession in his present Majesty's illustrious family, that I believe there is not one man in an hundred (except in Canada) who does not think himself under the best national civil constitution in the world.
Their loyalty has been abundantly proved, especially in the late war. Their affection and reverence for their mother country is unqestionable. They yield the most chearful and ready obedience to her laws, particularly to the power of that august body the parliament of Great-Britain, the supreme legislative of the kingdom and its dominions. These I declare are my own sentiments of duty and loyalty. I also hold it clear that the act of Queen Anne, which makes it high treason to deny "that the King with and by the authority of parliament, is able to make laws and statutes of sufficient force and validity to limit and bind the crown, and the descent, limitation, inheritance and government thereof" is founded on the principles of liberty and the British constitution: And he that would palm the doctrine of unlimited passive obedience and non-resistance upon mankind, and thereby or by any other means serve the cause of the Pretender, is not only a fool and a knave, but a rebel against common sense, as well as the laws of God, of Nature, and his Country.
I also lay it down as one of the first principles from whence I intend to deduce the civil rights of the British colonies, that all of them are subject to, and dependent on Great-Britain; and that therefore as over subordinate governments, the parliament of Great-Britain has an undoubted power and lawful authority to make acts for the general good, that by naming them, shall and ought to be equally binding, as upon the subjects of Great-Britain within the realm. This principle, I presume will be readily granted on the other side the atlantic. It has been practiced upon for twenty years to my knowledge, in the province of the Massachusetts-Bay; and I have ever received it, that it has been so from the beginning, in this and the sister provinces, thro' the continent.
I am aware, some will think it is time for me to retreat, after having expressed the power of the British parliament in quite so strong terms. But 'tis from and under this very power and its acts, and from the common law, that the political and civil rights of the Colonists are derived: And upon those grand pillars of liberty shall my defence be rested. At present therefore, the reader may suppose, that there is not one provincial charter on the continent; he may, if he pleases, imagine all taken away, without fault, without forfeiture, without tryal or notice. All this really happened to some of them in the last century. I would have the reader carry his imagination still further, and suppose a time may come, when instead of a process at common law, the parliament shall give a decisive blow to every charter in America, and declare them all void. Nay it shall also be granted, that 'tis barely possible, the time may come, when the real interest of the whole may require an act of parliament to annihilate all those charters. What could follow from all this, that would shake one of the essential, natural, civil or religious rights of the Colonists? Nothing. They would be men, citizens and british subjects after all. No act of parliament can deprive them of the liberties of such, unless any will contend that an act of parliament can make slaves not only of one, but of two millions of the commonwealth. And if so, why not of the whole? I freely own, that I can find nothing in the laws of my country, that would justify the parliament in making one slave, nor did they ever professedly undertake to make one.
Two or three innocent colony charters have been threatned with destruction an hundred and forty years past. I wish the present enemies of those harmless charters would reflect a moment, and be convinced that an act of parliament that should demolish those bugbears to the foes of liberty, would not reduce the Colonists to a state of absolute slavery. The worst enemies of the charter governments are by no means to be found in England. 'Tis a piece of justice due to Great-Britain to own, they are and have ever been natives of or residents in the colonies. A set of men in America, without honour or love to their country, have been long grasping at powers, which they think unattainable while these charters stand in the way. Put they will meet with insurmountable obstacles to their project for enslaving the British colonies, should those, arising from provincial charters be removed. It would indeed seem very hard and severe, for those of the colonists, who have charters, with peculiar priviledges, to loose them. They were given to their ancestors, in consideration of their sufferings and merit, in discovering and settling America. Our fore-fathers were soon worn away in the of hard labour on their little plantations, and in war with the Savages. They thought they were earning a sure inheritance for their posterity. Could they imagine it would ever be tho't just to deprive them or theirs of their charter priviledges! Should this ever be the case, there are, thank God, natural, inherent and inseperable rights as men, and as citizens, that would remain after the so much wished for catastrophe, and which, whatever became of charters, can never be abolished de jure, if de facto, till the general conflagation. Our rights as men and free born British subjects, give all the Colonists enough to make them very happy in comparison with the subjects of any other prince in the world. Every British subject born on the continent of America, or in any other of the British dominions, is by the law of God, and nature, by the common law, and by act of parliament, (exclusive of all charters from the Crown) entitled to all the natural, essential, inherent and inseparable rights of our fellow subjects in Great-Britain. Among those rights are the following, which it is humbly conceived no man or body of men, not excepting the parliament, justly, equitably and consistently with their own rights and the constitution, can take away.
1st. That the supreme and subordinate powers of legislation should be free and sacred in the hands where the community have once rightfully placed them.
2dly. The supreme national legislative cannot be altered justly 'till the commonwealth is dissolved, nor a subordinate legislative taken away without forfeiture or other good cause. Nor then can the subjects in the subordinate government be reduced to a state of slavery, and subject to the despotic rule of others. A state has no right to make slaves of the conquered. Even when the subordinate right of legislature is forfeited, and so declared, this cannot affect the natural persons either of those who were invested with it, or the inhabitants, so far as to deprive them of the rights of subjects and of men—The colonists will have an equitable right notwithstanding any such forfeiture of charter, to be represented in Parliament, or to have some new subordinate legislature among themselves. It would be best if they had both. Deprived however of their common rights as subjects, they cannot lawfully be, while they remain such. A representation in Parliament from the several Colonies, since they are become so large and numerous, as to be called on not to maintain provincial government, civil and military among themselves, for this they have chearfully done, but to contribute towards the support of a national standing army, by reason of the heavy national debt, when they themselves owe a large one, contracted in the common cause, can't be tho't an unreasonable thing, nor if asked, could it be called an immodest request. Qui sentit commodum sentire debet et onus, has been tho't a maxim of equity. But that a man should bear a burthen for other people, as well as himself, without a return, never long found a place in any law-book or decrees, but those of the most despotic princes. Besides the equity of an American representation in parliament, a thousand advantages would result from it. It would be the most effectual means of giving those of both countries a thorough knowledge of each others interests; as well as that of the whole, which are inseparable.
Were this representation allowed; instead of the scandalous memorials and depositions that have been sometimes, in days of old, privately cooked up in an inquisitorial manner, by persons of bad minds and wicked views, and sent from America to the several boards, persons of the first reputation among their countrymen, might be on the spot, from the several colonies, truly to represent them. Future ministers need not, like some of their predecessors, have recourse for information in American affairs, to every vagabond stroller, that has run or rid post thro' America, from his creditors, or to people of no kind of reputation from the colonies; some of whom, at the time of administring their sage advice, have been as ignorant of the state of this country, as of the regions in Jupiter and Saturn.
No representation of the Colonies in parliament alone, would however be equivalent to a subordinate legislative among themselves; nor so well answer the ends of increasing their prosperity and the commerce of Great-Britain. It would be impossible for the parliament to judge so well, of their abilities to bear taxes, impositions on trade, and other duties and burthens, or of the local laws that might be really needful, as a legislative here.
3dly. No legislative, supreme or subordinate, has a right to make itself arbitrary.
It would be a most manifest contradiction, for a free legislative, like that of Great-Britain, to make itself arbitrary.
