of Spain; they were states dependent upon the house of Austria in a feudal dependence. Nothing could be more different from our colonies than that flock of men, as they have been called, who came from the North, and poured into Eu rope. Those emigrants renounced all laws, all protection, all connection with their mother coun

under their banners to seek their fortunes and establish new kingdoms upon the ruins of the Roman empire.

and with respect to the modes of taxation, when we get beyond the reign of Edward the First, or of King John, we are all in doubt and obscurity. The history of those times is full of uncertainties. In regard to the writs upon record, they were issued some of them according to law, and some not according to law; and such [i. e., of the latter kind] were those concerning ship-tries. They chose their leaders, and marched money, to call assemblies to tax themselves, or to compel benevolences. Other taxes were raised from escuage, fees for knights' service, and by other means arising out of the feudal system. Benevolences are contrary to law; and it is well known how people resisted the demands of the Crown in the case of ship-money, and were persecuted by the Court; and if any set of men were to meet now to lend the King money, it would be contrary to law, and a breach of the rights of Parliament.

Direct Argu

colonies crea

and therefore

Great Britain.

But our colonies, on the contrary, emigrated under the sanction of the Crown and Parliament. They were modeled ments. 1. The gradually into their present forms, ted by charter, respectively, by charters, grants, and dependent on statutes; but they were never separated from the mother country, or so emancipated as to become sui juris. There are several sorts of colonies in British America. The charter colonies, the proprietary governments, and the King's colonies. The first colonies were the charter colonies, such as the Virginia Com

rectors members of the privy council and of both houses of Parliament; they were under the authority of the privy council, and had agents resident here, responsible for their proceedings. So much were they considered as belonging to the Crown, and not to the King personally (for there is a great difference, though few people attend to it), that when the two Houses, in the time of Charles the First, were going to pass a bill concerning the colonies, a message was sent to them by the King that they were the King's colonies, and that the bill was unnecessary, for that the privy council would take order about them; and the bill never had the royal assent. The Commonwealth Parliament, as soon as it was settled, were very early jealous of the colonies separating themselves from them; and passed a resolution or act (and it is a question whether it is not in force now) to declare and establish the authority of England over its colonies.

I shall now answer the noble Lord particularly upon the cases he has quoted. With respect to the Marches of Wales, who were the borderers, privileged for assisting the King in his war against the Welsh in the mountains, their enjoy-pany; and these companies had among their diing this privilege of taxing themselves was but of a short duration, and during the life of Edward the First, till the Prince of Wales came to be the King; and then they were annexed to the Crown, and became subject to taxes like the rest of the dominions of England; and from thence came the custom, though unnecessary, of naming Wales and the town of Monmouth in all proclamations and in acts of Parliament. Henry the Eighth was the first who issued writs for it to return two members to Parliament. The Crown exercised this right ad libitum, from whence arises the inequality of representation in our Constitution at this day. Henry VIII. issued a writ to Calais to send one burgess to Parliament. One of the counties palatine (I think he said Durham) was taxed fifty years to subsidies, before it sent members to Parliament. The clergy were at no time unrepresented in Parliament. When they taxed themselves, it was done with the concurrence and consent of Parliament, who permitted them to tax themselves upon their petition, the Convocation sitting at the same time with the Parliament. They had, too, their representatives always sitting in this House, bishops and abbots; and, in the other House, they were at no time without a right of voting singly for the election of members; so that the argument fetched from the case of the clergy is not an argument of any force, because they were at no time unrepresented here.

not a case in

2. They have

submitted to and thus ne their depend

English law,

knowledged

ence.

But if there was no express law, or reason founded upon any necessary inference from an express law, yet the usage alone would be sufficient to support that authority; for, have not the colonies submitted ever since their first establishment to the jurisdiction of the mother country? In all questions of property, the appeals from the colonies have been to the privy council here; and such causes have been determined, not by the law of the colonies, but by the law of England. A very little while ago, there was an appeal on a question of limitation in a devise of land with remainders; and, notwithstanding the intention of the testator appeared very clear, yet the case was determined contrary to it, and that the land should pass according to the law of England. The colonies have

The reasoning about the colonies of Great The colonies Britain, drawn from the colonies of antiquity, is a mere useless display point of learning; for the colonies of the Tyrians in Africa, and of the Greeks in Asia, were totally different from our system. No nation before ourselves formed any regular system of colonization, but the Romans; and their sys-been obliged to recur very frequently to the jutem was a military one, and of garrisons placed risdiction here, to settle the disputes among their in the principal towns of the conquered provin- own governments. I well remember several ces. The states of Holland were not colonies references on this head, when the late Lord

