R E M A R K S
O N T H E
PRINCIPAL ACTS
O F T H E
THIRTEENTH PARLIAMENT
O F
GR,EAT BRITAIN.
By the Author of Letters concerning the
Prefent State of Poland.

Gardons nous de ce refpe£t hiimain, quand il s'agit des fautes
publiques que le malheur des teras a arraclies a des corps re-
Ipeftahlts. On ne fauriot trop les mettre au jour, ceibntdes
phares qui avertiffent ces corps toujours fubfiftans de.ne plus
fe brifer aux memes ecueils.

V O L. I.
Containing REMARKS on the ACTS
relating to the COLONIES.
WITH
A PLAN OF RECONCILIATION.

LONDON,
Printed for T. PAYNE, at the Mews-Gate.
MDCCLXXV-.

PREFACE.
TH E oppofite and irreconcilable
charaders beftow6d by different
perfons on the laft parliament had long
perplexed me. To the virulent eflfufions
of ma.ddening faction, to the abufive
bead-roll of cant fentences echoed from
inferior quarters, I paid little heed ; but
when grave magiftrates, in addrefles to the
throne ; when famous orators, within the
walls of the houfe itfelf, reprefented parlia
ment as the betrayer, not the guardian of
the rights of the people -, when others as
loudly exalted its wifdom, firmnefs, and
independence; it then, became at once
more interefting, and more difficult to de
cide what was the charader that parlia
ment deferyed. A 2 The

iv PR E F A C E.
, The intereft which every citizen mufl
take in fuch a queftion was much increaf-
cdby the very firfl; appearances of the
eledion that fucceeded. At firfl: fight it
appeared that a large majority of the fame
members would be returned to the next
parliament. If the thirteenth parliament
then deferved one half of the reproaches
with which it had been fo plentifully
laden, we might expedl before the end of
the fourteenth to be in that fort of 'ftate,-
in which it would behove every prudent
and every honeft citizen to lay afide all
confidence in eleElors or ele^ed, aiid take
the charge of his fecurity into his own
hands. To put my mind at eafe, I determined
to fit down and examine coolly the prin
cipal tranfadions of that afTembly ; and,
without borrowing my ppinion either
from its lifiied advocates, or defamers,
form my Judgment from its own re
cords.

Of

PREFACE, V
Of the refult of that examination, what
is hercj with all due -deference, fubmitted
to the public, is a part. In fubmitting it,
however, I would wifh to obviate two ob-
jedidns to which this attempt may feem at
firfl fight liable. Some will cenfure it as
indecent ; for what can be more indecent,
if we may believe a celebrated commenta
tor *, than for a private man to pafs judg
ment on the ads of the legiflature ? — >
Dthers niay flight it as unfinified.
In anfwer to the firft charge, that of in-
.decency, I would afk whether it be inde
cent to examine, to refled? Now every
man who refleds at all, mull either ap
prove, or difapprove, or fufpend his
judgment. If he approves, it is becaufe
the thing approved of is conformable to
* Blackfton-e, Com, iv. 50. He is there fpeak-
ing of a crime being of a much grojjer nature,
than another which ' he there mentions, " finc'e
" it carries with it the utmoft indecency, arrogance,
" and ingratitude. Indecency, by fctting up pri-
•" vate judgment in oppofition to public au-
«' thority." A 3 his

vi PREFACE.,
his own ideas ; if he difapproves, it is be
caufe it is repugnant to his own ideas :—
if he keeps himfelf in fufpenfe, it is be
caufe it is partly conformable, and partly
repugnant. There appears to me to oe no
more indecency in one of thefe operations
than in another. If it be thought arrogant
to exprefs that opinion, I have only to
fay, that even in the mofl defpotic go
vernments it is allowed to fpeak freely of
deceafed fovereigns.— In France it is per
mitted; in Egypt it was ordained. In
this country, which fome are pleafed to
call free, though not pleafed, we find,
with the only means by which it can be
kept fo; — in this country a-diffolved par
liament is a deceafed fovereign.— In Egypt,
a defpotic government, the cuftom of pro
nouncing orations at the embalming of
their kings, was eflablifhed as a means of
inciting the reigning prince to reform the
errors, fupply the defeds, and perfed the
gooddefigns of hispredeceffdr. — Let thefe
Remarks be confidered in the fame light.—. Shoul4

P R E F A C E. vll
'Should the end propofed by them be in
any degree attained, I fhall have the merit
of having fer-ved my country.— Should|it
totally fail, there is no demerit in the en
deavour. The motive I can be fure of : It is of the
purefl kind ; — the wifh of doing good;—
unconneded with any. party; too proud
to be dependent on any: of too little con-
feque-nce to be fought by any, I fpeak, but
as I feel.— Wherever I think parliament
has aded as the faithful guardian of our
rights and liberties, I fhall gratefully ap
plaud : — where 1 think it has facrificed
itheih, — I fhall as freely cenfure. For this
J. plead my mqtto in excufe.
To the fecond charge, that of offering
but a part of a work to the public, I
can only fay, that this part is all that
iis now ready : — that it takes in the
vvhole of the particular fubjed it treats
of; and that this fubjed would form a.'
whole of itfelf: — :it i^ independent of, and
hut accidentally conneded with any other :
A 4. —if

VlU

P R E F A C E.

 if this part is tolerably well executed, I
fhall be pardoned for fending it out alone ;
—if it be ill executed, the public I am
fure will forgive me for not having trou
bled them with more.
I had. another reafon for not, retaining
this part till the whole was finifhed. — The
fubjed of thefe remarks is now before the
legiflature. If ever therefore " iny poor
" opinion" * can be worth attending to,
it is now.
1 have only to add, that the objeds of
the legiHature in the ads here examined,
were fome of the mofl difficult that ever
came before this, or indeed any parliament.
— It was therefore natural, that the afls
themfelves fhould be liable to the greatefl
objedions. In other inftances, I believe,
it will be found, that we owe to it more
beneficial ads than to any other parliament
from the revolution to this hour.
* I believe this fhrafe is borrowed from a fa
mous orator. — But I may venture to fay, that we
attach very different ideas to the fame figns.
THE

THE
DESIGN.
THE objed of the ads here confidered
was to fecure the dependence of the
colonies upon the pother-country : a more '
importarit one has feldom come before a par
liament ; few in which greater, or mor,e
cornplicated interefls were involved : " moft
" certainly it called for the whole wifdoiri of
" the wifeft among them *."
A fubjed in which not only the general
interells of the flate, but the particular in-
terefts of fo many individuals are fo deeply
concerned, mull have produced many appeals
tp the public. Every man thought himfelf
at liberty, fome thought themfelves engaged .
to give their opinions ; much novelty, there
fore, will not be expeded.
My chief aim will be, to colled the vari-
ous arguments as they lie fcattered in differ
ent writers, to reduce them each to its pro-
* Mr. Burke's Speech to the Ele£lors of Briftdl. per

3s T H E D E S I G N.
per dafs, to prefent them to the jeader in
that point of view, in which alone they are
applicable to the queftions we are are to
examine.
. In the difcuflion of thefe queflions we fhall
reap little benefit from the dogmatic tone .of
general alTertion, from the ingenuity of me
taphor, or from the pompous difplay of
" thofe gratuitous and acknowledged truths,
" which being generally received, are little
" doubted, and being little doubted have
" been rarely proved *." To many of the
latter clafs one general anfwer would fufEce.
'¦f To be prejudiced is always to be weak -f."
'What avails it to tell us, that " a colony
" is to the mother-country as a member to
" the body, deriving its adion and its
" flreng-th from the general principle of vi-
" tality |. The colonifts may fmile perhaps
at the pomp with which the hackneyed meta
phor is reproduced ; but they will add, " If
*^ you think us incurably tainted, fubmit us
" to amputation, you vvill find we have a
" principle of vitality within ourfelves ; we
*' fliall not perifh like a putrid Hmb.".
* See Taxation no Tyranny, p. i. ,
+ See ibid. p. 3.
^ See ib. p. 28.
What

THEDESIGN. xi
What avails it to tell us, that " the jufl;,
*' wife, and neceffary conftitutional fuperiori-
*' ty of Great Britain over her colonies fhould
" be maintained unimpaired, apd undiminifti-
«< ed * .'"' But one American has yet denied
the pofition f .
^ What avails it to tell us, that the fupe-
riority of Great Britain over her colonies
is not tp annihilate the liberties of the Ame
ricans, is not " to put them in a fituation
" not becoming a freeman * ?" Thefe truths,
what courtier is hardy enough to difpute ?
If you mean to inflrud us, go one fle'p
farther,^ teach us to apply each our own
maxim to our own cafe : define this conftitu
tional fuperiority of Great Britain: teach us
to reconcile Britifh fuperiority with Ameri
can liberty *. This is not a queflion of the
fchools, to be decided by random maxims, or
apophthegms of the fages.
What avails it 'to cite detached uncon-
peded. opinions from writers on our laws ?
This is not a queflion before a common
court of juflice,, acknowledged to be com-
* Mr. Burke's Speech to the Eleftors of Briftol.
~ t Dr. Franklin, as cited by Dr. Tucker, but it is
pnce faid the performance which the ,dean refers to
js not Dr. Franklin's.
6 petent

sii THEDESIGN.
petent by both the contending parties. On
this queflion the opinions of judges and coun
cil have no doubt their weight j'but will the
Americans allow them to be decifive? If
they would, vi^ith all due deference to fo
formidable a body, the writings of lawyers
are like two-edged weapons, they cut at
friend and foe. Whoever is acquainted
with them will be ready enough tp acknow-'
ledse, that there is not in the world a
more fluduating, we may boldly fay, a more
fallacious guide.
There is no maxim fo unconftitutional,
no two maxims fo contradidory, that I
would not undertake to prove from the
writings or opinions of feme of them ^, It
* Thus Lord Coke is cited by the author of " the
" Appeal to Juftice, and the iijitereft of the people of
" Great Britain in the prefent Difputes \Aith America."
Coke had faid, " that it is againft the franchife of the
" land for freemen to be taxed but by xh-tn" Qwn con-
" fent." This pofition was not true in his" time : it is
flill lefs fo in ours : it would disfranchife three-fourths
of the inhabitants of Great Britain : three-fourths of
us neither are taxers, nor give our voice in the choice
bf taxers, nor even our confent to the nomination of
thofe who'do chufe them; Our fecurity is not that our
confent is given to every tax, but that our interefts and
thofe of the taxen are fo involved, that in general vje
cannot be taxed without their befng taxed with us,
7 The

THE D F: S I G N. xiii
It may ferve the purpofe of party but not
of truth, to mutilate or to mifapply more re-
fpedable authorities^. Hard
The fame writer lays great ftrefs'on the opinions of
the judges in the time of Henry VI. and Richard III.
refpefting the power ;of taxing Ireland., A courtier
perhaps might think him anfwered, by citing the opi-
nipns of the judges in the time of Charles I.' refpeiS-
ing fhip-money. He cites from Brafton, " Auxilia
" fiunt de gratia ^^ non dejure, cum dependeant ex' gratia
" tenantium, et non ad voluntatem dominorum." , A
maxim as plainly contradifted by faft as that other of
Lord Coke. Few men I believe pay taxes out of mere
good-will. To furnifh means for the defence of the
.Community againft foreign foes, and for the fecurliy
of each man's property againft the fraud or violence
¦pf domeftic invaders — whatever political fanaticifm,
may tell us, is a matter of flria duty : if Brafton's
authority is all-conclufive, what will this writer fay to
another quotation .?' I hope, and i believe it will, be
lefs agreeable to his tafte. " Rex eft vicarius, et mi-
" nifter Dei in terra, omnis quidem fub eo eft, et ipfe
" fub nulla nifi tantum fub Deo." I mention this only
to fliew the abfurdity of relying on general and detach
ed maxims laid down by our lawyers.
* The author of the Appeal has prefixed to his work
a refolution of the houfe of commons : he cites it thus :
" Refolved, That the ancient and undoubted rights of
*' every free man are, that he hath a full andabfolute
" property in his goods and eftate, and cannot be taxed
" but by common confent." The refolution ftands
thus upon the Journals : — " Refolved upon the quef-,
*' t'ion, that the ancient and undoubted right of every
" freeman

3eIv THEDESIGN.
Hard words may ferve to fhew a man's
fpleen, but they ferve little to fortify his opi
nion. Virulent and abufive language ^ may
carry off a fit of paflion, but will neither per-
fuade nor convince.
The only method of determining fairly on
' the condud of the late parliament in this im-*
portant bufinefs, will be to enquire
*' freeman is, that he hath a full and ablblute property
" in his goods and eftate, and that no tax, tallage, loan,
*' benevolence, or other like charge, ought to be com-
*' manded or levied by the king, or any of his minijiers,
" without common aflent by ail of parliament." See
Journals of the Houfe of Commons,, Vol. I. p. 878.
The reader fees, that this refolution is levelled
againft the unconftitutional power affumed by the crown.
It was never intended to define the power of parliament.
To mutilate or mifapply citations of fuch authority, in
a queflion of fuch magnitude, is at once impolitic and
unfair. * The author of the Appeal above cited, talks (p. 37),
" of the ideots who are condudting our prefent mea-
« fures." Of Lord North's fnuiEng up the incenfe of
adulation " in the very fmcerity of his vanity and
" folly." One feels pain at meeting with thefe illi
beral phrafes in a book, which does not otherwife want
merit. The writers on the minifterial fide have kept
pace with their antagonifts in this application of abu
five terms, &c. The phrafes of « rebels, " « babes of
II grace," are by many of them dealt out with a verv
liberal tand. The author of « Taxation no Tyranny »
in his « terrific " ftyle, talks of " airyburfts of maW
leoce ; and advifes us " to renel thfl,- 0
" Wift fco„ „,h„ „„„ „r„. S'by'^pSo™ I. Ai

' T H E D E S I 6: N. rtf
I. As to the folnt of Right.
i'. As to the crown alone, what is the power
with which the conflitution invefls that
branch of the legiflature over countries con
quered, or otherwife acquired .•*
2. As to the whole body of the legiflaturCj
whether its operations can be reflrained by
any ads of the aforenamed branch of it.
3. Again as to the whole body of the le
giflature, whether on the particular point of
taxation there be any other principle in the
conflitution to reflrain its operations ?
II. As to the point offa^. 1
I. What were the privileges originally
granted by the crown to the colonies ?
2. What power preceding parliaments exer-
cifed over them.
When thefe queflions are fairly difcuffed,
and not before, we may venture to give our
opinions. III. On the merits of the frocee dings of the lafl
parliament.
r. Whether they were confiflent with the
Ijpirit of the conflitution.
2. Whether they were confifl:ent with the
didates of found policy.
To enter on the two lafl fubjeds of enquiry
before the other points are fully fettled,
would at leafl be prepoflerous. It would be
, to begin where we ought to end. If

xvi THEDESIGN.
If the power vefted in the crown, oyer
conquered or acquired countries, be circum-
fcribed within certain bounds, by certain ac
knowledged rules, all ads done in the exer-
cife of that power, fn'u'll be meafured by thofe
rules, on their conformity to which their va
lidity will depend.
If the ads done in the exercife of that
power do not bind or reftrain parliament, it
is in vain to cite thofe ads. On this fuppo-
fition chairters are ufelefs parchments, — be
caufe ineffedive.
If there be any principle in oiir conflitu
tion, by which the Americans can claim an
exemption from parliamentary taxatioh,
then too charters will be found but ufelefs
parchments, becaufe unneceffary .
If there be no fuch principle, then allow
ing to charters their utrhofl force, the colo
nifts can plead no exemption from thence,
till they have fhewn it to be there either fpe-
cified, or of necefilty implied.
If different interpretations be put on the
fame grants by the contending parties, we
mufl: then appeal' to ufage to decide between
them. If the proceedings of the lafl parliament be
queftioned, we muft exadly know the fitu
ation in which the preceding parliament had
left it.

CONTENTS. PREFACE.
REASONS for undertaking this wOrk, and apo^i
logy for publifhing this part of it. '
D ESI G N.'
Diftribution of the fubjedi, and method of treating it.
PART I.
I.
Enquiry into the matter of Right.
Sect. 1,'What is the power with which the cen/litutitti invefls
the crown over countries conquered, or otherwife acquired?
Power of making capitulations and treaties of peace,
and prefcribing forms of government to the founders of
new fettlements, p. i. Exemplified in the cafe of Ire
land, p. 4 — of Wales, Berwick, &c. p. 15; Precedents
prove the power conftitutional, p. 20. Definition of the
term *' conftitution," p. 22. In what fenfe the confti^
tution of England can be faid to be fixed, p. 24.
Sect. II. Can the operations of the whole body of the legifl(itfire
be reflrained by ony a£l' of the crown P <
Of the king's feveral capacities, viz', fupreme legiflatiye,
fubordinate legiflative, executiye, andprocuratorial, p. 26.
Capitulations, treaties, and charters granted to original
fettlers, are a£is of the king in his procuratorial capacity,
and binding on the whole legiflature, p, 32. Obfcurity
thrown on this queftion by the unconftitutional maxims of
the Stewart fathily, p. 38. Praftices to be juftified only
by thofe maxims, ftill retained, p. 39. Danger of con
founding the feveral capacities of- the king, p. 45.
Sect. Ill, Is there any other principle in the conflitution to
reflrain the operations of tin whole body of the. legiflature on
the particular point of Taxation ?
Cafe of a country fuppofed to furrender without a ca
pitulation, or of a country fuppofed to be fettled, without.
a charter, p. 48. Powers and exemptions conveyed by
capitulations, treaties, and charters, p. 49. Examination
of a maxim laid down by Locke, p. 54. Definition of
property, p. 55. To pay a tax js not to give up part of our
property, p. 56. Taxes are not gifts, p. 58. Are notim-
pofed by confent of all the taxed, or their reprefentatives,
p. 60. Reprefentation and taxation not infepatable, p. 67.
Advantages enjoyed by Britons from the peculiar relation
a the

CONTENTS,
the taxing body, that is the Houfe of Commons, ftands In
to them, p.^/3. Whether the Hflufe of' Commons ftands
altogether, or how far in the fame relation to the Ame?
ficans, p. 75.
Sect. IV. Summary afthe arguments on the matter of right.
'¦ PART IL
Enquiry into the matter of Fact,
Sect. I. What are the. privileges granted to the firfl fettlers
in North America by the Virginian charters ?¦
Abftraft of the firft Virginifi charter, p. 86. Of the
fecertd Virginia charter, p. 94. Of the third Virginia
charter, p. 97. Remarks on thefe charters, p. loi.
Sect. II. What were the privileges granted by the crown to the
people of New England by the firfl charter o/Maffachufet^ s- Bay ?
Hiftory of the grant of this charter, p. 109. Abftract
of it, p. 1 13.
Sect. III. AbfraM of the charters of ConneSlicut and Rhode
Ifand.
Remarks on the three laft charters, p. 124.
Sect. FV. What were the privileges graniedby the crown fo the
^ewEnglanders by the fecund charier of Maffachufet s-Bay P '^
Hiftory pf the grant of this- charter, p. 1 29. Abftrafl;
of it, 131. It does not, nor didkihg William mean that
it ftiouid, exempt the grantees from parliamentary taxa
tion, p. 137.
^£CT. V. What were the privileges conveyedby the crown to
the proprietor and inhabitants of Maryland, in the charter
of Maryland ?
Abftraft pf this charter, p. 143. Of the king's re^
nunciation of the power of taxing, p. 150. Of the
powerof parliament as tp other points, p. 155.
Sect. VI. What -were the privileges granted by the crown to
the proprietor and inhabitants of Penfilvania by the chartet
of Penfilvania?
Abftraftpf this charter, p. 158. Remarks on it, p. 164.
SecT-VIL What power ¦ did the parliament excercife over,
the colonies frorn their firfl efabnjliment to the time of the
Commonwealth. Afts of fupremacy exercifed, p. 167. Of a fuppofed
renunciation of that fupremacy, p. 1764
^ 3ect,

CONTENTS.
Sect. VIII. What power did the par>liament exercife over the
colonies, from the beginning of the civil war tp the refloration.
The afts of fupremacy exercifed during this period are
pertinent to the prefent queftion. Account of them.
Jlemarks on them, p. 185.
Sect, IX. What powers did the parliament exercife over the co
lonies from the refioration to the acceffton of his prefent majefty.
Navigation Adls, p. igg. Revenue Adl of 25 Car .11.
p. 203. Aft of 7 & 8 Will. III. aflerting the fupremacy
of England, p. 206., Afts of Queen Anne, p. 208. Of
Geo. I. p. 210. Of Geo. II. p. 212. Revenue Aft of
Geo. II. in which theHoufe of Commons ufes the techr
nical terms of " give and grant ". Mr. Burke's remarks
on it examined, p.. 21 9. Other afts of Geo II. p. 224.
Sect. X. Of the deference paid by the colonies to the authority
of parliament, and to the requifiiions of the Crown previous
to the reign of his prefent majefly.
Ufe of examining this queftion, p. 228. Of the de
ference paid to the authority of parliament, p. 232. Of
the deference paid to the requifition of the crown, p. 239.
SecT. XL Of the- conduct of parliament with reference to
the colonies from the beginning of the prefent reign, to the
commencement of the lafl parliament.
Remark of Mr. Burkfe's on the periods or changes in
the policy' of Great Britain towards the colonies examin
ed, p. 248. Revenue Aft of 4 Geo. lIL Mr. Burke's
remarks on it examined, p. 253. Propofal of Mr. Gren?,
ville's rejeftedby the Colonies, p. 259. The Stamp Aft
petitioned againft, p. 267. followed by difturbances in
America, p. 269. Thefe difturbances heightened by th^
malcontents at home, p. 270. And the expeftation of
a change in the miniftry, p. 275; Afts paffed during th^
Rockingham adminiftration. Mr. Burke's account of
them examined, p. 282. Afts pafled during the fucceed-
ing. adminiftration, eftablifhing a board'of cuftoms in A^
m'erica, and inipofing duties on tea, &c. p, -296. Hovy
received in the Colonies, p. 304.
PART. III.
Examination of the Ads paffed by the thirteenth
parliament of Great Britain relating tp tii§
^flloiiies,

CONTENTS.
Sect. I. Advantages of the periodical renewal of the legifla
tive body. Ufe which this parliament might, have made oj
them in the American affairs.
SecT.IL Proceedings of the fecond fefftons of the thirteenth
parliament. -^r • r
Speech at opening the feflions, p. SH- M°tion for
documents negatived, p. 316. Papers produced and re-
folutions formed on them, p. 320. Addrefs to enforce
^c Hen. VIII. with remarks on that ftatute, p- 321.
LordHillfljorough's letter, and Mr. Burke's remarks on
it, examined, p- 340.
Sect. III. Proceedings of the third feffions.
^ Effefts of the letter, p. 345. Speech at opening the
feffion, p. 346. Amendments moved to the addrefs, p,
348. Partial repeal of the obnoxious aft, p. 352. Pro
ceedings of the malcontents at home, p. 354. Motion
rejefted, p. 356. <
Sect. IV. Proceedings of the feventhfeftsns.
Meffage and papers fent by his majefty, p. 362. Afts
paft thereupon, p. 367.
Sect. V. Aiifor Jhutting up the port of Boflon.
Abftraft of the aft, p. 370. It was paffed on fuffici-
cnt evidence, p. 373. Objeftion to its involving the in
nocent with the guilty anfwered, p. 379.
¦Sect. VI. AB for the impartial adminiftration of juflice in
the cafe of perfons quefiioned for any a5i done in the execu-
cution of the laws in Majfachufet' s Bay.
Abftraft di the aft, p. 393. The aft vindicated, p. 395.
Sect. VII. The ait for the better regulating the government
of Maffachufef s Bay.
The government of this province ftood in need of re
formation, p. 404. Conftitution of the council, p. 406.
Appointment of judges, p. 417. Of juries and ftieriffs,
p, 421. Regulations of public meetings, p. 428.
Sect. VIIL Tlie ^ebec Ail.
Abftraft of it, p. 438. Eftablifhment of the Roman
Catholic religion vindicated, p. 450. Defefts in not ex
plaining what is meant by the, king's fupremacy, p. 457^
in not allowing the marriage of priefts, and providing for
the gradual fuppreflion of monafteries, p. 461. in not ex
empting proteftants from the payment of tythes, p. 466.
Of the eftablifliment of the laws of Canada in civil caufes,
p. 468. Of the confirmation of the criminal law of E,ng-
and, p. 476. Of the , legiflative council, p. 479.
Fian of reconciliation, p. 483,

PARTI.
kNQUIRY INTO THE'MaTTER OF
RIGHT.

S E G T. i.
W^Bat is the pa:Wer ^itb i&hich the Confit*'
tution irhfefi^s ¦ the Crown ov^r countries
'conquered or otherwife acquired-?
IN examining this que^ftion, fom^ pro-
pofitions -may perhaps bc: advanced,
which are allowed on all hands t thefe,
if any filch th^re be, require no proof;
it will be fuflicient to ftate them. If dif-
puted proportions are advanced, we inuft
appeal-to 'hi (lory, and precedents, in fup-
J)ort of them. Hiftory and prfecedents
are here the moft unexceptionable proofs.
B If

2 Acts relating Parti.
If the king has for a long fucceffion of
years invariably exercifed certain powers
over conquered, or acquired countries ; if
the Englifh or Britifh parliament has
looked on, and allowed the exercife of
thefe powers ; fuch a tacit confent is equi
valent to a pofitive inflitution; is a con-
ftant adl of recognition. Precedents then,
if uncontradicted by precedents of an
oppofite nature, are conclulive.
Let us begin with the eafe of conquer-
-ed countries. No man difputes, that the
conftitution has vefted in the king the
power of making war, and making peace-
He may grant what terms of capitula
tion he pleafes : he may make what ar
ticles of peace he fees fit. This is al
lowed onall hands.
Terms of capitulation, articles of peace,
ought to be underftood.in their plain and
:natural l£nfe ; ought to be ftridlly, and
religioully obferved. This too is allowed
:on all hands. , Should
I

Sed; I. TO THE CoiiONlES. |
Should the king grant improper terms
of capitulation, fhould he fign improper
articles of peace, the confequences might
be fatal to himfelf : they ought to be fo to
his minifters, and advifers. But ftill the
people capitulating, or treating, ought ei
ther to be maintained in the rights and
privileges which had been granted them,
or reftored to the fituation they were in
at the time of capitulating or treating.
The fame, I apprehend, holds true of
acquired countries — of fettlements, made
either in countries vacant, as was the
cafe of Barbadoes ; or in countries puf'**
chafed of, or ceded by the original inha
bitants, as was the cafe of Ireland, and
of our colonies in North America*
It appears, that the conflitution has
"Veft'ed in the king the power of granting
filch forms of government to the foun*-
^ders of new fettlements, as he judges to
be beft for the purpofes of the fettle^*
ments ; in the fame manner as it invefts
him with the power "of granting fi^ch.
B 2 terms

4 ' Acts k^LAtiH&- PartH
lerms of capitulation, fiich articles of
peace to a conqu^ised eomutry,. as he
judges! beft for the fecurity of the con-
qiieft. '¦'• ' "- ^ - "
Let us eonfi<ier the cafe of Ireland-.
"- An odious^ fugitive (fays Dr. Leland*).
*;' driven from- his province 'by fadlion.
" and revenge, gains a few adventurers
'** in Watesj whom youthful valour, or
*' diftrefs of fortune, led into Ireland."'
Thefe adventurers embarked- under- the
ianflio® of a general licence from Henry
II; king of England, They afTifted.Der-
mod,. king of Xeinfter, in the redu£lion. of
his revolted- fubjeds-. He, in return for-
this aid, invefted them with divers towns
and diftridls., 'This- 1 think can hardly be'
.'called 2tc^&qii£fi; it ¦W3.s:a.fetth'?ne?tt grant-
:ed by 2t. ffriend, and not -a conqueft made-
upon an enemy.- • ,.
„ Soori after ward«i Henry went over ii>
-perfon to Jreiand. He claimed the whol^
lo£the ifland. His claim was founded- ofi'
* ¦-^- * -Hiftory oPIrelandy^ vol.-i. pv 21.
*"-' '¦' " '- a grant

SeS. L TO THE Colonics. 5
a grant from, the-. late pope Adrian. The
adventurers refigned into the hands of
jHenry the diftrids ceded to them by
Dermod. To the Englifli fettlers ia
ithefe diftrids, Henry, by his own autho
rity, without the intervention of the Eng
lifh parliament,- gave the full enjoyment
,of the Englifh government there-, in their
new fettlements. With the native chief
tains, who acknowledged themfelves his
-tributaries, he made a folemn compad*.
He granted, by his own authority, the
city of DuWin to the inhabitants of Brif-
.-tol, with all the liberties and free ouftomst
in this new f^ttlement, which they had
¦enjoyed at Briftcd.
By his own -authority he granted the
€own of Waterford to the Oftmen, with
the jlik^ .enjoyment of the laws of Eiig--
bnd. The privileges of the Englifh law, fo
much at leaft as -confifted in. the enjoys-
* See Leland's Hiftory of Ireland, .yol. a. .p.
77^ et feq.
P 3 W^?M

6 Acts relating Part I.
ment there in Ireland of the fame confti
tution as the Englifh fubjeds enjoyed in
England, were fuccefEvely granted to the
principal of the Irifh lords, as they fub
mitted to the king,
Some time afterward we fee Heri-
ry, of his own mere motion, and power,
granting the lordfhip of Ireland to his fon
John. It was done (fays the hiftorian *)
in " confilio generali : coram epifcopis^,
" et principibus terrx." But it does not
appear, according to Dr. Leland, that they
aded as advifers and counfellors, much
lefs as co-legiflators; they were purely
and fimply witnejfes to the ad. Their
prefence was required, not to add autho
rity, but mere publicity to the grant. In
confequence of this grant, John ever after
wards, during the lives of his father and
brother, and before his accefTion to the
throne of England, ufed the title of lord
pf Ireland,
* Sp^ Leland's Hiftory of Ireland, vol; \. p.
|29j et feq.
At

Sed. I. TO THE Colonies. 7
At the fame time Henry, of his own
authority, made other grants : — of the
kingdom of Cork, as it was called, to
Milo de Cogan and Robert Eitz -Stephens;
erf" the kingdom of Limerick to Herebert
Eitz-Herebert; and fo of other diftrids to
others, to hold oi the king, andofhisfon
'John. In the year 1210, John, now king of
England, arrives in Ireland. He efta-
blifhes courts of judicature in Dublin. He
divides his acquifitions into different
counties; appoints to each its fherifFs and
officers : and, affifted by lawyers of both
kingdoms, caufes a regular code and char
ter of laws, upon the model of thofe in
England, to be drawn up, and eftablifh-
ed for the common benefit of the land.
This charter was confirmed by the kings'
feal, was depofited in the Exchequer of
Dublin, for the diredion of the judges,
and the information of all his fubjeds.
A-U this, it feems, was done by his own
B 4 autho-

8 Acts btelating Part I.
authority ; without afking' the. advice," or
confent of -his parliament *. ' - '''
Henry the third had no fooner renew
ed and confirmed the Great Gharter,granted
by John his father to his Englifh fubjeds,
than he tranfmitted a duplicate bf it to Ire
land for the benefit of his Irifh fubjeds,
" with thofe alterations only (fays Dr.
*' Lelandf ) which the local neceffities of
*' Ireland required."
This too was done by the authority of
the king alone. By his own authority
Henry extended fome of the provifions j:,
if not all, contained in the ftatute (or as it
/hould be called the ordinance §) of Mer-
ton, tp his land of Ireland.
Edward th,e firft, by his ovyn authority,
after conference and deliberation, not with
.his parliament, but with his council \, ex-
* See Leland's Hiftory, vol. i. Alfo Vaugh-
an's Reports, Craw v, Ramfay.  -' '
t Vol. i. p, 200,
J lb. p. 236.
§ See Barrington on this ftatute.
jl See Leland, vol, i. p. 244. tended

pe(^. ^. T-o THE Colonies. g
tended the benefit of the Englifh laws -to
other fettlements within the king's land,
pr as the patent expreffes it, ?' belonging
f to the community of Ireland."
It does not appear that any confent of
the Englifh parliament was taken for the
paffing. of this patent ; but there is ex
tant an inftrudion to the governor, dired-
ing him to take the confent " of the
.*' people of that land (the part of Ire-
^' land within the Englifh 4)ale) or at leaft
=" of the prelates and nobles."
Laftly, by an ordinance of Edward IIL
an Irifh parliament was inftituted, and
*• regulated according to the inftitution of
" the parliament of England *." " By
.'* this parliament (fays the royal ordi-
," nance) we will that our affairs, and thofe
5' of our land, be, agreeably to juftice,
*' law, cuftom and reafon, faithfully treat-
** ed, debated, difcuffed, and finally deter-
*' mined.' ^
* See Coke, Inft. IV.— Leland, vol. i. p.
3'3. This

JO Acts relating Part 1.
This ordinance completely eftablifhed
that form of government in Ireland,
which had been promifed to the firft fet
tlers. And from the time of the firft pro-
mife, during all the fuccefTive gradations
to this its complete eftablifhment, the king
zOicd afone, by his own authority, with
out any participation with, or oppofitidn
from the Englifh parliament. Nor is
there any marks to fhew that the Englifh
parliament confidered any of thefe diffd-
rent grants of their fucceffive kings, o-
therwife than as legal. Nor was any ob-
jedion made to this laft ordinance; or to
the power thereby conveyed to this new
ereded parliament. Yet a trying occafion
foon prefented itfelf. The Englifh had
often and liberally contributed to fupport
the king in his purfuits in Ireland. They
at laft grew uneafy under this burthen.
But how did they condud themfelves?
Under the prefTure of this uneafinefs what
meafures did the Eqglifh parliament pur-
fue? They exprefTed their uneafinefs i
they

¦Sed. T. TO THE Colonies. ii
they remonftrated againft fupporting this
tiurthen ; they foUicited the king * to make
a ftrid enquiry into the deficiencies of the
royal revenues in that realm ; but they did
not venture either to call the fuppofed de
linquents to account, or to fupply the defi
ciencies by alTeffing any levy, by their own
authority, on the fubjeds of Ireland.
Edward on his part did not apply to his
Englifh parliament to compel his Irifh
fubjeds to contribute their quota to the
fupport of their own government. He
fummoned an Irijh parliament to meet
him in England. — The fummons was p-
beyed, but not without reludance ; but
not without a faving of their rights ; bi»t
not without declaring this to be an ad pf
favour, the voluntary effed of their rever*
,ence to the king.
Thefe are the feveral ads exercifed by
the kings of England alone, over the Iri^
nation, from the fettlement of the firfl co-
Jony to the full eftablifh-ment of the Irifl^
* A. D. 1376, pajr-

£2 Acts relating jP*rt L
parliament. I, have been the mare parti
cular in ftating them, as apprehending
that of all the pofTeffions acquired, by Eng
land, no other was acquired in a manner
fo tnuch refembling the mode of our ac
quifitions in North America. Ireland can
no more be called a conquefl 'than North
America. Ireland was a colony. The firft
fettlements in America were yielded by
the inhabitants to a fet of adventurers, fub
jeds. to the crown pf England,: the firft
fettlements in Ireland were yielded by the
lawful proprietor, to a fet of adventurers
fubjeds to the crown of England. The
fettlepents in America were granted to the
fettlers as already belonging to the king :
thofe in Ireland were yielded by the, fet
tlers to the king, and regranted by him.
Certain conditions were granted to the firft
adyenturers in America ; certain conditions
were granted to the firft adventurers in Ire
land, The fettlements In America were
extended ; 'paitly by driving out the na
tives,

Sed. 1. TO the Colonies.