4thly. The supreme legislative cannot justly assume a power of ruling by extempore arbitrary decrees, but is bound to dispense justice by known settled, rules, and by duly authorized independant judges.
5thly. The supreme power cannot take from any man any part of his property, without his consent in person, or by representation.
6thly. The legislature cannot transfer the power of making laws to any other hands.
These are their bounds, which by God and nature are fixed, hitherto have they a right to come, and no further.
1. To govern by stated laws.
2. Those laws should have no other end ultimately, but the good of the people.
3. Taxes are not to be laid on the people, but by their consent in person, or by deputation.
4. Their whole power is not transferable.
These are the first principles of law and justice, and the great barriers of a free state, and of the British constitution in particular. I ask, I want to more—Now let it be shows how 'tis reconcileable with these principles, or to many other fundamental maxims of the British constitution, as well as the natural and civil rights, which by the laws of their country, all British subjects are intitled to, as their best inheritance and birth-right, that all the northern colonies, who are without one representative in the house of Commons, should be taxed by the British parliament.
That the colonists, black and white, born here, are free born British subjects, and entitled to all the essential civil rights of such, is a truth not only manifest from the provincial charters, from the principles of the common law, and acts of parliament; but from the British constitution, which was re-established at the revolution, with a professed design to secure the liberties of all the subjects to all generations.
In the 12 and 13 of Wm. cited above, the liberties of the subject are spoken of as their best birth-rights—No one ever dreamt, surely, that these liberties were confined to the realm. At that rate, no British subjects in the dominions could, without a manifest contradiction, be declared entitled to all the privileges of subjects born within the realm, to all intents and purposes, which are rightly given foreigners, by parliament, after residing seven years. These expressions of parliament, as well as of the charters, must be vain and empty sounds, unless we are allowed the essential rights of our fellow-subjects in Great-Britain.
Now can there be any liberty, where property is taken away without consent? Can it with any colour of truth, justice or equity, be affirmed, that the northern colonies are represented in parliament? Has this whole continent of near three thousand miles in length, and in which and his other American dominions, his Majesty has, or very soon will have, some millions of as good, loyal and useful subjects, white and black, as any in the three kingdoms, the election of one member of the house of commons?
Is there the least difference, as to the consent of the Colonists, whether taxes and impositions are laid on their trade, and other property, by the crown alone, or by the parliament. As it is agreed on all hands, the Crown alone cannot impose them, we should be justifiable in refusing to pay them, but must and ought to yield obedience to an act of parliament, tho' erroneous, 'till repealed.
I can see no reason to doubt, but that the imposition, of taxes, whether on trade, or on land, or houses, or ships, on real or personal, fixed or floating property, in the colonies, is absolutely irreconcileable with the rights of the Colonists, as British subjects, and as men. I say men, for in a state of nature, no man can take my property from me, without my consent: If he does, he deprives me of my liberty, and makes me a slave. If such a proceeding is a breach of the law of nature, no law of society can make it just—The very act of taxing, exercised over those who are not represented, appears to me to be depriving them of one of their most essential rights, as freemen; and if continued, seems to be in effect an entire distranchisement of every civil right. For what one civil right is worth a rush, after a man's property is subject to be taken from him at pleasure, without his consent. If a man is not his own assessor in person, or by deputy, his liberty is gone, or lays intirely at the mercy of others.
I think I have heard it said, that when the Dutch are asked why they enslave their colonies, their answer is, that the liberty of Dutchmen is confined to Holland; and that it was never intended for Provincials in America, of any where else. A sentiment this, very worthy of modern Dutchmen; but if their brave and worthy ancestors had entertained such narrow ideas of liberty, seven poor and distressed provinces would never have asserted their rights against the whole Spanish monarchy, of which the present is but a shadow. It is to be hoped, none of our fellow subjects of Britain, great or small, have borrowed this Dutch maxim of plantation politics; if they have, they had better return it from whence it came; indeed they had. Modern Dutch or French maxims of state, never will suit with a British constitution. It is a maxim, that the King can do no wrong; and every good subject is bound to believe his King is not inclined to do any. We are blessed with a prince who has given abundant demonstrations, that in all his actions, he studies the good of his people, and the true glory of his crown, which are inseparable. It would therefore, be the highest degree of impudence and disloyalty to imagine that the King, at the head of his parliament, could have any, but the most pure and perfect intentions of justice, goodness and truth, that human nature is capable of. All this I say and believe of the King and parliament, in all their acts; even in that which so nearly affects the interest of the colonists; and that a most perfect and ready obedience is to be yielded to it, while it remains in force. I will go further, and readily admit, that the intention of the, ministry was not only to promote the public good, by this act; but that Mr. Chancellor of the Exchequer had therein a particular view to the "ease, the quiet, and the good will of the Colonies," he having made this declaration more than once. Yet I hold that 'tis possible he may have erred in his kind intentions towards the Colonies, and taken away our fish, and given us a stone. With regard to the parliament, as infallability belongs not to mortals, 'tis possible they may have been misinformed and deceived. The power of parliament is uncontroulable, but by themselves, and we must obey. They only can repeal their own acts. There would be an end of all government, if one or a number of subjects or subordinate provinces should take upon them so far to judge of the justice of an act of parliament, as to refuse obedience to it. If there was nothing else to restrain such a step, prudence ought to do it, for forceably resisting the parliament and the King's laws, is high treason. Therefore let the parliament lay what burthens they please on us, we must, it is our duty to submit and patiently bear them, till they will be pleased to relieve us. And tis to be presumed, the wisdom and justice of that august assembly, always will afford us relief by repealing such acts, as through mistake, or other human infirmities, have been suffered to pass, if they can be convinced that their proceedings are not constitutional, or not for the common good.
The parliament may be deceived, they may have been misinformed of facts, and the colonies may in many respects be misrepresented to the King, his parliament, and his ministry. In some instances, I am well assured the colonies have been very strangely misrepresented in England. I have now before me a pamphlet, called the "administration of the colonies," said to be written by a gentleman who formerly commanded in chief in one of them. I suppose this book was designed for public information and use. There are in it many good regulations proposed, which no power can enforce but the parliament. From all which I infer, that if our hands are tied by the passing of an act of parliament, our mouths are not stoped, provided we speak of that transcendent body with decency, as I have endeavoured always to do; and should any thing have escaped me, or hereafter fall from my pen, that bears the least aspect but that of obedience, duty and loyalty to the King—parliament, and the highest respect for the ministry, the candid will impute it to the agony of my heart, rather than to the pravity of my will. If I have one ambitious wish, 'tis to see Great-Britain at the head of the world, and to see my King, under God, the father of mankind. I pretend neither to the spirit of prophecy, nor any uncommon skill in predicting a Crisis, much less to tell when it begins to be "nascent" or is fairly midwiv'd into the world. But if I were to fix a meaning to the two first paragraphs of the administration of the colonies, tho' I do not collect it from them, I should say the world was at the eve of the highest scene of earthly power and grandeur that has been ever yet displayed to the view of mankind. The cards are shuffling fast thro' all Europe. Who will win the prize is with God. This however I know, detur digniori. The next universal monarchy will be favourable to the human race, for it must be founded on the principles of equity, moderation and justice. No country has been more distinguished for these principles than Great-Britain, since the revolution. I take it, every subject has a right to give his sentiments to the public, of the utility or inutility of any act whatsoever, even after it is passed, as well as while it is pending.—The equity and justice of a bill may be questioned, with perfect submission to the legislature. Reasons may be given, why an act ought to be repeal'd, & yet obedience must be yielded to it till that repeal takes place. If the reasons that can be given against an act, are such as plainly demonstrate that it is against natural equity, the executive courts will adjudge such act void. It may be questioned by some, tho' I make no doubt of it, whether they are not obliged by their oaths to adjudge such act void. If there is not a right of private judgment to be exercised, so far at least as to petition for a repeal, or to determine the expediency of risking a trial at law, the parliament might make itself arbitrary, which it is conceived it can not by the constitution.—I think every man has a right to examine as freely into the origin, spring and foundation of every power and measure in a commonwealth, as into a piece of curious machinery, or a remarkable phenomenon in nature; and that it ought to give no more offence to say, the parliament have erred, or are mistaken, in a matter of fact or of right, than to say it of a private man, if it is true of both. If the assertion can be proved with regard to either, it is a kindness done them to show them the truth. With regard to the public, it is the duty of every good citizen to point out what he thinks erroneous in the common-wealth.