Hardwicke was attorney general, and Sir Clem- | has been ultimately to fix the trade of the coloent Wearg solicitor general. New Hampshire nies, so as to center in the bosom of that country and Connecticut were in blood about their differ- from whence they took their original. The Navences; Virginia and Maryland were in arms igation Act shut up their intercourse with foragainst each other. This shows the necessity eign countries. Their ports have been made of one superior decisive jurisdiction, to which all | subject to customs and regulations which have subordinate jurisdictions may recur. Nothing, cramped and diminished their trade. And dumy Lords, could be more fatal to the peace of ties have been laid, affecting the very inmost the colonies at any time, than the Parliament parts of their commerce, and, among others, that giving up its authority over them; for in such a of the post; yet all these have been submitted case, there must be an entire dissolution of gov- to peaceably, and no one ever thought till now ernment. Considering how the colonies are of this doctrine, that the colonies are not to be composed, it is easy to foresee there would be taxed, regulated, or bound by Parliament. A no end of feuds and factions among the several few particular merchants were then, as now, disseparate governments, when once there shall be pleased at restrictions which did not permit them no one government here or there of sufficient to make the greatest possible advantages of their force or authority to decide their mutual differ-commerce in their own private and peculiar ences; and, government being dissolved, nothing remains but that the colonies must either change their Constitution, and take some new form of government, or fall under some foreign power. At present the several forms of their Constitution are very various, having been produced, as all governments have been originally, by accident and circumstances. The forms of government in every colony were adopted, from time to time, according to the size of the colony; and so have been extended again, from time to time, as the numbers of their inhabitants and their commercial connections outgrew the first model. In some colonies, at first there was only a governor assisted by two or three counsel; then more were added; afterward courts of justice were erected; then assemblies were created. Some things were done by instructions from the secretaries of state; other things were done by order of the King and council; and other things by commissions under the great seal. It is observable, that in consequence of these establishments from time to time, and of the dependency of these governments upon the supreme Legislature at home, the lenity of each government in the colonies has been extreme toward the subject; and a great inducement has been created for people to come and settle in them. But, if all those governments which are now independent of each other, should become independent of the mother country, I am afraid that the inhabitants of the colonies are very little aware of the consequences. They would feel in that case very soon the hand of power more heavy upon them in their own governments, than they have yet done, or have ever imagined.

mitted affected

The Constitutions of the different colonies are 3. The laws to thus made up of different principles. which they sub. They must remain dependent, from their pecuniary the necessity of things, and their reinterests vitally. lations to the jurisdiction of the mother country; or they must be totally dismembered from it, and form a league of union among themselves against it, which could not be effected without great violences. No one ever thought the contrary till the trumpet of sedition was blown. Acts of Parliament have been made, not only without a doubt of their legality, but with universal applause, the great object of which

branches. But, though these few merchants might think themselves losers in articles which they had no right to gain, as being prejudicial to the general and national system, yet I must observe, that the colonies, upon the whole, were benefited by these laws. For these restrictive laws, founded upon principles of the most solid policy, flung a great weight of naval force into the hands of the mother country, which was to protect its colonies. Without a union with her, the colonies must have been entirely weak and defenseless, but they thus became relatively great, subordinately, and in proportion as the mother country advanced in superiority over the rest of the maritime powers in Europe; to which both mutually contributed, and of which both have reaped a benefit, equal to the natural and just relation in which they both stand reciprocally, of dependency on one side, and protection on the other.

are virtually represented in

There can be no doubt, my Lords, but that the inhabitants of the colonies are as 4. The colonies much represented in Parliament, as the greatest part of the people of En- Parliament. gland are represented; among nine millions of whom there are eight which have no votes in electing members of Parliament. Every objection, therefore, to the dependency of the colonies upon Parliament, which arises to it upon the ground of representation, goes to the whole present Constitution of Great Britain; and I suppose it is not meant to new model that too. People may form speculative ideas of perfection, and indulge their own fancies or those of other men. Every man in this country has his particular notion of liberty; but perfection never did, and never can exist in any human institution. what purpose, then, are arguments drawn from a distinction, in which there is no real difference— of a virtual and actual representation? A member of Parliament, chosen for any borough, represents not only the constituents and inhabitants of that particular place, but he represents the inhabitants of every other borough in Great Britain. He represents the city of London, and all other the commons of this land, and the inhabitants of all the colonies and dominions of Great Britain; and is, in duty and conscience, bound to take care of their interests.

To

5. The distine

and internal taxation is a false one.

