« PreviousContinue »
and with respect to the modes of taxation, when of Spain; they were states dependent upon the we get beyond the reign of Edward the First, house of Austria in a feudal dependence. Nothor of King John, we are all in doubt and obscu- ing could be more different from our colonies rity. The history of those times is full of uncer- than that flock of men, as they have been called, tainties. In regard to the writs upon record, who came from the North, and poured into Eu. they were issued some of them according to law, rope. Those emigrants renounced all laws, all and some not according to law; and such [i. e., protection, all connection with their mother counof the latter kind) were those concerning ship- tries. They chose their leaders, and marched money, to call assemblies to tax themselves, or under their banners to seek their fortunes and to compel benevolences. Other taxes were rais- establish new kingdoms upon the ruins of the ed from escuage, fees for knights' service, and Roman empire. by other means arising out of the feudal system. But our colonies, on the contrary, emigrated Benevolences are contrary to law; and it is well under the sanction of the Crown and Direct Argu. known how people resisted the demands of the Parliament. They were modeled ments. 1. The Crown in the case of ship-money, and were per- gradually into their present forms, ted by charter, secuted by the Court; and if any set of men respectively, by charters, grants, and dependent on were to meet now to lend the King money, it statutes; but they were never sepwould be contrary to law, and a breach of the arated from the mother country, or so emancirights of Parliament.
pated as to become sui juris. There are sevI shall now answer the noble Lord particular- eral sorts of colonies in British America. The ly upon the cases he has quoted. With respect charter colonies, the proprietary governments, to the Marches of Wales, who were the border- and the King's colonies. The first colonies were ers, privileged for assisting the King in his war the charter colonies, such as the Virginia Comagainst the Welsh in the mountains, their enjoy- pany; and these companies had among their diing this privilege of taxing themselves was but rectors members of the privy council and of both of a short duration, and during the life of Ed- houses of Parliament; they were under the auward the First, till the Prince of Wales came to thority of the privy council
, and had agents resi. be the King; and then they were annexed to dent here, responsible for their proceedings. So the Crown, and became subject to taxes like the much were they considered as belonging to the rest of the dominions of England; and from Crown, and not to the King personally (for there thenee came the custom, though unnecessary, is a great difference, though few people attend of naming Wales and the town of Monmouth in to it), that when the two Houses, in the time of all proclamations and in acts of Parliament. Charles the First, were going to pass a bill conHenry the Eighth was the first who issued writs cerning the colonies, a message was sent to them for it to return two members to Parliament. by the King that they were the King's colonies, The Crown exercised this right ad libitum, from and that the bill was unnecessary, for that the whence arises the inequality of representation in privy council would take order about them; and our Constitution at this day. Henry VIII. issued the bill never had the royal assent. The Coma writ to Calais to send one burgess to Parlia- monwealth Parliament, as soon as it was settled, ment. One of the counties palatine (I think he were very early jealous of the colonies separating said Durham) was taxed fifty years to subsidies, themselves from them; and passed a resolution before it sent members to Parliament. The cler- or act (and it is a question whether it is not in gy were at no time unrepresented in Parliament. force now) to declare and establish the authority When they taxed themselves, it was done with of England over its colonies. the concurrence and consent of Parliament, who But if there was no express law, or reason permitted them to tax themselves upon their pe- founded upon any necessary infer- 2. They have tition, the Convocation sitting at the same time ence from an express law, yet the submitted to with the Parliament. They had, too, their rep- usage alone would be sufficient to and thus 20 resentatives always sitting in this House, bish- support that authority; for, have not their dependops and abbots; and, in the other House, they the colonies submitted ever since ence. were at no time without a right of voting singly their first establishment to the jurisdiction of the for the election of members.; so that the argu- mother country? In all questions of property, ment fetched from the case of the clergy is not the appeals from the colonies have been to the an argument of any force, because they were at privy council here ; and such causes have been no time unrepresented here.