I have waited years in hopes to see some one friend of the colonies pleading in publick for them. I have waited in vain. One priviledge is taken away after another, and where we shall be landed, God knows, and I trust will protect and provide for us even should we be driven and persecuted into a more western wilderness, on the score of liberty, civil and religions, as many of our ancestors were, to these once inhospitable shores of America. I had formed great expectations from a gentleman, who published his first volume in quarto on the rights of the colonies two years since; but, as he foresaw, the state of his health and affairs have prevented his further progress. The misfortune is, gentlemen in America, the best qualified in every respect to state the rights of the colonists, have reasons that prevent them from engaging: Some of them have good ones. There are many infinitely better able to serve this cause than I pretend to be; but from indolence, from timidity, or by necessary engagements, they are prevented. There has been a most profound, and I think shameful silence, till it seems almost too late to assert our indisputable rights as men and as citizens. What must posterity think of us. The trade of the whole continent taxed by parliament, stamps and other internal duties and taxes as they are called, talked of, and not one petition to the King and Parliament for relief.
I cannot but observe here, that if the parliament have an equitable right to tax our trade, 'tis indisputable that they have as good an one to tax the lands, and every thing else. The taxing trade furnishes one reason why the other should be taxed, or else the burdens of the province will be unequally born, upon a supposition that a tax on trade is not a tax on the whole. But take it either way, there is no foundation for the distinction some make in England, between an internal and an external tax on the colonies. By the first is meant a tax on trade, by the latter a tax on land, and the things on it. A tax on trade is either a tax of every man in the province, or 'tis not. If 'tis not a tax on the whole, 'tis unequal and unjust, that a heavy burden should be laid on the trade of the colonies, to maintain an army of soldiers, custom-house officers, and fleets of guard-ships; all which, the incomes of both trade and land would not furnish means to support so lately as the last war, when all was at stake, and the colonies were reimbursed in part by parliament. How can it be supposed that all of a sudden the trade of the colonies alone can bear all this terrible burden. The late acquisitions in America, as glorious as they have been, and as beneficial as they are to Great-Britain, are only a security to these colonies against the ravages of the French and Indians. Our trade upon the whole is not, I beliave, benefited by them one groat. All the time the French Islands were in our hands, the fine sugars, &c, were all shipped home. None as I have been informed were allowed to be bro't to the colonies. They were too delicious a morsel for a North American palate. If it be said that a tax on the trade, of the colonies is an equal and just tax on the whole of the inhabitants: What then becomes of the notable distinction between external and internal taxes? Why may not the parliament lay stamps, land taxes, establish tythes to the church of England, and so indefinitely. I know of no bounds. I do not mention the tythes out of any disrespect to the church of England, which I esteem by far the best national church, and to have had as ornaments of it many of the greatest and best men in the world. But to those colonies who in general dissent from a principle of conscience, it would seem a little hard to pay towards the support of a worship, whose modes they cannot conform to.
If an army must be kept up in America, at the expence of the colonies, it would not seem quite so hard if after the parliament had determined the sum to be raised, and apportioned it, to have allowed each colony to assess its quota, and raise it as easily to themselves as might be. But to have the whole levied and collected without our consent is extraordinary. 'Tis allowed even to tributaries, and those laid under military contribution, to assess and collect the sums demanded. The case of the provinces is certainly likely to be the hardest that can be instanced in story. Will it not equal any thing but down right military execution? Was there ever a tribute imposed even on the conquered? A fleet, an army of soldiers, and another of tax-gatherers kept up, and not a single office either for securing or collecting the duty in the gift of the tributary state.
I am aware it will be objected, that the parliament of England, and of Great Britain, since the union, have from early days to this time, made acts to bind if not to tax Ireland: I answer, Ireland is a conquered country. I do not, however, lay so much stress on this; for it is my opinion, that a conquered country has, upon submission and good behaviour, the same right to be free, under a conqueror, as the rest of his subjects. But the old notion of the right of conquest, has been, in most nations, the cause of many severities and heinous breaches of the law of nature: If any such have taken place with regard to Ireland, they should form no precedent for the colonies. The subordination and dependency of Ireland to Great Britain, is expresly declared by act of parliament, in the reign of G. 1st. The subordination of the Colonies to Great Britain, never was doubted, by a Lawyer, if at all; unless perhaps by the author of the administration of the colonies: He indeed seems to make a moot point of it, whether the colony legislative power is as independent "as the legislative Great Britain holds by its constitution, and under the great charter."—The people hold under the great charter, as 'tis vulgarly expressed from our law-books: But that the King and parliament should be said to hold under Magna Charta, is as new to me, as it is to question whether the colonies are subordinate to Great Britain. The provincial legislative is unquestionably subordinate to that of Great Britain. I shall endeavour more fully to explain the nature of that subordination, which has puzzled so many in their enquiries. It is often very difficult for great lovers of power and great lovers of liberty, neither of whom may have been used to the study of law, in any of its branches, to see the difference between subordination, absolute slavery and subjection, on one side; and liberty, independence and licenciousness, on the other. We should endeavour to find the middle road, and confine ourselves to it. The laws, the proceedings of parliament, and the decisions of the judges, relating to Ireland, will reflect light on this subject, rendered intricate only by art.
"Ireland being of itself a distinct dominion, and no part of the kingdom of England (as it directly appeareth by many authorities in Calvin's case) was to have PARLIAMENTS holden there as in England." 4 Inst. 349.
Why should not the colonies have, why are they not entitled to their assemblies, or parliaments, at least, as well as a conquered dominion?
"Wales, after the conquest of it, by Edward the first, was annexed to England, jure proprietatis, 12 Ed. 1. by the statute of Rutland only, and after, more really by 27 H. 8. and 34, but at first received laws from England, as Ireland did; but writs proceeded not out of the English chancery, but they had a Chancery of their own, as Ireland hath; was not bound by the laws of England, unnamed until 27 H. 8. no more than Ireland is.