The

I have mentioned the customs and the post tax. | Masaniello was mad. Nobody doubts it; yet, This leads me to answer another dis- for all that, he overturned the government of tion of external tinction, as false as the above; the Naples. Madness is catching in all popular distinction of internal and external assemblies and upon all popular matters. taxes. The noble Lord who quoted book is full of wildness. I never read it till a so much law, and denied upon those grounds the few days ago, for I seldom look into such things. right of the Parliament of Great Britain to lay I never was actually acquainted with the coninternal taxes upon the colonies, allowed at the tents of the Stamp Act, till I sent for it on pursame time that restrictions upon trade, and du- pose to read it before the debate was expected. ties upon the ports, were legal. But I can not With respect to authorities in another House, I see a real difference in this distinction; for I know nothing of them. I believe that I have hold it to be true, that a tax laid in any place is not been in that House more than once since I like a pebble falling into and making a circle in had the honor to be called up to this; and, if I a lake, till one circle produces and gives motion did know any thing that passed in the other to another, and the whole circumference is agi- House, I could not, and would not, mention it as tated from the center. For nothing can be more an authority here. I ought not to mention any clear than that a tax of ten or twenty per cent. such authority. I should think it beneath my laid upon tobacco, either in the ports of Virginia | own and your Lordships' dignity to speak of it. or London, is a duty laid upon the inland plant- I am far from bearing any ill will to the Amerations of Virginia, a hundred miles from the sea, icans; they are a very good people, and I have wheresoever the tobacco grows. long known them. I began life with them, and owe much to them, having been much concerned in the plantation causes before the privy council; and so I became a good deal acquainted with American affairs and people. I dare say, their heat will soon be over, when they come to feel a little the consequences of their opposition to the Legislature. Anarchy always cures itself; but the ferment will continue so much the longer, while hot-headed men there find that there are persons of weight and character to support and justify them here.

I do not deny but that a tax may be laid injudiciously and injuriously, and that people in such a case may have a right to complain. But the nature of the tax is not now the question; whenever it comes to be one, I am for lenity. I would have no blood drawn. There is, I am satisfied, no occasion for any to be drawn. A little time and experience of the inconveniences and miseries of anarchy, may bring people to their senses.

turbances con

With respect to what has been said or written upon this subject, I differ from the Indeed, if the disturbances should continue for Mr. Otis's book. noble Lord, who spoke of Mr. Otis a great length of time, force must be Force must be and his book with contempt, though he maintain- the consequence, an application ad- used if the dis ed the same doctrine in some points, while in equate to the mischief, and arising tinue. others he carried it farther than Otis himself, out of the necessity of the case; for force is only who allows every where the supremacy of the the difference between a superior and subordinCrown over the colonies. No man, on such a ate jurisdiction. In the former, the whole force subject, is contemptible. Otis is a man of con- of the Legislature resides collectively, and when sequence among the people there. They have it ceases to reside, the whole connection is dischosen him for one of their deputies at the Con- solved. It will, indeed, be to very little purpose gress and general meeting from the respective that we sit here enacting laws, and making resgovernments. It was said, the man is mad.olutions, if the inferior will not obey them, or if What then? One madman often makes many.

2 The celebrated James Otis is here referred to, who in 1764 published a pamphlet, which was reprinted in England, entitled The Rights of the British Colonies. In this pamphlet, while he admitted the supremacy of the Crown over the colonies, he strenuously maintained, with Lord Chatham, that as long as America remained unrepresented in the House of Commons, Parliament had no right to tax the colonies.

Mr. Otis, who was a man of fervid eloquence, expressed himself so strongly respecting the rights of America, that some persons (as Lord Mansfield mentions) treated him as a madman. There is a speech (to be found in most of our collections of eloquence) which bears his name, and begins, "England may as well dam up the waters of the Nile with bulrushes, as fetter the step of freedom," &c. It first appeared in a work entitled The Rebels, written by Mrs. Child, and was designed as a fancy sketch, like the speeches put by Mr. Webster into the mouth of Adams and Hancock, in his oration on the death of John Adams and Thomas Jefferson.

we neither can nor dare enforce them; for then, and then, I say, of necessity, the matter comes to the sword. If the offspring are grown too big and too resolute to obey the parent, you must try which is the strongest, and exert all the pow ers of the mother country to decide the contest.

likes on oth

I am satisfied, notwithstanding, that time and a wise and steady conduct may pre- Examples of vent those extremities which would Popular disbe fatal to both. I remember well er subjects. when it was the violent humor of the times to decry standing armies and garrisons as dangerous, and incompatible with the liberty of the subject. Nothing would do but a regular militia. The militia are embodied; they march; and no sooner was the militia law thus put into execu tion, but it was then said to be an intolerable burden upon the subject, and that it would fall.

sooner or later, into the hands of the Crown. That was the language, and many counties petitioned against it. This may be the case with the colonies. In many places they begin already

to feel the effects of their resistance to govern- | writer refers never passed, and Lord Hale only ment. Interest very soon divides mercantile | said, that, if it had passed, the Parliament might people; and, although there may be some mad, have abdicated their right. enthusiastic, or ill-designing people in the colonies, yet I am convinced that the greatest bulk, who have understanding and property, are still well affected to the mother country. You have, my Lords, many friends still in the colonies; and take care that you do not, by abdicating your own authority, desert them and yourselves, and lose them forever.