13

tl-^e?,- partly by Gompads with the natives.
— So were the fettlements in Ireland.,
I know of no law, or received maxim,
by which the power of the crown has been
in this inftance abridged'. And therefore
3vhatever power the king could cpnftitu-
tionally exert over Ireland, the fame h?
could exert over America. Whatever
rights he could cPnftitutionally grant to
Ireland, the fame he could grant to Ame
rica. I do not now mean to pufh the pa^ .
rallel farther. The prefent queftion is not
whether he did adually grant thtfame pri
vileges to the one as to the other. That
queftion will meet us in its proper place.
What I contend for now is only this : —
That the terms on which the king got pof-
-feflion of America, were fi-milar to the
terms on which he got pofTefTion of Ire
land ; that therefore if he had a conftitu
tional right of conveying certain powers,
and granting certain exemption* to the fet
tlers in Ireland, he had the fame confti
tutional right of conveying certain pow:er£, and z

14 Acts relating Part I.
and granting certain exemptions, to the
fettlers in America *.
* The parallel between Ireland and our Ame
rican colonies has fince been urged, and carried
much farther by two oppoftte parties. The on^
faid, that Ireland was an example of a fubordinate
ftate enjoying the full exclufive power of taxation,
and internal legiflation. — " No man (i\ was faid)
*' would pretend that we had a right to tax Ireland.
*• Thofe who attempted it, contradicted themfelves
•'by allowing it was a right which we ought not
** to exercife ; which we could not exercife."— The
©ppoiite party allowed the parallel between Ireland
and America, but maintained our right of tax
ing Ireland; ftill allowing that right to be unexef-
cifeable. Had the gentleman, who advanced this
doftrine, taken the pains of defining what he meant
by right, he would have found it dif&cult to main
tain his propofitidn, A third party urged, that Ire
land and America fhould never be compared toge
ther. Hisreafons were fomewhat Angular :—" Ire-
•' land (fays he) has one parliament : America has
" many, Ireland provides for its own civil goverq-
" ment : the civil government of America is, in
<' part at leaft, in great part, fupported by Great
" teritain. Ireland does more : it gives many thou-
" fand a year toward the military eftablifliment of
" Great Britain : nay, it fubfidifes Great Britain ;
«« large fums are given in penfons." The .utter If

Sed- L TO THE CoLPNiies. J 5
If from Ireland w:e turn our eyes to
JVaJes, we fhall fee the king exerting the
fame power.
part of the argument was what logicians call — " ar-
" gumentum ad hominem." — HiV auditors, many
of them, felt the force of it. The nation at large
liiight wiflj perhaps that, in this refpedt, Ireland did
lefs. To give penfions may be of fervice to a mini-
Jier, of great comfort to z certain clafs of men, but I
fear has done little good to the people of Great Bri
tain. The reft of the argument has more of ftjew
than of reality. — " Ireland has one parliament, and
" America many." — By what rule of logic did this
noble orator confound all the different provinces of
America under the one general title of America?
" Ireland has one parliament ; (fays Maflachufet's
Bay) and fo have we ;'' each province may fay the
fame r it was a dangerous idea to hold forth. Too
foon perhaps all the provinces, diftnuted by force
from the mother country, may form a band of union
between themfelves : they may then have one parli
ament. Ireland did not always provide for its own
civil government: did not always contribute fo libe
rally to the military and civil eftablifhments of Eng
land. America thinks you are preffing her too
warmly fo pay her contributions ; and truly many
an honeft Englifhman may wifh her not to be too
forward m fuhjidifing. We have fubfsdies enough,
and to fpare, for every warrantable parpofe of go-
veinment,-
« What

i6 AcT^ RELATING Paft L
" What is called the ftatute of Wales
(i 2 ;Edward L A. D, .1 284.) fays Mr. Bar-
" rington, is certainly no more than re-
*' gulations made by the king in council
*' for the government of Wales *."
This ad of the king appears to hav^
been made upon the fulleft information.
Some of the lavvs and cuftoms, which pre
vailed in Wales before the cortquefts of Ed
ward, ate retained ; others altered ; others
entirely abolifhedi
The preamble to the ordinance fpeaks of
Wales as of a fief of the crown. — Edward
knew it was a conqueft — " And as con-
" queror (fays Mr. Barrington) had a right
'" to make ufe of his own words in the pre-
" amble to his own ad;." — Had it been a
fief, this ordinance would have been ille
gal. — '/ For he never pretended (fays lord
* This diftindion Was lately quoted, and ap-
^Jjtoved in-the very mafterly fpeech of Lord Mans
field, made on pronouncing judgment againft tlje
claim of the crown to the right of taxing theiGre-
nadas.
r. . "Mansfield)

Seft. L TO THE Colonies. 17'
Mansfield) " that he could ihake laws to
" bind any part of the realm, without the
" aflent of parliament.''*
Berwick was a conquered diftrld. — E4-
.¦^ard the firft, in whofe reign it was con
quered, by his pwn authority, confirmed
to it the laws and ufages, by which it had
been governed before it's redudion. — This
charter was confirmed, or renewed, or ex
tended by different kings, from EdwarcJ to
the time of James, when Berwick was in
corporated into the kingdom of England.
New York was conquered from the
Dutch. Charles II. granted it to the duke
. pf York, to hold of the crown. The form
of its conftitution, and political govern
ment, was entirely changed,- and a nevy
one prefcribed bythe king's letters patent.
Jamaica, at the time of the Reftoration,
had loft all its Spanifh inhabitants. — Charles
invited new fettlers by proclamation ; he
promifed them' protedion ; he granted them
lands .'—he appointed the conftitution, a'ftd
political government of the ifland : — firft
C a go*

r8 Acts relating t Part I.
a governor and council ; then a governor,
cpuncil, and afTembly.
Nor was this power of the king over con
quered, or acquired countries, either dif-
puted by the nation, or relinquifhed by the
crown even after the Revolution,
At the time of the Revolution the char
ter pf the New Englanders ftood vacated by
a judgment of the court of king's bench.
They petitioned king William for the re
newal of it : whilft the petition was yet
under confideration, the king enquired
" whether, without breach of law, he
** might appoint a governor over New
" England ?" To which the lord chief
juflice, and other lords of the council,
anfwered, " That (whatever might be the
*' merits of the caufe) inafmuch as the char-
" ter of New England flood vacated by a
"judgment againft them, it was in the
" kings power to put them under what
" form of government he thought beft for
"them,*" In
* See Neale's Hiftory of New-England^ Vol, ii.
P- 476. The

Sed. I. TO THE Colonies. 19
In Gibraltar and Minorca the king
not only prefcribed the firft form of go
vernment.
The reader will eafily perceive, that the cafe of
New England, in this inftance, was, in many re-
fpefls, diff"erent from that, either of a conquered or
new fettled country. Here were no enemies to yield
themfelves on certain conditions; no aliens, no fub-
jedis to expofe themfelves to expences and hazards
on a promife of certain privileges.- — They were fub-
jeiSls who (if the fentence againft them was juft) had
violated their part of a coihpaft : — and were there
fore to receive from the fovereign power, fuch con
ditions as it was his pleafure to allow them. Yet
even here the interference of parliament was not
propofed ; but it was faid to be in the iing^s power
to put th'erh under what form of government he
thought beft for them. It is probable, that gover
nor Barnard had this trahfa<Sion in view, when, in
the preface to his letters, he regrets it " as an un-
" fortunate omiffion of policy, that at the Revolu-
" tion the conftitution of the government ofAmerica
*' was not fettled by parliament ; and the rights oi
" the imperial ftate over them acknowledged, with
" fuch regulations and limitations, as the feveral
" natures of them, upon conftitutional principles
" and good policy, fhouldrequire." — And no doubt,
the prefent only excepted, there never was a moment
where the parliament could have taken on itfelf the
power of regulating the forms of government in the
diff'erent colonies, on fuch unexceptionable grounds.
C 2 The

20

Acts relating Part I.

vernment, but continues to this hour to
exercife every ;ad of legiflation.
From all thefe precedents, one point is
clear, — and that point is all we at prefent
want :' — that the conftitution, as it ftands
at this hour, has invefted the king with,
and that the king has conftantly exercifed,
the right of prefcribing the form of the
conftitution and political government in all
our conquefts, and in all our fettlements.
It is not fair to afk us for the precife
written lav/, which invefts him with this
right — The non-exiftence of fuch a writ
ten law, does not prove the non-exiflcnce
of the right. Many of the rights of in
dividuals depend upon cuftom :-^ — many of
the rights of each of the branches of the
legiflature, depend likeWife upon cuftom.
The cafes of Gibraltar and Minorca are ftill dif
ferent from the laft, or indeed from any other, be
caufe the terms of capitulation were different : hence
the powers of the king, in his fubordinate legiflatiye
capacity, are more enlarged, more difcretionary, than
in our other colonies.
6 In

Sed. I. TO, THE CoLONl-ES. 21
In this cafe th<? cuftpm is unvarledj uncon-
tradided by any oppofite precedent *.
The parliament has always acquiefced in
it ; and where is the differenqe between
the exprefs will, and a permiffive will,, of
parliament, thus circumftanced ; where the
right has been fo long exercifed on one
fide, and acquiefced in on the other ? Could
greater, or other expedations, have been
raifed in the colonies by a pofitive than by
this tacit declaration of the acquiefcence of
parliament ? Would it not be as unjuft to
deftroy the expedations raifed by this tacit,
as the expedations raifed by any pofitive
de-claration ?
The parliament, no doubt, might prer
fcribe bounds; to the exercife of this right
in the king as tp future conquefts or fettle- .
* It is upon this very ground that the Houfe of
Commons defends its exclufive claim to 'the right
¦of bringing in and .framj.hg all money-bills ; and
that the Houfe of Lords defends^ its claim to the
exercife of the judicial pov/er. See Com. Journ.
Vol, ix. p, 240, & feq. --
C 3 ments ;

22 ¦ Acts relating Part I.
ments ; — but as no bounds are hitherto fet
to It, the power he exercifes in prefcribing
fprms of government to countries already
conquered, or fettled, is a power that feems
warranted by the conftitution.
For what do we mean by the conflitu
tion ? The queftion muft be anfwered one
time or other : as well may we anfwer it
now as at any other time. Is it not that
afl'emblage of inftitutions and cuftoms
which compofe the general fyftem, accord
ing to which the feveral powers in the ftate
are diftributcd ?
I fay cuftoms as well as inftitutions ; —
for, I repeat it again, it is upon cuftom
that a great part of our political as well
as of our civirgovernment depends. '
Not that we are hence to conclude, that
the conftitution is unalterable, or that any
power in it is npt liable tP be put under,
or reftrained by, fnch other controuls and
and checks, as the wifdom of the prefent
or future parliaments may adopt. The

6ed. I. TO the Colonjes. 23
The Americans have indeed difcovered,
-— *' that, in all free ftates the conftitution
" isfxed',^' — that is, as the fequel explains
it, unalterable \ — ¦'" the fupreme legiflative
" power of the ftate (they tell us) derives
^' its authority from the conftitution :"—
they then afk us with an air of triumph,—
*' If that power can overleap the bounds
** of the conftitution, without fub verting
f iis own foundation *?"
I really do not know what thefe gentle
men' mean bythe conftitution ; — for after
all my refearches, I never could find out
the immutable laws of nature. In which
they are fo converfant j and to which they
refer us, as the proper ftandard by which
to try the validity of ads of parliament.
But if the conftitution means, as I fuppofe
it to mean, the afllemblage of inftitutions
and cuftoms, by which the different powers
in the ftate are diftilbuted ; then, fo far is
*See Letter from the feprefentative of Maflachufet's
Bay to lord Camden, dated January 29, 1768, in
.The true Sentiments of America.
C4 the

24-

Acts relating Part I.

the legiflative power from deriving all its
authority from the conftitution, that the-
conftitution itfelf is in great part created
by the legiflative power; — then it is not
true, that the conftitution is fo fixed, as
never to be changed
. Moft certainly the Englifh conftitution
has not always been fixed. It often has
been changed. It has been changed by
parliament. — To' thefe changes we owe
our prefent liberty. Suppofe a greater de
gree of liberty to be poffible, is the fame
authority incompetent to make thefe
changes, by which fo defireable an obr
jed may be attained ?
No doubt the Englifh conftitution is
more fixed, that is, lefs liable to change,
than the conftitution of any other country,
ancient or modern. — No doubt this is a
very eminent advantage. — But whence a-
rifes this advantage ? From the divifion,
not from the impotence, of the legiflative
power ; from the difficulty of uniting the
different branches in any fcheme of alte-
ratlbr.

Sed. I. to the Colonies, 25
ration, not from their inability to efi^ed
alterations when they are ijnited. Let
them be once united, and you may fay
of them as truly as of any other legifla
ture, *' EUe change la conftitution comme
" pieu crea la lumiere*."
In this inftance therefore, as well as In
any other, parhament may change the
conftitution, by abridging or controlling
the power of the king. But till it is a-
bridged or contrplled, the. power itfelf
and the exercife of it are furely conftitu
tional. .
* See Conftitution d'Angleterre, chap. xli.

SECT.

26 Acts' Relating Part I,
S E C T. IL
Can the operations of the whole body of
the legifature, be refrained by any a5l of
the Crown.?
TO anfwer this queflion it' will bq
neceffary to ftate, and diftingulfh,
the feveral capacities In which the king
may be confidered as ading.
The king gives his afl!ent to a bill pro
pofed to him by the two houfes of parlia
ment. The bill becomes a law. That is,
a command concerning forts of adionsj
addreflTed either to all the fubjeds of the
realm in general, or to forts of fubjeds.
Here the king ads Iii his fupreme legifla
tive capacity. It is legifative, for the
power of legiflation is the power of ilfu-
ing commands concernlngyor/j of adions.
It as fupreme, becaufe It is derived from,
dependent on, no other power.
No ad of the king in this capacity can
be applied to the prefent queftion. He
ad 3

Sed. IL To THE Colonies. 27
ads here as a conftituent part of parlia
ment. His confent to a bill is not fo
much the exercife of any pofitive power,
as the non-exerclfe of a negative power.
The initiative, that is, the power of put
ting the legiflative in motion, is the func
tion of the other cPnftltuent parts of par
liament. To the king is referved only
the tribunltial power, . the power of nega
tion, of rejeding what he does not ap
prove *.
The king Iffues a prPclamation. This
too may be a command concerning forts
of adions, addreflfed to forts of perfons.
Such a command is an ad of Jreglflation.
Therefore here too the king ads ^ in a
legiflative capacity. The power he exer
cifes here' is called a power oi fubordinate
legiflation f. For though the command be
* See Conftitution del'Angleterre, paffim
f I call this a power oi fubordinate legiflation in
compliance with cuftom. I would rather wifti to
call it a power of difcretionary execution. For tho'
indeed thefe are commands concerning y«r/^ of ac
tions, and addreffed to farts oi perfons, and fo have one

aS^ Acts RELATING .Parti.
be cpncerning forts of adions, and ad-
drefled \.o forts pf perfons, yet thefe, forts,
pf adions are cpmprifed in a more general
fort, concerning which a command has
been ifliied by that legiflative power,
which is called xht fupreme.
The circumftances under whichj and
the forts of perfons to whom thefe com
mands of the fubordinate legiflation are
to be addreffed, are fpecially pointed out
by the fupreme legiflation. In a word,
one property of a£ls of legiflation ; yet this power
wants that independence which I have been always
accuftomcd to attach to the idea of legiflation. I
have always thought that there is much truth in
that remark of a very fenfible writer-}- : " Th.e
*' Jegiflative power (fays he) is that power in any
" ftate, which can make laws binding upop every
" other member of the ftate, not to be repealed
"or controlled by any othtrr power but by itfelf only.
.".•Nothing fhort of this is legiflation. Call any
*' other pov/er by what name you pleafe, it is not
" legiflative. It is fubordinate to it, dependent
'* upon it, delegated from it, created by it.''
t See the Defence of the Proceedings of the Houfe of
Commons in the Middlefijx Einftion, piinted in 1770, quar
to, p. 31. the

Sed.IL TO TihE CIqloNies. 29
the will; of the fubordinate legiflation is
direded as to its objed, clrcumfc:ibed as
' to its exercife, and controllable as tp its
effeds, by the fupreme legiflation.
:' No ad of the king in this capacity can
be applied to the prefent queftion.
The king iffues a, command concern
ing . /??^zW^?^'?^ ^^z"c'z-''5 addreffed 4:0 indi--
'uidiial perfons. That is, he commands
.individual perfons, each comprifed within
,a fort of perfons, already d.efigned by the
legiflature, to perform certain particular
adions, each comprifed within a fort of
adions already commanded to be dpne by
that fort of perfons *. Here the king ads
in his executive capacity. ' ' Clearly
* For inftance, it is a general cominand of the
legiitature, that ail perfons,, importing certain
merchaiidifes from certain places, do pay 'fuch and
fuch duties ; and that the duties To paid be given
by the receivers to other perfons,' who are to ap
ply them to fuch and fuch purpofes. The'feareall
general cotr.tnands, concerning forts, of aflions to
forts of people. The legiflature has no individual
perfon'in contemplation. John Stiles imports fuch
merchandifes from fuch places. The king, as ex
ecutive

30 Acts Relating Part L
Clearly no ad of the king in this capa
city can be applied to the prefent quef
tion. The king grants a capitulation, or makes
a treaty. In what capacity does he ad
then ?
He does not ad in his fupreme legifla
tive capacity. He never ads in that ca
pacity but in conjundion with the other
conftituent parts of the parliament. No
command is ifliied ; nor are the perfons,
whom he has In contemplation in this ca-
ecutive magiftrate, commands John Stiles to
pay the duties; commands a particular ofiicer to
receive them, and to accompt for them to other
perfons : he commands thofe perfons to apply
them to their refpeftive purpofes. John Stiles re-
fufes to obey this command : the king, as execu
tive magiftrate, commands his officers to feize the
goods, fell them, &c. Here all thefe general corn-
mandsare applied to individual a£tiqns and per
fons. The faine reafoning may be applied to cri
minal cafes. Where the chief executive magiftrate
commands the conftable to arreft, the juftice to
commit, the goaler to receive, the judges and jury
to try, and the fherifF to execute the fentence pro
nounced bythe judges, pacity,

Sed.IL to the Colonies. .31
pacity, the forts of perfons tP whom, nor
the adions the forts of adions concerning
which, his right of Iffuing a command is
acknowledged. He does not ad elthei: in his fubordi
nate legiflative, or In his executive capa-
, city. They prefuppofe a more general
command concerning the fame adipns
and perfons.
What does be do then.? He makes a
comfaSl. He plights the fait It of the na
tion to the obfervance of that cpmpad.
He ads as fole agent, as fole reprefenta-
tive a£ the whole legiflaturCi He is in
vefted with a full difcretionary power, to
be ufed as he thinks beft, and moft con
ducive to the benefit pf the whole.
This certainly is the exercife of a very
different power from thofe which are ex
erted in either of his other capacities. The
capacity itfelf then is different ; no name
has been found for it, unlefs that general
VLndtfixx^dqnt^oi prerogative. But though
no name has been invented, the thing ex-
7 ifts;

J

32

Acts relating J'art I.

ifts, and ought to have a name ; let us
call it his procuratorial capacity.
The powers which he exercifes in this
capacity, this agency, this reprefentation,
are not perhaps derived from any pofitive
ad of the legiflature : they are derived
from cuftom, from the fame fource as moft
of the powers of the other conftituent parts
of the ftate are derived.
Had this plain and obvious diftindlon
of the diff^erent capacities in which the king
may be confidered as ading, been fuffi-
ciently attended to, much ufelefs argu
ment on the prefent fubjed had been
fpared. When the king ads in his procuratorial
capacity, when he grants a capitulation^ Pr
makes a treaty, there Is ho conflid be
tween different and contending bran-ehes
of the fovereignty. It is not the execti-
tive power that binds the legiflative ; nor
a part of the legiflative that binds the
whole. But the legiflature is bound by its

Sei^:. II. 'to tHE ColoNiEs. 33
its own conftitutional agent and reprefen-
tative. ¦ , ¦
A capitulation is graiited at the begin
ing of a war. It is' ftipulated, that till a
definitive treaty of peace, the laws of the
conquered country fhall in 'all points con
tinue in full force. The war I afts twenty
ye&rg. Will any man pretend that 'the
parliament has a conftitutional ¦ right of
infringing this ftipulation ? Of chang
ing, during this interval, ¦ the laws of the
Conquered CPiintry ? Surely nPt. For no
one difputes but that all the articles of a
capitulation are to be religioufly ob
ferved. A definitive treaty is fighed. The
CPuntry is yielded. to Great Britain, One
"i^rticle-of the treaty is, that the laws of
defcent Anid fucceffion Ihall remain invio-
-late, fuch as they. were before the conqueft.
Will atiy man fay that the parliament can
infringe this article? Surely nPt. For
all the articles* of a peace are to be reli-
jgiou/Iy obferved. D Another

34 Acts relating Parti.
Another article of the treaty is, that
the mode of government, which obtained
b(fore the- QonqyieO: in the conquered coun
try, fhall ftill obtain after the conqueft.
In confequence of this. agreement all alter
ations in the old laws, all additions to
them, are to be made by the chief execu-»
tive magiftrate, with the advice of his
council*. Is the parliament bound by
this
* This I apprehend to have been the cafe of
.Berwick upon Tweed before its, incorporation into
the kingdo.m of England. This I apprehend to be
ftill the cafe with Minorca and Gibraltar. Upon
no- other- prlnci|ile can. I conceive that .^n order of
the king in council fhould be binding in Minorca
or Gibraltar, any more than a proclamation of the
king, uhauthorifed by parliament, fhould be bind
ing in London or Middlefex.
Upon the fame principle the different regula
tions made by fuqeeffive kings in Ireland may be
juftified. They were all afls neceffary to give
full efFefl; to this one original grant, " that the
*' fu^bJ€(Sfe of the Englifh. pale in Ireland fhould
-." enjoj the Englifli_ conftitution ther4 in Ireland.''
To, this -purpofe thefe regulations wpre made by the
fole authority Vf the 'kiiTg,"in his fubordinate legi
flative capacity, till the eftablifhment of .an Irifti
--•- 7 parlia-

Sed. XL to THE Colonies. g^
this article? Certainly it is. This tools
its own ad, for it Is the ad of Its own a-
vowed conftitutional agent. '
Let us fee how far this reafoning Is ap
plicable to acquired countries.
A Number of men, fubjeds of "the
realm of Great Britain, afllbciate, with
the defigri bf peopling and cultivating a
derelid country : or of purchafihg from
the natives, or acquiring by fome other
iheans, a frad of land thinly inhabited,
and ill cultivated. They apply to the
king for a charter. The king grants It.
Now ¦ in what capacity cstn the king be
confidered as ading when he grants this
charter f
parliament. From that time the regulation^ ceaf-
ed. The' king governed his Irifh 'fubjeJvls by an
Irifli parliament.
The illimited power which I attribute to the
king in his procuratorial capapit-y may be thought
to be pregnant of danger. It may bfe fo. Let it
tTiett be limited; Let the legiflatare draw the line,
beyond which its agents fhall' not go. But till
that line be drawn, the jrower ejtiftsy and has been
uniformly exercifed. D 2 Plainly,

36 Acts relating PartL
Plainly, he does not ad in his fupreme
legiflative capacity, nor in his fubordi
nate legiflative, nor in his executive ca
pacities. Every reafon affigned above, in the cafe
of his granting a capitulation, or figning
a treaty, is applicable to the ,prefent cafe;
of granting a charter. By a charter I
mean only an original charter, granted to
new fettlers.
He ads then, when he grants fuch a
charter. In the fame capacity as when he
grants a capitulation, or makes a treaty..
He ads in his procuratorial capacity.
In fad, to grant a capitulation, and to
grant fuch a charter, are ads of the very
fame nature. Both are compads, to both
the faith of the nation is plighted.
When the king grants a capitulation
what does he ? He fays to the enemy,
" Submit yourfelves to the power of Great
"Britain, and I, the agent, the . repre-
•" fentative of the fovereignty of Greai
" Britain, will, in the name and by the
" authority

Sed. IL to the Colonies. 37
*'' authority of that fovereignty, afl"ure to
"you fuch and fuch conditions."
What does he elfe when he grants a
charter ? " Go, fays he to the fubjeds,
" poffefs -yourfelves of ^ this country ;
" people it, cultivate it, .fubmit It to the
" power of .your country, and I, the a-
*' gent, the reprefentative of your fove-
" reign, will reward your labours by the
" aflTurauce of fuch and fuch conditions."
Can any reafon be affigned why the
faith of the nation plighted to an enemy,
by the avowed conftitutional agent and re
prefentative of the nation, fhould be
deemed facred ; and the fame faith plight
ed to z.fubje6l by the fame agent, and re
prefentative, fhould. riot be deemed equal
ly facred ?
We may then, I think, faffely conclude,
that in granting a charter the' 'king ads
in the fame capacity as when he grants a
capitulation; that the one ^d is juft as con
ftitutional, juft as vali4 as the other; that
¦ the terms of the one are to be as facredly
P 3 obferved

38 Acts relating Part I.
obferved as the terms of ^he other : thajt
if either pf them do in exprefs terms re
flrain the parliament from exerclfing cer
tain ads pf its fupreme power over the-
conquered or acquired country, the parlia-*
ment is bound by tlfiat reftrii^ipn; fo long
as the inhabitants of the conquered or ac
quired country adhere to the conditions
on vfhich the capitulation or charter was
granted; but that to all other purpofes
they are fubjed to the fupreme power of
parliament, and can by no, after ad of
the crown be releafed from that fubjec-
tion. For the one great candition on
which the capitulation or the charter iS;
granted, is, that the cpnquered or acquir
ed country becomes fubjeSi- of the realm
of Great Britain.
The unconftitutional maxims adopted
by the Stjiart family, threw no fmall ob
fcurity on this queftion. They werq
wont to confider all conquered or acquired
countries as. belpnging to the king alone-, as

Sed. IL TO the Colonies. 39
as being part of his foreign * dominions,
in the fame manner as Gafcony or Nor
mandy, :arid as fubjed therefore to the
authority of the king alone. Charles L
alferted this exclufiVe authority in a letter
to the fpeaker pf the houfe of commons.
After the Reftoration, this Idea was, in-
part at leaft, abandoned ; an^ the coun
tries acquired, whether by conqueft or
colonifation, bfegan to be confidered as
parts of, or belonging to the realm.
Still however the line between refpec-
tive powers of the king and parliament
over them were far from- being preeifely
drawn. It was far from being fixed, in'
what capacity the king aded when he
granted charters.
The idea pf ' a diftind fovereignty in
the king over the colonies, unconneded^
with, and independent of the parliament,'
was indeed apparently given up.. But
many of the pradices, which are to be juf-
* See Pownal's Adminiftration of the Colo-
pies, ed. 5. voU i. p. 122.
( D 4 tlfied

4Q . Acts RELATING Parti
tified, only by that -idea,, were; ftill re
tained.-: I fhalLonly. mention two; The firft Is,
the giving to the kingpin council the
power-. of hearing and determining, in
dernier refort, all caufes arifing in the
Colonies. This regulation was a confe
quence -of confidering the colonies as pari
of the king's foreign dominions. Appeals
lay in Normandy to the duke in council,
They lie at, prefent from Jerfey, Guern-
fey, &c. to the king, as duke of Nor-
xnandy. But if the colonies are part ol
t}ie realm, .: fifch -appeal is unconftitu
tional. This Is not only unconftitutional, but Ii
Is againft an exprefs law. , For by the ad;
10 Cha. I. c. 1.0. for regulating the priv)
council, and taking away the ftar-cham-
ber, it is faid (fed. iii.) " that thecoun-
'f cil table hath of late afllirned unto itfeli
*.' a power to intermeddle in civil caufes
^' and matters only of private intereft be-
>* tween party and party, &c. &c. B5
: , " whicl

Sed. 11. To THE Colonies. 41
*« which (fays the ad) great and manifold
*' mifchiefs have arifen." Fpr remedy,
the ad not only abolifties the ftar-chamber,
and the jurifdidion of feveral other courts
ereded on the fame model, (fed. iii. and
iv.)but likewlfe declares- "that neither
"^-' his majefty, nor his privy council have,
'•' or ought to have any jurifdidion, &c.
" by Englifh bill, &c. to determine, or
*' difpofe of lands, &c. of any of the fub -
^* jeds .of this kingdom," (fed.v) Now.
are not all the colonies parcels of this
kingdom? And if fo, is. not a judicial.
power thus exercifed by the king in coun-
eij ov^r the .cplonies, exerted in the teeth
of an ad of parliament ?
By a prpvifior^ In 6 Anne, ch. 6. the
two privy cpunclls of the two kingdoms
^re confolidated into one; which privy
cpji^ncif is to have the fame powers as the
privy council of England lawfully had be
fore the union, and none other. Colonies
^cre* now eftablifhed. Yet here no
power

42 Acts relating Part 1,
powerof appeal is , given to the king irt
council. In truth, the conftitution is fo totally a
if anger tb this power afllimed by the
limg in council over' the colonies, that it
Jias, left him in, a ftate of utter debility,
^-ninvefted with any coercive power to en
force the execution of his judgments. Of
Ihis debility a caufe, at this mdment de--
pending in one of our colonies, afforded
a ftriking propf. An order was fent to
expedite it. This: order produced the
feme effed: on the judges as an equal-
quantity of blank paper. And as if fim-
p& difobedience were not enough, they
treated it with fcorn *,
' The fecond pradlce, which iffues from
the fame fource, and is equally uncon
ftitutional, is the ftanding diredion Iffueci
hy the king to governors. They^ are au-
* It was called " a Whitehall mandate." An^
as a reafon for paying no i-egard to it, their re
verences obferved, " that the privy council might
** err as well as they/' thorlfe^

Sed.IL TO THE CpLONIES. 43.
thorifed, it feems, to exercife this povirer,
not only according to their firft commif-
fions, and the terms of the , charter!, but
"by ^vtd^fprther powers, iu^ruBions, and
«' authorities as fhall at any time hereafter
" be granted or appointed them, under the
*' fignet or fign manual, pr by order of
'¦^ the king fin his privy council." Here
the executive power takes, upon itfelf to
modify, to curtail, or extend the orders
of the fvipreme legiflative power, or what .
has been dpne or granted by the king in
his procuratorial capacity: This furely is
fomething more than z. fubordinate power
of legiflation. It is a power that rides
paramourit over all.
Another miftake, which has been con
ftantly perfifted in ever fince the Revolu
tion,, is attributing to the king in hhfuh-
ordinc^te legiflative capacity, powers which
belong to him only in his procurat-orial
co-pacity. Thus we have feen in the laft fedion,
that when the province of New England had

44 Acts relating - Part J.
had forfeited its charter, king William
granted it a fecond. And It was declared
in -copncil that he had a right to do fo.
From the queftion of the king,, and from
the anfwer of the council, it is clear that
both king and council confidered -the
granting of the. original charter, and the
granting of this fecond charter, to be -ads
of the j&OT^" power, exercifed by the king
in one and the fame capacity. For all this,
it appears pretty evident from what we
have before laid down, that though called
by the fame name, they are ads of diffe
rent powers, exercifed by the king In
different capajcities.
The original charters granted to new
fettlers appear to be treaties, capitulations,
compads, made by the king in his pro-
curatorial capacity, , But thefe charters
once forfeited, ^the fettlgrs are in all points
fubjed tp the ppvver of parliament. They
are in the cafe of countries furrender-r
ing without terms, or fettlers emigrating
•without a charter. A fubfequent charter is

Sed.IL TP the Colpijjes/.