determined, not by the law of the colonies, but by The reasoning about the colonies of Great the law of England. A very little while ago, The colonia Britain, drawn from the colonies of there was an appeal on a question of limitation sotnice in antiquity, is a mere useless display in a devise of land with remainders; and, notpoint. of learning; for the colonies of the withstanding the intention of the testator appearTyrians in Africa, and of the Greeks in Asia, ed very clear, yet the case was determined conwere totally different from our system. No na- trary to it, and that the land should pass accordtion before ourselves formed any regular system ing to the law of England. The colonies have 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 branches. But, though these few merchants remains but that the colonies must either change might think themselves losers in articles which their Constitution, and take some new form of they had no right to gain, as being prejudicial to government, or fall under some foreign power. the general and national system, yet I must obAt present the several forms of their Constitution serve, that the colonies, upon the whole, were are very various, having been produced, as all benefited by these laws. For these restrictive governments have been originally, by accident laws, founded upon principles of the most solid and circumstances. The forms of government policy, flung a great weight of naval force into in every colony were adopted, from time to time, the hands of the mother country, which was according to the size of the colony; and so have to protect its colonies. Without a union with been extended again, from time to time, as the her, the colonies must have been entirely weak numbers of their inhabitants and their commer- and defenseless, but they thus became relatively cial connections outgrew the first model. In great, subordinately, and in proportion as the some colonies, at first there was only a governor mother country advanced in superiority over the assisted by two or three counsel; then more rest of the maritime powers in Europe ; to which were added; afterward courts of justice were both mutually contributed, and of which both erected; then assemblies were created. Some have reaped a benefit, equal to the natural and things were done by instructions from the secre- just relation in which they both stand reciprotaries of state ; other things were done by order cally, of dependency on one side, and protection of the King and council; and other things by on the other. commissions under the great seal. It is observ- There can be no doubt, my Lords, but that able, that in consequence of these establishments the inhabitants of the colonies are as 4. The colonies from time to time, and of the dependency of much represented in Parliament, as represented in these governments upon the supreme Legislature the greatest part of the people of En- Parliament
. at home, the lenity of each government in the gland are represented; among nine millions of colonies has been extreme toward the subject; whom there are eight which have no votes in and a great inducement has been created for electing members of Parliament. Every objecpeople to come and settle in them. But, if all tion, therefore, to the dependency of the colonies those governments which are now independent upon Parliament, which arises to it upon the of each other, should become independent of the ground of representation, goes to the whole presmother country, I am afraid that the inhabitants ent Constitution of Great Britain ; and I suppose of the colonies are very little aware of the con- it is not meant to new model that too. People sequences. They would feel in that case very may form speculative ideas of perfection, and insoon the hand of power more heavy upon them dulge their own fancies or those of other men. in their own governments, than they have yet Every man in this country has his particular nodone, or have ever imagined.
tion of liberty; but perfection never did, and The Constitutions of the different colonies are never can exist in any human institution. To 2. The laws to thus made up of different principles. what purpose, then, are arguments drawn from a while there are on They must remain dependent, from distinction, in which there is no real differencetheir pecuniary the necessity of things, and their re- of a virtual and actual representation ? A meminterests vitally.
lations to the jurisdiction of the moth- ber of Parliament, chosen for any borough, reper country; or they must be totally dismembered resents not only the constituents and inhabitants from it, and form a league of union among them- of that particular place, but he represents the selves against it, which could not be effected inhabitants of every other borough in Great without great violences. No one ever thought Britain. He represents the city of London, and the contrary till the trumpet of sedition was all other the commons of this land, and the inblown. Acts of Parliament have been made, not habitants of all the colonies and dominions of only without a doubt of their legality, but with Great Britain ; and is, in duty and conscience, universal applause, the great object of which bound to take care of their interests.
and internal taration is a false one
I have mentioned the customs and the post tax. | Masaniello was mad. Nobody doubts it; yet, & The distine. 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. The
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 I do not deny but that a tax may be laid in- owe much to them, having been much concerned judiciously and injuriously, and that people in in the plantation causes before the privy counsuch a case may have a right to complain. But cil; and so I became a good deal acquainted the nature of the tax is not now the question ; with American affairs and people. I dare say, whenever it comes to be one, I am for lenity. their heat will soon be over, when they come to I would have no blood drawn. There is, I am feel a little the consequences of their opposition satisfied, no occasion for any to be drawn. A to the Legislature. Anarchy always cures itlittle time and experience of the inconveniences self; but the ferment will continue so much the and miseries of anarchy, may bring people to longer
, while hot-headed men there find that their senses.
there are persons of weight and character to With respect to what has been said or written support and justify them here. Mr. Otis's book. upon this subject, I differ from the
Indeed, if the disturbances should continue for 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- urbancese din ed the same doctrine in some points, while in equate to the mischief, and arising inue. others be 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. we neither can nor dare enforce them; for then,
and then, I say, of necessity, the matter comes * The celebrated James Otis is here referred to, to the sword. If the offspring are grown too who in 1764 published a pamphlet, which was re- big and too resolute to obey the parent, you must printed in England, entitled The Rights of the Brit: try which is the strongest, and exert all the pow. ish Colonies. In this pamphlet, while he admitted ers of the mother country to decide the contest. the supremacy of the Crown over the colonies, he
I am satisfied, notwithstanding, that time and strenuously maintained, with Lord Chatham, that
a wise and steady conduct may pre- Examples of as long as America remained unrepresented in the House of Commons, Parliament had no right to tax
vent those extremities which would popular dis; the colonies.