In all popular tumults, the worst men bear the sway at first. Moderate and good men are often silent for fear or modesty, who, in good time, may declare themselves. Those who have any property to lose are sufficiently alarmed already at the progress of these public violences and violations, to which every man's dwelling, person, and property are hourly exposed. Numbers of such valuable men and good subjects are ready and willing to declare themselves for the support of government in due time, if government does not fling away its own authority.

My Lords, the Parliament of Great Britain has its rights over the colonies; but it may abdicate its rights.

manuscript of Lord Hale's,

There was a thing which I forgot to mention. Notice of a I mean, the manuscript quoted by the noble Lord. He tells you that which had been it is there said, that, if the act conquoted by Lord Camden. cerning Ireland had passed, the Parliament might have abidicated its rights as to Ireland. In the first place, I heartily wish, my Lords, that Ireland had not been named, at a time when that country is of a temper and in a situation so difficult to be governed; and when we have already here so much weight upon our hands, encumbered with the extensiveness, variety, and importance of so many objects in a vast and too busy empire, and the national system shattered and exhausted by a long, bloody, and expensive war, but more so by our divisions at home, and a fluctuation of counsels. I wish Ireland, therefore, had never been named.

I pay as much respect as any man to the memory of Lord Chief Justice Hale; but I did not know that he had ever written upon the subject; and I differ very much from thinking with the noble Lord, that this manuscript ought to be published. So far am I from it, that I wish the manuscript had never been named; for Ireland is too tender a subject to be touched. The case of Ireland is as different as possible from that of our colonies. Ireland was a conquered country; it had its pacta conventa and its regalia. But to what purpose is it to mention the manuscript? It is but the opinion of one man. When it was written, or for what particular object it was written, does not appear. It might possibly be only a work of youth, or an exercise of the understanding, in sounding and trying a question problematically. All people, when they first enter professions, make their collections pretty early in life; and the manuscript may be of that sort. However, be it what it may, the opinion is but problematical; for the act to which the

But, my Lords, I shall make this application of it. You may abdicate your right over the colonies. Take care, my Lords, how you do so; for such an act will be irrevocable. Proceed, then, my Lords, with spirit and firmness; and, when you shall have established your authority, it will then be a time to show your lenity. The Americans, as I said before, are a very good people, and I wish them exceedingly well; but they are heated and inflamed. The noble Lord who spoke before ended with a prayer. I can not end better than by saying to it, Amen; and in the words of Maurice, prince of Orange, concerning the Hollanders, "God bless this industrious, frugal, and well-meaning, but easily-deluded people."

The Stamp Act was repealed, and the Declaratory Act, thus advocated by Lord Mansfield, was also passed by a large majority.

As Lord Campbell has pronounced the above argument unanswerable, it may interest the young reader to know how it was actually answered by the Americans, and why they denied the right of Parliament to lay internal taxes upon them.

1. They owed their existence not to Parliament, but to the Crown. The King, in the exercise of the high sovereignty then conceded to him, had made them by charter complete civil communities, with Legislatures of their own having power to lay taxes and do all other acts which were necessary to their subsistence as distinct governments. Hence,

2. They stood substantially on the same footing as Scotland previous to the Union. Like her they were subject to the Navigation Act, and similar regulations touching the external relations of the empire; and like her the ordinary legislation of England did not reach them, nor did the common law any farther than they chose to adopt it. Hence,