45-

is notreaty; nocpfflpad; is not granted
by the king in his prPcuratorlal capacity.
It contains only privileges, granted in his
fubordinate legiflative capacity ; and thefe
privileges are not only revocable by a.ny
fubfequent commands of the fupreme legif
lature, but are no farther valid than as they
are conformable to Tuch of its commands
as are now adually fubfiftlng. ¦
This is not a mere difpute of words j
the diftindlon is important in its confe-»
quences. Whatever the king does in his fubordi
nate legiflative capacity, is not only fub
jed to the controul of the fupreme legifla
tive power ; that is, to that body, of which
he is an effential part, on the proceedings,
of which he can put an abfolute negative ;
but befides this controul there is anotjier
in the judicial power, to which,- I appre
hend, v»^hat he does in his procuratical ca
pacity is not always fubjed. — ^ When he
grants charters, or makes treaties' in virtue
of this power, no court can judge pf ih4
pro^

46 Acts Relatin<; Part I.
propriety pf them. They are facred to
them as ads of parliament. If he makes
regulations in his fubordinate legiflative^^
Capacity, the courts of juftice are judges*
of their legality. They can tell whether
the regulations are founded on original ca
pitulations, or charters, on the laws al
lowed to be in force in the refpedlVe cp-
lonies, or in the general laws of the em
pire ; and if they are not founded on any
of thefe, the courts can give relief.
Farther, if the grant of capitulations,
or charters, and all the other and fubfe
quent regulations, made by the king in
conquered or acquired countries, are made
in virtue pf one and the fame power, then'
they are all, or none, controulable by the
fupreme legiflation, — Of two confequences
Cne would follow : Either the king is al
ways <^/5^/a//in conquered or-acquired coun
tries, independent of parliament, and un-
tontroulable by it; or capitulations and
eharters lofe their properties, and ceafe to
have the force of compads.— If,

SeiSfc..U. TO THE Colonies. 47
If, pn the other hand, the grant of capi
tulations, or original charters, be confidered
as ads of the king' in his procuratorial ca
pacity ; and all fubfequent ads pf the king,
as ads either of the fubprdinate legiflative,
or of the executive power ; we have at
once the line we were in fearch of; a line
fhewimg how far parliament i« bound or
reftrained by any ad of the king in the ex
ercife of that power, with which he is ia*
vefted over conquered or acquired coun
tries. ' ' : ' '
The powers or exemptions: granted by
capitulations, or original charters, are what
it cannot vacate. In aM things elfe the in-*
hahitanls of conquered or acquired' coun
tries are fubjed: to the power of parli
ament. '

SECT.

aS Acts relating Parf h

SECT. IIL
Is there any other principle in the confitutioii
to refrain the operations of the whole body of
the legifature On the particular point of tax
ation ?
WE R E a country fo furrender tot
Great Britain, without any capi
tulation or treaty whatever, it would from
that moment become fubjed to the BritifK
legiflature, that is, to the authority of
-parliament ; for the king would hold it in
right of his crown, and he could by no ad
of his, after it's furrender, exempt it from
the power of parliament. Whatever power
the parliament could conftitutionally e^ert
over the other fubjeds of Great Britain,
the fame power it could exert over the in
habitants of a country thus furrendered
without treaty or capitulation.
Were a number of Britifh fubjeds to
emigrate, and take pofleffion pf a vacant
country,
I

SeA, IIL TO TkE 'Cplonies. <f^
country, ¦Would they by fuch a<ri' emigrati
on ceafe to be Britifh fubjeds ? ' L fuppofe
nor. Would they then ceafe to be under
the jurifdidion of the Britifh legiflature ?
I fuppofe hoti'^ Subjedion* to the? jurif
didion of the Britifh legiflature is the very
circumftance which conftitutes-, ia Britifll
fobjed. i'- ¦' ^f-ifl'j! jiij...t>
Confider the furrender! ng. country as
making a capitulation -or treaity; confider
the emigrating fubjeds as praying, obtain
ing, and accepting a charter^ what would
be their fituation then? In this cafe they
make a compad with 'the king; ading; in
his procuratorial capacity, as agent and re
prefentative of the whole legiflature;- . la
this capacity, and ¦ by this compad, the>
king engages to repeal, as to them, certain
laws, and to eftablifh others. A capitula
tion, a treaty, or a charter, does this, or
it does nothing. , It gives them powers,
which, as Britifh fubjeds, they had not by..
law* It exempts them from, reftralnts, and.,
E from

50 . AgTS JiELATINfr Parjt I.
from duties, to which, as B|ritlfh fubjeds,
tbey were fubjeded by law.
What powers- then muft fuch compad
be undei-ftopd'to have giVen them ? Such
powers as are thtvein fpecified, and more
over fiieh other powers;, wo/ fpecified-,, as it
is neceffary they fhould enjoy, in order to
exercife fuch powers as are fpecified. It
gives them Y/;^ and no other.
From, what duties and what reftraints
muft fuch a compad be underftood to have
exempted them ? From fuch duties-, a-nd
fueb reftraints as are therein fpecified ; and,
moreover, from {nch other duties and re
ftraints as ~ are not fpecified :¦ but from
which' it Is neceffary to be exempted, in.
order to their full enjoyment of exemption
from fach duti'es and reftr,aints as are fpe
cified. From thefe, snadno at her y It exempts
them. . *
Whether among the powers conveyed,,
and the, exemptions granted to the colo
nies by their charters, the exclufive power;
—^'-  pf

Sed. III. TP THE 6oL0Nilli.%. ji'
of fikin^ their own iiiterhal Idgiflatlon, and
a full exemptiohfi^n^ internal taxatioriby
{heEiritifh p£(fliament, be indeed fpecificaliy
named ; or be neceffary to the full exercifd
6f-ihb powers, of tP the full efljdyrherit of
the exemptions that ^i'v fpfecified, iaa qdef-
tio'n which will rnee't u^initrfiroper place.
But m^y we not go fafther? May we hoti
faly, th^t a caife niky be put, iii which, be
yond thefe, fiill Pther pdvlrers arid dxempti-
oti^, neither fpecificaliy narned in the com
pad, hoif riec^flafy to the exercife and eri-
jtrjl^ment pf fuch as ^fi? fpecificaliy riarried,
may yet fairly be fuppofed to be conveyed
dnd gf ahte'd by a chaffer ? It fKoiild feem
fo, if thdfe wh6 accdpted" if did, frpm the
b'eginnifig, firiderft^rid the chairter to have
^oiiveyed fuch other powers and fexempti-
dris ; if in coiifequehce of that iriterpi'eta-
tion, they have ever fince conftantly and uni
formly ejtefcifed thofe powers, and enjoyed
thofe exemptions; and if thofe who by tiieto-
felves, or by their agent, granted thechar-
ter) d;4 at the beginning acquiefce in- this
£ 2 inter-*

^2 Acts RELATiNft J?art I.
interpretation, -and. have ever fince con-,
ftantly and uniformly allowed the exercife.
of thofe rights, and the enjoyment of thofe
exemptions. . . • .
• This language we may allow, I think^
tP be agreeable to the fpirit of the confti
tution. The uniform exeixift of any
power, by any branch of the community,
from the very foundation of that commu
nity, during fo long a fpace of time, in the
face of the legiflature is, according to the de
finition we have already given, of the confti
tution, .a fufficient,. proof that fuch a power
is conftitutional .
If therefore the Americans fliould have?
been_miftaken in their interpretation of,
their charters i if they fhould have . fup
pofed them to have conveyed more powers^
or. granted more exeinptions, than th^y
really were meant to convey pr grant.: — :
yet if that, interpretation was coeval with
? ' ._ 1," i'ii.^ , , . : - ., - "T ,.
the'charter^ themfelves ; if their condudi
was^gulded by it ;,^ and If, for more than
a hundred years,' parliament has looked on
,, - an

•Sefitwlll. ^b'THE CoLpillES. -^3
an uncPftcerned fpedator, would not this
be equivalent to what is called cufiomm the
Tommoh law ? Would it be pPlitic all at
pnce toafiume'a power' to which parlia-
iftetit has no- right.;" or having ought tb
'have afferted, if hot exercifed it long be
fore? — Would there be ho injuftice in
treating as grPundlefij'expedafions'auth'p'-
-rlfed by the filehceof parliament,"iinbibed
-by the prefetft colpnifte,' with the prejudices
•of theli^earlleft IiJfahey? .?v - -'¦ ¦-
*^- It is hPw -^iTertfedj that i full-' exemption
from internal taxation by parKament, was
"alwa'ys" fiippofed by the grantees to be -con
veyed' by the charters; 'aiiid that -this fup'-
•pofitiSft has, been conftantly' acquiefced ib
by parliament. What.,truth, there is in
.this, is likewlfe a queftion^ which will meSt
us in another place.
' In the mea;ia time thefe is another prln-
.ciple, on which the right of impofing In
ternal taxes over the colonies, has been
combated ; a principle which has no rela
tion to any particular charters ; or to the
E 3 fpecific

54 Acts relating Part f.
fpscific ppwers or exemptipn? grounded
on them.
', In fiippprt pf this principle,, the vener^
l^ble narne, of Lpcke Is * rung inceffantly
in our e^rs :— he i? to prove it to be fpun,d-
ed in fome immutable l^wpf paturp, An4
jf thjs be pof ?upqgh, fhpuld the appflolip
prdej" be Invei;ted,c fhoijld this immutable
put on niutability, then the whple phal^ny
,pf l,^wyers, f^pm C^pke jdpwn to Blackftpne,
are to be brought up in array. They arp
to prove jt- an effential part of tl^e Britifh
ponftitution. The principle is this.— That np ppwer
.pn earth has a right to take away any
part of any man's property ^ vvltbojit his
* It is remarkable, that thofe who now cite
.Locke, to proy? a ^ya^lt qI power in theparJiajnerir,
Ihould be the fame who, on anothef occafion, cited
the fame ^ocke, to prove the king has a difpenfing
power. - t The term property is here; ufed for the thing
I ©Ver which we exercife the rjght of pra.perty, and
1^01 for the right itfelf, ^ P5vn

Sedr. IIL TO the Colo-nies. 55
own tonfint frfeely given, either in perfon,
or by his Pwn reprefentative, yr<?f/y chpfen.
This right' of 'nature (it is faid) is parti
cularly recognifedby the conftitution of
our own country,' where taxes are zfree
gift. ''-'..¦¦'¦
To Judg'e' of the validity pf this maxim,
the firft point neceffary will be to under-
ftand it. A poiiit which has been over
looked, or overleaped by "the greater part
of thofe by vvhom me maxim is adduced.
To underftand it, it will be neceftary to
define the terms of it. : ^'
" -This proceeding, I am fare, Mr. Locke
wdiild nPt have dbjeded to, though-per-
adventure in 'the prefent inftance he for
got to adopt it. ¦ '''' - '
-What is property? It is- thzt thing, I
apprehend, or good which you,' 'the pro
prietor, have a right to ufe in a particu
lar manner, and- you akni?, to the exclu-
fipn of every other marr whatever.
Whence arifes" this right? From the
eorjimand of the law. l\ is the law which
E 4 fays

r6 , , ACT^ RELATING ; r Part L.
fays to you, the proprietor, take this thing,
ufe it, enjoy it. It is the, law, which fays
to every other man, do not take it, .^o not
ufe it, do not enjoy it. ,,,,- o.;., jj
Take away, the fence which the law has
fet around this thing, this good, whatever
it be, and.w]iere wauld^ your -right or
property.be then ?^,,:j._.... ,,,;,,, [] j ,;.
If this be a true defiijiition pf the ternj
.property, and to my underflandlng it'apt
pears .fp^ "what does , this boafted maxln^
pome to, at, laft ? Or how; will you apply it
to the point in queftion? It conves out af^
ter all, .that the payment of a tax is not
the^g^vingup (iny part of our own prpj
perty; it is the affignment oipily of a ce;-7
tain portion of the common ftock to the
fupport and maintenance of governme/it.
That this, id^a pf a tax has pot been fuf-^
ficiently attended to, arlfes perhaps from
taxes beiffg, generally., paid,- in coin, and
not in kind,., fWhere the tax .. is paid in
|cind it, will ap.pear lefs revolting. ,/
., ' -,.'.. .- iT , ..'^ «),".'^v ;, Tythes,

Sed-HL TO T.HE.CpLONISS. «7
Tythes, for inftance, ia^ a .^taxj and a
yery heavy, and perhaps an Impolitic one
joo. ' Yet it appears at firft figtit. that in
the payment of this fax 'we do not give
jjip ^ny. part pf our property. The mean-
eft, farmer wjU underftand you, vfhea
ypi^ tell^iim, that nme fjieavesbelqng to
{are the prpperty of) .himfglf, and the
tenth belongs to ,(is, the property of) the
parfon. . \. r ,,
Le^ the fame farmer- cornppund for his
tythes, .^n,d he will foon lofe fight of this
idea, >he,Ajpill-fopn begin, to complain that
he gives^ part of his, property to the par
fon.. Yet clearly the money paid in, lieu
of the tenth fheaf is the purchafe money
for^Xke. tenth fheaf. . The law has faid to
the farmer, nine fheaves are yours : the
famp^law has faid, to the parfon, the tenth
is ypurs. The law has. faid to the parfon,
meddle not with the, nine fheaves : the,
fame law has faid to the farmer, njeddle
npt with the tenth. .
Is not, the fame reafoning applicable- to
6 taxes

j8 Acts" RELATING PartL
taxes paid" for the fupport of aw7 govern
ment ? A're not thefe tpo the property of
the civil magiftrate ?
The queftion then is not who is to give
av/ay our property ; , no man, no b)>dy of
men is to do it. But vi^ho is to apportion
and diftribute the feveral parcels of the
common ftock. For when the legiflature
vefts the property of fo many acres of
larid; or the property of whatever thing
or good you pleafe in me, it is always
with the implied refervatlon of fo'miich
of the produce thereof as the legiflature
then has, or at any future period_/5^//keep
back for the fervice of the community 'in
general. ' ^
Taxes then cannot, in a proper feinfe,^
be called a gift, much lefe a free gift.
For in the ftrid and proper fenfe nothing
is given, if by given is meant ceding that
which is o\ix own, that which we have ^
right to withold.
The commons indeed, in impofing aids
and taxes make ufe of the terms " give
^' an,d

^Q^;^,1IL .TO THE Colonies. 59
^{'atidgrant.^^ And the term is In them
allowable en,Qugh. For the commons are
invefted ; with cthe whole, property of the
kingdom. In truft that they fliall appor-
iion and. diftribute to the fupreme execu-
tiV}e magiftrate,, that -which is neceffary
to the (wf^pprt of his department of the
government ; and that they fhall co
operate ¦ i'n fecuring to each man his
ihare of .the .remaining: parcel ; which
ihare alo77^, is; his pfopei-ty, and to
fee (Jifpofed of as her pleafes. -iThey give
^^nd grant to the magiftrate, that which
is neceffary to the exigencies of the magi-
llratp; and in Xhefame Jenfe they give and
grant, the; ref^due, to every man his
Ihare. 1+ =,¦ .jk r ',- . i-r
On t'hls falfe ' notion, " that the pay-
/' meat of taxes is the giving up a part pf
" our property," is ingrafted another idea,
JOO lefg falfe, " that taxes cannot in a free
" ftate be granted but by the confent of
" the giver,'' This

^o .¦ Acts^Selating .'IPartC
. Thlsidea of xorifetit has been much in
fixed on by lawyers. It'may therefore be
right to ftate their opinions -in their PVvn
words. '. 'i '' (1^ j%: ! '^'^^^ .*^i ^:lJJz.-)^:
„ It would be' tedious to. 'cite themialL
Let us then content ourfelves -with th^
words of a learned leader of thepty whpl4
himfelf a hoft.: - ^ :: : ^^ ¦.;!-^.'^n
, . *' No fuhjed of England (fays h% *) can
>* be conffcraitted-to pay any aids or tast^
I" even for the defence of the realm, pr
:** fuppprt of government, Ijut fuch as are
" impofed by his <3W« confent, pr that of
.*' his reprefentative ifl parliament.'' ' ' ''•''
\_ To prove that every Englifhman has
jreally a reprefentative in parliament, the
fame commentator informs us, ** that ©ft-
" ly Tuch„are exclude^ (frpm ¦ the |)ri-
.•* vilege of yotirig for a reprefentative) as
<* can have no will of their own ; that there
*' is hardly 2Lfree agent to be found, but
* See Blackftone's Commentaries, vol. i. n.
140. 5. edit. oiSavo, printed at Oxford, 1773.
' " ~ *' what

SedilH. ;To. THE Colonies. 6ij
". what is intituled to a vote in fome place
*' or .pJfher in the kingdorn *.' ' . ^^
.That;,w,e may npt however fiippofe that '
t'|i,c confent of our reprefentative depends*
upon our own peffona,l confent, the learn
ed .commentator reminds, us (of what? is ;
moft certainly true) that " the reprefeii- •
** tativcj once chofen, is not bound to*
'* confult with, or takeihe. advice of His*
". conftltuents upon any particular paint;*
*1 unlefs he himfelf thinks It .proper or pru-'
« dentfotodp:!-" . t.j.j ^ j; :: -!ii "
When the learned commentator eome^-
to cpnfider the foundation of the excluflVe
privilege of the commons, by which all
grants of fubfidies muft originate in their

If

* See ' Blackftone's Commentaries, vol..i. p.
172. The learned author is rather hard upon us
in this paflage. At a fingle ftroke he deprives, I,
believe, three fourths of our, fellow citi-zens of free.
will and free agency. tTpon , another occafiori he,
is as fingularly generous; he beftc^ws frf.e yvilL
and free agency on.rays of light, watches, &,c. &c.
See ib. p. 38. _,, , ^ ,
t See his Comn^entarieSj.vi*!. -i.; p., 159. ,- .'j

Si Acts RELATiis/o -^art f*
houfe, he rejeds the general reafon affigii-
ed for it, "that the fupplieS afe' raifed
« upon the body of the people, ahd there-
" fore it is proper that they alone fhPufd
« have the right of taxing themfefve^,'*^ —
md affigns another, " that they are a teni-
«< porary eleSiive body, freely nominated by* -
« the people, and therefore lefs liable to be
*^ influenced by the crown ; and when
« once influenced, to continue fpj than the
*^ lords, who are a permanent and here-
" ditary body, created at pleafure by the
"king*." The attentive reader will obferve, that
* See his Commentaries j vol. i. p. 169^ The
circumftance of their being a temporary and eleSiivi
body, is no doubt'oKe good reafon why the eom^
ttions, fljould be entrufted with the p'Ower of a 'tax-=
«ltion J as the circumftance of the lords being z^pei'^
manent ahd hereditary body, is a very good reafon
V?hy they fhould not be entrufted with it. Th«f
danger however would, I apprehend, arife, not
from the influence of the criwH, but from partial
attachment to their own interefts. The diftin<:-«
tion of terres, nobles, he. would foon arift, if tfief
power of taxing were intrufted with the peefSf. the

Sed. lil. .TO THE Colonies. 63.
the citations produced, though all pccur-i
ring within the compafs of a very few
pages, are not eafily reconcileable to each
other. In the firft it fhpuld feem that the pri
vilege of granting aids is appropriated to
the.cpmmPns, pn account of their repre
fentative capacity ; in the laft it is no long
er on that account, but becaufe they are
a temporary and eledive body. '
In the firft it fhould feem that their con
fent to a tax makes fuch a tax conftitu
tional ; becaufe their confent is the ex-
preffion of the confent of their conflituents.
In the fecond it appears, that the ponfent
of the conftltuents is a matter of perfed
indifference. Thefe contradidions I found, I did not
make them.
" No fubjed can be conftralned to pay
" any tax but by his own confent freely
*' given, either in perfon, or by his own
*' reprefentative." This is thefence which
our lawyers tell us the conftitution has
placed

64 Acts relating Part I.
placed around Mr. Locke*s natural righP
pfnotparting with our own property, but
with our own 'confent.
This Is a queftion of fads : let us the»'
appeal to fads.
If there be any truth in this affertion,'
it muft follow, that the conftitution has
given to every man who is to contribute to
a tax, the right of voting for his repre-.^
fentative. No man- who has fji:s- to fee,'
and who chufes to make ufeof them, can
feriouHy believe this to be the cafe in Eng'-'
land. "Many, who are^not poor enough to be
ratiked among the non- willing, (fuppof-
ing with our commentator that want of
wealth implies want of wilf) are yet bur-
geffes of no borough, have no freehpld,
have none but copyhold lands; thefe meii'
have no votes.
Ma:ny a man hires a piece of ground
for a "long term ; he gives perhaps ten.
pounds a yearf he builds on it; the rent
of the houfe he build's isTixty or eighty
pounds

Sed. III. TO THE Colonies. 65
pounds a year : furely he is rich enough
to have a will of his own. He ought
therefore to have a vote.
The holders of ftock are furely rich e-
nough to have a will of their own. Their
attachment to the conftitution cannot rea-
fonably be fuppofed to be lefs ftrong, lefs
enlightened, lefs adive than that of land
holders. Their all depends upon the pte-
fervation of the conftitution. Yet thefe
men have no votes.
How many hundreds .of our fellow ci
tizens have large capitals engaged in ma-
nufadures: furely they are rich. enough
to have a will. Yet neither have thefe
men any votes.
Sum up the number of citizens under
thefe feveral defcriptions ; add the other
numerous claffes of citizens, who, though
rich enough, as the phrafe is, to have a
will, have yet by the conftitution no right
to vote. Then fum up the number of
thofe who have that right, ftrike the bal-
lance, and it will be found that the non-
F , voters

66 Acts relating Part L
voters are nearly three fourths of the
whole mafs of citizens.
Here then the maxim fails; it is not
effential to the charader of a freeman who
is to contribute to a tax, that he have a
right of voting for his reprefentative. The
greater part of the fubjeds of England,
though they contribute to taxes, have no
right of voting for their reprefentatives.
Nor even of thofe who have a right ro
vote can it with any degree of truth be
affirmed, that their own perfonal confent,
or the perfonal confent of their reprefen
tative is neceffary to render a tax legal.
If it could, it would follow, that no re-
prefentative could be chofen but by the
unanimous confent .of every c'qnfiituent,
that no law could pafs without the wiani-
mous confent of every reprefentative.
Here too, thank heaven, the maxiin
fails. There exifts a country, if indeed Poland
can be faid to exift, where this idea of per
fonal indhidual confent was adopted and
carried <

Sed. IIL TO the Colonies. 67
carried Into execution. With what fuc-
cefs, let its prefent melancholy ftate de
clare. The whole fabric of the Polilh go
vernment, all the abfurdities with which
it teems, are the natural confequence
of this very principle ; that no fubjed
fhould obey a law, or pay a tax, which
is not impofed by his own free con
fent, given by himfelf or his reprefenta
tive. Yet this principle, pregnant with fuch
fatal confequences, have many of the
friends of America chofen as a fhield to
proted the colonies againft the power of
the Britifh legiflature. This principle has
the fame extravagance laid down as the
corner ftone of Bntifh freedom.
Still however we are told, " reprefeh-
" tafion and taxation are infeparable."
Afk for proofs, urge the number of
perfons not reprefented and yet taxed,
you may puzzle, but you will not con- *
vince. F 2 One

^S Acts relating PartL
- i
One gentleman * afks himfelf " what
•' are the exad bounds and hmits of
" real reprefentation ?" I was impatient
to hear the queftion anfwered by fo able
and acute a writer.
But alas ! " he excufed himfelf from
*' entering into the matter -f-.'' What a
lofs to the world ! Why did he not prove
in his own concife and nervous fiyle, that
the Americans fliould be " excepted and
*' exempted from the reafons and the
" rules which obtain and take place In the
*' cafelj: of other unreprefented fubjeds?"
But it is probable, tp make ufe again of his
own happy expreffion, " the matter feem-
*' ed to him fo clear, that whoever fhould
" multiply words on this fubjed, would
*' hardly do it for the fake of being con-
" vinced §." Whether this gentleman's
* Author of the Confederations on the Mea-
. fures carrying on with refpetS to the Britifli Co
lonies in North America,
t See p. 130.
\ See ib. p. ig.
§ See ib. p. 13. aiitf

Dcci. m. lu J.HK vjolonies. 09
aim be to convince himfelf or others I know
not. But words furely he does multiply.
Others, rather than give' up their favo
rite pofition, tell us, that the land is re
prefented *. — Be it fo — though it is true
only of freehold land ; but whofe confent
is it that is given then ? Is it that of the
beaft who grazes pn the land, or the plant
that grows on it, or only of the land it
felf? But if neither authority nor argument
will convince us, the letter of ads of par
liament muft^do the bufinefs.- — ^The cafes
of Chefter and Durham are cited as con-
clufive. I allow all the weight that is due to
them ; and yet I might perhaps have been
miftaken enough to have cited them in de
fence of the oppofite opinion. So far from
provingthat reprefentation and taxation are
infeparable, they prove the contrary. The
Durham ad exprefsly fays, that before the
* This idea occurs in feveral American writers.
F 3 Inha-

yo Acts relating Part I.
inhabitants of that county were reprefent
ed, " they were liable to all payments,
" rates, and fubfidies, equally with the in-
" habitants of other counties, cities, and
" boroughs, who had their knights and
*' burgeffes in parliament*." Allow the
ad to prove, that it is expedient, that thofe
who are taxed fhould be reprefented, yet^
to make the cafe of the Americans parallel
to the cafe of thofe who were the objeds
of this ad, they muft petition to fend
knights and burgeffes to parliament : — and
be refufed. Nor does this Durham ad
fupport the neceffary connedion between
confnt and reprefentation, any more than
between reprefentation and taxation. —
Reprefentatives are not fpoken of as men
who ftand in the place of another, empow
ered to give the confent of that other. —
They are not faid to reprefent, that is, ad
in the name, or by the authority, of their
conftltuents : but to reprefent, that is, dif-
* 25 Car. II. c. g, play,

Sed. in. To the Colonies. 71
play, fet forth — " the condition of their
*' country.'"- What is this to the plea of
not being taxed without confent ?
I may here perhaps be told, I exped to
be tpld, that I am deftroying the diftin-
guifliing charaderiftic of Englifh happi-
cefs : beating down the ftrong bulwark of
Englifh liberty, if an Englifhman has no
property but what government pleafes to
leave him ; if government can take what
he has, without his confent, where is the
difference between him and the fubjed of
a defpotic prince : between an Englifhman
and a Turk ?
It is not my fault if I cannot fee proper
ty where it is not. I can form no idea
of property, other than that which I have
given. That only is my property which the
legiflature declares to be fo. In this a Turk
and an (Englifhman are indeed on the fame
footing. I cannot therefore confider a tax,
impofed by the legiflature, as a part taken
from my property. It is only a diminution
of the fhare i have hitherto, or fhould 0-
F 4 , therwife

72. Acts relating PartL
therwife have, enjoyed out of the common
ftock. I cannot believe that my confent is necef
fary to render this diminution a legal, con
ftitutional ad; becaufe I know that nei
ther was my own cpnfent ever afked, nor,
of fix hundred men only excepted, that
of any other man in the kingdom. The
confent of the reft is no more afked, or
given, than our confent was afked or given
by our godfathers and godrnothers, to the
baptifmal vow they made for ,us at'the
font. What the commons agree to, becomes,
notwithftanding, a command of the legif
lature. We are bound to obey it. We
may, we can be, we are conftralned to obey
it. Neither in this is there any difference
between an Englifhman and a Turk.
The refemblance however does not ftartle
me : though there be fome features alike,
there is difference enough to diftingulfh
us. That

Sed. III. TO the Colonies. 73
That difference will be found in the na
ture of the body, to whom our conftitu
tion has fo. wifely entrufted the power of
taxation ; the power of apportioning and
diftributing the whole ftock of the commu
nity. It is the circumftances, it is the par
ticular relation, that body ftands in, to
the whole community, which makes this
power, fo dangerous in the hands of a de-
fpPtlc government, to be fo very innocent
in theirs : and which therefore conftitutes
in this refped the effential difference be
tween a fubjed of Great Britain, and the
fubjed of a defpotic government.
In defpotic governments the power of
taxation, the power of apportioning and
diftributing the whole ftock of the com
munity is vefted in a fingle man, Pr in a
fixed and permanent body of men ; they
may have, they almoft always think they
have, a feparate and diftind intereft from
the reft of the community. In England,
this power is vefted in a temporary and
eledive body. They cannot have, they
cannot ; ;

74 Acts relating Part L
cannot think they have, a -feparate and
diftind intereft from the reft of the com
munity. They are now a part of the tax-
ine power ; they may foon ceafe to be a
part of it.
In an abfolute government every dimi
nution of my fhare in the public ftock, is juft
fornuch added.to the fliare of him who is to
apportion and diftribute that ftock. In our
government it is quite otherwife. i;^Every
diminution of my fhare in the public ftock
neceffarily caufes a proportionable dimi
nution in the fhare of thofe who are to
apportion ^nd diftribute that ftock ; and
the conftitution , has provided that their
Ihare fhall not be fmall^f I lofe a bufhel,
each of them will lofe a load ; — if I pay
fhillings for the windows that light my
cottage, eac;h of them will pay pounds for
-the window^s that illuminate his houfe*. This
*. I can recolle£l: but one inftance where this
-perhaps does not hold altogether.— And that is in
the duties laid on beer that is brewed for fale.— If
"all

Sed. III. TO the C0LON.IES. ~ 7^
This is my fecurity. It is a real and
permanent one. I underftand what it
means : — it is obvious to my fenfes ; but
I underftand nothing of a confent which
was never given, vyhich , was never even
demanded. But do the commons of Great Britain
ftand in the fame relation to the inhabitants
of America ? If they do not, have the
commons of preat Britain, according to
the fpirit of the conftitution, a right to
lay internal taxes in America?
If they do not ftand in the fame relation^
we are, I think, warranted in faying, that,
according to the fpirit of the coniftitution,
they have not the power which is entrufted
in confequence of that relation. — For if it
be truCj that thp colonifts, by emigration,
were not releafed from their allegiance, it
is equally true that they forfeited not their
all the duties on malt and beer were confolidated,^
and laid on malt in the firft inftance, it would be
at once more equitable, and, I fhould apprehend,
more fruitful in the produfl, as well as lefs expen— _
five in th-e colledion. " rights.