be fatal to both. I remember well er subjects. Mr. Otis, who was a man of fervid eloquence, ex. when it was the violent humor of the times to pressed himself so strongly respecting the rights of decry standing armies and garrisons as dangerAmerica, that some persons (as Lord Mansfield men- ous, and incompatible with the liberty of the subtions) treated him as a madman. There is a speech ject. Nothing would do but a regular militia. (to be found in most of our collections of eloquence) The militia are embodied; they march; and no which bears his name, and begins, “ England may sooner was the militia law thus put into execuas well dam up the waters of the Nile with bulrush- tion, but it was then said to be an intolerable es, as fetter the step of freedom,” &c. It first ap: burden upon the subject
, and that it would fall, peared in a work entitled The Rebels, written by Mrs. Child, and was designed as a fancy sketch, like sooner or later, into the hands of the Crown. the speeches put by Mr. Webster into the mouth of That was the language, and many counties peAdams and Hancock, in his oration on the death of titioned against it. This may be the case with Jobn Adams and Thomas Jefferson.
the colonies. In many places they begin already
Notice of a
quoted Lord Camden.
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 colo- But, my Lords, I shall make this application nies, yet I am convinced that the greatest bulk, of it. You may abdicate your right over the who have understanding and property, are still colonies. Take care, my Lords, how you do so ; well affected to the mother country. You have, for such an act will be irrevocable. Proceed, my Lords, many friends still in the colonies; then, my Lords, with spirit and firmness; and, and take care that you do not, by abdicating when you shall have established your authority, your own authority, desert them and yourselves, it will then be a time to show your lenity. The and lose them forever.
Americans, as I said before, are a very good peoIn all popular tumults, the worst men bear the ple, and I wish them exceedingly well; but they sway at first. Moderate and good men are often are heated and inflamed. The noble Lord who silent for fear or modesty, who, in good time, spoke before ended with a prayer. I can not may declare themselves. Those who have any end better than by saying to it, Amen; and in property to lose are sufficiently alarmed already the words of Maurice, prince of Orange, conat the progress of these public violences and viola- cerning the Hollanders, “ God bless this industions, to which every man's dwelling, person, and trious, frugal, and well-meaning, but easily-deproperty are hourly exposed. Numbers of such luded people." valuable men and good subjects are ready and willing to declare themselves for the support of government in due time, if government does not The Stamp Act was repealed, and the Defling away its own authority.
claratory Act, thus advocated by Lord MansMy Lords, the Parliament of Great Britain field, was also passed by a large majority. has its rights over the colonies; but it may abdicate its rights.
As Lord Campbell has pronounced the above There was a thing which I forgot to mention. argument unanswerable, it may interest the young
I mean, the manuscript quoted by reader to know how it was actually answered by manuscript of
the noble Lord. He tells you that the Americans, and why they denied the right whoebe had toen it is there said, that, if the act con- of Parliament to lay internal taxes upon them.
cerning Ireland had passed, the Par- 1. They owed their existence not to Parlialiament might have abidicated its rights as to ment, but to the Crown. The King, in the exIreland. In the first place, I heartily wish, my ercise of the high sovereignty then conceded to Lords, that Ireland had not been named, at a time him, had made them by charter complete civil when that country is of a temper and in a situ- communities, with Legislatures of their own havation so difficult to be governed ; and when we ing power to lay taxes and do all other acts which have already here so much weight upon our were necessary to their subsistence as distinct hands, encumbered with the extensiveness, va- governments. Hence, riety, and importance of so many objects in a 2. They stood substantially on the same footvast and too busy empire, and the national sys- ing as Scotland previous to the Union. Like her tem shattered and exhausted by a long, bloody, they were subject to the Navigation Act, and and expensive war, but more so by our divisions similar regulations touching the external relaat home, and a fluctuation of counsels. I wish tions of the empire ; and like her the ordinary Ireland, therefore, had never been named. legislation of England did not reach them, nor
I pay as much respect as any man to the did the common law any farther than they chose memory of Lord Chief Justice Hale; but I did to adopt it. Hence, not know that he had ever written upon the sub- 3. They held themselves amenable in their ject; and I differ very much from thinking with internal concerns, not to Parliament, but to the the noble Lord, that this manuscript ought to be Crown alone. It was to the King in council or to published. So far am I from it, that I wish the his courts, that they made those occasional resermanuscript had never been named; for Ireland ences and appeals, which Lord Mansfield endeavis too tender a subject to be touched. The case ors to draw into precedents. So "the post tax" of Ireland is as different as possible from that of spoken of above, did not originate in Parliament, our colonies. Ireland was a conquered country; but in a charter to an individual which afterward it had its pacta conventa and its regalia. But reverted to the Crown, and it was in this way to what purpose is it to mention the manuscript ? alone that the post-office in America became conIt is but the opinion of one man. When it was nected with that of England. It was thus that written, or for what particular object it was the Americans answered the first three of Lord written, does not appear. It might possibly be Mansfield's direct arguments (p. 149–50). Their only a work of youth, or an exercise of the un-charters made them dependent not on Parliament, derstanding, in sounding and trying a question but on the Crown ; and their submission to Enproblematically. All people, when they first glish authority, much as it involved their pecunienter professions, make their collections pretty ary interests, was rendered only to the latter. early in life ; and the manuscript may be of that Weak as they were, the colonists had sometimes sort. However, be it what it may, the opinion to temporize, and endure an occasional overis but problematical; for the act to which the reaching by Parliament. It was not always easy