Ireland in nothing differs from it, but having a parliament gratia Regis (i.e. upon the old notion, of conquest) subject (truly however) to the parliament of England. None doubts Ireland as much conquered as it; and as much subject to the parliament of England, if it please."
Vaughan, 300.
A very strong argument arises from this authority, in favour of the unconquered plantations. If since Wales was annexed to England, they have had a representation in parliament, as they have to this day; and if the parliament of England does not tax Ireland, can it be right they should tax us, who have never been conquered, but came from England to colonize, and have always remained good subjects to this day?
I cannot find any instance of a tax laid by the English parliament on Ireland. "Sometimes the King of England called his Nobles of Ireland, to come to his parliament of England, &c, and by special words, the parliament of England may bind the subjects of Ireland"—3 Inst.350.—
The following makes it clear to me, the parliament of Great Britain do not tax Ireland. "The parliament of Ireland having been prorogued to the month of August next, before they had provided for the maintenance of the government in that kingdom, a project was set on foot here to supply that defect, by retrenching the drawbacks upon goods exported thither from England. According to this scheme, the 22d, the house in a grand committee, considered the present laws with respect to drawbacks upon tobaccoes, muslins, and East India silks, carried to Ireland; and came to two resolutions, which were reported the next day, and with an amendment to one of them agreed to by the house, as follows, Viz. 1. That three pence pr pound, part of the drawback on tobacco to be exported from Great Britain for Ireland, be taken off.
2. That the said diminution of the drawback do take effect upon all tobacco exported for Ireland, after the 24 of March 1713, and continue until the additional duty of three pence half penny per pound upon tobacco in Ireland, expiring on the said 24th of March, be regranted: And ordered a bill to be brought in, upon the said resolutions."
Proceedings of House of Commons, Vol. 5. 72.
This was constitutional; there is an infinite difference between taking off British drawbacks, and imposing Irish or other Provincial duties.
"Ireland is considered as a provincial government, subordinate to, but no part of the Realm of England," Mich. 11. G. 2. in case of Otway and Ramsay—"Acts of parliament made here, (i.e. in England) extend not to Ireland, unless particularly named; much less judgments obtained in the courts here; nor is it possible they should, because we have no officers to carry them into execution there." ib.
The first part seems to be applicable to the plantations in general, the latter is not; for by reason of charter reservations and particular acts of parliament, some judgments in England may be executed here, as final judgments, before his Majesty in council on a plantation appeal, and so from the admiralty.
It seems to have been disputed in Ireland, so lately as the 6 Geo. 1. Whether any act of the British parliament bound Ireland; or at least it was apprehended, that the undoubted right of the British parliament to bind Ireland, was in danger of being shaken: This, I presume, occasioned the act of that year, which declares, that "the kingdom of Ireland ought to be subordinate unto and dependent upon the Imperial Crown of Great Britain, as being inseparably united thereto. And the King's Majesty, with the consent of the lords and commons of Great Britain in parliament, hath power to make laws to bind the people of Ireland."—This parliamentary power must have some bounds, even as to Ireland, as well as the colonies, who are admitted to be subordinate ab initio to Great Britain; not as conquered, but as emigrant subjects. If this act should be said to be a declaration not only of the general, but of the universal power of parliament, and that they may tax Ireland, I ask, Why it has never been done? If it had been done a thousand times, it would be a contradiction to the principles of a free government; and what is worse, destroy all subordination consistent with freedom, and reduce the people to slavery.
To say the parliament is absolute and arbitrary, is a contradiction. The parliament cannot make 2 and 2,5: Omnipotency cannot do it. The supreme power in a state, is jus dicere only:—jus dare, strictly speaking, belongs alone to GOD. Parliaments are in all cases to declare what is for the good of the whole; but it is not the declaration of parliament that makes it so: There must be in every instance, a higher authority, viz. GOD. Should an act of parliament be against any of his natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void: and so it would be adjudged by the parliament itself, when convinced of their mistake. Upon this great principle, parliaments repeal such acts, as soon as they find they have been mistaken, in having declared them to be for the public good, when in fact they were not so. When such mistake is evident and palpable, as in the instances in the appendix, the judges of the executive courts have declared the act "of a whole parliament void." See here the grandeur of the British constitution! See the wisdom of our ancestors! The supreme legislative, and the supreme executive, are a perpetual check and balance to each other. If the supreme executive errs, it is informed by the supreme legislative in parliament: If the supreme legislative errs, it is informed by the supreme executive in the King's courts of law.—Here, the King appears, as represented by his judges, in the highest lustre and majesty, as supreme executor of the commonwealth; and he never shines brighter, but on his Throne, at the head of the supreme legislative. This is government! This, is a constitution! to preserve which, either from foreign or domestic foes, has cost oceans of blood and treasure in every age; and the blood and the treasure have upon the whole been well spent. British America, hath been bleeding in this cause from its settlement: We have spent all we could raise, and more; for notwithstanding the parliamentary reimbursements of part, we still remain much in debt. The province of the Massachusetts, I believe, has expended more men and money in war since the year 1620, when a few families first landed at Plymouth, in proportion to their ability, than the three Kingdoms together. The same, I believe, may be truly affirmed, of many of the other colonies; tho' the Massachusetts has undoubtedly had the heaviest burthen. This may be thought incredible: but materials are collecting; and tho' some are lost, enough may remain, to demonstrate it to the world. I have reason to hope at least, that the public will soon see such proofs exhibited, as will show, that I do not speak quite at random.
Why then is it thought so heinous by the author of the administration of the colonies, and others, that the colonists should aspire after "a one whole legislative power" not independent of, but subordinate to the laws and parliament of Great-Britain?—It is a mistake in this author, to bring so heavy a charge as high treason against some of the colonists, which he does in effect in this place, by representing them as "claiming in fact or indeed, the same full free independent unrestrained power and legislative will, in their several corporations, and under the King's commission, and their respective charters, as the government and legislature of Great-Britain holds by its constitution and under the great charter." No such claim was ever tho't of by any of the colonists. They are all better men and better subjects; and many of them too well versed in the laws of nature and nations, and the law and constitution of Great-Britain, to think they have a right to more than a provincial subordinate legislative. All power is of GOD. Next and only subordinate to him, in the present state of the well-formed, beautifully constructed British monarchy, standing where I hope it ever will stand, for the pillars are fixed in judgment, righteousness and truth, is the King and Parliament. Under these, it seems easy to conceive subordinate powers in gradation, till we descend to the legislative of a town council, or even a private social club. These have each "a one whole legislative" subordinate, which, when it don't counteract the laws of any of its superiors, is to be indulged. Even when the laws of subordination are transgressed, the superior does not destroy the subordinate, but will negative its acts, as it may in all cases when disapproved. This right of negative is essential, and may be inforced: But in no case are the essential rights of the subjects, inhabiting the subordinate dominions, to be destroyed. This would put it in the power of the superior to reduce the inferior to a state of slavery; which cannot be rightfully done, even with conquered enemies and rebels. After satisfaction and security is obtained of the former, and examples are made of so many of the latter, as the ends of government require, the rest are to be restored to all the essential rights of men and of citizens. This is the great law of nature: and agreeable to this law, is the constant practice of all good and mild governments. This lenity and humanity has no where been carried further than in Great Britain. The Colonies have been so remarkable for loyalty, that there never has been any instance of rebellion or treason in them. This loyalty is in very handsome terms acknowledged by the author of the administration of the colonies. "It has been often suggested that care should be taken in the administration of the plantations, left, in some future time, these colonies should become independent of the mother country. But perhaps it may be proper on this occasion, nay, it is justice to say it, that if, by becoming independent, is meant a revolt, nothing is further from their nature, their interest, their thoughts. If a defection from the alliance of the mother country be suggested, it ought to be, and can be truly said, that their spirit abhors the sense of such; their attachment to the protestant succession in the house of Hanover, will ever stand unshaken; and nothing can eradicate from their hearts their natural and almost mechanical, affection to Great Britain, which they conceive under no other sense, nor call by any other name than that of home. Any such suggestion, therefore, is a false and unjust aspersion on their principles and affections; and can arise from nothing but an intire ignorance of their circumstances." After all this loyalty, it is a little hard to be charged with claiming, and represented as aspiring after, independency. The inconsistency of this I leave. We have said that the loyalty of the colonies has never been suspected; this must be restricted to a just suspicion. For it seems there have long been groundless suspicions of us in the minds of individuals. And there have always been those who have endeavoured to magnify these chimerical fears. I find Mr. Dummer complaining of this many years since.