76 Acts relating Parti,
rights. If they are fubjeds to one pur
pofe, they are fubjeds to all. Now it is
the conftitutional right of a Britifli fubjed
that the legiflature do not tax him, but
by the mediation and authority of a certain
body of men, who ftand to him In that
particular relatiorj we have aboVe defcribed j
and in which the commons do fta'nd to
every inhabitant of Great Britain.
Does that relation fubfift ? — In ftridnefs
of fpeech I think it does.— The advocates
for the colonies tell us that the acquifition
ofAmerica has trebled our manufadures;
has almoft doubled the value of our lands*.
The ruin, or the oppreffipn of America,
would deprive us of thefe advantages ;
and v/ould therefore be as feverply felt by
the members of the houfe of commons,
as the ruin or oppreffion of Great Britain.
In ftridnefs of fpeech then, the commons
cannot tax America without at the fame
time taxing themfelves.
* See Mr. Pia's fpeech on the repeal of tl^e
ftarap a6t.
The

Sed. III. TO the Colonies. 77
The reclprocallty of interefts is as real
between them and the Americans, as be
tween them and the other fubjeds of Great
Britain. But though it be as real,, 'it is not fo
immediate in its effeds, nor fo apparent
to thofe who are to pay the tax, perhaps
not always to thofe who are to impofe it.
PoflSbly therefore it might not produce the
fame effeds on the minds of the taxers :
moft certainly it would not give the fame
fenfe of fecurity to the taxed.
To give the parliament therefore a right
of taxing the Americans, without violating
the fpirit of the conftitution, fomething
farther perhaps may be required. — The
ad of taxation Itfelf muft create the cir
cumftances which are wanting to render
the reciprocality of interefts, not only as
real, but as apparent, as well to thofe
who "are to impofe, as to thofe who are to
pay, the tax. This it fhould feem is what
- might be done without much difficulty.
7 A fhort

7? Acts relating ^ Part L
A fhort plan for this purpofe will be of
fered at the conclufion of this volume.
And under thefe reftridions it fhould
feem, that the parliament would have a
conftitutional power of taxing the Ame
ricans.

SECT.

Sed. iV. TO the Colonies. 79

SECT. IV.
Summary of the arguments on the matter of
right.
FROM what has hitherto been faid it
appears, that hy the conftitution the
king is invefted with the power of grant
ing what form of governjuient he thinks
befl to all conquered or acquired countries.
That articles of capitulation, and treaties
of peace, though made by the king Mone,
are binding on the whole legiflature.
That the terms of origin^al -charters
granted to fubjeds formiiig new fettle
ments, though granted hy the -king alone,
are fey parity of reafon 'bi-ndiiig on the
whole legiflature.
That this power has been ^xeret&d by^
fiacceffive kings, and recognized by the ta
cit confent of fucceffive parliaments, as
appears In the cafes of Ireland, of Wales,
of Berwick upon Tweed, of New- York,
6 of

8o Acts relating Part I.
of Jamaica. Arid fince the Revolution In
a more remarkable inftance.
From thefe precedents the power may
fairly be concluded to be conftitutional.
It has farther appeared, that in the exer
cife of this power the king ads neither in
his fupreme legiflative, nor in his fubor
dinate legiflative, nor in his executive ca
pacity ; but in another capacity, diftind
from them all ; — as the conftitutional a-
gent, and reprefentative of the whole le
giflature ; of the whole nation : and which
therefore we have called — his procurato
rial capacity.
That in this capacity he does not iffue
commands, but enters into compaBs.
That thefe cpmpads, whether made wnth
. enemies or fubjeds, are binding on the
whole legiflature ; being indeed the ads pf
- the legiflature itfelf ; inafmuch as they are
the ads of that perfon who, by the confti
tution, is appointed the agent and repre
fentative of the whole legiflature. .

Sed. IV. TO the Colonies. 8i
It appears farther, that by thefe compads
the parties contrading, whether conquered
or fettled,- do agree with the king to recog-
nife themfelves and their country to be fub
jed to the fupreme legiflature of Great
Britain: and the king on his part does
agree with them to repeal, as to them,
certain laws and eftablifh others ; to
convey to them certain powers, which,
as fubjeds they would not 'have by law;
and to exempt them from certain reftraints
to which, as fubjeds, they would be fub
jeded by law.
From hence it follows, that thd" Ame
ricans have, by the conftitution, a right
to all the powers and exemptions fpecified
in their original charters ; to all the powers
and exemptions not fpecified, but necef
fary to the enjoyment of thofe which are;
and we have ventured to allow farther,
to all fuch as from the beginning of the
contrad were, and down to the prefent,
time have been, . by both parties, under
ftood and allowed to be intended by them.
G - But

82 Acts relating Part I.'
But thefe powers and exemptions except
ed, they are to every other purpofe fubjed
to the fupreme legiflature of Great Britain.
So that whatever power the fupreme legif
lature of Great Britain could exercife over
other fubjeds, the fame it can exercife
over them.
It appears therefore, that unlefs an ex
emption from internal taxation by the fu
preme legiflature of Great Britain be a-
mong the exemptions thus fpecified, or
neceffary to the enjoyment of fome other
power or exemption that is fpecified, or
at leaft fuch as hath always been under
ftood on their part, and allp^ved on the
part of the legifature to be intended in the
original charters, the fupreme legiflature
may exercife this power of internal taxa
tion over its fubjeds in America,- under
certain reftridions.
J For it has appeared that by the pay
ment of a tax we do not give up any part
of what is our property ; that the Britifh
houfe of comrapns is vefted with the whple
property

5ed. IV. TP THE CoLdkiEs. 83
propertj* of the kingdom in fr^ to ap
portion what is neceffary to the governors
for the ends of government; and that what
remains after the payment of fuch portion,
and that, o«/y is our property.
It appears farther, that w^hen our con*
fent, or the confent of our reprefentative
IS faid to be neceffary to fuch apppintnlent,
the perfonal confent of each individual
fubjed^ or of each individual reprefenta*
tive, is what cannot be intendedj
For it has appeared that by far the great
er part of the inhabitants of Great Britain
do. not give their confent either to the levy^^
ing a tax, or to the nomination of thofe
who, levy them. Nay, that in no period
of time they ever did. For at no time was
this right attached to others than to bur
geffes of certain boroughs, and to land
holders of a particular defcriptipn.
. And it has therefore appeared, either
that reprefentation and taxation are not in
feparable, or that reprefentation means
fomething different from what it has been
<J 2 by

84 . . Acts relating Parti.
by many underftood to mean. The term
?' body of reprefentatives" has by many
been underftood to mean, a body of men
fhofen by the whole, or by a majority of
the community. But it appears that there
is no fuch body ; the term therefore ap
pears to mean a body of men chofen by a
part of the community; but fo circum
ftanced and related to the reft, that they
¦cannot have or think thej have any fepa
rate interefts; of their own to purfue, to the
prejudice of the reft. )
.'It appears that the houfe of commons
does ftand in thefe circumftances, and un
der this relation to the inhabitants of Great
iBrltain. .
, Thefe circumftances, and this relation,
confift firft in their being an eleciive, fe-
<;ondly In their being- a temporary body;
and laftly, in their being themfelves, a
•paVt ofthe:!^erions taxed, at the fame time
that they are the taxers. , r
The two firft of thefe circuinftances are
equally true with refped to the Ameri-
,. . cans,

Sed. IV. TO THE CoLONIEi^S. 8^
cans, as with refped to the greater part
of the inhabitants of Great Britain.
With refped to the laft and moft mate
rial circumftance, it appears that modes of
taxation might be invented, which would
create that relation, that indivifiblllty of
interefts. And it has therefore been, we think,
fairly concluded th&t fuch a mode of tax
ation would be conftitutional. Becaufe
the commons would, under'thefe circum
ftances, exert no other power over the in
habitants of America, fubjeds of -.Great
Britain, than they can by the conftitution
exert over all the other fubjeds of Great
Britain. To taxation therefore, under this mode,
no conftitutional objedions can lie but
fuch as, are drawn either frpm the, exprefs
words or neceffary implication or ancient
uniform conftrudlon of r the priginal
charters. Can fuch objedions be drawn , from
thence? G3 PARt

86 Acts relating , Part IL

PART II.
ENQUIRY INTO THE MATTER OP
FACT.

S E C T. L
What were the privileges granted to the
firfi fettlers in North America by the
Virginian Charters?

WHAT were the privileges origir
nally granted by the crown to the
colonies ? A review of the charters is the
only irieans of anfwering this queftion.
The firft charters were called by the
general name of the Virginian charters.
The territPry they take upon them to dif-
pofe pf, Is a trad of land mentioned in

Sed. I. TO THE Colonies. 87
in them under the name of Virginia, and
defcribed as lying between the 34th and
45th degrees of Latitude. A trad in which
are comprifed a large p^rt of the colony
of New England, together with the en-.
tire colonies of New York, New Jerfey,
Penfylvania, Maryland, Virginia, an4
North Carolina, and a fmall fragment of
South Carolina.
The earlieft of thefe charters grants to
Sir Thomas Gates, and others, the whole
precinds above defcribed, to be divided
into twoTeveral plantations. It Was grant
ed by king James I *.
/^ The preamble fets forth, that certain
perfons therein named, and others not
named, had befought the king to grant
them his " licence to dedijce colonies"
into fuch parts of America, as lying be-
* See Golleftion of Charters printed for Owen,
Almori, and Blyth, in 4to. 1766, No. I. The
charters in this colle£l:ion are referred to as au
thentic by Mr. Mauduit, in his Short View of
•t}ie Hiftory of the Colony of Maffathufet's Bay.
G 4 twee?^

88 Acts relating Part IL
tween four and thirty, and five and forty
degrees of northern latitude, did either
already appertain * to the king, or at
leaft were not in the poffeffion of any o-
ther chrifian prince :
That thefe adventurers meant to divide
themfelves into " two feveral colonies and
" companies;" the one confifting of cer
tain knights and others of the city of
London and elfewhere, who meant to be
gin their plantation in fome convenient
place, between four and thirty and one
and forty degrees; the other confifting
of certain knights and others pf Plymouth
and other places, who meant , to begin
•^ « There is nothing more ridiculous than this
aflertion, that thefe lands did 7i\v<iziY appertain to
the king, or that fuch as did not appertain to him,
might yet be occupied by his order, provided they
did not belong to any chrijlian prince. This lan
guage was borrowed: from the crufaders, and can
be juftified only by the madnefs of fanaticifm. It
js melancholy, but ufeful, to obferve how long the
,(ffeas of popular errors, remain, even after the er
rors fhemfelves are exploded. their

Sed. I. TO the Colonies. 89
their plantation in fome convenient place
between thirty-eight and forty-five de
crees of latitude :
That the king greatly commends^ and
gracibufly accepts their defires for the
furtherance of a work which might tend
to the glory of the divine majefiy, in propa
gating the chriftian religion * : And there
fore. Grants to the clafs of adventurers of
the city of London the titS.e of firfl colony,
with leave to begin their plantation at any
place, on the coaft of America between
thirty-four aind forty-one degrees, and tof
take poffefl^ion of all the lands, &c. with*
in the , precinds there defcribed, thereto
inhabit and fortify, according to their befi
difcretion, abd the difcretion of the coun
cil of that colony.
His majefty grants to the adventurer*
from the wefi of England the title of the
* To which purpofe his majefty gives them
leave to rob and plunder all but chriftian princes.' fecond,

po, Acts relating Part II.
fscond., .ox Plymouth colony, with leave to
begin their plantation at any place on the
coaft of America between thirty-eight
and forty-five degrees of northern lati
tude ; and invefts them with the fame ex
clufive privileges with which by the pre
ceding article he had invefted the firft, or
London colony.
By the preceding claufes all the lands
lying between thirty^eight and forty de
grees inclufively, were left, open to each
company alike. Firft occupancy it feems
was to fix and determine the -prpperty.
, It is therefore provided that the plan-
t.ations of thofe who fhall fettle laft, fhall
not be made within one hundred Englifh
?niles of thofe who fhould be firft planted,
. ..The king ordains that each of thefe co
lonies fhall have a council to govern and
order aU matters and caufes, vvhich may
arife ipithin the colony, " according to
" fuch laws, ordinances, and inftrudions,
*' as fhall be in that behalf given and fign-
" ed with his hand, or fign mapual, an4
" paf^

Sed. I. TO the Colonies. 91
" pafs under the privy-feal of his realm pf
^' England." The king fixes the number of each of
thefe councils, who " are to be ordained,
*' ma/le, and removed from time to time,
^' according as fhall be direSled and com-
" prifed in the fame infiruStions."
Befides thefe colonial councils, one fu--
perior domeftic council is eftablifhed, to
.confift of thirteen perfons, to be appointed
by the king, to be called " the council of
*' Virginia, to have the fuperior manag-
" ing and direSlion only * of all matters
f that may concern the government, as
•'well of the feveral colonies as of any
"'other place within the aforefaid pre-
," cinds of thirty-four and forty-five de-
.*' grees of northern latitude."
The colonifts are allowed to work, for
their own profit, all the mines of gold, fil-
ver, and copper, as well within, as on
the main land on the back of the colo
nies, paying to the king one fifth part pf
* That is, ' I fuppofe, they only, all

92 Acts relating Part IL
all the gold and filver, and one fifteenth
part of all the copper to be found there,
without any other manner of profit or ac
count to him.
The right of coinage alfo is allowed them.
They are allowed to carry over all fuch
perfons as are willing to go with them,
and nPt '¦'¦fpecially refrained by the'king.^^
with " fufficient fhipping, and furniture
" of armour, weapons, ordinance, pow-
" der, vidual, and all other things ne-
" ceffary for the plantations, their' ufe
" and defence." . " '
They are erhpowered to make a deferi-
five war. That is, to repel by force all
*' intruders'^'' into their fettlements^ 'all
" annoyers''^ of them. -
They are allowed to impofe a duty of
two and a half per cent, on all merchan
difes imported into the faid colonies by
perfons not being of the faid colonies, but
being of realms or dominions under the
obedience of the king, and a duty of ^w
per cent, on all merchandifes imported by

Sed. I. to the Colonies. 93
by perfons neither being of the colonies,
nor fubjeds under the obeyfance of the
king. And to enforce . the payment of
thefe duiies, they are allowed to feize,
and detain, the perfons, fhips, and goods
of the importers.
The duties thus colleded are appro
priated : during the fpace of twenty-one
years, " they are to be wholly employed
." to the ufe, benefit, and behoof, of the
" faid feveral plantations, where fuch traf-
" fick fhall be made. At the expiration
" of that term they are to be taken to the
" ufe of the king, and colleded by fuch
" officers and mlnlfterS' as the king fhall
*' appoint." They are allowed to " tranfport goods,
" chattel, armour, munition, and furni-
" ture, needful for their apparel, food,
" defence, or otherwife, out of the realms
" of England and Ireland, and all the o-
1
*' ther dominions of the king, without f?;?)/
" cuftom, fubfidy, or other duty during
" the fpace offeven years." The

94 Acts relating PartIL
The Inhabitants of the colonies, and
fuch of their children, as fhall be born
within the precinds of them, arc to en
joy " all the liberties, franchifes, and im-
" munities, within any of the king^s other
" dominions, to all intents and purpofes,
** as if they had been abiding, and born
" within the realm of England, or any
" other pf the faid dominions."
The king farther engages, on petition
being made, to grant to fuch perfons as
the refpedive council of each colony fhall
name, all the lands contained within the
precinds of the colonies " to be holden
*' of the king, as of his manor of Eaft
" Greenwich in Kent in free, and common
'¦'¦ foQcage only, and not in capite." ~
Three years afterwards the king grants
ed a fecond charter, explanatory of the
firft. So far as the firft related to the "firft
or London colony.*' It is dated the 23d
of March, 1609*
* See Colleaion of Charters, No, II. A great

Sed; 1. TO the Colonies. 95
A great number of new adventurers,
including all the companies of London,
are here named. They, and, fuch others
as they fhould hereafter affociate, are
ereded into a body corporate, under the
title of " The treafurer and company of
adventurers, and planters of the city of
London, for the firft colony of Virginia."
Under this name they are allowed to
purchafe lands in England or Wales ; to
plead, and to be impleaded.
The grant of lands is extended, and
they are to be apportioned, and diftribut-
ed, by the treafurer and company, to the
feveral adventurers : proper regard being
had both to the proportion, merit, and
Services of each adventurer.
A new domeftic council Is appointed * :
the treafurer and members of the council,
pro hac vice, are named by the king ; but
" are hereafter to be nominated, difplaced,
* In the former charter one domeftic council had
" the fuperior managing and direiSiion" oi both co-
i lanies : now a domeftic council" feerris to have
besn appointed to each of them feparately. or

gS Acts relating Part IL
or continued, not (as in the former char
ter) by the king, but by a majority of the
adventurers. Each member newly chofen
to take the oath of counfellor before the
Lord Chancellor, the Lord High Treafurer,
or the Lord Chamberlain.
To this council power is given to con-
ftltute and confirm, or to difcharge and
change, all officers, governors, and minif
ters, needful to the government of the colony.
The council has farther the power of
eftablifhing, or changing the form of go
vernment in the colonies ; of making, and
abrogating laws to be obferved within the
precinds of the colony, or upon the feas
in going or coming.
The governors and- officers appointed '
by the former charter, are commanded to
be obedient to the governors and officers
appointed under the prefent charter.
The council has the power of admitting
new freemen, of disfranchifing old ones,
It has the fame power of engaging fet- ,
tiers, and of free exportation for feven
^ years,

Sed. I. to the Colonies. 97
years, as was granted by the fprmer
charter. The company is freed from all fubfi
dies, and cuftoms. In Virginia, for one
and twenty .years ; and for ever from all
taxes upon goods imported thither ; as
alfo from all taxes upon goods exported
thence into England, or other the king's
dominions, ;five per cent, only excepted :
which fum being paid, they may within
thirteen months after their firft landing in
England, or other the king's dominions,
re-export them for fale in foreign parts,
without aHy cufiom, tax, or other duty.
The power of impofing duties on non-
freemeA, Is confirmed and extended. The
duties (over arid above what are paid by
the freemen) are .to be five per cent, for
non-freemen, who are fubjeds of the
king's dominions, and ten per cent, for
nonrfreemen, who are not fubjeds. The
duties are appropriated as before in thg
former charter." H The

gS Acts relating Part IL
The treafurer and company, and the go
vernors and officers, appointed by them,
are vefted with a full power " to corred,
« punifh, pardon, govern, and rule all
" adventurers, according to fuch orders,
" as by the faid council fhall be appoint-
" ed ; and in defed thereof, according to
*' the good difcretion of the faid governpr
" and officers r — as well in cafes^ capital
" and criminal, as in civil, both marine
" and others.' — So that the faid ftatutes, ,
" ordinances, and proceedings, be as con-
" veniently as may be, agreeable to the
" laws and policy of England."
The governor in chief is vefted with the
power of executing martial laws in cafes
of mutiny and rebellion. In as large and
ample a manner, as the lieutenants of
counties are in England.
All privileges granted by the former
charter, and not revoked by this, are re
confirmed. And it is provided that no new adven
turer fhall be permltteid to go into the co-
\ lonies,

Sed:. I. to the Colonies. 99
lonies, till he has taken the oath of fu
premacy. A precaution intended to pre
vent the fpreadin'g of the Romifh fuper-
ftition. Aboiit two' yettrs after thife, another
Charter Was granted, to extend and ex
plain that whith we have now given an
account of*.
By this charter, weekly meetings, and
genetal quarterly courts are direded to bfe
holden. A power is givdri of fulng^ defaulters,
and compelling them to make good their
engagerhenfs. A power is given of conferring the
freedom of the company to aliens ; pro
vided they be fubjeds of ftates in amity
with the king.
A power of adrhlniftering, not only the
oaths of allegiance and fupremacy, but
fuch Pther oath as the council fhall think
* See Colle<Slion of Charters, No. iii.
H 2 ^ fit,

100

Acts relating PartIL

fit, to perfons employed in the plantation ;
and to fuch witneffes as may be called to
clear up any matter in controverfy.
Another power there is, if poflSble, ftill
more extraordinary than any of the pre
ceding : a power, than which, had it been
exerted, none could well bid fairer to bring
a colony to ruin.
It feems complaint had been made, that
artificers and others, after having received
premiums for engaging In the fervice of
the company, had either refufed to go to
America at all, or being there had mifbe-
haved themfelves; and on their return,
being convened before the council here,
had behaved contemptuoufly to that court ;
and had endeavoured, hy fanderous reports
to difcourage others from "joining In the
adventure." To remedy this evil, the king empowers
any two of the council to bind over fuch
perfons to their good behaviour, and to
proceed againft them as is ufual in other
7 like

Sed. I. TO the Colonies. ioi
like cafes In the realm of England : — " or
" elfe" (fays tbe charter) " at their difcre-
** tion, to remand, and fend back *, the
*' faid offenders, unto the faid colony in
" Virginia, there to be proceeded againft,
*' and punifloed, as the governor, deputy, or
" council there, fhall think meet '• or other-
*' wife according to fuch laws and ordl-
*' nances, as are and fhall be in ufe there,
,*' for the well ordering, and good govern-
*' ment of the faid colony."
The more attentively we confider thefe
charters, the more we fhall be convinced,
that they cannot operate to the fupport of
the claims fet up by the Americans of this
day. One of the grants is evidently illegal.
It gives a power, which the king could not
convey,* in whatever capacity he be confi
dered as ading. In his procuratorial ez.-
* To wit, as well thofe who had returned
from thence, as thofe who had never been.
H 3 pacity.

ie)2 A^cTS relating Partll^-
pacity, no doubt, he might give powers^
and grant exemptions to the colonifts, which
they had not by law. But he could not,
therefore, deprive his other fubjeds of the
protedion they enjoyed by law, pr fub
jed them to burthens, to which they were
not liable by law. Yet the king affumes
the power of doing this. He conveys to
the council a right of exerclfing that power
in a manner more wanton and cruel, than
was ever pradifed by the Star-chamber.
Any two of the council might fend any
Man, accufed of certain mifdemeanors, to
America *; there to be punifloed as the go
vernor and council there — at once judges
and parties — fhould think meet.
* The Americans are vehemently offended at
.the adls of parliament made for fendino- to En"-
land, perfons charged wi'th trcafonable violations
oF the laws, or with homicide or mayhem, comi
mitted in the execution of them. The fame per^i
fons fcruple not to afiert their right to all the
|>enefit of a charter, which fends En.o-Iifcmen pver
to America to be tried for flandcr.
Among

t^edc I. to the Colonies. 103
Among the mifdemeanors recited,' one
is, ^' fpreading of fanderous reports of the ¦
county of Virginia." Who can doubt
hut ;merchants, interefted in the fuccefs
of the plantation, would have conftrued a
true and fair account of the hardfhips to
be undergone, and the difficulties to be fur-
mounted, by the firft fettlers, into fan
derous reports ?
But, befides that fuch a cbufe is enough
to vitiate the whole of the third charter,
we may remark upon the general view of
them all, that they certainly had not any
fiich ftate of America as the prefent in
contemplation; and ,that they contain
fcarce any provifion applicable to it.
The pretext fet forth for eftablifhing
thefe colonies, was the old ftale one of
" promoting the glory of God." A pretext
which no man, who has turned over a fin
gle page of hiftory, can hear of without
Juddering. The real motive. on the part
' ' ; - H 4 of

104 Acts relating Part IL
of the adventurers, was the hope of ef
tablifhing a lucrative trade : on the part
of the crown, was the hope of enriching
itfelf by the (Jlfcovery of mines of gold
and filver. To this purpofe, two exclu
five trading companies are eftablifhed.
Thefe companies, it is true, are invefted
with fome of the powers of fovereignty ;
that is, fuch of them as appeared neceffary
to the fupport pf their exclufive trade.
What rights does this convey, tp the co
lonifts, to thofe who were to cultivate and
inhabit the wilds of America ? Does It con
vey to them the right of enjoying there in
America all the bleffings of the Englifh go
vernment ?
As tp Ireland, the privilege of enjoying
in Ireland the Eriglifl"^ form of government
(if we may believe Dr. Leland, and his
authorities) was granted to the adventurers
¦who fettled in that country ; but is any
thing like this promifed to the adventurersr
who fettled in America? No; all the
Englife

Sed. L to the Colonies. 105
Englifh rights they could ever have exer
cifed here in England, are indeed preferved
to them^'ssid to their children born in A-
merica. What follows? They may come
then at any time and claim them.
It may not perhaps be difficult to give
the reafon for the Englifli form of go
vernment, having- been communicated to
the firft fettlers in Ireland, and not to the
firft fettlers^ in America. The adventurers
?ind fettlers in Ireland were the fame per
fons ; the chiefs who led over their friends
and dependents to fight for Dermod, meant
to fettle there themfelves ; and they there
fore afked and obtained the communica
tion of the Englifh law In their new fet
tlements. But the original adventurers,
and the original fettlers in America^ were
two different claffes of people ; the one
were fervants of the other. The adven
turers therefore obtained as many of the
powers of fovereignty as they could for
tlj,emfelve3 5 but for the fettlers they afkec^

io6 Acts relating PartIL
only, that they might not forfeit the rights
they could otherwife have exercifed here,
that they might not be puniflied as fugi
tives, nor their children difinherlted as
aliens. Their lands 'tis true are granted in free
and common foccage, and compreffed, by
force of a fidlon, within a fmall diftrld of
the mother country. What right refults
frpm this ? Make the moft of it, no other
than that of voting in the eledlon of re
prefentatives for that diftrld.
The king indeed promifes that he will
lay no impofts, for a eertal.i limited pe
riod ; and accepts a ftipulated fum in lieu
of all impofts thereafter. But what ex
emptions did the fettlers gain by this ?
The power of impofing taxes on them was
ftill vefted in a council eftablifhed at Lon
don -; that is, in an eledive ariftocracy.
By the firft charter this council was to be
appointed by the king, and though the fe
cond charter gave t^e power of appoint ment

Sed. L to the CoLor^iEs. 207
*
ment to a majority of the adventurers, yet
what did the fettlers gain by this ? The
eledors refided in England, and the coun
cil fate in England.
The Americans, I believe, would hardly
contend for fuch a government as this.
They would think themfelves fafer, I am
perfuaded, in the hands of a Britifh par
liament, than in thofe of an ariftocratical
council fo eleded.
The provifions of thefe charters were
calculated for an exclufive trading compa
ny. Colonization w^as confidered only as
fubfervient to commerce : the rights of
the colonift would have been buried under
the weight of mercantile intereft.
But in truth thefe companies fubfift no
longer. The lands which were granted
to them, have, either by the' authority of
fucceeding kings, or by the ads of their
own council, been parcelled out to other
adventurer's. A clufter of governments
have arifen, and if the prefent claims of"
the Americans are to be fupported by
6 char-

ip8 Acts relating Part I
charters, it muft be by the charters gran'
ed to thefe later fettlers *.
* It was thought, however, necefl'ary to fta
thefe original charters ; they at leaft ferve to flie
the fpirit with which the firft fettlements were ui
dertaken. There appear to have been other cha:
ters explanatory of the firft, fo far as it related i
the grants made to tjie Plymouth company : as tl
two laft are explanatory of it, fo far as it relat
to tbe grants made to the London Compaliy; Bi
they are not to be found, fo far as I know, in ar
printed colledion.

SEC*

Sed.IL to the Colonies. 109
SECT. IL
What were the privileges granted by the
' crown to the people of New England, by
firfi charter of Maffachufet's Bay ?
THE patentees of what was fty led the
fecond, or Plymouth company, in^
the Virginia charters, had fpent large fums
of money with the hope of effeding a per
manent and advantageous fettlement *.
Tired out with repeated loffes, they were
on t;he point of abandoning the adventure,
when fome other men of fortune took it
up. In the year 1620, thefe laft obtained
a new patent explanatory of the firft f.
It was about this time that one White,
a clergyman of Dorfetfhire, was looking
out for a fettlement for fome ejeded rnini-
* S.ee Mauduit's Short Hiftory of Maflachufet's
Bay. , . ^
f Ib. I do not find that this charter is any
where extant in print; but it is referred to by
the firft charter of Maflachufet's Bay. fters.

ii6 Acts R-EtATxkb PartIL
fters. He entered into- a treaty with thd
Plyrnouth company, by order and in the
name of Sir Henry Rofewell, and five
other gentlemen of Dorfetfhire, to whom
the company fold the part of New Eng
land * therein defcribed as lying at thef
bottom of Maffachufet's Bay.
Thefe new adventurers found the un
dertaking to exceed their forces. Othet
gentlemen, being applied to, affociated
with them. A new draught of the formeir
.patent was made out^ in which the natoes
of the new affociates were inferted, and the
tranfadion was confirmed by the king,.
The council refiding in England were
ftill the diredors, and fupreme managers,
*, This, name of '* New England " was givea
to an indefinite part of the territory within the li
mits of the Plymouth colony, by Charles I. Iheh
prince of Wales, at the inftance of a captain Smith.
This captain Smith was a principal mart in the
Plymouth colony, and had drawn a plan of this
part of it. The extent of it appears no otherwife
than by means of fuch and fuch names of places
that are ftill current.