to draw the line between the laws of trade, to this Lord Mansfield could only reply, as he does which they held themselves subject, and the in his fourth direct argument (p. 150). "Amergeneral legislation of Parliament. But they ica is virtually represented in the House of Comconsidered it clear that their charters exempted mons.” But this, as Lord Campbell admits, is them from the latter, giving it to their own Leg- idle and false. A virtual representation there islatures. — See Massachusetts State Papers, p. may be of particular classes (as of minors and 351. On this ground, then, they denied the right females), who live intermingled in the same comof Parliament to tax them. It is a striking fact munity with those who vote; but a virtual repin confirmation of these views, as mentioned by resentation of a whole people three thousand Mr. Daniel Webster, that the American Decla- miles off, with no intermingling of society or inration of Independence does not once refer to the terests, is beyond all doubt "an absurdity in British Parliament. They owed it no allegiance, terms." The idea is contrary to all English their only obligations were to the King; and usage in such cases. When the Scotch were hence the causes which they assigned for break- incorporated with the English in 1705, they were ing off from the British empire consisted in his not considered as "virtually represented” in the conduct alone, and in his confederating with oth- English Parliament, but were allowed to send ers in " pretended acts of legislation."
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 thousand miles from the body of English electors. Mr. Burke, "You were not wont to do these things But if not virtually represented, the Americans
from the beginning ;” and while his inference were not represented at all. A bill giving away was, " Your taxes are inexpedient and unwise," their property was, therefore, null and void—as theirs was, "You have no right to lay them.” much so as a bill would be if passed by the House Long-continued usage forms part of the English of Lords, levying taxes on the Commons of EnConstitution. Many of the rights and privileges gland. Under the English Constitution, repreof the people rest on no other foundation ; and a sentation of some kind is essential to taxation. usage of this kind, commencing with the very
Lord Mansfield's last argument (p. 151) is, existence of the colonies, had given them the ex- that “the distinction between external and inclusive right of internal taxation through their ternal taxation is a false one." According to own Legislatures, since they maintained their in- him, as Parliament, in carrying out the Navigastitutions at their own expense without aid from tion Act, laid external taxes affecting the colonies, the mother country. To give still greater force Parliament was likewise authorized to lay internto this argument, the Americans appealed to the al taxes upon them. The answer is given by monstrous consequences of the contrary supposi- Mr. Burke. The duties referred to were simply tion. If, as colonies, after supporting their own incidental to the Navigation Act. They were governments, they were liable to give England used solely as instruments of carrying it out, of what part she chose of their earnings to support checking trade and directing its channels. They her government-one twentieth, one tenth, one had never from the first been regarded as a means half each year, at her bidding—they were no of revenue. They stood, therefore, on a footing longer Englishmen, they were vassals and slaves. entirely different from that of internal taxes, which When George the Third, therefore, undertook to were " the gift and grant of the Commons alone.” lay taxes in America and collect them at the The distinction between them was absolute and point of the bayonet, he invaded their privileges, entire ; and any attempt to confound them, and he dissolved the connection of the colonies with to take money on this ground from those who are the mother country, and they were of right free. not represented in Parliament, was subversive of
A third argument was that of Lord Chatham. the English Constitution." "Taxation," said his Lordship," is no part of the Such were the arguments of the Americans ; governing or legislative power.” A tax bill, and the world has generally considered them as from the very words in which it is framed, is a forming a complete answer to the reasonings of gift and grant of the Commons alone,” and the Lord Mansfield. concurrence of the Peers and Crown is only necessary to give it the form of law. "When, 1 The reader will find this distinction fully drawn therefore, in this House," said his Lordship, “we out in Mr. Burke's Speech on American Taxation, give and grant, we give and grant what is our page 249, 250. He there shows, that during the own. But in an American tax what do we do? whole operation of the Navigation Laws, down to We, your Majesty's Commons for Great Britain, 1764, " a parliamentary revenue thence was never give and grant to your Majesty-What? Our tinguish revenue laws, specifically as sach, were
once in contemplation; that "the words which disown property? No. We give and grant to your premeditatedly avoided;" and that all duties of this Majesty the property of your Majesty's subjects kind previous to that period, stood on the ground of in America ! It is an absurdity in terms !" To mere" commercial regulation and restraint.”