"There is, says he, one thing more I have heard often urged against the charter colonies and indeed tis what one meets with from people of all conditions and qualities, tho' with due respect to their better judgments, I can see neither reason nor colour for it. 'Tis said that their increasing numbers and wealth, joined to their great distance from Britain, will give them an opportunity, in the course of some years, to throw off their dependence on the nation, and declare themselves a free state, if not curb'd in time, by being made enirely subject to the crown."
This jealousy has been so long talked of, that many seem to believe it really well grounded. Not that there is danger of a "revolt", even in the opinion of the author of the administration, but that the colonists will by fraud or force, avail themselves, in "fact or in deed", of an independent legislature. This, I think, would be a revolting with a vengeance. What higher revolt can there be, than for a province to assume the right of an independent legislative, or state? I must therefore think this a greater aspersion on the Colonists, than to charge them with a design to revolt, in the sense in which the Gentleman allows they have been abused: It is a more artful and dangerous way of attacking our liberties, than to charge us with being in open rebellion. That could be confuted instantly: but this seeming indirect way of charging the colonies, with a desire of throwing off their dependency, requires more pains to confute it than the other, therefore it has been recurred to. The truth is, Gentlemen have had departments in America, the functions of which they have not been fortunate in executing. The people have by these means been rendered uneasy, at bad Provincial measures. They have been represented as factious, seditious, and inclined to democracy, whenever they have refused passive obedience to provincial mandates, as arbitrary as those of a Turkish Bashaw: I say, Provincial mandates; for to the King and Parliament they have been ever submissive and obedient.
These representations of us, many of the good people of England swallow with as much ease, as they would a bottle-bubble, or any other story of a cock and a bull; and the worst of it is, among some of the most credulous, have been found Stars and Garters. However, they may all rest assured, the Colonists, who do not pretend to understand themselves so well as the people of England; tho' the author of the Administration makes them the fine compliment, to say, they "know their business much better," yet, will never think of independency. Were they inclined to it, they know the blood and the treasure it would cost, if ever effected; and when done, it would be a thousand to one if their liberties did not fall a sacrifice to the victor.
We all think ourselves happy under Great-Britain. We love, esteem and reverence our mother country, and adore our King. And could the choice of independency be offered the colonies, or subjection to Great-Britain upon any terms above absolute slavery. I am convinced they would accept the latter. The ministry, in all future generations may rely on it, that British America will never prove undutiful, till driven to it, as the last fatal resort against ministerial oppression, which will make the wisest mad, and the weakest strong.
These colonies are and always have been, "entirely subject to the crown," in the legal sense of the terms. But if any politician of " tampering activity, of wrongheaded inexperience, misled to be meddling," means, by "curbing the colonies in time," and by "being made entirely subject to the crown;" that this subjection should be absolute, and confined to the crown, he had better have suppressed his wishes. This never will nor can be done, without making the colonists vassals of the crown. Subjects they are; their lands they hold of the crown, by common soccage, the freest feudal tennure, by which any hold their lands in England, or any where else. Would these gentlemen carry us back to the state of the Goths and Vandals, and revive all the military tenures and bondage which our fore-fathers could not bear? It may be worth noting here, that few if any instances can be given, where colonies have been disposed to forsake or disobey a tender mother: But history is full of examples, that armies stationed as guards over provinces, have seized the prey for their general, and given him a crown at the expence of his master. Are all ambitious generals dead? Will no more rise up hereafter? The danger of a standing army in remote provinces is much greater to the metropolis, than at home. Rome found the truth of this assertion; in her Sylla's, her Pompey's and Caesars; but she found it too late: Eighteen hundred years have roll'd away since her ruin. A continuation of the same liberties that have been enjoyed by the colonists since the revolution, and the same moderation of government exercised towards them, will bind them in perpetual lawful and willing subjection, obedience and love to Great-Britain: She and her colonies will both prosper and flourish: The monarchy will remain in sound health and full vigor at that blessed period, when the proud arbitrary tyrants of the continent shall either unite in the deliverance of the human race, or resign their crowns. Rescued, human nature must and will be, from the general slavery that has so long triumphed over the species. Great-Britain has done much towards it: What a Glory will it be for her to complete the work throughout the world!
The author of the Administration (page 54) "describes" the defects of the "provincial courts," by a "very description," the first trait of which is, "The ignorance of the judges." Whether the description, or the description of the description, are verily true, either as applied by Lord Hale, or the Administrator, is left to the reader. I only ask, who makes the judges in the provinces? I know of but two colonies, viz. Connecticut and Rhode-Island, where they are chosen by the people. In all other colonies, they are either immediately appointed by the crown, or by his Majesty's governor, with the advice of what the Administrator calls, the "governor's council of state." And if they are in general such ignorant creatures, as the Administrator describes them, 'tis the misfortune, not the fault, of the people, in the colonies. However, I believe, justice in general, is as well administred in the colonies, as it will be when every thing is devolved upon a court of admiralty, general or provincial. The following is very remarkable. "In those popular governments, and where every executive officer is under a dependence for a temporary, wretched, and I had almost said arbitrary support, on the deputies of the people."
Why is the temporary support found fault with? Would it be wise to give a governor a salary for a longer time than his political life? As this is quite as uncertain, as his natural life, it has been granted annually. So every governor has the chance of one year's salary after he is dead. All the King's officers, are not even in the charter provinces "dependent on the people" for support. The judges of the admiralty, those mirrors of justice, to be trusted, when none of the common law courts are, have all their commissions from home. These, besides other fees, have so much per cent on all they condemn, be it right or wrong, and this by act of parliament. Yet so great is their integrity, that it never was suspected that 50 per cent, if allowed, would have any influence on their decrees.