Sed. I. to THE Colonies. iit
of the whole. The perfons fent out tP
order artd difpofe of the fettlement, were
fent under their authority, and aded by
their diredion.
It was about this time, that the low
church party began to feel the feverities of
Laud's perfecution : as thofe feverities in-
creafedy men of higher rank, and hxget
property, began td look out for an a,fylum*
They applied to the company, and offered
to go over to' the new fettlement with their
families and dependents. It was now for
the firft time, that any part of North Ame
rica began to be viewed i'n the light of a
fixed abode. The colony till now had
ferved to no other purpofe than that of the
feat of a fadory, who were changed from
time to time as the purpofes of commerce
made convenient. It now began to wear
the face of a fettled plantation. This new
race of inhabitants, excluded fxonvallprof
peB of a return to their native country,
turned their eyes to this vacant region as
to their home. DIfdaining therefore to
fubjed

J 12 Acts relating Part II.
fubjed thernfelves to the controul of their
inferiors, and fearing to receive laws from
a country groaning under the perfecutlons
from which they were about to fly, they
infifted on the cuftody of the charter, as
the pledge of their fecurity. '
It can, I think, hardly be doubted, but
that fuch a transfer of the charter was ille-r
gal ; for, according to the terms of the
charter, the governor, deputy-governor,
and affiftants were to refide and hold their
courts in England. By what legal power
then could the charter be transferred to a
governor, deputy-governor, and affiftants,
who were to refide and hold their courts
in America ?
This difficulty was either not attended to,
orover-ruled. A general affembly was called
on the 29th of Odober, 1629. Anewgo-
vernPr, deputy-governor, and court of af
fiftants were chofen, out of fuch of the
members as offered to go and fettle in A-
merica. They failed from Southamptpn at

Sed.IL TO the Colonies. 113
at the end of March 1630, and took the
charter with them.
Of that charter the following Is an a-
bridgment * :
It begins by reciting the grant made by
king James I. in 1 620. " by which all the
trad of land between forty and forty-
eight degrees of northern latitude was
granted to the Plymouth company f.
It then recites " that the council efta
blifhed at Plymouth, had granted to Sir
Henry Rofewell, and others, that part of
the premifes, which is now called Maffa
chufet's Bay. This laft grant the charter
confirms j and, as if for greater fecurity,
re-grants the fame lands afrefh diredly
from the king, with the ufual refervatlon
to his majefty of the fifth part of all gold
pr filver ore. /
* This charter is printed at the end of Mr.
Mauduit's Short View of the Hiftory of Maffachu
fet's Bay.
f This charter was explanatory of the firft ge
neral charter of Virginia, cited above.
I • The

jii Acts rel4.tin,g Part. It.
The grantees, aijd fuch perfops as they
fhould hereafter affociate with them, are
jnade a hody corporate, by th^ nanie of the
governor and fompany ofMaffachyfet^s Bay^
\n. New England, with perpetual fucceflSon ^ _
a capacity of pleading arid being Impjeadedy
of purphafing lands or goods, pf granting
or felling them, and of ufing a commpj)
feal. The charter goes on to regulate the go
vernment of the corporation.. It appoint^
that there fhould be pne gpverpor, one
deputy- governor, and eighteen aflSftapts.
Thofe who are to be the firft invefted
with thefe offices, and hold them for thd
year eufuipg, are reamed in the charter.
Their fucceffors are to be chofen annual
ly, by the majority pf the company. Put
pf the freemep of the company. They atd
to take an oath of office, and are remove-
able for mifdemeanorjs. >/
Once every month the governor is tP af^
femble the court of affiftants, which is,
*' to orfier and difpatch all fuch bufinefles " aB4

Sied. It fo rttE Colonies. 115
* «« and ocGurrents, zs ihall from time to
** time happen, concerning the company
*' or plantation *'
Once every quarter, or, if the xourt <si
aflliftants fhall fce~§t, more frequently, th«
governor is to affemble a general court o£
<ifiifian.ts z.'nA freemen.
Thefe genera,! courts are to -admit free
men, to eled officers, " to make ,la\Vs and
-** prdinances fpr the gpod and welfare pf
*' the company, and for the government
** a^id ordering the lands and plantations;
>' which laws .and ordinances , are not to be
i*' repugnant to the laws of England.**
The patentees and their affociates ar^
.empPwered to .engage fettlers, as well fub
jeds ^s flrangers. To employ ihlpping^
tranfport .armour, jveapons, ordnance,
ammunition, cattle, and all manner c^
merchandifes, ffe^ of all duties for feven
years. They are likewlfe exempted from all fub-
^dies in New England, " for the like fpace
?' of feven years ysind from all taxes and
I 2 ^* impp-

ji6 A;CTs relating Part II,
«' impofitions, for the fpace of twenty and
'« one years * upon all goods and merch'an-,
" difes, at any time or times hereafter, ei-s
*' ther upon importation thither, or ex-
*' port?ition from thence, into England, oy
S* I can have no reafon to doubt of Mr. Mau
duit's accuracy, I fuppofe therefore this is a true
copy. The reader will, however, remark, that it
differs eftentially from the fecond charter of king.
James, cited above. There a totaj exemption from
taxes and impofitions is granted ioi twenty-one years,
here only for feven ; there five per cerit. is the^^r-
petual tariff after the expiration of the twenty-one
years, here it is the tariff^ after the expiration of
feven years, and to continue only for twenty-one
years. In the firft inftance the king renoiznces atl
right of impofing taxes for a pertain confideration
for ever, here he renounces it for the fame confi7
deration, but only for twenty and one years. I own,
hovi^ever, from the turn of this whole claufe, it
looks as if the words  ." for the fpace of twenty
?' and one years " had crept in by fiarpe miftake of
the tranfcriber. If it had not, inftead of faying " at
" any time or times hereafter," it fliould have been,
" at any time or times within the faid twenty an<J
"one years ;" and fo agaip, after the word
," thenceforth " ftiould have followed, " dM.ring
_" the faid twenty and one years," " Other

Sed. it. To the Colonics. 117
*' other of the king's dominions, except
*' only the' five pounds pi*r eentunij due for
*' cuftom upon all fuch' goods and mer-
*' chandifes as after the expiration of the
*' faid feven years fhall be imported into
*• England^ or other the king's domini-
*' nions, which five pounds per ceritum
*' only, beiug paid, it fhall thenceforth bis
*' lawful to export the fanie goods, &c.
-*' into foreign parts without any cuftomv
¦ *' &c. to be paid."
The rights of natural-bofri fubjeds here
in Erigland, and within any of the king's
.dominions, are preferved to the fettlers and
their childreHi
In favour pf thofe w'ho were to fettle this
. tax, this is the whole of what was ftipulated ;
and thefe therefore are all the privileges to
Which the prefent colonifts can be under-
ftoodj under this charter, to have fuc
ceeded. The governor, affifiantSi and freemen,
in England, ftand on a very different foot
ing ; they indeed in their general courts
1 3 arg

-J 1 8 Acts relating PartIL
are empowered to make " all manner of
** wholefome and reafonable oiders and
*' laws, not contrary to the laws of Eng'-
** land." I cite the words as not knowing;
how to give the fenfe.^
The objeds of thefe lawss^are defcribed.
And thefe objeds are ;— to fettle the forms
and ceremonies of government and magi-
ftracy,. neceffary for the plantations; to
name and ftyle all forts of officers ; to di-
flinguifh and fet forth the feveral dufies,
¦powers, and limits of their oSces ; topre-
fc-Ibe forms of oaths ^warrantable hy tbe
kws of England), for the due execvUriont
thereof; to difpofe and order their elec
tions, and to impofe lawful fines, mulds^
imprifonment, or other lamfui eocrediior*
on the breakers of thefe laws.
With refped to the fettlers then, it fhould
feem, that the charter fubmitted them to
an abfolute government ;. for I fee no limi
tation prefcribed to the pPwer of the coun
cil over them : unlefs it be that the power
of taxation is not exprefsly given. Tp all
other

$e£fi II. T0 The Cplonies. i 19
other laws made and publifhed, rtPt ty th6
fettlers, not by a legiflative body refiding
among them,' but by ai coriipany refiding
herein Eriglandj the planters are required
tp pdy aiU due obedience-
The only limitation of the ppwer of the
council is cotttained in thefe Wprds, whichi
fpiloiw immediately after the words em
powering the council to infiid fineS,
toulds, &e; " according to the cPurfe of
other corparationsi within this our realm
of England."

14 SECT.

120 Acts relatin-g PartIL

SECT. IIL .-, ,
-AbfiraSl'of the chanters of ConneSlicutani
Rhode Ifland,
t< X^ CD in his providence (Mr. Hut-
-" vJT chinfon very gravely remarks)
" bringeth good out of evil.*.-" .His proof
is, " that it is to bigotry and blind zeal
;" we muft attribute, if not the fettlement,
" yet at leaft the prefent fl.ourlfl^Ing ftate
" of North America."
, True it is that bigotry and blind zeal
contributed to unpeople England, as it had '
to unpeople other parts of Europe ; and
that thofe who were driven by it from
hence took refuge in America. Equally
true it is th?.t the fame fpirit of bigotry
¦and blind zeal raged anon g the new emi
grants with tenfold greater fury than it
had ever raged againft them here ; that it
* See his Hiftory of Maflachufet's Bay, vol. i.
p. 3.* forced

Sed.IIL to the CplpNies. 121
forced ^ them afiinder with greater vio
lence than it had colleded thetti together.
They- were like the 'men of Babel; no
man underftood his brother. But bigot-
ry and blind zeal no more contributed to
render hknexie?). flour ifhing, than the mul
tiplicity of languages contribute to make
men knowing.
' Thus much is certain, bigotry and blind
zeal brought difperfion out of union.
Hence new fettlements were formed, and
new charters fued for.
'By degrees part of thefe religionifts fell
'away from the reft. Some fettled upon.
the river Connedicut. Another part went
" and occupied Rhpde Ifland. ^ach of thefe
' divifions bethought themfelves of apply
ing fbr, and found means of obtaining a
feparate charter *. Frpm' that diftrld, of
whichi:lie "whole had been already grant
ed to the whole "body of the' adventurers
under 'tlie'Tiymouth charter, two large
¦ , , .•.;sri.'.-;orf;
* See ColleiSiion of Charters, 'N6;' vl. and vii.
'^ . diftrii^

i%t Acts REtAtiNG Fart l|i
diftrids were diffevefed ia favour of
a part of that body^ without the pri
vity of the refi. Thefe new tribes were
each of them ereded into " a body cor-
*' porate," and enjoined to .ufe the power?
vefted in them " accprding to the courf«
« of other corporations imfhin the king-ss^
** dom of England.'*
Mean time nothing can be more ftrik*
ing than the difference between ih& fituJ
ation of the' adventurers under thefe twci
laft charters, and that of thofe under th^
firft. On the one hand exemptions werd^
granted tp the patentees pf MafTachufet^^
ttay, which were riot _ granted to the pa-*
tentees of Connedicut and Rhode Ifland*
On the other hand mpre extenfive powers
were grarited to the latter in one or two
eflTentizil points.
The reafpn pf t^iis dIfiFerence is pbvipijSj
In the charter granted tp the patentees of
Maffachufet's Bay the king had in cofl-
templation only a fet of merchants arid
adventurers refiding in E.nglaod, andirar- rving

Sed.IIL TO the Colonies. 123
ryirig Pri by their fadors and agents an
exclufive trade to a certain part of Amcr
rica. In granting the charter to the pa
tentees of Connedicut and Rhode Iflan4,
he had in contemplation to prefcribe a
form of government for a number of fub
jeds already fettled there.
Thus, for inftance, the general court of
the company of Maffachufet's bay was to
cpnfift of the governpr, or deputy-gover
nor, and fuch of the affiftants and free
man as were prefeut ; that is, all the free-
riien had a right of being prefent, and vot
ing at thefe courts. In Connedicut and
Rhpde IIlaijd» the freemen of the differ
ent towns and diftrids were to eled de-^
puties to deliberate, and vote fpr them
in the general courts.
To the patentees of MafTachufet'?. ^ay?
an exemption from the payment of all
cuftoms on goods exported from Eii^-
Jand.was granted fpr the fpace of; f^^s^u
years. To the Pthers, this e;xem,ptipn is
(Cxprefly denied.
' T|ie

1^4 Acts relating Part iL
The patentees of Maffachufet's Baj'
had no powef of ereding courts^of judi
cature. To the others this power is gl"-^
ven. In thefe charters, it is nPt the moft fan^
guine advocate of the Americans that cari
, find any thing, to juftify their claim of Iri-
dependence on the parliament or laws of
England. On the contrary, the laws of
England are throughout referred to as the
ftandard, by which the validity of their
own regulations is to be tried. The le
giflative powers conveyed to th^m are to be
ufed in the manner " that other corpora,^
" tions in England ufe them." And fure
ly no corporation in England did ever fup
pofe that their powers of fubordinate le
giflation exempted them from the fupreme
legiflation of parliament.
In the charter of Rhode Ifland we find
the following claufe. « Many of the in- ,
'* habitants cannot In their private opi-
" nion conform to the public exercife of
**• religion

Sed. IIL TO the Colonies, 1425
" religion according to the liturgy and
*« ceremonies of the church of England,
" or take and fubfcribe the oaths and ar-
" tides made and eftablifhed in that be-
^' half; and for that the fame, by reafon
'* of the remote diftances of thofe places
*' will, as we hope, be no breach of the
*' unity and uniformity eftablifhed in this
" nation, we have therefore thought fit
" to ordain — 'that no perfon, within the
" faid colony, fhall, in any wife, be mo-
.*' lefted, or called in queftion, for any dif- '
" ferences in opinion in matter of reli-
'•' gion — any law, ftatute, &c. of this realm
i" to the contrary notwithftanding."
Here then we fee a fpecific, law of this
realm, I mean the ad of uniformity, by
which the colonifts thought they floould be
bound, unlefs they had a fpecific exemp
tion. The objed of this law was fuch, as
would render the obfervance of the law
itfelf, in thefe uncultivated and diftant
region?, a matter of the greateft poffible indlf-

126 Acts RELATING PartIL
indifference to the government in Eng
land. Suppofing the Englifh clergy to be as
intolerant as the moft uncandld of their,
enemies have ever reprefented them, yet
here were no endo>vments to tempt their
avarice. TThe fcene was too remote to be
galling to their pride. I'ew, if any, of
the fettlers were of the church of Eng
land. They were of various feds, no one
jof which l?ut had teftified its hatred to the
reft. ¥et even this law they fhoughf!
might legally be put In execution again^
them. They fejt that they were legally
fubjed to it. Apd they therefore prayed
a fpecific exempt'pn from it. If without
that fpecific exemption they would have
been fubjeds to this law, why pot tp
others ?
The charter of MaflTachufet's Bay con
tains nothing more than an exclufive right
of trading within ^ particular diftrld of
Arperica. This right is cpnveye.d tP a
company

Sed.IIL TP THE Colonies. 127'
company refidipg In England. That comi-
pariyhad extenfiye privileges, but hardly
jany of tl^e pO'««?efS of political govern-
pient. They had indeed the power, of
impofing cPmm,eri;i^i duties, but they
(Could lay no domeftic taxes, either on
freemen pr non-freemeu. Tliey could
ered no ^courts. The people whom they
fent out, 9r fuch pf the adventurers as
went of their own accord, had no other
protedion for their rights than what was
to be found in the courts here in England;
the fame pfptedion which a Gentoo may
find at prefent. The patei>tees were ex
empted from cuftpins and duties for a gi
ven time; h\xt fuch an exemption fo li-
piited, is itfelf the ftrongeft cpnfirmatlpri
of the right.
Some of thefe defeds are fupplied ir|.
the charters granted to Connedicut and
Rhode Ifland. But in neither of thefe is
^here expreflTed or implied any thing like
a total emancipation from the power of
....' vU . ; par-

12S Acts relating Tart II,
, I
parliament, except as to the fingle pb-
jed of conformity to the church of Eng
land : nor does any reafon appear why
fiich an emancipation fhould be neceflTary
to thef exercife of any power, or the en
joyment of any exemption that Is there
expreflTed.

SECT.

SedwIV. TO THE Colonies. 129
SECT. IV.
What were the privileges granted by the
Crown to the New-Englanders, .by the
fecond Charter of Maffachufet's Bay?
IN the general flaughter iriade of cor
porations, toward the latter end of the
reign of Charles II. the company of Maf
fachufet's fhared the common fate.- It was
in the year 1683, that a monfter called a
quo warranto was let loofe upPn them,
from the court of King's Bench, to devour
their privileges. And in the year follow
ing, another of the fame breed, called a
fcire facias, out of the court of Chancery,
to fummon them to make their appearance
within a month. Having nelthisr wings
to fly with, nor command over the waves
to ftill them, they ^came not within the
time. For this contempt judgment was
entered up againft them. From this time
the crown faw them proftrate at its feet.
K At

130

Acts relating rart ii.

At the refurredion of the conftitution
under king William, entreaty was ufed
with his majefty to reftore the ancient
charter. The requeft, as to the fpecific
terms of it, was refufed. They were de
nied what they afked for ; but, what is
fingular, they were granted more : a char
ter was granted them, in many refpeds
more beneficial than their old one.* It is
* See this charter in the Appendix to Neale's
Hiftory of New England, vol. ii. number I. It is
reprinted in the colleftion printed for Almon. I
could not read without furprize the following paf-
fage in a book attributed to Mr. Burke f . The
writer is fpeaking of this colony. " Some time
" after the revolution (fays he) they received a new
•* charter, which, though very favourable, was
" much ififerior to the extenfive privileges of the
'* former charter, which indeed were too exten-
" five for a colony.'' Surely this writer had not
attended to the fitft charter, or had forgot that it
was granted to a company refiding in England,
And therefore with all it's extenfroe privileges warn
ed all the powers neceffary to conftitute a politicaj,
government. t See Account of European Settlements in America, vol.
ii. p. 169, edit. 5. this

Sedt. iVi rto the Colonies. i^f
this new charter which goes by the nam^
of the fecond charter of the Maffachu
fet's Bay*
This charter (after fdciting the feveral
charters heretofore granted to the compa-*
ny of Plymouth, and to the patentee* of
MaflTachufet's Bay, and the vacating of
this laft charter on a writ of fcire facias Id
court of Chancery); fets out with nam
ing as the fubjed of its difpofal, the colo
ny of Maffachufet's Bay : to which, how
ever, we find now, for the firft time, ag
gregated A number of -Pther fettlements,
known by the refpedive names of "New"
" PlymPuth; the province of Maine; thd
*' territories called Acadia, or Nova Sco-
«« tia i" with the intermediate waftes^
It is remarkable, that the terms un
der whieh they ftand charader ifed in the!
charter, are thofe of faSiorieSi and colo
nies : the firft of which feems to fheW
the legal iSeai entertained of the fettlers
under the former chartersi The law eon-
fid'ered them as faBors, or agents, pf at
K 2 €Pm-

132 Acts relating Part IL
company : the governing part of which
was fuppofed to be fixed, and refident
in England.
The 'tfadories and colonies," thus in
corporated, are not declared (as in the
former charters) " a body corporate ^and
*' politic, capable of pleading, and being
impleaded," &c. but are ereded into " one
" real province." — A very different kind
of fociety, and requiring far other powers
than a mere body corporate.
The affairs of the province accordingly
are to be adminiftered by a governor, de
puty-governor, and fecretary ; all three
at the nomination of the crown ; by
twenty-eight affiftants, or counfellors,' to
be annually chofen by the general affem-
blies ; and laftly, by reprefentatives, to be
deputed by the refpedive towns and dif
trids. The council is to confift of the gover
nor, or deputy-governor, and feven, at
leaft, of the affiftants.
The

Sed. IV. TO the Colonies. 133
The general courts, or affemblies, are
to confift of the governor, or deputy-go-
verrior, the affiftants, and the reprefenta
tives. With the governor is lodged the power
of fummoning the council, and general
courts. Both, or either, as often as he
fees fit. But the general courts he is
'obliged to fummon once a year at leaft.
He may adjourn, prorogue, or diffolve
them at his pleafure. He has a negative
on all laws ; as alfo in the eledion of
counfellors. He has the command of the militia
within the province : he may ered, or de^
molifh forts, and commit the govern
ment of them to fuch perfons as he
pleafes. Thefe are ads in which, by the char
ter, he is bound only by his own dif
cretion. ¦¦ Other ads are not to be done but with
'^ the advice, or confent" of the council.
K 3 It

134 Acts relating Part II,
It is with jheir " advice and confent"
that he Is to appoint judges, eommiffioners
of oyer and terminer, fherjffs, juftices of
the peace, and Pther pfficers, belonging
to the council, or courts of juftice; to dp
all that is neceffary for the probate of wills^
and granting adminiftrations ; to iffue his-
warrant for difpofing of the taxes levied
by the general affemblies, for the defence
and fupport of the government, according
to fuch ^ds as fhall be in fprce within the
province; and tp grant commilfions for
exercifing martial law-
It is with the general aflTemblies that it
lies tp ,eled annually the affiftants or coun
fellors ; and to amove them for mifde
meanors ; to fix the number of reprefen
tatives, which each county, town, or
place, is to depute: the right of voting,
however, being reftrided to freeholders
of forty fhillings a year, or men poffeffed
of fome other eftate of the value of fifty
pounds; to ered courts; to make all
fn^nner of f ^vholefome and reafopable

Sed. IV. to the Colonies. 13^
" laws, either with penalties, or without,
** not repugnant to the laws of England ;"
to appoint anaually all civil officers, except
thofe referved to the crown, or to the go
vernor as above- mentioned .; to fet forth
the feveral duties, powers, and limits of
the oSicers appointed by themfelves ; to
prefcribe the forms of oaths to be taken
by fuch officers, fuch oaths, as before,
not to be " repugnant to the laws of Eng-
" land'," to impofe "fines, mulds, im-
*' prifonments, and other punifhments ;'*
*' to impofe, and levy proportionable and
" reafonable affeffments and taxes, on the
*' eftates and perfons of all the proprietors,
*' or inhabitants of the province ;" and,
finally, to authorize the governor, when
they fee fit, to lead the militia out of the
limits of the province.
It is in the name of the king, that all
courts of juftice are to be holden; and
they are to have a power pf " hearing
»' and determining, all manner of pleas,
«' real, perfonal, or mixed j ia caufes cri-
K 4 " minalj

136 ' Acts relating PartIL
" minal or civil ; on matters capital, or
" not capital ; and of awarding, and
" making out execution thereon."
To the inhabitants in genera,l, are grant
ed all the liberties of natural-born fubjeds
within any of the king's dominions; the
right of appealing to the king, in dernier
refort, from any " judgment or fentence,"
in "any perfonal adion, wherein the matter
in difference ^exceeds the value of three
hundred pounds fterling : to fuch of them
as poffefs a freehold of the yearly value of
forty fhillings, or a perfonal eftate of the va
lue of fifty pounds, is granted a right of
voting at the eledion of reprefentatives to
ferve in the general affemblies ; and, laftly,
by an exprefs provifion, to all except Pa-
pifts, a full liberty of confcience.
To the king himfelf are referved, the
powers of ereding courts of admiralty ;
of nominating the governor,, lieutenantr
governor, rand fecretary ; of receiving ap
peals in perfonal adions ; of' difallowing,
•fo it be within three years after their en-
'\- adraent.

Sed. IV. TO THE Colonies. 137
adment, any laws made by the general
affemblies.' From thefe laws, however, are except
ed, fuch as fhall be made to pafs any grant
of lands within the three colonies of Maf
fachufet's Bay, New Plyrnouth, and the
province of Maine only. Laws for thefe
purpofes are exempted from difallowance.
finally, to the king are referved all trees
of a certain diameter ; and, as in former
•charters, the fifth p^rt of all gold or filve^
ore, and of all precious 'ftones.
Many, we are to obferve, are tbe
powers granted in this charter, which
were wanting in the former. Among
Pthers, that of levying taxes on themfelves
is particularly obfervable. '
It is from this fpeclfication, whereby the-
power of taxation is, - by the parliament,
fpeaking through the king, communicat
ed to the colonies, that fome are forward
to infer the parliament's having renounc
ed it for itfelf. But this inference feems
not juft. The

138 Acts relating PartIL
The circumftance of two taxing powers
over the fame body of perfons taxable ; of
two taxing powers, I fay; a fubordinate
one befides the fupreme ; of two fuch tax
ing powers, eftabliflied for raifing funds
for different purpofes, is by no means
new. The truth is, nothing can be lefs
fo. We fee it everywhere. Look around
us any way, it ftares us in the face. Nat
a parifh in the kingdom, but has a power
of taxing itfelf; or, to fpeak more accu
rately, not a parifh In which there is not
a certain body of men, the veftTy, to vv^hom
within the limits of that parifh,. for. cer
tain purpofes of that parifli, belongs a
power of laying taxes on the reft. Are
then the perfons thus taxed, are they by
virtue of their being fubjeded to tbe au
thority of this one taxing body, exempted
from the authority of every other taxing
body ? and In particular from the fupreme
univerfal taxing authority of parliament ?
No : they are again taxable by a fecond
taxing body, viz. the veftry as above,, with
' tWQ

Sed. IV. TO THE Colonies. 139
two juftices fuperadded, for certain other
purpofes of that parifh. They are a third
time taxed, if the parifh be a corporation,
by a third taxing body, the rulerS of that
corporation, for the purpofes of the cor
poration. They are a fourth time taxed by
a fourth taxing body, the juftices of the
county, for the purpofes of the county.
Laftly, they are a fifth time taxed by par
liament ; a fifth, and univerfal taxing
body, for the univerfal purpofes of the
whole empire.
The inference in itfelf tljen Is nothing
lefs than juft. That to. king William in
particular, who granted the charter, it did
not appear juft ; that he never meant it
fiiQuld be made ; that he never thought it
would be made. Is what the grantees had
early, and authentic proofs pf.
To himfelf, we may remember, the
Icing had referved the power of nomlnatr
ing the chief officers, the governor, de-?
puty-governor, and fecretary. The

240 /1.UIS KtJ^A 11 Nti jrart n
The refervatlon, it feems, gave great"
offence ; fo .much, that the agents thought
it neceffary to go into arguments to jufti
fy them for having accepted the charter
with fuch a clog to it.
In the courfe of thofe arguments, the
idea of exemption from parliamentary
taxation is there broached. ' We fhall fee
how it was /z^T^ received. Confider, fay
they to their conftltuents ; confider, tho'
¦you have not thofe powers, how ample
are thefe you have.
" The general court has," (by this char
ter) " with the king's approbation, as'much
" power in New England, as the king and
" parliament have in England. They
" have fl// Englifli liberties :-^can be touch-
" ed by no law : by no tax, but of their
" own making *."
The province Caught up the Idea. Ac
cordingly the firft ad of the new legifla-
* See Neale's Hiftory of New-.jEngland, vol,
ii. p. 479. 'ture

Sed. IV. TO THE Colonies. 141
ture was (fays Mr. Hutchinfon *) a fort of
Magna Charta, afferting their claims, and
privileges ; among which this was not for-.
gotten.' It is among the principal of thefe af-
fertions, " that no aid, tax, tallage, affef-
" ments, cuftom, loan, benevolence, or
?' Jmpofition whatever, fhall be laid, affeff-
" ed, impofed, or levied on any of their
" majefties fubjeds, or their eftates, on any
" pretence whatfoever, but by the ad and
" confent of the governor, council, and
" reprefentatives of the people, affembied
" in general court."
That the province wifJoed to have the
charter interpreted. in the fenfe their agents
put upon it, is abundantly apparent. Did
the king then interpret it in that fenfe ?
We fhall foon fee. Itle difallowed the aSl,
It was exprefsly put to him, whether that,
which they wifhed for, was his meaning .?
andjhis anfwer was as exprefsly in the
* See Hutchinfon's Hiftory of Maffachufet's
Bay, vol. ii. p, 64.
7 negative.

142 Acts relating PartIL
negative. " Did your majefty mean to
exempt us," fay the reprefentatives, "from
parliamentary taxation ?" Says the mp-
narch — " No. — You the fubordinate le-
*' giflative body of this my province fhall
" not be the only body having power tP
" lay taxes. Others, one other fuch body
" at leaft there ftiall be befides." What
fhall be this body ? The king alone >.
That, I truft, will hardly be maintained.
If any one can find out another, befides
the parliament, let him produce it.

SECT.

Sed. V. To THE Colonies. 14*

SECT. V.
What were the privileges conveyed by the
crown to the proprietor and inhabitants of
Maryland in the Charter of Maryland?
E S I D E S thefe governments, which "
alone are called chartered; there are
others, which though equally derived from
charters, are called proprietary.
Thefe Mr, Juftice Blackftone defines to
be governments, " granted out by the
" crown to individuals, in the nature of
" feudatory principalities, with all the in-
" ferlor regalities and fubprdinate powers
" of legiflation, which formerly belonged
" to the owners," as he thinks proper to
call them, " of counties palatine."
The firft pf thefe proprietary govern
ments, (or indeed of any of the colonies
founded for the exprefs purpofe of fet
tling) which was difraembered from the
general

144 - -^^CTs relating . rartj.ii,
*
general grants of Virginia, was Maryland.
It was granted, by a charter of the year
1632, to Cascillus, Lord Baltimore *, a
Roman Catholic, who " was induced,"
we are told, " tP attempt this fettlement',
** in hppes of enjoying liberty of confd-
" encefor himfelf, and fecuring it to fiich
" of his friends, to whom the feverityof
^' the laws might loofen their ties to their
*' mother country f."
The conftitution given to the colony by
this charter, is remarkably different from
that of any other we have yet feen. /
In the firft place, the whole colony, that
is, we are to underftand the foil of it, is
under the ufual refervatlon of the fifth part
of all gold and fiilver ore granted to that
lord and his heirs, to be holden of the
king, as of his caftle of Windfor in free,
and common foccage hy fealty only.
;: * Colleaion of Charters, No. IV.
1" Account of the European Settlements in
America. Vol. ii. p. 227, '
¦' ~ ¦ Then

Sed. V. TO THE Colonies. 145
Then comes a claufe, which feems
ftrongly to charaderife the light in which
the continent of Noi^th America, a§ we
have before intimated, had till that time
been confidered ; I mean that of a ftation
for faBories, and not foi: fettlements ; a
country to trade in rather than to culti
vate. A fpecial ^ppellatioh is according
ly beftowed oh the country granted in this
charter ; it is ereded into a province, in
order (fays the charter) " that the country
" thus granted may be eriiinerit above all
*' other parts of the faid territory, and
*' dignified with higher titles."
It is declared in exprefs terms to be no
longer a part of Virginia, or any other
colony whatever, nor dependent on
them, nor fubjed to theii' laws, but eh-
tireiy fepar^ed from them ; to be fubjed
to the crown of England only, and there-
Pri to depend.
To lord Baltimore Is granted the fole
and abfolute proprletorfhip, as we have
already intimated, of all the lands, as alfo
L the

140 iiCTs relating ran Ii.
the patronage of the- churches, faving on
ly the faith and allegiance to, and fove
reign dominion of the king. With the
power of granting out fuch parcels of the
premifes, and that under fuch tenures, and
for fuch cuftoms and fervices as he fees
fit, to be holden of himfelf immediately ;
which that they may be, every law and
cuftom in general to the contrary, and
particularly the ftatute o^ " quia emplo-
" res*'- is difpenfed with : power is affgi
given him to ered manors, with courts
baron. Thus much for the rights given to him
as proprietor of the foil.
In his political capacity are conferrei^
on him in general, all the temporal rights
of what kind fpever which " any bifhop
"ofDurhapi ever had in the biftioprick
« or county palatine of Durham."
In particular, as to his legiflative
powers, he is to fumnionthe freehplders or
their deputies, *' when, and as often,
" and in fueh fort and formr" as to him
fliall

Sed. V. 'TO THE Cplpnies. 147
fhall feem meet. And on fudden emer
gencies, without convoking fuch affem:-
bly, to him fingly is given the power
*' of making ordinances having the force
" pf law j provided fuch laws be not re-
*« pugnant to the laws of England, nor
** extended in any fort to bind, charge,
*' or take away the right and intereft of
*? any perfon in his life, members, free-
" hold, goods or chattels." He may pre
fcribe forms of judicature and manners of
proceedings. As to the executive power, in hirti It is
all lodged, and he may either exercife it in
perfon, or by deputies of any denomina
tion. He may appoint judges to liold
pleas, award and determine in all caufes
whatfoever. And, what is properly fpeak
ing part of the legiflative, that is a dif
penfing, rather than a part pf the execu
tive, power, he may pardon all offences,
whether before pr after judgment *.
* Would the patriots of Maryland lay, claim
to this claufe of their charter ?
L 2 To

148 Acts relating Part. II,
To him alfo is given the power of levy
ing troops, with all the authority of a
captain-general ; the power of conferring
titles of honour, provided they be not
fuch as were then ufed in England; of
ereding incorporate towns into boroughs,
and boroughs into cities ; of ereding and
appointing fea-ports, harbours, and other
places where only, goods are to be laden or
unladen in the province ; with the fole
difpofition of the cuftoms and duties to
be affeffed and paid thereat.
¦ Thus much concerning the political
powers given to him fingly.
Other powers he is to exercife with the
advice and confent of the freeholders or
their deputies : it is in general with their
advice and confent that he is to exercife
the power " of making any laws whatfo-
*' ever, appertaining either to the public
*' ftate of the province, or the private uti-
" lity of particular perfons;" provided
fuch laws be " not repugnant to the laws
" of England ;" and in particular of Ira-

Sed. V. , TO THE Colonies.