3. They held themselves amenable in their internal concerns, not to Parliament, but to the Crown alone. It was to the King in council or to his courts, that they made those occasional references and appeals, which Lord Mansfield endeavors to draw into precedents. So "the post tax" spoken of above, did not originate in Parliament, but in a charter to an individual which afterward reverted to the Crown, and it was in this way alone that the post-office in America became connected with that of England. It was thus that the Americans answered the first three of Lord Mansfield's direct arguments (p. 149-50). Their charters made them dependent not on Parliament, but on the Crown; and their submission to English authority, much as it involved their pecuniary interests, was rendered only to the latter. Weak as they were, the colonists had sometimes to temporize, and endure an occasional overreaching by Parliament. It was not always easy

to draw the line between the laws of trade, to which they held themselves subject, and the general legislation of Parliament. But they considered it clear that their charters exempted them from the latter, giving it to their own Legislatures. See Massachusetts State Papers, p. 351. On this ground, then, they denied the right of Parliament to tax them. It is a striking fact in confirmation of these views, as mentioned by Mr. Daniel Webster, that the American Declaration of Independence does not once refer to the British Parliament. They owed it no allegiance, their only obligations were to the King; and hence the causes which they assigned for breaking off from the British empire consisted in his conduct alone, and in his confederating with others in "pretended acts of legislation."

thousand miles from the body of English electors. But if not virtually represented, the Americans were not represented at all. A bill giving away their property was, therefore, null and void-as much so as a bill would be if passed by the House of Lords, levying taxes on the Commons of England. Under the English Constitution, representation of some kind is essential to taxation.

this Lord Mansfield could only reply, as he does in his fourth direct argument (p. 150). "America is virtually represented in the House of Commons." But this, as Lord Campbell admits, is idle and false. A virtual representation there may be of particular classes (as of minors and females), who live intermingled in the same community with those who vote; but a virtual representation of a whole people three thousand miles off, with no intermingling of society or interests, is beyond all doubt" an absurdity in terms." The idea is contrary to all English usage in such cases. When the Scotch were incorporated with the English in 1705, they were not considered as virtually represented" in the English Parliament, but were allowed to send representatives of their own. It was so, also, They had, however, a second argument, that with Wales, Chester, and Durham, at an earlier from long-continued usage. Commencing their period. Nothing, in fact, could be more adverse existence as stated above, the British Parliament to the principles of the English Constitution than had never subjected them to internal taxation. the idea of the "virtual representation" of three When this was attempted, at the end of one hund-millions of people living at the distance of three red and fifty years, they used the argument of Mr. Burke, "You were not woNT to do these things from the beginning," and while his inference was, "Your taxes are inexpedient and unwise," theirs was, "You have no right to lay them." Long-continued usage forms part of the English Constitution. Many of the rights and privileges of the people rest on no other foundation; and a usage of this kind, commencing with the very existence of the colonies, had given them the exclusive right of internal taxation through their own Legislatures, since they maintained their institutions at their own expense without aid from the mother country. To give still greater force to this argument, the Americans appealed to the monstrous consequences of the contrary supposition. If, as colonies, after supporting their own governments, they were liable to give England what part she chose of their earnings to support her government-one twentieth, one tenth, one half each year, at her bidding-they were no longer Englishmen, they were vassals and slaves. When George the Third, therefore, undertook to lay taxes in America and collect them at the point of the bayonet, he invaded their privileges, he dissolved the connection of the colonies with the mother country, and they were of right free. A third argument was that of Lord Chatham. "Taxation," said his Lordship, "is no part of the governing or legislative power." A tax bill, from the very words in which it is framed, is "a gift and grant of the Commons alone," and the concurrence of the Peers and Crown is only necessary to give it the form of law. When, therefore, in this House," said his Lordship, "we give and grant, we give and grant what is our own. But in an American tax what do we do? We, your Majesty's Commons for Great Britain, give and grant to your Majesty-What? Our own property? No. We give and grant to your Majesty the property of your Majesty's subjects in America! It is an absurdity in terms!" To

Lord Mansfield's last argument (p. 151) is, that "the distinction between external and internal taxation is a false one." According to him, as Parliament, in carrying out the Navigation Act, laid external taxes affecting the colonies, Parliament was likewise authorized to lay internal taxes upon them. The answer is given by Mr. Burke. The duties referred to were simply incidental to the Navigation Act. They were used solely as instruments of carrying it out, of checking trade and directing its channels. They had never from the first been regarded as a means of revenue. They stood, therefore, on a footing entirely different from that of internal taxes, which were the gift and grant of the Commons alone." The distinction between them was absolute and entire; and any attempt to confound them, and to take money on this ground from those who are not represented in Parliament, was subversive of the English Constitution.1

Such were the arguments of the Americans; and the world has generally considered them as forming a complete answer to the reasonings of Lord Mansfield.

1 The reader will find this distinction fully drawn out in Mr. Burke's Speech on American Taxation, page 249, 250. He there shows, that during the whole operation of the Navigation Laws, down to 1764, "a parliamentary revenue thence was never tinguish revenue laws, specifically as such, were once in contemplation; that "the words which dispremeditatedly avoided;" and that all duties of this kind previous to that period, stood on the ground of mere "commercial regulation and restraint."