Custom-house officers universally, and Naval-officers, in all but two or three of the colonies, are, I believe, appointed directly from home, or by instruction to the Governor: and take just what they please, for any restraint they are under by the provincial acts. But on whom should a Governor depend for his honorable support, but the people? Is not the King fed from the field, and from the labor of his people? Does not his Majesty himself receive his aids from the free grant of his parliament? Do not all these originate in the house of commons? Did the house of Lords ever originate a grant? Do not our law books inform us that the Lords only assent or dissent, but never so much as propose an amendment, on a money bill? The King can take no more than the Parliament will give him, and yet some of his Governors have tho't it an insufferable hardship, that they could not take what they pleased. To take leave of the administrator, there are in his book some good hints, but a multiplicity of mistakes in fact, and errors in matters of right, which I have not time to mention particularly.
Ireland is a conquered kingdom; and yet have tho't they received very hard measure in some of the prohibitions and restrictions of their trade. But were the colonies ever conquered? Have they not been subject and obedient, and loyal from their settlement? Were not the settlements made under the British laws and constitution? But if the colonies were all to be considered as conquered, they are entitled to the essential rights of men and citizens. And therefore admitting the right of prohibition, in its utmost extent and latitude; a right of taxation can never be infer'd from that. It may be for the good of the whole, that a certain commodity should be prohibited: But this power should be exercised, with great moderation and impartiality, over dominions, which are not represented, in the national parliament. I had however rather see this carried with a high hand, to the utmost rigor, than have a tax of one shilling taken from me without my consent. A people may be very happy, free and easy among themselves, without a particular branch of foreign trade: I am sure these colonies, have the natural means of every manufacture in Europe, and some that are out of their power to make or produce. It will scarcely be believed a hundred years hence, that the American manufactures could have been brought to such perfection, as they will then probably be in, if the present measures are pushed. One single act of parliament, we find has set people a thinking, in six months, more than they had done in their whole lives before. It should be remembred, that the most famous and flourishing manufactures, of wool, in France, were begun by Lewis, 14, not an hundred years ago; and they now bid fair to rival the English, in every port abroad. All the manufactures that Great-Britain could make, would be consumed in America, and in her own plantations, if put on a right footing; for which a greater profit in return would be made, than she will ever see again for woollen sent to any part of Europe.
But tho' it be allow'd, that liberty may be enjoy'd in a comfortable measure, where prohibitions are laid on the trade of a kingdom or province; yet if taxes are laid on either, without consent, they cannot be said to be free. This barrier of liberty being once broken down, all is lost. If a shilling in the pound may be taken from me against my will, why may not twenty shillings; and if so, why not my liberty or my life? Merchants were always particularly favor'd by the common law—"All merchants, except enemies, may safely come into England, with their goods and merchandize"—2 Inst. 28.—And why not as well to the plantations? Are they not entitled to all the British privileges? No, they must be confined in their imports and exports, to the good of the metropolis. Very well we have submitted to this. The act of navigation is a good act, so are all that exclude foreign manufactures from the plantations, and every honest man will readily subscribe to them. Moreover, "Merchant strangers, are also to come into the realm and depart at pleasure; and they are to be friendly entertained." 2 Ri. C. 1. But to promote the manufactures of England, 'tis tho't best to shut up the colonies in a manner from all the world. Right as to Europe: But for GOD's sake, must we have no trade with other colonies? In some cases the trade between British colony and colony is prohibited, as in wool, &c. Granting all this to be right, is it not enough? No, duties and taxes must be paid without any consent or representation in parliament. The common law, that inestimable privilege of a jury, is also taken away in all trials in the colonies, relating to the revenue, if the informers have a mind to go the admiralty; as they ever have done, and ever will do, for very obvious reasons. "It has ever been boasted, says Mr. Dummer in his defence of the charters, as the peculiar privilege of an Englishman, and the security of his property, to be tryed by his country, and the laws of the land: Whereas this admiralty method deprives him of both, as it puts his estate in the disposal of a single person, and makes, the civil law the rule of judgment; which tho' it may not properly be called foreign, being the law of nations, yet 'tis what he has not consented to himself, nor his representative for him. A jurisdiction therefore so founded, ought not to extend beyond what necessity requires"—"If some bounds are not set to the jurisdiction of the admiralty, beyond which it shall not pass, it may in time, like the element to which it ought to be confin'd, grow outrageous, and overflow the banks of all the other courts of justice." I believe it has never been doubted by one sound, common lawyer of England, whether a court of admiralty ever answer'd many good ends; "the court of King's bench has a power to restrain the court of admiralty in England; and the reasons for such restraining power are as strong in New England as in Great-Britain," and in some respects more so: Yet Mr. Dummer mentions, a clamour that was raised at home by a judge of the admiralty for New England, who complain'd "that the common law courts by granting prohibitions, weaken, and in a manner suppress the authority of this court, and all the good ends for which it was constituted." Thus we see, that the court of admiralty long ago discover'd, no very friendly disposition towards the common law courts here; and the records of the house of Representatives afford us a notable instance of one, who was expelled the house, of which he, had been an unworthy member, for the abusive misrepresentations of the province, by him secretly made.
Trade and traffick, says, lord Coke, "is the livelihood of a merchant, the life of the commonwealth, wherein the King and every subject hath interest; for the merchant is the good Bailiff of the realm, to export and vent the native commodities of the realm, and to import and bring in, the necessary commodities for the defence and benefit of the Realm—2 Inst. 28. reading on Magna Charta. C. 15—And are not the merchants of British America entitled to a livelihood also? Are they not British subjects? Are not an infinity of commodities carried from hence for the benefit of the realm, for which in return come an infinity of trifles, which we could do without? Manufactures we must go into if our trade is cut off; our country is too cold to go naked in, and we shall soon be unable to make returns to England even for necessaries.
"When any law or custom of parliament is broken, and the crown possessed of a precedent, how difficulty a thing is it to restore the subject again to his former freedom and safety?" 2 Inst, on the confirmation of the great charter—which provides in these words: "And for so much as divers people of our realm, are in fear, that the aids and tasks which they have given to us before time, towards our wars, and other business of their own grant and good will (howsoever they were made) might turn to a bondage to them and their heirs, because they might be at another time found in the rolls, and likewise for the prices taken throughout the realm by our ministers; We have granted for us and our heirs, that we shall not draw such aids, tasks nor prices into a custom, for any thing that hath been done heretofore, be it by roll, or any other precedent that may be founden."