149

pofing cuftoms and fubfidies on all ex
ports and imports. Of territorial taxes all
this while no mention is to be found.
To the fettlers in general is granted a
free power of emigration, notwithftanding
the ftatute of fugitives ; to them, and to
their children born in Maryland, are pre-'
ferved all the rights of natural born fub
jeds in the kingdom of England and Ire
land, with the right of exporting and im
porting all forts of merchandifes, the pro-
dud of England or Maryland, on paying
the fame duties as the reft of the fubjeds
of England for the time being, and no
more : to fuch of them as fhould be free
holders, is given the power of voting, ei
ther in perfon or by deputy, as the pro-
prietbr fhould appoint, in the legiflative
affembly. To himfelf, as we before remarked, the
king has referved the fovereign dominion,
with the fifth part of all gold or filver ore.
To the fubjeds of England is referved the
L 3 right

i^o Acts relating PartIL
right of fiftiing on the coaft of Maryland,,
in common with the fubjeds of Mary
land. As to the right of taxation, the king
renounces It. for himfelf, his heirs, and
fucceffors : and In terms which appear to
me very forcible and declfive.
"We covenant (fays the charter) that
*' we, our heirs and fucceffors, will at no
" time hereafter fet, or make, or caufe to
" be fet, any Impofition, rate, or contri-
" bution whatfoever, in and upon the
*« dwellers and inhabitants of the aforefaid
•« province for their lands, tenements,
*' goods or chattels, within the faid pro-
*' vince, or to be ladett or unladen withiq
*' the ports or harbours of the faid pro-
" vince." And " this declaration," as It
is ftyled, " is required to be received and
*' allowed in allhiis courts as fuflicient and
*' lawful difcharge, acquittance, and pay-
*' ment*." How
* The abundans cautela of the lawyer has here,
as is very apt to be the cafe, ended in obfcurity. By

5ed. V. TO THE Colonies. 151
How numerous and how material the
points are in which this charter differs
from every other that we have examined
we may now perceive. But that which
is moft to our purpofe to remark, is
the king's abfolute and form-al renuncia
tion of the right of taxing: a renunciation
much too important, it fhould feem, not
to have been made, as it is here, in ter-
minis, whefefoever it was intended it
fhould be underftood to have been made.
As tp the extent of this renunciation, it
depends upon the relation which the co-
loriles were fuppofed to ftand in to the king.
What that relation was. Is a queftion that
has been the fubjed of much controverfy^
By this declaration., is meant the abovemei^tioned
daufe of covenant : and when it is faid that claufe
fhall be received' as payment of a fort of debf,
which by the fame claufe was never to become due,
nothing more is meant than this j that to any
profecution on account- of fuch a debt, this claufe
rendering the tax whence the debt was to accri;e
illegal-, fiioujd be a bar ; as, were tile tax legal,
.payment would be a bar. L 4 Before

152 Acts relating PartIL
Before we enter upon It, It may be proper
to premife, that the interpretation we ar^
in fearch of for this claufe, is the inter
pretation that according to prPbability
was put upon it by the contrading parties,
of whatever nature might have been the
propofitlons affumed in that interpreta
tion, whether true or falfe : as to thjs
matter, it is probable, that between t|ie
fentiments of the fovereign and the
noble favourite there was no great dif;
ference.' The ifavourite, we have obferv
ed, was a Roman cathplic, a difclple
of that fed, whofe prejudices run the
ftrongeft in favour pf the power pf t|ie,
crown. Charles at this time unqueftlonably un
derftood himfelf to be in poffeffion of the
right of levying certain taxes by his fole
authority, without the concurrence of the
two other eftates, upon his Englifh fub
jeds. If he confidered the colonies as
ftanding to him In the fame relation as his
Englifh fubjeds, then this renunciation might

',^?d. y, TO the Colonies. 153
might be Interpreted, as extending only
to the right which he claimed over his
Englifh fubjeds, namely, the right of
laying certain taxes without the concur-
fence of the other eiftates.
But it Is likewlfe beyond a doubt, that
Charles confidered the colonies as entire
ly fubjeds to hiis fingle authority, and not
t.o that of the other eftates ; whom he fup
pofed to have no more right of making
laws to bind them, than they now have of
making laws to bind Hanover. This opinion
James I. had exprefly avowed in a letter to
the houfe *. It fhould feem therefore pro
bable, that in granting this charter Charles
confidered the colonies as ftanding to him
in this .relation. And if fo, it muft, I
think follow, that the covenant was meant
and underfiood, to cpnvey to the proprie
tor and inhabitants of Maryland, a full
fecurity againft taxation by any power in
England. * Vide infra, Sed. VH. This

154 Acts relating PartIL
This large interpretation of the claufe
in queftion, feems farther warranted by
the words of the claufe itfelf. It can hard
ly" be laid, I think, that when the king
gives his confent to a tax, levied in his
name, and by big authority, he does not
** caufe that tax to be fet." And with
out the confent of the king a bill for tax
ation can np more acquire the force of a
command than a bill for any other pur
pofe. In a law for taxation, as' well as Iri
"every other ad of legiflation, the immedi
ate inftriimentality is attributed to the
king. Now the words of the claufe of co
venant are, that the king " will neither
*' fet, nor cavfe to be fet" any tax in Mary
land. Hence therefore, I think, we may
conclude, that according to the ftrid letter,
as, well as the fpirit of the charter, the
inhabitants of Maryland are taxable
only by their own governors and af
fembly ; and not by another body of
men, whofe commands are without ef
fed,

Sed. V. TO the Colonies. 155
fed, till ratified by the authority of the
king. This laft argument appears to me cori-
clufive ; nor fhould I fcruple therefore to
fay, that by this cha;rter, the proprietor
and inhabitants of Maryland were, and
fuppofing them to have kept their part of
the contrad inviolate, fill are exempted
from parliamentary taxation.
But taxation only excepted, there
feems no reafon to fuppofe but that
Maryland is, in a// other refpeds fubjed:
to the fupreme legiflative power of par
liament. The inhabitants of that colony are ex
prefly ranked with the " refi of thefuh-
'^ jeSis of the kingdom of England." And
with refped to them In particular, three
ftatutes at leaft are manifeftly repealed.
Two of them, the ftatute * of fugitives,
* Or, rather ftatutes, viz. 13 Eliz, c, 3.— '
14. Eliz. c. 6. — X James I. c. 4. fe61:. 8." and

156 Acts relating Part IL
and the ftatute of '*'quia emplores" by
name; and the third, " de prserogatlv'a
*' regia" by implication.
True it is that the repeal of the ftatute
of fugitives was of no farther ufe than to
fecure them againft the lofs of their Eng
lifh pofTeffions, or any other penalties that
might at any time be inflided on them
here, for having quitted England. The
operation of that ftatute would have been .
fpent in England. And from hence,
therefore I allow, no argument ' can be
drawn to prove that the fettlers in Mary
land confidered themfelves as Indepen?-
dant on the power of parliament. But
the repeal of the other two ftatutes was
to enable them to purchafe lands, tp be
holden there, in Maryland, diredly of
lord Baltimore, the immediate feoffor,
and not of the king, the chief lord of the
fee. It feems then, that the proprietor
had no doubt but that the operation of
¦ 1 "*
thefe ads, had they not been repealed as tQ

3ed. V. Tb the Colonies. 1 57
to him and his people, would have ex
tended themfelves, and reached them
there in Maryland. Now if he was con-
, * I
vinced that thefe ads would, unrepealed^
have operated there in Maryland, it is riot
eafy to conceive upon what grounds
he could imagine that any other ad of
the fame power might not operate there
as well.

SECT

Acts' RELAtiNG jPsrt II4

SECT. VL
JWhat were the fbrihiileges granted by the
crown to the proprietor and inhabitant's
of Penfylvania, by the charter of Penfyl
vania ?
THE next of the proprletai-y go
vernments In time, as well as fitu
ation, to that of Maryland, the only one
indeed, befides Maryland, now remaining,
is Penfylvania. The grant of It made to
the celebrated William Penn, the firft pro
prietor, beats date the 28th of February,
in the 33d year of Charles II. *
The differences and refemblances be
tween the conftitution given to this colo
ny, and the conftitution given to the other
proprietary colony, are fuch, for the moft
part, as might be expeded from the cha-
raders and circumftances of the two pro
prietors. •» See Colleaion of Charters, No. VII.

Sed. VL to the Colonies. i^g
Both fled to. America as to an afylum
for their religion ; but Baltimore fled from
the nation ; Penn fr6ra the hierarchy and
the court. Baltimore looked towards the
crown, as the protedor of him and his
tribe, againft the neceffary feverities of
the nation ; Penn looked back to the af-
fedions of his fellow-fubjeds, as a ram
part againft the oppreflions of the crown.
Baltimore won from the favour of a fteady
tyrant, then In the zenith of his power, a
permiffion of exercifing in thefe diftant re
gions that defpotifm, the image of which
was alike dear to both : Penn extorted
from the facility of, a capricious tyrant a
permiffion to communicate freedom to a
body of fellpvy-fufferers, whofe lighs for
liberty heaved in unifon with his own.
Baltimore, whofe fpirkual prejudices fell
into an eafy alliance with his temporal am
bition, thought a full power over the barth
no more than a juft recompenfe for his
pains, in fecuring to them what was to
give them their chance for heaven ; Penn,
7 '^^

i66 Acts relatinS PartIL
iri the ardoi- of a generoUs enthufiafm,
feems to have wifhed for fio otHer power
than what might fuflSce for the foundation
of that common fabric of liberty, at which,
with no other pre-eminence than that of
chief laHouter, he -^as working; Balti
more had turned his back upon a coiititry,'
the iifajority of whofe inhabitants were
in a ftate of irreconclleable enmity with
the tribe he headed ; Penh keipt an eye of
affedion ftill fixed upon a country, where
he hoped to find as many friends as ther^
ivere perfohS duly fenfible of the valile of
liberty, aiid refolute to defend it.
Conformable to this difference in the
views of the two grantees was the drift of
the charters, refpedively obtained by them.
That of the Maryland chatter tend^
throughout to mark betweeii the mother
country, if fUch it might be called, and this
new colony, as ftrong a line of feparatlpli
as poffible ; that of the Penfylvalnia char
ter to continue as entire as poffible the
union

Sed. VI. TO THE CoLONIE?. l6£
union between the parent and the infant
ftate. The above reprefentation will appear fuf-
ficiently juftified, by comparing with the
Maryland charter a few of the claufes of
the charter we are now about confiderino:.
To the king, but unhappily in a fenfe too
literal; to the king, not, as in England,
in the regular, independent repofitories.of
his judicial power, the courts of Weft-
minfter-haU, but to the king, in conjunc
tion with the feeble and invidious inftru-
ment of his prerogative, the council, is
referved the power of receiving appeals in
the laft refort. To the king too is referved
a, negative on all laws.
By an exprefs claufe a large divifion of
the laws, at that time in force in the mo--
ther country, are tranfported at once into
the new colony ; namely, the regulations
concerning property, fucceffion, and felo
nies ; which regulations were to continue
in force till altered by the proprietor, in
M conjundion

l62 ACTS RELATING Tart II*
conjundion with the freemen, or their de
puties. To the proprietor and Inhabitants, both-
prefent and to come, is granted the liberty
of importing the produds of the colony
into England, and re-exporting them in
to other parts under certain regulations ^
one of thefe regulations is, that they fhall
pay the fame duties " as the reft of the
*' fubjeds of the kingdom of England for
" the time being, fhall be bound to pay ;
" and do obferve the ad of navigation,'
" and other laws in that beha]f made."
The duties to be paid by other fubjeds,
might, it Is clear, be fixed by laws at any
time thereafter to be made : thefe duties, to^
be fixed by laws then future, the Penfyl-
vanians are to pay. It feems, therefore,
but a natural conftrudlon to fuppofe, that
by the laws mentioned in the fucceeding.
paragraph were meant, not only laws then
adually made, but alfo laws thereafter /o k
*' made in that behalf." Another

Sed. VL 'TO THE Colonies. 163
Another expre;fs ftipulation is, " that all
*' officers, and their deputies, , who fhall
*' from time to time be appointed by the
" farmers and eommiffioners of his maje-
" fty's .cuftoms, for the time being, fhall
*''be admitted ind received into all the
^^ .ports and harbprs of the province."
' The proprietor is direded to maintain an
agent, or attorney. In London, who is to
he ready tb appear in any of the ' king's
courts in Weftminfter, to anfwer for any
mifdemeanors his principal may have com
mitted, or, by wilful negled, permitted,
againft the laws of trade and navigation ;
and to pay fuch damages as the court fhall
adjudge, " and anfwer fuch other forfei-
*' tures and penalties, as by the ads of
" parliament In England are, or fhall be
" provided" To conclude with a claufe altogether de
clfive upon the pretenfions which thefe co
lonifts can found upon their charter : — the
• king eove-nants not to impofe any tax, but
M 2 ' wifh

164 Acts relating Part II.
with the confent of the proprietor, or chief
governor, pr of the affembly, or by a£l of
parliament in England.
To prove, by argument, that a charter
thus worded, does not withdraw the pro
vince from the fupreme power of parlia
ment, with refped to this particular mat
ter of taxation at leaft, It would be an in-
fult on the reader's underftanding to at
tempt. The very words of the .charter
preclude all argument. It cannot be fup
pofed, that any affembly of Penfylvania
could be ignorant of this ; and yet one of
them is not afhamed to affert, " that the
'* taxation of the people of this province
" by any other perfon whatfoever, except
" by the reprefentatives they annually
" chufe In affembly, is unconftitutional*."
So then the charter, which flipulates that
they may be taxed by the king and parlia-) ment,
* See the proceedings in confequence of the
ftamp a£l prefixed to the Collcdion of Charters,
p. 10.

Sed. VI. TO the 'Colonies. 165
ment, is no longer a part of their confti-
tuti .m. Such is the force of " the natural
'¦'¦rights of mankind," and of " the noble
*' principles of Englifh liberty," that a le
giflation, from it's firft exlftenceya^or^/-
7iate, becomes, notwithftanding the ex
prefs terms of the inftrument which forms
that legiflation, if notdefado, yet dejure,
** perfeBly free " and independent. For
fo another of their refolutions fays it is
" or ought to be."
Upon the whole it appears, that ac
cording to the privileges originally grant
ed by the crown to the colonies, Mary
land alone is exempted from taxation : all
the other provinces are, as to this point,
in the fame fituation as if no charter had
been granted.' — The parliament may con
ftitutionally tax them, provided the mode
of taxation be fuch, as to create the fame
relation between the Houfe of Commons
and them, as between the Houfe of Com-
jnons and the inhabitants of Great Bri-
M 3 tain.

i66 Acts relating PartIL
tain. Under fuch a mode jof taxation
they would be as effedually reprefented
by the commons as the greater part of
the inhabitants of Great Britain are repre
fented by them.

SECT.

Sed. VII.- T-o' the -Colonies. 167-

S EC T. VIL
What power did the parliament exercife
over the colonies from their firfi efiablifi}-
ment:, to the time Of the' commonwealth ?
EFORE we had examined into the
privileges granted by the crown to
-.the original fettlers in America, we laid
down fome prbpbfitlons-very favourable to
the caufe of the colonics.
• We fuppofed the king to ad in the fame
.capacity, when he * covenanted With them,
as when he treats with foreign ftates. We
fupppfed charters to be afls of. the fame
jriature and force, as capitulations and
treaties of peace. From thence we in
ferred;, that the grantees-have a legal right
to all the powers and exemptions therein
fpecified ; and alfo to all other powers and
* This is the term ufed" in the proprietary
xhartets,,
M 4 exemp-

105 ACTS relating ran. u.
exemptions not fpecified, but neceffary to
the enjoyment of fuch as are fpecified.
V/e have examined no lefs than nine
feveral charters, and in eight of them it
appears, that an exemption from the power
of parliament, or from parliamentary tax
ation, is neither among the exemptions, or
powers fpecificaliy granted, or neceffary to
the enjoyment, or exercife of fuch as are fo
granted. But we went farther : we fuppofed a
cafe, in which the Americans might have
a right to ftill other powers, and exemp
tions. — W^e ventured to fuppofe they had
a conftitutional right to any other powers
and exemptions, w^hlch they had confiantly
and uniformly exercifed and enjoyed, pro
vided the legiflature of England had as
conftantly, and uniformly, acquiefced In
that exercife, and enjoyment.
Whether the exclufive power of Internal
legiflation, and a full exemption from inter
nal taxation, by the Englifh parliament,
be among the powers, and exemptions, uni
formly

1

Sed. VII.- to THE Colonies. 169
formly enjoyed, on the one hand, and as
uniformly allowed on the other, can be
proved only by the records of parliament.
Should it there appear, that from the
eftablifhment of the colonies, to the rife of
the prefent troubles, parliament did no ad to
affert their right of controul or taxation over
the Grantees * ; or having attempted any,
t did at any time afterwards renounce the
right; then indeed the powers and exemp
tions, now contended for, do fall within
the defcription we have given, and do, ac
cording to pur principles, belong of con
ftitutional right to the colonies.
* I ufe the term Grantees here, and not that of
Settlers, or Colonifls, becaufe the original charters
made, as we have already intimated, little or no
provifion for the liberties of any perf6ns who could
properly come under the denomination of Settlers,
or Colonifls. Under thefe charters the objefts of
favour were not the Ahceftors of the prefent Ame
ricans, but either the members of a company re
fident in England, or merely the proprietor, and his
heirs. If,

170 . Acts relating Part IL
If, pn the other hand, it appears, thai
the charters Vvrere fcarcely granted before
parliament .affumed and exercifed, as far
as occafion called for It, its right of con
troul and taxation over the Grantee^' and
Settlers : if it appears, that In the fame
early .period, the Grantees and Settlers ap
pealed to Parllamerit, as having fupreme
jurifdidion over . them. If they pi-efented
petitions to parliament. If they prayed tp
be heard, if they adually ^£re hear.d by
their council, if parliament never relin-!
quifhed its jurHdidion, but afferted it even
againft the . formidable pretenfions of the
Stuart family; — ^then furely it muft follo^zv,
that neither the original Grantees pretended,
][ior the Parllamerit allqwed, fuch powers
arid exemptions, to have been conveyed
by the charters.
\£.t us turn then to the records of Par?
liament. ! On the 12th of May, 16 14, juft eight
years after the grant of the firft, and five
7 year§

Sed. VII. TO THE Colonies. 171
years only, after the grant of the fecond
charter for planting colonies in America, the
company, the Virginia company as it was
called, preferred a petition to the Houfe of
Commons. It was received and read *.
On the 17th of the fame month coun-
fel was heard at the bar on behalf of the
petitioners. The journals of that time are
taken very imperfedly : however they
furnifh evidence enough to fhew, that the
matter was treated with much folemnity,
and that the houfe was warm in the main-
ten,ance of its fuperin tending power- We
find an Order made that the Lords South
ampton, Sheffield, and others, who were
Patentees, fhould be prefent ** to hear the
" treaty pf the Virginia bufinefs.f" At
the hearing It was moved, that the Trea
furer, and thofe of the company of Vir
ginia, fliould withdraw themfelves during
the debate. To this it was objeded ; if
there was a bill depending concerning
* See Journals, vol. i. p'. 481.
\ See Journals, vol. i. p. 487, 4 88. .
York,

172 Acts relating PartIL
York, the member for York would not
withdraw, " for that it- concerneth the
'* Commonwealth.'^ A very remarkable ar
gument; and which plainly inferred, the
opinion of the members who alledged it,
that Virginia was as much a part of the
fate, and of the realm, as any county in
England. The houfe acquiefced in this
reafon. It happened that offence was taken at
fomething that had been urged by the coun-
fel for the petitioners. For this he was or
dered tP be reprimanded, and to make his
fubmiflion at the bar, but was indulged.
with the liberty of making it flanding.
What the part of his argument it was that
gave offence, does not particularly appear;
fome conjedure, however, may be made
of the fcope of it, from the reafons affigned
for their indulgence. *' Though he di-
*• greffed," obferved the fpeaker, " to m.at-
" ters of much weight, Impertinent-^took
*' upon him to cenfure fome things, ard
*' to advife, — yet the houfe would not be
" perfuaded

Sed. VII. TO THE Colonies. 173
" perfuaded that he came to .offend with a
" high hand." After returning thanks for
the lenity of the houfe, the reprimanded
Counfel petitioned, " that to fill up- the
" meafure of their grace, they would be
*' pleafed to appoint a committee to confi-
" der of the Virginia bufinefs *.''
On the 17th of April 162 1, a bill was
read the firft time fbr the free liberty of
fifhing on the coafts of Newfoundland,
Virginia, New England, and other coafts,
and parts of America f.
On the famp day a report was made by
Sir Edward Sands, from the fub-cpmmlt-
tee to the grand committee, concerning the
caufes of the decay of trade. — One caufe
affigned was, the importation of Spanifh
tobacco. — The remedy propofed, was, the
cultivation of tobacco in Virginia, and the
Summer Iflands.
The motion was again taken into con
fideration the next day. A debate en-
* See Jourilals, vol. i. p. 489.
f See Journals, vul. i. p. 578. fued.

174 Acts relating Part It
fued. — Some were for an abfolute prohi
bition of tobacco. — It was urged, that
fuch a prohibition would totally ruin the
colonifts of Virginia ; that the Company
fhould at leaft be heard. — One of the pa
tentees urged, that Virginia was holden of
the manor of Eaft Greenwich. And he a
man who (as the Journals fay) " had hisin-
" tereft in Virginia " was the only member
of the houfe who feemed to doubt of the
Power of parliament over the colonies :
the other members feem to have had no
doubt that the Parliament had a right to
order the Virginians " tofrluck up all their
" tobaccP by the roots."
On the 23d of the fame month another
petition from two planters in Virginia was
read to the houfe. This too was againft
the importation of Spanifh tobacco. The
King by proclamation had ordered all to
bacco fhipt at Virginia, to be forfeited ; the
Commons voted fuch forfeiture illegal.
On the 25th of April, the bill for the
free liberty of fifhing on the coafts of A-
n3 erica,

Sed. VIL TO THE Colonies. ly^
merica, was read a fecond time *.— In the
debate upon this bill it was urged by afer-
vant of the crown, " that it was not fit to
*' make any laws here for thofe countries,
" which as yet were not annexed to the
" croWn." Mr. Guy, one of the paten
tees, urged the fame idea ; but it was re
plied on the other fide : " We may make
** laws here for Virginia ; for If the king
" give his confent to the bill paffed here,
" and by the lords, this will controul the
" patent.'* It was added, that thefe co
lonies were not in the fame predicament as
Gafcony, &c. for thefe laft were princi
palities of themfelves. "
The bill was accordingly committed. It
was reported on the 24 th of Mayf, and
ordered to be engroffed ; and on the lirft
of December it paffed the houfe ::j:,
*. See Journals, vol. i. p. 591.
f Ibid. p. 626.
:|: Ibid. p. 654. Ori

176 Acts relating PartIL
On the 26th of April another petition
from Virginia was prefented to the houfe
and read *. It was moved, and carried to
refpite the debate on it till the 29th. On
that day the houfe was about to proceed
upon this bufinefs, when " the fpeaker
*-' produced, and read, a letter from his
"majefty concerning this petition; the
" petition by general refolution was with-
*' drawn f .
This is all we know of the matter from
the Journals : what was the ground of this
general refolution does not appear; nor
with regard to the refolution itfelf, is it
perfedly clear what we are to underftand
by it. The word " refolution*' feems to
be meant an ad, a refolution of the houfe
itfelf: yet the withdrawing of a peti7
tion, is an ad, which, however, the conr
currenceof the houfe, to whom the petition
i^ prefented, may be neceffary, Is, in the
* See Journals, vol. i. p, 691.
•|- See ib. p. 694, nature,

Sed. VIL TO THE CoLONIE?. I77
nature of it, an ad of the Petitioners them
felves, by whom it is prefented.
From fuch premifes, the conclufion
formed by a refpedable writer *, that this
was a renunciation on the part of parlia
ment of their right of cognizarice over the
colonies, feems rather hafty. That the
withdrawing the petition was an ad of the
houfe itfelf, he feems to take for granted ;
that the ground of this withdrawing, was
a confcioufnefs of the want of right to do
any thing in confequence of the petition,
is another' thing he feems to take for grant
ed.. 'Tis to fuch a confcioufnefs he feems
to impute the future inadivity of the par
liament, their not " taking further cogni-
" fance of the plantations:" and that,
" till the commencement of the civil wars."
What follows immediately after, feems
ftill. more extraordinary: "upon this
" ground," fays he, (namely upon the
ground of the houfe taking no further
* Powna! on the Adminifiration pf the Co-
¦ l,pi)ies.
N cog-

lyS Acts relating PartIL
eognifance of the Plantations till the time
of the civil wars, meaning the wars In the
time of Charles I.) " upon this ground it
« was the King" (fpeaking of James I.
predeceffor of Charles) " confidered the
<* lands as his demefacs, and the Colonifts
" as his fubjeds, in thefe \\i^ foreign do-
'* minions, not his fubjeds of the realm.,
" or ftate f."
What our author meant to give as the
ground of James's opinion, was, I fhould
fuppofe, the fingle tranfadion, whatever
it was, of, or in, the houfe, whereby an
end was put to that particular bufinefs :
and it was fome fucceeding king, I fup
pofe, (that is, Charles I.) by w^hom, if by
any, fuch a notion muft be conceived to
have been entertained, as could arife from
the continuance of a habit of acquiefcence,
from the time of that ad to the time of the
civil war.
t Pownal on the Adminiftration of the Co
lonies, p, 50. For

Sed. VII. TO THE Colonies. 179
For my part, I muft own, I cannot well
underftand how it is, that frpm barely
knowing that a petition was withdrawn,
we are warranted to conclude the ground
of its being withdrawn to have been a
confcioufnefs of a want of right, to pro
ceed upon it. Efpecially when we find
this withdrawing accompanied at the time,
or fucceeded within a fhort time afterwards,
by fuch refolutions as in the nature of
theni muft have been founded on the fup-
pofition of that right. The refolutions I
mean, are thofe fpoken of by this author,
when he teils us that " the houfe came to
" foiv.e very ftrong refolutions upon the
*'.,nullity of the claufes in the charters,
*' and paffed a bill for the difannulling ,
" them." Thefe 'are charters granted
to, and eftablifhing the Plantations :
and it feems rather extraordinary to go
on in the fame breath, and fay that
^' the houfe took no farther cognlf-
" ance of the Plantations, till the com-
' ' " mencement of the civil wars." If
N 2 by

i9o Acts relating PartIL
by " no further eognifance," he means,
no eognifance pofterior to thefe refolutions,
it feems rather difficult to find a commence
ment, for the habit of acquiefcence which
he infers from thence, and which he fup-
pofes to have been the ground of fome
King's opinion about the matter. If, on
the other hand, by "no further eogni
fance," he means no eognifance pofterior
to the refolution, whereby the, Virginia
petition was withdrawn ; then his notion
'muft be, that the coming to ftrong refo
lutions, and even paffing bills upon the
nullity of claufes in charters granted to the
Plantations, is taking no eognifance of the
Plantations. A propofition, which it feems
rather difficult to fubfcribe to.
Indeed, fo far was the houfe from mean
ing to renounce its right of taking eog
nifance of the Plantations, that but one
year afterwards, we find them re-afferting
their jurifdidion over them. In the year
1625 they revived the bill for a free fifhe- rv

Sed. VIL TO THE Colonies. iSi
ry. It was brought in on the 14th *; read
the fecond time, and committed on the
28th of February 'f; reported and ordered
to be engroffed on the 4 th "^ ; read a
third, -and paffed the houfe on the 7th of
March §.
The King refufed, it fliould feem, to give'
his confent to this bill : and we find the
committee of grievances clafling the re-
ftraint of the Englifh .fubjeds in their fifhe-
ry on the coafts of America among the lift
of grievances |j.
At the very beginning of the next Par
liament, this bill was again revived. It
was read the firft time on the 24th of
March ; read a fecond time, and commit
ted on the 17th of April ; reported on the
2 2d, and recommitted in order to give
lord Baltimore time to be heard- by his
* See Journals, vol. i. p. 819.
¦ f See ib. p. 825.
J S.ee ib. p. 830.
§ See ib. p. 831.
}i See ib. p. 863. N 3 council ;

i82 Acts relating Part IJ.
council ; read a third time, and paft the
houfe on the i6th of May *.
I do not fee then. In what fenfe It can
be faid, that the houfe did from that
time — that is, from the time the King's
letter was read by the fpeaker — take no
farther eognifance of the Plantations.
Surely the ftrong refolutions, and the par
ticular bill referred to by this author ;
furely the reviving j^nd pafling this laft
bill in two different feflions ; the hearing
counfel againft it, on behalf ^ of .one of
the Patentees, was taking eognifance of
them. Thus then ftood the cafe, previous tO
the civil war. The Patentees and Planters,
prefent divers petitions to the Commons of
England : they are heard by their coun
fel : no objedion is made to the jurlfdic-
tion of the Houfe, except by the fervants
of the crown. The Patentees, who were
members of the upper houfe, were pre-
* See Journals, vol. i. p, 874, 884, 886, 998,
7 fent

Sed. VIL TO THE Colonies. 183
fent at the debates : the Patentees who
were members of the lower houfe, were
allowed to debate, and vote : for this rea
fon, becaufe the matter regarded the Comr
mon-wealth as much as would a debate
concerning any Englifh County. , The
houfe declares, that laws made in Parlia
ment, were binding in the Colonies : af-
ferts their power of prefcribing to them
what produds they fhould, or fhould nxyt
cultivate : diftingulfh between the Colo
nies and Norman poffeffions : and adually
do pafs bills., difpofing of the property of
the colonies.
That we do not meet with more fre
quent afTertions of the power of the houfe
over the colonies, Is eafy to be accounted for.
The intermiffions o.f parliament were fre
quent. When they met they had grievances
of a higher nature, and which touched them
more nearly, to enquire into. Their own
domeftic rights ; their own civil, political,
perfonal, liberty, all were attacked : all
N 4 .called

1S4 Acts relating Part. IF.
called for the ftrongeft, and moft manly
efforts to maintain them.
The ads we have already cited, are at
once the plaineft acknowledgements on
the part of the Grantees, and the ftrongeft
affertions on the part of Parllanient, that
the charters were by neither underftood
to have conveyed the powers, and exemp
tions, they are now pretended to have con
veyed.