By the first chapter of this act, the great charter is declared to be the common law. I would ask, whether we have not reason to fear, that the great aids, freely given by these provinces in the late war, will in like manner turn to our bondage, if they are to be kept on and increased during a peace, for the maintenance of a standing army here?—If tis said those aids were given for our own immediate defence, and that England spent millions in the same cause; I answer; The names of his present Majesty, and his royal Grand-father, will be ever dear to every loyal British American, for the protection they afforded us, and the salvation, under God, effected by their arms; but with regard to our fellow-subjects of Britain, we never were a whit behind hand with them. The New England Colonies in particular, were not only settled without the least expence to the mother country, but they have all along defended themselves against the frequent incursions of the most inhuman Salvages, perhaps on the face of the whole earth, at their own cost: Those more than brutal men, spirited and dircted by the most inveterate, as well as most powerful enemy of Great Britain, have been constantly annoying our infant settlements for more than a century; spreading terror and desolation, and sometimes depopulating whole villages in a night: yet amidst the fatigues of labor, and the horrors of war and bloodshed, Heaven vouchsaf'd its smiles. Behold, an extensive territory, settled, defended, and secured to his Majesty, I repeat it, without the least expence to the mother country, till within twenty years past!—When Louisbourg was reduced to his late Majesty, by the valor of his New-England subjects, the 'parliament, it must be own'd, saw meet to refund part of the charges: And every one knows the importance of Louisbourg, in the consultations of Aix la Chapple; but for the loss of our young men, the riches and strength of a country, not indeed slain by the enemy, but overborn by the uncommon hardships of the siege, and their confinement in garrison afterwards, there could be no recompence made.—In the late war, the northern colonies not only rais'd their full quota of men, but they went even beyond their ability they are still deeply in debt, notwithstanding the parliamentary grants, annually made them, in part of their expences, in the common, national, cause; Had it not been for those grants, they had all been bankrupt long ago; while the sugar colonies, have born little or no share in it: They indeed sent a company or two of Negroes and Molattoes, if this be worth mentioning, to the sieges of Gaudaloupe, Martineco and the Havanna: I do not recollect any thing else that they have done; while the flower of our youth were annually pressed by ten thousands into the service, and there treated but little better, as we have been told, than hewers of wood and drawers of water. Provincial acts for impressing were obtained, only by letters of requisition from a secretary of state to Governor; requiring him to use his influence to raise men; and sometimes, more than were asked for a wanted, were pressed, to give a figure to Governor, and shew his influence; a remarkable instance of which might be mentioned. I would further observe, that Great-Britain was as immediately interested in the late war in America, as the colonies, were. Was she not threatned with an invasion at the same time we were? Has she not an immense trade to the colonies? The British writers say, more than half her profitable trade is to America; All the profits of our trade center there, and is little enough to pay for the goods we import. A prodigious revenue arises to the Crown on American exports to Great-Britain, which in general is not murmured at: No manufacture of Europe besides British, can be lawfully, bro't here; and no honest man desires they ever should, if the laws were put in execution upon all. With regard to a few Dutch imports that have made such a noise, the truth is, very little has been or could be run, before the apparatus of guardships; for the officers of some ports did their duty, while others may have made a monopoly of smuggling, for a few of their friends, who probably paid them large contributions; for it has been observed, that a very small office in the customs in America has raised a man a fortune sooner than a Government. The truth is the acts of trade have been too often evaded; but by whom? Not by the American merchants in general, but by some former custom-house officers, their friends, and partizans. I name no man, not being about to turn informer: But it has been a notorious grievance, that when the King himself cannot dispense with an act of parliament, there have been custom-house officers who have practised it for years together, in favor of those towards whom they were graciously disposed.
But to return to the subject of taxation: I find that "the lords and commons cannot be charged with any thing for the defence of the realm, for the safe-guard of the sea, &c. unless by their will in parliament."
Ld. Coke, on Magna Charta, Cap. 30.
"Impositions neither in time of war, or other the greatest necessity or occasion, that may be, much less in the time of peace, neither upon foreign or inland commodities, of what nature soever, be they never so superfluous or unnecessary, neither upon merchants, strangers, nor denizens, may be laid by the King's absolute power, without assent of parliament, be it never for so short a time."
Viner Prerogative of the King,
Ea. 1. cites 2 Molloy. 320. Cap. 12. sec. 1.
"In the reign of Edward 3. the black Prince of Wales having Aquitain granted to him, did lay an imposition of fuage or focage a oco, upon his subjects of that dukedom, viz. a shilling for every fire, called hearth silver, which was of so great discontentment and odious to them, that it made them revolt. And nothing since this time has been imposed by pretext of any prerogative, upon merchandizes, imported into or exported out of this realm, until Queen Mary's time." 2 Inst. 61.
Nor has any thing of that kind taken place since the revolution. King Charles 1. his ship-money every one has heard of.
It may be said that these authorities will not serve the colonists, because the duties laid on them are by parliament. I acknowledge the difference of fact; but cannot see the great difference in equity, while the colonists are not represented in the house of commons: And therefore with all humble deference I apprehend, that 'till the colonists are so represented, the spirit of all these authorities will argue strongly in their favour. When the parliament shall think fit to allow the colonists a representation in the house of commons, the equity of their taxing the colonies, will be as clear as their power is at present of doing it without, if they please, When Mr. Dummer wrote his defence of the charters, there was a talk of taking them away, by act of parliament. This defence is dedicated to the right honourable the Ld. Carteret, then one of his Majesty's principal secretaries of state, since Earl of Granville. His third proposition is, that "it is not for the interest of the crown to resume the charters, if forfeited." This he proves; as also that it would be more for the interest of Great Britain to enlarge, rather than diminish, the privilege of all the colonists. His last proposition is, that it "seems inconsistent with justice to disfranchise the charter colonies by an act of parliament."
"It seems therefore, says he, a severity without a precedent, that a people, who have the misfortune of being a thousand leagues distant from their sovereign, a misfortune great enough in itself, should, unsummoned, unheard, in one day, be deprived of their valuable privileges, which they and their fathers have enjoyed for near a hundred years." 'Tis true, as he observes, "the legislative power is absolute and unaccountable, and King, lords and commons, may do what they please; but the question here is not about power, but right" (or rather equity) "and shall not the supreme judicature of all the nation do right"? "One may say, that what the parliament cannot do justly, they cannot do at all. In maximis minima est licentia. The higher the power is, the greater caution is to be used in the execution of it; because the sufferer is helpless and without resort." I never heard that this reasoning gave any offence. Why should it? Is it not exactly agreeable to the decisions of parliament and the determinations of the highest executive courts? (See the Appendix.) But if it was thought hard that charter privileges should be taken away by act of parliament, Is it not much harder to be in part, or in whole, disfranchised of rights, that have been always tho't inherent to a British subject, namely, to be free from all taxes, but what he consents to in person, or by his representative? This right, if it could be traced no higher than Magna Charta, is part of the common law, part of a British subjects birthright, and as inherent and perpetual, as the duty of allegiance; both which have been bro't to these colonies, and have been hitherto held sacred and inviolable, and I hope and trust ever will. 'Tis humbly conceived, that the British colonists (except only the conquered, if any) are, by Magna Charta, as well entitled to have a voice in their taxes, as the subjects within the realm. Are we not as really deprived of that right, by the parliament assessing us before we are represented in the house of commons, as if the King should do it by his prorogative? Can it be said with any colour of truth or justice, that we are represented in parliament?
As to the colonists being represented by the provincial agents, I know of no power ever given them, but to appear before his Majesty, and his ministry. Sometimes they have been directed to petition the parliament: But they none of them have, and I hope never will have, a power given them, by the colonists, to act as representatives, and to consent to taxes; and if they should make any concessions to the ministry, especially without order, the provinces could not by that be considered as represented in parliament.
Hibernia habet Parliamenta & faciunt leges et nostra statuta non ligant eos, quia non mittant milites ad Parliamentum, sed personae eorum sunt subjecti Regis, sicut inhabitantes Caline Gasconiae & Guienae.