SECT.

Sed. VIIL TO THE Colonies. 185

SECT. VIIL
What power did the Parliament exercife
over the Colonies from the_ beginning of
the Civil War to the Refioration f
U R I N G a great part of the period
comprifed in this feflion, one or
both of the Houfes of Parliament affumed
to themfelves the whole power of all the
three branches of the legiflature; of King,
Lords, and Commons. Were the prefent
therefore a difpute between the King and
the other branches of the Legiflature,touch-
ing the limits of the feparate powers each
might refpedively claim over the Colonies,
all reference to ordinances paft during this
period would be impertinent. But the quef
tion is, what power the whole Britifh Le
giflature, In whatever hands it be vefted,
may conftitutionally exert over the Colo
nies : and to this queftion, I apprehend the

i86 Acts relating Fart IK
the ordinances of this Parliament are per
tinent and conclufive.
In the year 1643, in confequence of a
petition, as it is fa\d from one of the plan^
.tations, an ordinance was paffed appointing
Robert Earl of WarvN^ick " Governor ,in
*¦' chief, and lord high admiral of the
** Plantations belonging to the King in
" America." The powers intended to be
conveyed by this ordinance feem to have
been thought too extenfive to be entrufted
in the hands of one man. And therefore
five Peers, and twelve members of the
lower houfe, are appointed to affift the
Earl. In conjundion with thefe Commif-
fioners, or any four of them, the Earl is
empowered to examine into the ftate of
the Plantations; to fend for papers and per
fons ; to remove fuch governors and offi
cers as they fee fit; to appoint others,
¦and to " affign over to them fuch,part of
" the power and authority, in this ordi-
*' nance granted to the chief Governor " and

Sed. VIIL to the Colonies. 187
*' and Commiffioners, as he fliall think
*'fit-^-." The fame ordinance, a few alterations
and additions only excepted, was from
time to time renewed and confirmed.
In the next year another ordinance was
paft, exempting the Planters of New Eng
land from all duties on goods imported
from this kingdom into New England,
for the ufe, and confumption, of the Inha
bitants themfelves ; and on all goods and
merchandifes of the produce of New Eng
land imported thence into England, " un-
" til both houfes.. ihould take farther order
" therein to the contrary f ."
In the year 1646 another ordinance was
paffed, exempting the Plantations from all
cuftoms, fubfidies, taxation, Impofition,
or other duty, except the Excife; provided
their trade was carried on in Englifh Bot
toms %.
* See Lord's Journals, vol. vi. p. 291.
f See ib. vol. vii. p. 75.
J See ib. vol. viii. p. 685. It

J.88 Acts relating PartIL
It Is then clear that the Parliament at
that time thought they had a right to lay
any tax they faw fit on the Americans.
If they had not a general right to lay
taxes, they could not have a right to affix
certain conditions to a general exemption
from taxation ; much lefs could they have
a right to- adopt the particular mode of
taxation prefcribed by this ordinance; a
mode of all the leaft expenfive, it is true,
but which is generally confidered as of all
the moft dangerous to liberty.
In the year 1650, an ad was paft to
prohibit all trade with Barbadoes, Virgi
nia, Bermudas, and Antego *.
The preamble to this ad fets forth,
that *' in Virginia, and divers other'
" places in America, there are Colonies and
•' Plantations, which Were planted at the
*¦' cofi, and fettled by the people, and by
" the 'authority of this nation ; whi<:h are,
'' and ought to he fubordinate to, and de-
* See Scobel's Adls, ch. 28. " pendent

Sed. VIII. TO THE Colonies. 189
" pendent upon, England, and have ever
" fince the planting thereof /5fa?, arid oz/^///'
" to be, jubjeB to fuch laws, orders, and
" regulations as are, or fhall be made by
" the Parliament of England."
This declaration is ftrong and pointed.
But " no precedent (vve are told *) can be
" drawn from this period." The reafon
affigned for this affertion is, that " the
" Parliamentadedhere, not asLegifiature,
"but as Sovereign:" if therefore "the
" King could not legally exercife fuch
" powers over the Colonies, confidering
" the inherent, natural, and eftablifhed
*' rights of the colonifts, we may, a for-
" tiori, doubt the rights of thefe powers
" in the two houfes, called then the Par-
*' liament, ading as Sovereign."
It is not perhaps at. firft fight eafy to
underftand the diftindlon here intended
between " Sovereign" and " Legiflature."
From the context only we are, led to con-
* See Adminiftration of the Colonies, vol. i.
p. 126.
<^> elude

igt Acts Delating Part 1 1.
cludd, that by " Sovereign" Is meant the
King in his executive capacity ; that is,
in that capacity in which he has a power
of iffulrig commands concerning indivi
dual adions, addreffed to individual per
fons. But the ordinances here referred to,
are commands concerning forts of adions
addreffed to forts of perfons. They could
not therefore, it fhould feem, be iffued by
the two Eftates, as fuppofing themfelves
to ftand In the place of the King in his ex
ecutive capacity ; but by the tvsro Eftates,
as fuppofing themfelves alofie, and with
out the concurrence of the King, to be in
vefted with the whole legiflative power.
On this fuppofitlon, however falfe, it
does not appear, that the two Eftates meant
to affume a greater power than that which •
is now lodged in the three Eftates, in the
King, Lords, andCommons taken together.
The power of the whole, taken together,
is now the fame as It was then. The on
ly change effeded fince, is in the diftribu
tion of the diftind powers of the refpec.- tjve

Sed. VIIL To THE Colonies. 191
tive branches of the whole. If therefore
the proceedings of this Parliament may
not ferve as " a precedent,'''' they may
yet ferve as a ftrong tefiimony, that it was
then the ^general opinion that the fupreme
power of England, in whateV'er hands
that power was lodged, had a right of
making laws and levying taxes in the Co
lonies. It is a proof at leaft, that the
opinion of thofe times was, that the Co
lonies always had been, and ought to be,
fubjed to the laws of England, whether
thofe laws had taxation or any other objed
in view : that the enforcement of obedience
to thofe laws was perfedly con fiftent with
the efiabUfoed* rights of the Colonies.
* I mention only eflablifhed rights, becaufe I
know of no other rights in a ftate of civil fociety.
The terms of natural and inherent rights, when
applied to men in fuch a ftate, are to my under
ftanding, perfedly unintelligible. I may do virrong
perhaps in making this avowal — But fuch is the
narrownefs of my capacity, that I think the Citi
zen is ~to look for his rights in the laws of his
country.
Nor

192 Acts relating Part II.
Nor let it be forgot' that thefe were the
opinions of men who ftand high in the
eftimation of the world ; men Who'fe riames
are delivered down to us with the endear-^
ing epithets of Champions of liberty, and
defenders of the rights of mankind. " In
** all the annals of recorded time (fays an
" hiftorian, whom Freedom has marked as
" her own *) never had fortune reared fo
" tall a monument of human virtue, as
•' were the atchievements of this Affeto-
" bly." — " They had recalled the wifdom
" and gloi-y of aiicient times." — " Eng-
" land bade fair to outdo, in the cori-
*' ftitution of her government, every cir-
" cumftance of glory, wifdom, and felicity,
" related of ancient and modern empire."
— " Englifhmen were on the point of en-
" joying a fuller meafure of happinefs,
" than had ever been the portion of hu-
*' man fociety." The opinion of men
* M'Cauley's Hiftory of England, vol. v. p.
91. like

Sed. VIIL TO the Colonies. 193
like thefe, on fuch a fubjed as this, muft
furely have Its weight with the friends of
freedom. Let it not be forgotten then,
that thefe architeds of virtue, thefe re-
ftorers of glory and of wifdom, thefe crea
tors of humari happinefs, confidered our
colonies in America as fubjed in all
things to the fupreme power of England ;
treated them as fubjeds; , regulated their
internal rights; laid on them internal
tiaxes.

SECT*

194

Acts relating PartIL

SECT. IX.

What powers did the Parliament exercife
over the Colonies from the Reftoration to
the Acceffion of his prefent Majefiy ?

" A FTER the Reftoratldn, when »7^«y
*' XTl of the rights of the fubjed, and
" of tbe conftitution were y?///^</, the con-
" ftitution of the colonies (we are told)
" received their great alteration.''^ This
alteration, it is added, confifted in this,
*¦' that the king participated the fove-
*' relgnty of the colonies with the parlia-
" ment*." Thus far the author I am quoting; at
the fame period, according to him, the con
ftitution of England ^as fettled, that of the
colonies altered. I muft own I am not
able to perceive the ground of this dif
tindlon. Altered perhaps is the term I
, '¦ Admini^rjtion of the Colonies, vol, i. p. 127.
might

Sed. IX. TO. THE Colonies. 195
might prefer for both 5 but if I called
the one a fettlement, I fhould call the
other by the fame name. For if it
be true that before the Reftoration the
king refufed to participate with the other
eftates the fovereignty over the colonies ;
it is equally true, that he took more than
what is riow allotted to him as his fhare
in the fovereignty over England. If it
be true,, that after the Reftoration he con"-
fented to pa;rticipate with the Pther eftates
the fovereignty over the colonies; it is
equally true, that he left the other eftateS
in the undifturbed enjoyment of their
fhare in the fovereignty over England,;
Why one of thefe cafes fhould be ftyled
*• an alteration,^' and the other " a.fettle-
** ment^" is, I.owri, more than I am able to
underftand. One alteration no doubt there was —
The colonifts at firft appealed to the par
liament, as to a protedor, againft the
power of the crown ; and then the fervants
O 2 Cf

ig6 Acts relating PartIL
of the crown denied the competence of
parliament to interfere. Now the fervants
of the crown appeal to parliament as alone
having the power of regulating the colo
nies : and lo ! the colonifls deny the com
petence of parliament to interfere.
We have feen that, before the civil war,
bills were carried through both houfes fpr
regulating the trade of the colonies, and
for limiting their internal rights ; to thefe
bills the king refufed his confent. There
were no bills for taxation, becaufe the co
lonies feem to have afforded nothing tax
able. During the civil wars the two
eftates went farther, ordinances were made
for taxing the colonies ; to thefe the con
fent of the king was not afked. Since the
"Reftoration the three eftates have aded In
concert, and feem to have exercifed when,
and as they faw fit, over the colonies, the
fame power which, during the civil wars,
had been exercifed by the lords and com
mons alone. Noi

Sed. IX. TO THE Colonies. 197
No ; we are told *, till the prefent relgq,
*' the policy of Britain towards her colo-
*' nies was purely commercial ; and the
"commercial fyftpm wholly reftridive.
*' It was a fyftem of monopoly. — That
" from hence alone fhe pro¬pofed to make
*' the colonies contribute; diredly, I mean,
" (fays the gentleman) and by the opera-
*' tion of her fuperintending legiflative
*' power, to the ftrength of the empire."
The gentleman ventures to fay, " that
" from the year 1660, to the unfortu-
" nate period of 1764, a parliamentary
*' revenue from thence was never once in
•' contemplation. That this nation never
"thought of departing from this fyftem
" of its own choofing, until the period
*' immediately on the clofe of the laft
*' war." 1 am not a very venturous man, yet
here, I think, I may venture to fay fome
thing : I may venture to fay, that gentle-
* See Mr. Burke's fpeech on Aiherican taxa
tion, p. 38, 39, 44.
O 3 men

19S Acts relating PartIL
men who fay thus are either themfelves
under a miftake, or mean tP lead others '
into one. This I may venture to fay,
having, proof before me : the fad Is
not as alledged. A parliamentary reve
nue has been thought of often ; fbme-
times even raifed; raifed by parliament,
and quietly fubmitted to by the colonies.
Monopoly was in fome inftances extended '
pver the colonies in favour of England, '
True ; fo was it In other inftances over
England in favour of the colonies.
I fhould not have the courage to contra-
did an affertion made fo folemnly, by fucl^
a man in fuch an affembly, if I were not
fupported by the higheft authority, no lefs
than the records of parliament.
To this authority let us appeal ; let us
turn to the ftatutes, there we fhall fee that
few parliaments have fat fince the sera of
the Reftoration, which have not paft ads,
not only for regulating the trade of the
colonies, but alfo for ordering and limit ing.

Sed. IX. TO THE Colonies. 199
ing, their internal rights, and for laying
taxes on them. . '
The navigation ad * has been fo often -
cited in this controverfy, that It would per
haps be fufficient barely to name It ; but I'
would wifli to obferve, that the colonies-
ought not to confider it barely as a refiric-
tive ad. True it is, that it lays the colo-'
nies under certain refiriBions ; but then if
is equally liberal in fecuring them certain
advantages. Their fhips are confidered as-
Englifh fhips ; their mariners as Englifh
mariners f. ¦ So far then as the increafe of
navigation and mariners Was in contem
plation, the colonies participate, in ,the be
nefits of this ad, as fully as the Englifli
themfelves. Confidering It as a reftridive
ad, and it does more than regulate the
trade of the colonies; for it. not pnlypre-
, fcribes in what veffels, and tp what places,
the goods of the colonies may be exported;
* 12 Car. II. c. 18.
¦|" 13 & 14 Car. II. c. II. fed. 6.
O 4 but

200 Acts relating ' PartIL
but limits one of their internal rights ; it
prefcribes what perfons may ad as mer
chants, or fadors, in the colonies.
The idea of this ad was borrowed from
the ordinances of the long parliament,
and from the ads of Cromwell. In pur-
fuance of the fame idea, three years after
wards the parliament paffed another ad,
« to maintain," as they exprefs theni-
felves, " a greater correfpondence and kind-
" nefs between the Colonies and England,
" to keep them in a firmer dependence on
*' it, to make this kingdom a ftaple, not
" only of the commodities of the planta-
" tions, but alfo of the commodities of
" other countries for fupply ing them^."
To this purpofe the ad puts their trade
under farther regulations, direding, that
no European goods fhall be imported into
the plantations, but fuch as fliall be fhipped
in England, and proceed d.Iredly on board
* Sec 15 Car. II. c. 7. Englifh

Sed. IX. to the Colonies. 291
Efiglifh * Chips, navigated by an Englifh *
mafter, and with three; foiirths at leaft of
the crew E^ngHftj * mariners. The penal
ty is forfeiture of the goods and veffel, one
third to the king, one to the governor of
the plantation, if the feizure is made there,
and one third to the informer. Arid to fa
cilitate the recovery of the penalties, the
informer has his Pptiojn of fuing either in
the lying's courts of the plantation where
the offence is committed, or in any court
of record in Englapd.
As a counterbalance to thefe reftridions,
the fame ad grants them certain privileges
in the exportation of fea. coal. It confirms
andincreafes the penaltiesof a former ad
f forbidding the plantation of tobacco in
England, "becaufe" fays the ad, "the
" planting of it is a difcouragement to the
" colonies," remarking at the fame time,
* Under fhefe terms, as vi^e obferved above,
are included veffels ' built in the plantations, and
fubjedls of the plantations.
t 12 Car. II.- c. 34. that

202 Acts relating Part IL
that notwithftanding the penalty impofed
by the former ad of forty fhillings a rod,
the planting of tobacco In England d\d ftill
continue. — This furely was no mean facri-
fice to the welfare of America, and the
fyftem of monopoly Is not entirely in favor
of England.
Though the penalty for planting to
bacco In England or Ireland, impofed by
this laft ad, was no lefs than ten pounds'
a rod, ftill the profits arifing from it were
fo great, that this provifion was infufficient
to prevent the planting of it ; and there
fore, by another ad *, power is given to
juftices of the peace " to pluck up and ut-
" terly deftroy" all tobacco planted in
England or Ireland.
The legiflature whilft it takes thefe effi
cacious means of fecuring to the colonifts
the monopoly of tobacco, repeats and en
forces its former diredlons for keeping
them In a firmer dependence on England; I
* 22 & 23 Car, II. c. 26. ani

Sed. IX. TO THE Colonies. 203
and preventing their trade from being di
verted elfewhere than to this kingdom,
'^ which hath (fays the ad) and doth daily
" fuffer great prejudice by the tranfporting
" of great number of the people thereof
" to the faid plantations for the peopling
." of them."
About three years ^.fter this, the legifla
ture went farther. It paffed an ad laying a
tax for the purpofe of raifing a revenue |.
This ad begins by allowing the impor
tation of train-oil, whale-fins, &c, caught
and imported in Englifh veffels, free of all
cuftoms and duties, and the importation of
fifh, &c. caught and imported in veffels
built in the plantations, on payment of
qertain duties there named.
It then recites, that the liberty which
had been granted, of tranfporting free of
all duty the produdions of one colony to
another, had been • abufed, — that the co
lonifts were not content with enjoying this
X 25 Car, II. c, 7. freedom

204 Acts relati^jg. 'PartIL
freedom from duties on goods tranfported
for their own confumption. In which they
had a manlfeft advantage over the Englifh,
who paid large duties for the fame, articles,
but had tranfported and vended large quan
tities of their gpod^ to other fates of Eu
rope. '
To prevent this, it Is ordered, that fe
curity fhall be given to tranfport -all fuch
goods diredly to England, Wales, or Ber
wick. In default of fuch fecurity a duty
is impofed on certain enumerated goods,
to be colleded there in Amerlca-by ofiicers
to be appointed by the comniiffioners of
the cuftoms in England, under the autho
rity and diredion of the lord treafurer of
England, or commiffioners of the treafury.
The penalties to be the fame as for non
payment, or defrauding his majefty of his
cuftoms in England.
It has been very juftly remarked *, that
the duties impofed by this ad, cannot be
* See Controverfy between Great Britain and
her Colonies reviewed, p. 168. cpn-

Sed. IX. to THE Colonies. 205
confidered as meant folely to regulate the
trade, but are evidently intended to raife a
revenue. The reafons affigned for this af
fertion appear to be cOnclufive.
The ad declared, that the Englifli fub
jeds paid duties on thefe commodities, that
the trade from one colony to another was
greatly increafed. This is at once affign-
ing a reafon "why the trade between one
colony and another could now bear the
impofition of duties, and pointing out the
meafure of duties to be impofed ; accord
ingly the duties impofed by this ad on
goods exported from one colony to an
other, were the fame as were then paid on
the fame commodities confumed in Eng
land. Thefe taxes therefore were expeBed
to be paid, arid therefore were intended to
raife a rdvenue.
There is only one exception to this : —
the duty on logwood carried from one co
lony to another, is fo high as to exceed the
poffible profits of that trade. In this in-
7 ftance.

2o6 Acts relating PaftlL
ftance, therefores, and this alofie, the tax
was intended to operate as a prohibition.
The ad was worded very incorreBly,
Of two conftrudionSi the colonifts very
naturally embraced that which was moft
favourable to themfelves. They confidered
the payment of thefe duties, as a difcharge
from giving the fecurlties not to go to any
foreign market.
This claufe Is therefore explained by
another ad made In the year 1696 *. It
is there repeated, that thefe duties are to
be paid on goods tranfported from one co
lony to another. And it is farther provid
ed, that notwithftanding the payment of*
fuch duty, the fame fecurity is to be giveiij
that the goods are to be exported only to
fome part of his majefty's dominions.
This explanation of the former Ad af
fords a corroborating proof, that the duties
impofed by that ad were intended to raife
a revenue. And as a ftill farther proof we
* See 7 & 8 Will, III. c. 22. may

Sed. IX. TO THE Colonies. 207
may obferve, that the officers to whom
thefe duties are to be paid, are called
*' the officers for colleding and managing
** his majefty's revenues.'^ They have the
fame powers of vifiting, fearching, and
entering warehoufes, wharfs, &c. as the
officers of the cuftoms in England.
About this time it fhould feem the colo
nies had paffed fome laws to defeat or
coiiaterad fome other law made here in
England- relating to the colonies; and
therefore the laft ad declares, " that all
" laws, bye-laws, ufages or cuftoms, at
•' this time, or which hereafter fhall be iri
" pradlce in any of the faid plantations,
*' which are in any wife repugnant to the
*' Before-mentioned laws, or any of them,
" fo far as they do relate to the faid plan-
" tations, or any of them, Or which are
" any wife repugnant to this prefent ad,
•' or to any other law hereafter to be made
" in this kingdom, fo far as fuch laws
*' fhall relate to and mention the faid plan-
6 " tations,

2oS Acts RELATING Pkr't IL
** tations, are illegal^ hull, and void, to all
" intents and purpofes whatfoever^'
Thus far the ftatute ; — than which a
fuller and more formal extettiplificatioii
knd affertion of the fuptemacy of parlia-
inerit over the Colonies, in all matters what
foever, ean hardly be imagined ; arid thl^
a ftatute, orie of the exprefs purpofes of
tvhich is the laying taxes for the purpofe-
bf a revenue.
The fame ad oirders and liriiits the in
ternal rights of the colonifts ; for it pre
cludes the colonifts from alienating their
lands in favoiir of other than natural botfl
fubjeds. Iri the reign of queeri Aririe, an ^(St*
was paffed laying rice and molaffes under
the fame pirohlbltlon of exportation to any
foreign market, as the other commodities
enumerated in the 2^ Car. IL c. 7.
Another ad was paffed in the fame
reign, granting bounties on tar, pitch,
rofin, turpentine, hemp, &c. This aft
* See 3 & 4 Anne, c. 5. forbids

Sed. IX. TO THE Colonies. 209
forbids all, the inhabitants of New Hamp-
fhire, Maffachufet's Bay, Rhode Ifland,
&c. to cut doWn any pitch, pine, or tar
trees, not adually inclofed, and under a
certain diameter §.
This furely Is not a bare regulation of
ti'ade : it is, if ahy thing can be, a limi
tation of an internal right of ^ the colo-
lies. In the fariie relgri an ad Was paffed for
afcertairiirig' the rates of foreign coins
within the plantations in America *. This
too is the limitation of an internal right.
The ad t for the eftablifhment of a ge
neral poft-office, is clearly an ad impofing
duties for the purpofe of raifing a reve
nue. The fubjeds In America, are by
this ad, put under the fame reftraints as
the fubjeds of England : they muft fend
their letters by the meffengers employed
by one common poft-mafter : muft pay the
§ See 3 & 4 Anne, c. 10. 6 Anne, c. 30.
* 6 Anne, c. 30.
t 9 Anne, c. 10. P rates

2IO Acts relating Part II,
rates ordered, and apportioned, by thefajne
legiflature. By an ad in the very beginning of the
reign of George I. the duties created by
the 25th of Car. II. are mentioned under
the title of " Plantation Duties," and are
ordered to be paid into the Exchequer, and
appropriated to purpofes prefcribed by this
ad*. Another ad paffed in the fame reign f ,
for the purpofe of encouraging the impor
tation of naval ftores, is equally applicable
to our purpofe. Among the variety of
regulations in it, fpme favouring the-eo-
lonies, are others laying reftridions on
them, and that in matters of internal oe-
conomy. It grants a bounty upon the importation
of hemp : direds that the pre-emption of
it be tendered to the commiffioners of the
navy: allows the importer" to difpofe of
it as he pleafes, if they do not contrad
* I Geo. I. flat. 2. c. 12. f. 4.
t 8 Geo. I. c. 12. for

,£fed- IX. TO THE Colonies. 211
.for it within twenty days : it grants a
bounty on wood, plank, timber, and lum
ber. It; regulates the conditions on which
the bounty granted by an ad of Queen
Anne to the importation of pitch and tar,
.r&ould be payable. It multiplies, and ex-
-tends, the prohibltloris coocerriing cutting
down, or deftroying white pine-trees. By
the ad of the ninth ,of Queen Anne, al-
-ready mentioned, white pine-trees of a.
certain dimenfio/i only, were ¦ included in
•the prohibition : by this ad it is Ibrbid
to cut them down generally.. By the ad
of Queen Anne, trees being the property
¦of any private perfon, were excluded from
the prohibition; by this ad, fuch trees
only are excepted " as grow within any
*' toionpip, or the bounds, lines, and 11-
" mits thereof."
By another ad of the fame reign*, it
Is ordered that all furrs, exported from the
* 8 Geo, I. c. 15. P 2 planta-

212 Acts relating PartIL
plantations, fhall be Imported diredly to
Great Britain, and not elfewhere.
By another ad, copper ore is fubjeded
to the fame regulation ij:.
In the reign of George the Second an
ad was paffed f , by which the prefervatlon
of pine-trees In the plantations, is ftill far
ther provided for *.
By another ad || all rice in general is
again declared to be among the enumerat
ed commodities, which are to pay a tax
ori being trarifported from colony to colo
ny, and which cannot be carried diredly
to any foreign market. The ad then ef-
tablifhes an exception to this general rule;
and allows that " any of his majefty's
*' fubjeds, in any fhip or veffel, built in
" Great Britain, or belonging to any of
X 8 Geo. I. c. i8.
¦\ 2 Geo. II. c. 35.
* On the other hand, that favour might go
hand in hand with reftriftion, premiums are re
newed or extended to the importation of mails,
yards, tar, pitch, &c. from the plantations,
II 3 Geo. II. c. 28. « his

Sed. IX. to the Colonies. 213
" his majefty's fubjeds refiding in Great
" Britain, navigated according to law, and
" having cleared outward in any port of
" Great Britain for the province of Caro-
" Una, may fhip rice In the faid province,
" and carry the fame diredly to any part
" of Europe to the fouthward of, Cape Fi-
" nifterre." Another ad * of the fame reign per
mits the importation of all non-enumerat
ed goods from the plantations to Ireland.
Hops were among the non- enumerated
goods. Clearly, therefore, by the terms .
of this ad, a right was given to the Amcr
ricans to import hops of their own growth
into Ireland. , But this was not the inten
tion. In the next feffions, therefore, an
ad was paffed, ranging hops an^ong the
enumerated goods f. The
* 4 Geo. II. c. 15.
t 5 Geo. II. c. 29. The title is — " An a£t
" to explain, and amend an all, intituled an a^
" for importing from his majefty's plantations in
P ¦? ' " America,

214 Acts relatins PartIL.
The fame parliament, and iii the fame
feffions, exercifes two of the higheft ads '
of
" America, goods not enumerated in any aR', ' fo
"far as the faid a£l relates to the importation of
*' foreign, hops into Ireland." .)
I cite this only to fhew what pains are .taken
to give aV'kward,' and (what is worfe) untrue t\i]es
to our ads. For the ad faid to be explained, is
not at air explained. An e:?iception only is ifiade
by the fecond ad to a' general permiflipn granted
in the firft. The matter concerning which, the
ad is faid to be explained, is not once mentioned in'
the original ad.
In the, body of this expl'anatory ad, it is feid,
*' that doubts had arifen whethfej the liberty of im-
" porting hops was not given in the former aft."
Now no doubt could arife. The liberty was at
clearly given as words could give it. Jll goods;
not enumerated, might be imported. Hops were
not enumerated.
This is only one, out of many inftances I could
cite, of this inaccuracy in the coiripofition of ftilj;
laws; and of fomething worfe than inaccuracy in
the manner of fupplying omifiions, or redifying
Hiiftakes in them.
Had the fecond ad candidly declared that the
legiflature had not recolleded that hops were »«f
among the enuflierated goods :— had it allowed the
importation

Sed. IX. To. THE Colonies. 215
of internal legiflation. In one and the
fame law rt alters the nature of evidence
in their courts of common law ; and it
alters the' nature of their eftates, by treat
ing real eftates as chattels.
The preamble of this ad declares " that
*• his majefty's fubjeds trading to the
*' plantations, lie under great difficulties,
" for want of more eafy methods of prov-
*' ing, retoverlng, and levying of debts
** due to them, than are now ufed in fome
" of the faid plantations." — It declares the
remedyirfg of thefe inconveniencles necef-
importation of fuch of them to Ireland as fhould
be fliipt before the fecond ad could be duly noti
fied : hrtd it then claffed hops among the enumerat
ed goods for the future, the legiflature would have
fpoken a language becoming its own gravity, an-d
dignity. But to call that an explanation, which
was only the fupply of an omiiKon ; to fuppofe a
doubt, where no doubt could- arife ;. to infinuate
¦ a; cenfure on the underft-andings of thofe, to vvhom
the cominand was addrefled ; when all the cenfure,
if any, was due to the carlefihcfs of thofe who if
fued the command ; betrays a lev.ity and puerility,
that too often difgrace the legiflature.
P 4 fary

2i6 'Acts relating PartIL
fary to retrieve the credit formerly given
by the inhabitants of Great Britain to the
inhabitants of the plantations "j:,
From this preamble alone we might
fairly have , concluded, that the fubordi
nate legiflatures in America muft have
been apprifed of jhefe inconveniences, and
had either refufed, or at leaf]: negleded to
provide an adequate remedy.
But, indeed, yye Jiave inore pofitive proof
that this was really the cafe. The bill
was brought in, in confequence of repeat
ed petitions from the merchants of Eng
land. They fet forth, that by the lam
then in force in the plantations, the Brir
tilh fubjeds had none, or at leafl but a pre
carious remedy for the recovery of their
juft debts. They fet forth, that the fame
laws had laid partial duties on the Britifli
fubjeds trading there ; dutips higher than
thofe paid by the inhabitants of the colo
nies %.
t 5 Geo. II, c. 7.
X See Comm. Journ. vol, xxi. p. ^94.
'' ' 'What

Sed. IX. TO THE Colonies. 217
What the provincial legiflatures would
riot, pr at leaft did not ,do, parliament did
for them.
Tq facilitati^ the proof of fiebts, it eri-
adedj that an affidavit taken before th^
mayor, or other chief magiftrate of any
town \n England, and properly authenti
cated, fhpuld be received as legal evidence
in all the courts in the^ plantations, and
have the fame force, and effed, as the
perfonal oath of the plaintiff ^lade there in
open court.
To facilitate the recovery, and levying
of debts, it enads, " that lands, houfes,
" negroes, other hereditaments, and all
" real eUates whatever, fhould be liable to,
*' chargeable with, all debts due either to
" the king, or any of his fubjeds, and be
" affets for the fatisfadlon thereof; in the
" fame manner, as, by the law of Eng-
*' land, real eftates are liable to the fatis-
" fadion of debts, due by bond, or other
*' fpeciality." ' In

2iS x^cTS Relating Part II;

In the fame feffions, parliament thought
proper to prohibit abfolutely, and under
heavy penalties of fine ,and conffication,
the exportation of hats from' the ' planta
tions": either from one plantatrbil to an
other, or to any other place whatfoever f. ¦
I r ' ¦
"^ The fame ad fixes the number of ap-i
prentices that each manufadurer of hats
may have; the time each manlifadureris
to ferve as apprentice, before he eaii make
hats; and prohibits the employment of.
negroes in hat-making, under ^ a pehalty
©f five pounds a month for each negro fo
employed. ¦ The fame parliament, which thus pre
cluded the plantations from one branch of
trade, favoured them in another. An ad
¦V9^a-s paft the fame feffions, to encourage
the growth of coffee in the plantations |.
The inland duties on all coffee imported
from the plantations, are dlminiflied by
iHne fourth...^ And provifion is made againft
¦! t "5 Geo. II. c. 22.
% 5 Geo. II. c. 24. the