12 Rep. 111. cites R. 3. 12.—
"Ireland hath parliaments, and make laws, and our statutes do not bind them, because they send no Knights to parliament; but their persons are subjects of the King, as the inhabitants of Guiene, Gascony, &c."
Yet, if specially named, or by general words included as within any of the King's dominions, Ireland, says Ld. Coke, might be bound. 4 Inst. 351.
From all which, it seems plain, that the reason why Ireland and the plantations are not bound, unless named by an Act of Parliament, is, because they are not represented in the British parliament. Yet, in special cases, the British parliament has an undoubted right, as well as power, to bind both by their acts. But whether this can be extended to an indefinite taxation of both, is the great question. I conceive the spirit of the British constitution must make an exception of all taxes, until it is tho't fit to unite a dominion to the realm. Such taxation must be considered either as uniting the dominions to the realm, or disfranchising them. If they are united, they will be intitled to a representation, as well as Wales; if they are so taxed without a union, or representation, they are so far disfranchised.
I don't find any thing that looks like a duty on the colonies before the 25th of C. 2. c. 7. imposing a duty on enumerated commodities. The liberty of the subject was little attended to in that reign. If the nation could not fully assert their rights till the revolution, the colonies could not expect to be heard. I look on this act rather as a precedent of power, than of right and equity; if 'tis such, it will not affect my argument. The act appointing a tax on all mariners, of a certain sum per month, to be deducted out of their wages, is not to be compared with this. Mariners are not inhabitants of any part of the dominions: The sea is their element, till they are decrepit, and then the hospital is open for all mariners who are British subjects without exception. The general post-office established thro' the dominions, is for the convenience of trade and commerce: It is not laying any burthen upon it; for besides that it is upon the whole cheaper to correspond in this way than any other, every one is at liberty to send his own letters by a friend. The act of the 6th of his late Majesty, tho' it imposes a duty in terms, has been said to be designed for a prohibition; which is probable from the sums imposed; and 'tis pity it had not been so expressed, as there is not the least doubt of the just and equitable right of the parliament to lay prohibitions thro' the dominions, when they think the good of the whole requires it. But as has been said, there is an infinite difference between that and the exercise of unlimited power of 'taxation, over the dominions, without allowing them a representation:—It is said that the duties imposed by the new act will amount to a prohibition: Time only can ascertain this. The utility of this act is so fully examined in the appendix, that I shall add nothing on that head here. It may be said that the colonies ought to bear their proportion of the national burdens: 'Tis just they should, and I think I have proved they have always done it freely and chearfully, and I know no reason to doubt but that they ever will.
Sometimes we have been considered only as the corporations in England: And it may be urged that it is no harder upon us to be taxed by parliament for the general cause than for them, who besides are at the expence of their corporate subordinate government. I answer, 1. Those corporations are represented in parliament. 2. The colonies are and have been at great expence in raising men, building forts, and supporting the King's civil government here. Now I read of no governors and other officers of his Majesty's nomination, that the city of London taxes its inhabitants to support: I know of no forts and garrisons that the city of London has lately built at its own expence, or of any annual levies that they have raised for the King's service and the common cause. These are things very fitting and proper to be done by a subordinate dominion, and tis their duty to do all they are able; but it seems but equal they should be allowed to assess the charges of it themselves. The rules of equity and the principles of the constitution seem to require this. Those who judge of the reciprocal rights that subsist between a supreme and subordinate state or dominion, by no higher rules than are applied to a corporation of button-makers, will never have a very comprehensive view of them. Yet sorry am I to say it, many elaborate writers on the administration of the colonies, seem to me never to rise higher in their notions, than what might be expected from a secretary to one of the quorum. If I should be ranked among this number, I shall have this consolation, that I have fallen into what is called very good company, and among some who have seen very high life below stairs. I agree with the Administrator, that of whatever revenues raised in the colonies, if they must be raised without our consent, "the first and special appropriation of them ought to be to the paying the Governors, and all the other Crown officers;" for it would be hard for the Colonists to be obliged to pay them after this. It was on this principle that at the last assembly of this province, I moved to stop every grant to the officers of the Crown; more especially as I know some who have built very much upon the fine salaries they shall receive from the plantation branch of the revenue. Nor can I think it "injustice to the frame of human nature," to suppose, if I did not know it, that with similar views several officers of the Crown in some of the colonies have been pushing for such an act for many years. They have obtained their wish, and much good it will do them: But I would not give much for all that will center neat in the exchequer, after deducting the costs attending the execution of it, and the appropriations to the several officers proposed by the Administrator. What will be the unavoidable consequence of all this, suppose another war should happen, and it should be necessary to employ as many provincials in America as in the last? Would it be possible for the colonies, after being burthened in their trade, perhaps after it is ruined, to raise men? Is it probable that they would have spirit enough to exert themselves? If 'tis said the French will never try for America, or if they should, regular troops are only to be employed. I grant our regular troops are the best in the world, and that the experience of the present officers shews that they are capable of every species of American service; yet we should guard against the worst. If another tryal for Canada should take place, which from the known temper of France, we may judge she will bring on the first fair opportunity, it might require 30 or 40,000 regulars to secure his Majesty's just rights. If it should be said that other American duties must then be levied, besides the impossibilty of our being able to pay them, the danger recurs of a large standing army so remote from home. Whereas a good provincial militia, with such occasional succours from the mother country, as exigencies may require, never was, and never will be attended with hazard. The experience of part times will show, that an army of 20 or 30,000 veterans, half 3000 miles from Rome, were very apt to proclaim Cesars. The first of the name, the assassin of his country owed his false glory, to stealing the affections of an army from the commonwealth. I hope these hints will not be taken amiss; they seem to occur from the nature of the subject I am upon: They are delivered in pure affection to my King and country, and amount to no reflection on any man. The best army, and the best men, we may hereafter have, may be led into temptation; all I think, is, that a prevention of evil is much easier than a deliverance from it.
The sum of my argument is, That civil government is of God: That the administrators of it were originally the whole people: That they might have devolved it on whom they pleased: That this devolution is fiduciary, for the good of the whole; That by the British constitution, this devolution is on the King, lords and commons, the supreme sacred and uncontroulable legislative power, not only in the realm, but thro' the dominions: That by the abdication, the original compact was broken to pieces: That by the revolution, it was renewed, and more firmly established, and the rights and liberties of the subject in all parts of the dominions, more fully explained and confirmed: That in consequence of this establishment, and the acts of succession and union, his Majesty GEORGE III. is rightful king and sovereign, and with his parliament, the supreme legislative of Great Britain; France and Ireland, and the dominions thereto belonging: That this constitution is the most free one, and by far the best, now existing on earth: That by this constitution, every man in the dominions is a free man: That no parts of his Majesty's dominions can be taxed without their consent: That every part has a right to be represented in the supreme or some subordinate legislature: That the refusal of this, would seem to be a contradiction in practice to the theory of the constitution: That the colonies are subordinate dominions, and are now in such a state, as to make it best for the good of the whole, that they should not only be continued in the enjoyment of subordinate legislation, but be also represented in some proportion to their number and estates, in the grand legislature of the nation: That this would firmly unite all parts of the British empire, in the greatest peace and prosperity; and render it invulnerable and perpetual.