Sed. IX. TO THE Colonies. 2T9
the importation pf fbreign coffee into the
plantations. In; the next feffions an ad was paft "for
*' the better fecuring, and encouraging of
" the trade of his majefty'syz/^g-^r colonies
" in America §."
This ad impofes certain duties on all fo
reign fplrits,« molaffes, fyrups, fugar, and
panels, imported into the plantations.
The duties are to be levied, and paid,
for the ufe of his majefty, his heirs, and
fucceffors. The ad ufes the technical words of
*' give, and grant."
Here then at leaft, one would think,
was dearly a duty Impofed for the purpofe
of raifing a revenue.
Other ads (we have feen) have impofed
duties for the fame purpofe. But (fays a
certain gentleman*) " the words which
*' diftingulfh revenue laws fpecificaliy- as
*' fuch, had been, he thinks, premeditately,
§ 6 Geo. II. c. 13.
* See Mr Burke's Speech, p. 39. " avoided,^'*

22Q Acts relating PartIL
" avoided. '^^ — If there be fuch emphafis in
thefe words, that the avoiding them every
where was matter of defign ; here then
we cannot help concluding they were pre-
meditately ufed.
No, fays the fame gentleman. For look
at the title of the ad. If the title of the
ad, indeed, had purported taxation, it
would have been quite a different affair.
But " the title of this ad, notwithftanding
'* the words of donation, confiders ' it
•' merely as a regulation of trade." — So
then parliament is at "liberty to be as boun
tiful as It pleafes in aBs of donation, out
of the goods of the Americans, provided
it do not ufe terms of donation : or It may
even ufe terms of donation in the pream
ble, or in the body of the ad, provided
the title of it, be a title of regulation. — So
then the ftamp ad would have been' good,
and conftitutional, provided Mr. Grenville
had bethought himfelf to Intltle it " an ad
" to regulate the transfer of property In
« hl^

Sed. IX. TO the Colonies. ¦221
" his majefty's colonies.) amd plantations in
*' America." . ' —
' But farther—" This ad" (we are told)
" was made on a con^promife of all j and
" at the exprefs defire .of feme of the colo
nies. , It was thereforein fome meafure'^^— •
mark-the confequence— " with their can-
*' fent.''^— 'It was then with their confent,
that the commons— clid what '^.—gave and
granted, one fhould fuppofe, a duty to be
levied on the colonifts.r— rNo— fays this
gentleman, though there was an aB, of do-
natiOHr- though there were the terms of
donation; ftill it was «o donation, For "it
" was an ad of prohibition) not of reve-
" nue." — Should we fufped the accuracy
of this honourable writer, we are referred
to " the fecond printed letter of Governor
" Bernard, dated In 1763."
This care to mark the date of the letter,
was '¦* I think premeditated.^'' —It was meant
tp infinuate, that governor Bernard, then,
in the year 1763, confidered it as an ad of

252 ' Acts delating Part Hi
tjf prohibition s y^eticertalnly the governor
does not fay fo. — He gives It only ;as/his
opinion r that it- was i." originally deigned"
-as 'an ad Pf prohibition. 11 <:--
-'''But another paffege In the famen©tter
"of the governor, will give us to underftand
whether the ad*Was- Intended to operate
¦merely as ah ad Pf ' prohibltieny orWhe-
ther it was not'iritfended to operatte-Iii fbifie
riieafure alfo as'mkd of revenue.. Let us
hear his wordsT^^" at the time of niaking
" the ad, (fey¥ he] it was aflerted t>y the
" Weft Indians, that as the Britifh Wefi
*' Indian plantations were capable of tak-
"** ing off all the produce of North- Ame-
*• rica, the fending fuch produce to foreign
^*' plantations ought to be difcouraged;—
" To this theNorth Americans theri-anfwer-
" ed, by denying (I believe with greater
" truth) that the Britifh Weft Indian plan^
*' tations were capable of' taking' off all
*' the produce of North America, fit for
" the Weft Indian market."' This

Sed, IX. TO. THE. .Colonies. sat
This account fets the matter clear. The
ad was intended to operate as an ad of
prohibition, fo far as to fecure a pre-emp-^
tion of North Amerlcaji proc^liadion.s to the
Britifli Weft Indlaii plantg,tIons.. It; .>yxi§
intended tp operate as,, an- ad of revewie
upon all Ifn,port,s takenin.exchangefox the
reft pf, their produce fold to-foreign y^^e^-
Indian iflands, after the . Britifh Wcft-|ri-
dian markets were fupplied. • f .j i^j
Remark too how fully .the confent pf;t^g
colonies Is implied in this ccmpromife.pf
all, and exprefs dfre ofjfanie. Thofe
who " comproviifc,^'' flatly deny the^pa^s.
tions on which, the ad- WAS: paft. Tage
after page in the Journal^s -is filled with
their objedions to the- pfinciple of the:&dj
and with their prayers agftitrft its palSng-.
Thofe who " defire'''' the ad,, are thofe who
are not to pay a-fhilling of;the taxes it
Imiaofes. ' 1
Is this the compromife, this the defire,
which conftitutes confent?
7 ¦ ^' '^To

i24 Acts relating l*art II.
To the lift of ads already referred to,
i might add that * which reftralns the A-
merlcans frorii creating bariks; the ads f
which give the rights pf natur-al-b'orn fub
jeds In America, to foreign PrPteftaiits, td
the United Brethreri, and to Jews. The
ad which iriipofes a duty of fix p^nce ±
riionth on all the Britifh Anierlcari failors,
towards the fupport of Gfeenvsrich hofpi-
tal ij;. The ad which grants a pi-emium
on indico imported from the plantations §.
The ad allowing the free importation of
raw filk from thence ![. The ads allow
ing the free importation of pig arid bar-
iron, and for preventing the eredion of
any mill, or other engine for flitting
or rolling iron ; or plating forges worked
with a tilt hammer ; or furnaces for mak-
* 14 Geo. II. c. 37.
+ 13 Geo. II. c. 7. & 20 Geo. II. c. 44. &
5Si Geo. II. c. 30.
\ 18 Geo. II. c. 31.
§ 21 Geo. II. c. 30.
H 23 Geo. II. c. 20. ing

S(2d. IX. TO the Colonics. ii^
iOg fteel in the colonies *. The ad which
repeals all duties on the importation of
pot and pearl afhes from America "f. The
ad reftraining the governors and affem-**
biles of the refpedive provinces, from
making any ad, order, refolution, or vote/
whereby paper bills^ or bills of credit,
fhall be created or iffued, under any pre*
tence whatever ; or for protrading, or
poftponii g the times limited, or the pro
vifions made, for calling in fuch as were
then adually iffued, and fubfiftlng $. The
ad which extends to the colonies certain
provifions of the ftatute againft frauds §.
The ad which diffolves the indentures of
fervants enlifting in his maj.efty s fer**
vice. But why fhOuld I multiply examples ?
Why aiccumulate proofs in a matter fo
clear ? From the ads already cited it i*
* 23 Geo. li, c. 29. & 30 Geo.' II. c. 164
•f 24 Geo. If. c. 51.
X 24 Geo. II; c. 53f.
§ 25 Geo. II. c. 6.' Q^ evident.

226 Acts relating PartIL
evident, beyond a doubt, that the original
patentees did not confider themfelves as .
withdrawn from the power of parlia
ment: — ^^that parliament has at no timd
confidered itfelf as precluded. from exer
cifing any ad of it's fupreme authority
over the colonies : that It has cPriftantly
exercifed the fame authority over them as
over the other fubjeds of the realm : that,
in eftablifhing its fyftem of monopoly, it
has alternately exerted, — at one time it's
foftering care, to fecure advantages to '
them : —at the fame time, or at another,
it's reftridive power, to fecure advantages
to the mother-country : that where tbeadts
of their fubordina.te legiflatures have either
omitted to fecure, or attempted to break the
chain, which keeps them dependent on the
mother-country,parliament has itfelf added,
or replaced, the links ; the want of which
would have broken the connedion and de
pendence, by prefcribing new arrange
ments, and by fetting new bounds to their
internal rights, privileges, arid proper
ties r

Sed. IX. To the Colonies. 22^
ties : — that where encouragement was ne
ceffary to fecure, or extend their trade,
parliament has beftowed it with a liberal
hand :— that where the increafe, and flou-
rifhlng ftate of their trade, enabled them
to repay, in part at leaft, what the mother-
country had thus liberally advanced ; the
fame parliament, ading as a,faithful ftew-
ard for the whole empire, has without
hefitation, apportioned the quota they
fhould pay.
As, therefore, the exemptions, now
claimed by the colonifts, are neither fpe
cificaliy named In their charters ; nor ne
ceffary to the exercife and enjoyment of
¦fuch exemptions and powers as are nam
ed : fo neither are they fuch, as have been
either conftantly enjoyed and exercifed by
them, or ever allowed them by the parliar
ment.

Qj* SECT.

228 * Acts relating .PartIL

SECT. X.
Of the deference paid hy the colonies to the
authority of Parliament, and to fhe re-
quifitions of the Crown, previous to the
reign of his prefnt Majefiy.
U C H of the ads of the laft parlia
ment, as concern the prefent quef
tion, were ads paffed for enforcing fub-
miffion to a claim aflerted by the parlia
ment preceding, Thepolicyof the .ads
then muft, in a great m.eafure, depend
upon the policy of the claim.
If that claim was unconftitutional, it
unqueftlonably, upon that account, was
impolitic. In fuch cafe thefe laft ads muft
be regarded as impolitic. But it might
alfo, without being unconftitutlorial', be
impolitic on other grounds : in this cafe
too they ftill could not but be regarded as
impolitic. ' ' If

Sed, X- to the Colonies. 229
If the right of fupremacy in general
had never been claimed till the commence
ment of the prefent conteft, the claim
made at fo late a persiod, might with rea
fon be condemned as novel and unconfti
tutional. If having long ago been exer-
eifed or claimed, it had all along been
contefted, it might at leaft be .looked upon
as doubtful. If for a long continuance
it had been claimed and exercifed, and the
colonies had contentedly fubmitted to it, till
nianifefted in the particular article of in
ternal taxation ; the exercife of it in fuch
particular artlLle might be open to cen
fure, though not as unconftitutional, yet
as impolitic. If not confining their reluc
tance to this particular mode of exerting
it, or this particular time of its being ex
erted, they have gone on in a middle way,
between open conteftation, and, contented
obedience, the exerting of it in the parti
cular mqde, and at the particular time in
queflion, fhould feem to have nothing In
¦Q^3 ^ it

230 Acts relating Part IL
it impolitic, any more than unconftitu*
tional. It was with a view to the conftitutlona-
lity of the ads we are about to review,
that we cited fo many ads of preceding
parliaments, to fhew that parliament had
always exercifed Its fupreme power over
the colonies ; putting forth more or lefs
of that power, as feemed neceffary to the
ends of proteding them ; of maintain
ing their dependence on the mother-coun
try ; of making them contribute, in pro
portion as they were able, to the common
neceffities of the whole empire.
It is with a view to the policy of thefe
ads, that it becomes of importance to en
ter into the queftion, how the colonies
have conduded themfelves under the ex
ertion of this power ; whether they have
contefted the right of exercifing it ; or
contentedly fubmitted to it; or whether
they have not rather taken a middle way;
eluding the ^ds of authority, in which the

Sed. X. TO the Colonies. 231
the right has been exercifed, without dif-
puting the right itfelf.
By way of anfwer to this queftion we
are told, that as to the navigation ad (for
to that alone the gentleman chufes to. con
fine himfelf) " its authority never was
" difputed ; that it was no where difput-
" ed for any length of time ; ,and on the
*' whole, that it was well obferved. When-
" ever the ad pr effed hard, many indivi-
" duals indeed evaded it. But this (he
*• fays) is nothing*."
Hence I fuppofe we are to underftand
that the oppofition made to it was made
in no other way than that of unfyftema-
tical evafion; and, that of whatever na
ture it yiras, It was carried on by none, but
individuals; that it never had the colour
of authority. That the affemblies them
felves rnaintained a conftant deference to it,
is not indeed exprefsly faid, but this I fup
pofe It was defigned fhould be inferred
* Burke's Speech, p. 43,
Q4 from

232 Acts relating Part II,
from the emphatic mention of indivi-.
duals. What truth there is in this reprefenta
tion the Journals of the Houfe of Com
mons will inform us. From them we
learn* that fo, early as the year 1701,
impediments were thrown in the way of
the king's officers; combinations were
formed againft thofe who had the cou
rage to execute the trufts repofed In them
with fidelity ; that the adminiftration of
juftice was delayed, and the greateft un-
v/illlngnefs expreffed to fubmit to any ex
ercife of the fupremacy of the mother-
country, and in particular to the ads of
trade and navigation.
At that early period a commiffion for
enquiring into great irregularities and
mifdemeanors in Rhode Ifland was ren
dered ineffedual. Lord Bellamont was
fent out on this cpinmiffion, " bat fouiid
* Vol. xiii, p. 502, 503,504, 505, The par
ticulars are minutely ftatedj they were too long to
infert here. ' • . ' ¦ {fays

Sed, X. TO the Colonies. 233
" (fays the commiffioners in their report
^' to the houfe) fuch an oppofition to his
*' majefty's authority, and the ads of
" trade and navigation, that no good ef-
*' feds could be obtained from that com-
" miflion : they (the people of Rhode
*' Ifland) pretending by their charter to be
^' independent on the government of Eng-
'« land." The province of Connedicut was, in
its corporate capacity, equally refradory.
*' The governor and fuperior court pe-
" rerqptorily and publicly declared they
" would admit of no appeals from them
" to his majefty in council." This was
neither more nor lefs than faying, that
they would admit no appeals at all to
England: for however unconftitutional,
as well as inefficacious this mode of appeal
.tnayhe, compared toothers that might be
eftablifhed, to declare they would not ad-
riilt this, at a time when no other was ef
tablifhed, was. to declare that they would
admit none. What chance in fuch cafe
6 the

234- Acts relating Part II,
the inhabitants of the mother- country
would have for juftice in their difputes
with thofe of the colonies, is eafy to be
imagined. Even then the commiffioners of trade
reprefented to the houfe, "that fpeedy and
*' effedual care fhould be taken to render
" the colonies more fubfervient and ufeful
"to this kingdom." — -That this might be
done " by the legiflative power of this
*' kingdom," is what the commiffioners
feem to have had no doubt of; though
they conceived It could not be effeded by
any other means.
In another report, delivered in the be
ginning of the next year *, it is again al
ledged againft both Proprietary and Char
ter Governments, " that they had not
^' complied with what had been demand-
" ed of them in reference to ^rW^, or with
" what might be neceffary for the com-
*' mon fafety ; that they had not con-»
See Commons Journals, vol. xiii, p. 729.
" formed

§ed. X. TO the Colonies. 235
" formed themfelves to the aBs of par-
*' liament for regulating trade and na- '
" vigation : that feveral of the Governors
*' in the Proprietary Governments had
*' not applied to his Majefty for his ap-
" probation, nor taken the oaths required
"by the ads of trade: that they had
" made laws contrary and repugnant to
" the laws of England." And the com
miffioners go fo far as to recommend it to
parliament to refume the charters.
It Is however true, that till the sera of
the Stamp Ad the colonies did not di
redly, and in the face of parliament, de
ny the power of parliament to pafs laws,
which fhould bind them. The laws paft
by the colonial legiflatures, though iii
fome inftances really repugnant to the
laws of England, were not fo much di-
red denials of that power, as modifica
tions of the provifions made by It. They
fhewed 'a tendency which fhould have
been carefully watched, and as carefully
checked, to worrn themfelves out of obe^
dience,

236 Acts relating PartIL
dience, but they did npt formally difclaim
it. Read the petition prefented by the.
agent of Maffachufet's Bay againft the fa-
lutary ads for reftraining the emiffion of
a paper currency, and the creation of
banks *, arid you would fcarcely fuppofe
but that fo late as this the power of par-
liament to regulate the internal rights of
the colony was not only not contefted,
but chearfully acquiefced in. On the
other hand, if you believe the reprefenta
tion given of the proceedings there by the
committee that fat upon thefe ads, you
cannot but perceive that the colonial le
giflatures were as ready to embrace every
contrivance for counterading the effed of
thofe ftatutes, as they were remote from
any Idea of contcfting the right to make
them. Read the petition of Richard Partridge,
agent for Rhode Ifland and Providence
* 14 Geo. II. See Commons Journals, vol.
xxiii. p. 527, 528, 645. Plan^

Sed. X. To The Colonies. ,237
Plantation, againft paffing another of the
many ads which parliament has found
it neceffary to pafs for reftraining^ paper
bills of credit in North America. What
faid this agent ? Did he call in queftion
the right of parliament to make this fe-
g.ulation ? Was it on- any pretended ex
emption from parliamentary authority
that he grounded his objedions to the
bill? -No fuch thing.,. All he ventured
to do was to apply hinifelf to the equity
of. parliament, by infinuating that the
pfovifions of the bill were .contrary to the
privileges of the colony. Nor was he
wanting in his endeavours toconciliite the
favour of the houfe, by.alledging, " the
" pundual and ready obedience the 90-
" lony had fhewn to the pleafure of the
" Crown, and of the hovfe^f' ' This was
in the year 1751.
It w;as in the fame year, and iri refe
rence to .the fame ad, that Mr. Bollan,
* A. D, J1751, See CcnirDons Journals, vol.
sxvi. p. 159. agent

238 Acts relating Part IL
agent for Maffachufet's Bay, prefented a
petition to the Houfe. In this petition
indeed Mr. Bollan ventures to give a
gentle intimation of a certain fomething,
a certain natural and lawful right, deriv
ed, we are to conclude, from a certain law
of nature, which Is to be a controul on
Parliament in the exercife of the ads of
authority he complains of. He appre
hends, " that the province has a natural
" and lawful right to make ufe of its cre-
*' dit for its defence and prefervatlon *."
Though the language here holden by
Mr. Bolan is in a ftrain rather more lofty
than the commons had been ufed to, yet
as he fpoke for his own province only;
as no leagues, no affoclations, nO congrefs
was formed; as no threats were thrown
out, the ftyle was overlooked. < ,
Many more inftances might have been
mentionedjto fhew that the obftacles thrown
in the way of the operation of the trade
* Commons Journals, p. 206, 207. laws

Sed. IX. TO THE Colonies. 239.
laws in particular, and in fhort that the
fymptoms of difaffedion to the fupremacy
of the mother-country in general, were not
unconneded ads of private individuals,
but were ads of the people at large ; that
inftead of being puniflied as often as found
out, they were In many inftances proted-
ed by their courts of juftice, and fandlfied
by their legiflature. Many more inftances
to this purpofe might, I fay, have been
mentioned : but as they are already men
tioned by Dr. Tucker*, I may content
myfelf with referring to his book. What
I have here confined myfelf to, are fuch
as feem to have efcaped the notice of that
gentleman. ^
The other point to be enquired into, is
the deference paid by the colonies to the
requlfitlons of the crown. Thefe requi-
fitions have for their objed the contribu
tions demanded of the colonies, either for
extraordinary fervices in time' of war, or

* See tbe beginning of his Fourth Tra<Sl;,

for

240 Acts relating PartTL
for the ordinary fupport of their own ci
vil government In time of peace.
On this head we find it with great ve^
hemence afferted, that till the fatal period
of 1764, the colonies were ever ready to
Gontrliaute as far as their abilities would
permit. On the firft point, that of coritributionS
for extraordinary fervices, we are referred
to the moft refpedable authorities, to mef-*
fages fent by their late and preferit ma*
jefties, arid to refolutions taken in confe-'
quence of thofe meffages by the Britifh
Houfe of Commons.
In thefe meffages the King fets forth
the zeal of his fubjeds in America; and
recommends it to the houfe to recom
penfe that zeal. In compliance with this
recommendation large fums were adual
ly granted by the houfe.
Much ftrefs is laid on this teftimony;
nor will I leffen it by remarking that in
thefe rare ads of chearful contribution,
the zeal exerted by the colonies had for its

Sed. X. TO THE CoLONIE^. 24!
its immediate objed, theli* own Irrimediate
benefit, ajid advantage *. Yet thus mucli
I may be allowed to fay : — that one or
two inftances do not prove an habitual
difpofition to contribute to the public bur
thens. I may be allowed to fayithat the
proof given of thefe one or two inftances,
concludes rather ftroriger in favour of par
liament than in favour of the colonies.
It piroves, if you will, that the colonies
did for once eixert themfelves : it proves
that they faid they had exerted thertifelves
beyond their ftrength : but furely it proves
too that the parliament was ready to af*
fift them — It proves, nOt that the parlia
ment faid that it affifted them, but it.
proves that it adually did qfiifi them li-
* For the proofs of this, and a full refutation of
the diiingenuous afTertions of Dr. Franklyh and'
Mr. Difckenfbn — " That the Colonies liad no
*' particular concern or intereft in the lafl: war"
i— " Nay that the acquifitions made by it were a
*' hurt to the colonies," — fee Afts of their own
Afiettiblies cited in the Controverfy reviewed, from
p, 107 to p. 137. i
R berally.

>

242 Acts relating Part II,
berally. Whether they had exerted therii-
felves beyond their ftrength, ftands on re
cord as a matter of opinion. That they.
were recompenfed ftands upon record as a
matter of fad.
As to the, fecond point, that of contrii-
butions for the ordinary fupport of their
own civil government in time, of peace^^
inftead of proofs we have only affertions..
If affertions are to weigh, thofe of Mr..
Pownal will furely be allowed their weight.,
Let us then hear what he fays on the mat
ter ; to his teftimony np fober American'
can objed.
He tells us, that the order of the crown.
to require a permanent fupport for the. go
vernor, " is generally, if not univerfally,
" rejeded by the colonial legiflatures *."
He tells us, " that the fupport of the go-
" vernors, judges, and officers of the
*' crown, is with-held or reduced, when-
" ever the affemblies fuppofe they have
* See Ad^niniftration of the Colonies, vol. i,
p. 80, 8 1.
6 " reafon

Sed. IX. TO THE CotioNlES* 243
" reafon to difapprove the nomination,
" the perfons, or the condud of thefe offi-*-
" cers." — Is this the liberal fupport of their
civil government we, hear fo much of ? To
fupport a government is to preferve it in
a ftate of ftrength' and adivity : what
ftrength, what adivity can there be In
that government where the executive and
judicial powers are fo crampt and fettered, •
and dejiendfor a fcanty fubfiftence on the
arbitrary and annual grants of a popular
affembly ?
Mr. Pownal, In the words we have
cited, was fpeaking of the general and
ordinary mode of providing for the fup
port of the civil government in the colo
nies. . He thought it not neceffary it fhould
feem, to cite particular proofs of an affer
tion confirmed by daily experience. But
we know of one remarkable inftartce which
fhould not be paffed over. Single ads of
extraordinary exertion have, we have feen,
been cited as triumphant proofs in favour of
R 2 the

244 Acts relating PartIL
the colonies. It will not then be too much
to prefume, that fingle ads of obftinate
refufal, may militate with fome little force
againft them.
In the year 17 ID, the affembly of New
York refufedyon fome pretext or other, to
make the ufual grants for the fupport of
government. This was in a time of war^
of the moft expenfive war that England
till then had ever waged At that time the
councils of this nation were guided by a
whig. miniftry What did the miniftry do.
on this refufal I They ordered a bill to be
drawn up for raifing the fame taxes, and
appropriating them to the fame purpofes
by authority of parliament, as it appeared
to them ought to have been raifed and ap
propriated hy the affembly of New York.
The title of the bill was " An ad for
« granting a revenue to her majefty,' to
" arife within the province of New York,
*' in America, for the fupport of that go*-
" vernment." In the preamble of the bill it

Sed. X. TO THE Colonies. 245
it is faid the Commons " give and grant
" unto her majefty the rates, duties, ex-
" cifes, impofitions," &c. therein after
mentioned *.
This bill (which would have been
brought in had the whig miniftry conti
nued) was deferred to another year by the
tory miniftry, who fucceeded at that criti
cal moment. It was deferred, as it feems,
on the liberal promifes which the colonies
made of promoting the expedition then
fitting out againft Canada. An expedition
which failed, as the author of The Con
troverfy reviewed, informs us, on trie
authority of Swift, " partly by the acci-
" dents of a ftorm. and partly by thefiub-
" bornnefs and. treachery of fome in that
*' colony, for whofe rdief and at whofe in'
* See a copy of this bill (which was figned and
approved by Sir Edward Northey, > and Sir Ro
bert Raymond) in The Controverfy reviewed,
p. 185. R 3 treaty

246 Acts relating PartIL
" treaty it was in fome meafure de-;
"figned." But though the bill was deferred, there,
appears little reafon to doubt, but that it
¦vy^ould have been brought in, if the colony,
grown wifer, had not renewed the grant.
Yet this very colony can now tell us,
" that it has always been the fenfe of the
" governinent at home, that fuch grants
" cannot be conftitutionally made *." This
certainly was not at that time the fenfe of.
government. Yet their agent can tell us, " that a par-
" liaraentary revenue was never once in
" contemplation, till the unfortunate pe
riod of lyb^f.
Had I the powers of his eloquence, or
the privilege of his fame, I might — but I
would not, — ufe his own harfh phrafe.—
I might — but I would not — fay, " Thus
" have I difpofed of this falfe hood ;" and
* See refolutions of the Affeuibly of New- York,
in the year 1765,
f See his Speech, p, 39,
when

Sed. X, TO the Colonies. 247
when I come to the unfortunate period of
1764, then too I might add — " but falfe-
*' hood has a perennial fpring *."
Let us now turn to this unfortunate pe
riod.
* See his Speech, p. 55,

R 4 SECT.

24? Acts relating fart. IL

SECT. XL
Of the conduB of parliament with reference
to the colonies fropi the beginning of the
prefent reign to the commencement of the
lafi par liament f
" T^ -^ ^ grand manceuvre in the bu-
¦' A finefs of new regulating the co-
*' lonie^ (we are told) was the 1 5th ad
" of the fourth of Qeorge III. which
" opened a new principle; and here (it ig .
" added) properly begari the fecond perio4
f of the policy of this country with re-
" gard to the colonies, by which thg.
f fcheme of a regular parliamentary re-
" venue, was adopted in theory, and fe\n
*' tied in pradlce*.''
There is, I think, a capital miftake iri
this reprefentation. Hurried on by the
impetuofity of his genius, this writer did
pot flop to mark out the feveral periods of
* See Bisrke's Speech, p. 50, diftind

Sed. XL TO THE Colonies. 249
diftlridt fyftems of policy, which had pre
ceded,' and which, by a natural progref-
fion, led to arid prepared the way for the
fyftem eftablifhed by the ad he cenfures.
The oTjjed with him being to reprefent this
ad as a -fyftem of as much innovation as
poffible ; the number of periods he makes
is but two. To me it feems, that with full as
much reafon four diftinguiftiable periods
may be rnafked out, at each of which the
policy, on this behalf purfued, received a
iconfiderable degree of alteration.
The firft period I would diftingulfh be
gins at the Joundation of the colonies,
¦ and ends at the Commonwealth parlia
ment. The fole objed Of the fyftem a-
dopted and adhered to during this whole
period, feems to have been to fecure to the
colonies the monopoly of tobacco, and to
prevent them from gaining that of the
fifhery. Thfe fecond period began In the time of
the long parliament ; but was more fully
developed after the Reftoration. The fo^le
objed

250 Acts RELATING .PartIL
objed of the policy, during this period,
was to oblige the colonies to buy from
Great Britain only, all the inanrif^^ures
and European ;goods in general whieh f^e
could fupply them with ; and to fell all
the produds they could fell to th? Britifh
dominions. ; •
-, On the other hand, during this fecond
|)erIod, by way of com penfation for thefe
,:reftralnts, the monopoly given to the co
lonies, at firft in the fingle article of, to
bacco, was extended, or at leaft advan
tages nearly equal to a monopoly were
granted, in a multitude of other articles ;
among which we find thofe of rice, hemp,
raw filk, pitch, tar, turpentine, indigo,
and naval ftores.
The third period began in the fixth of
George the fecond, during which, in par
ticular inftances, taxation was fubftituted
in the room of a monopoly.
This period then, which began, in the
reign of George IIL and which the orator
iias chofen to ftyle the fecond period, might,

Sed, XL TO the C0LON1E.S. 251
mighty with rather more propriety it
fhould feem, be ftyled the fourth ; and the
change of fyftem then adopted, if indeed
it muft be called a change, feems to havfe
been juft as gradual as any of the former.
At the beginning of what I would wifh
to tall the fecond period, the legiflature
faw that' the trade of the colonies Was
grown 'ari objed of importance ; that it
was of the utmoft confequence fo to regu
late that trade that the profits thereof might
finally center in Great Britain, and be ap
plied to the benefit of the whole eniplre *.
Without afking- the confent of the colonies,
they - thei-efore eftablifhed the fyftem of
monopoly. At the beginning of the third period,
the legiflature faw, that the colonies had
increafed and flourlfhed under the fyftem
of moriopoly; that the monopoly iri fome
inftances could not be entire, becaufe we.
bad not markets to take off all their Com-
* See:Bernaid's fifth letter^ modltles.

252 Acts relating Part U,
modities, nor funds to fupply all their
wants ; and that the colonizes were npw
ip. a fituation to contribute by a revenue
for the liberty of relaxing the mpnopoly iij
thefe inftances. In thefe inftances, there
fore, without afking the confent of the
colonies, thp Ipglflature fubftituted tax
ation, n^anlfefl dired taxatlpp, in plac? pf
a monopoly. At the beginning of the fourth period,
the legiflature faw that the colonies ftll]
increafed and flourlfhed, that they were in
a fituation to contribute more large-
.ly to the f]iare of tbe public burthens,
greatly increafed on their 'account. Th^
legiflature therefore went on, by a natural
, ^rid regular gradation, to affefs the portiop
of the public burthens, which they now
fhould bear. In this ch.^nge it is true, the
legiflature did not afk the qorifer^t of the
colonies. As far was it from afking their
confent in the preceding changes.
I am fpeaking of a change, but the great
change was not iri the policy of the mor
ther^

¦ Sed. XL to the Colonies. 2^j
ther- country, but in the ftrength and fitul-
ation of, the. colonies ; they were effedual
ly and finally delivered from their ene-'
mies ; the fword, that from the firft hour
of their birth had hung over their heads,
was broken ; they now made a vow of in-*
dependence, the moment that maintairiing
it feemed pradieable, arid that dependerice
was no iPnger neceffary.
The technical terms pf give and grant
had been ufed before, iri the ad of
George the fecond. The fame terms are
ufed in this *; but there is this difference.
¦ — In that ad the title was foreign, in this
correfpondent, to the purview. This fure
ly can be no objedion to the latter. It
declares it expedient, that " new provi-
" fions and regulations fhould be ,efta-
"•blilhed for Improving the revenue of
" the kingdom, and fecuring the naviga-
" tion arid commerce between Great Bri-
•* tain and America." It affigns the rea
fon why new regulations were expedient ;
becaufe ** the dominions in America had
* 4 Geo. I'll. c. 15. " been

254 Acts relating PartIL
" been fo happily enlarged :"— this furely
is no objedion to the ad. It declares it to
be juft and neceffary " that a revenue
fhould be raifed in America:" it affigns
the grounds of this pofition, and the ufe
to be riiade of the revenue fo raifed ; name
ly, " defraying the expences of defend-
" ing, proteding, and fecuring the doml-
" nions fo acquired and enlarged." — Is
this any objedion to the a& ? It declares,
that the commons " were defirous in the
*' then feffions of parliament to make fome
" provifion towards raifing this revenue."
— ^I fhould have thought even this no great
objedion to the ad. We are told, how
ever, that " from thefe laft words it ap-
" peared to the colonies, that this ad was
¦ " but a beginning of for rows ', that every
" feffion was to produce fomething of the
" fame kind ; that we were to go on from
" day to day in charging them, with fuch
" duties as we' pleafed for fuch a military
*' force as we fhould think proper*."
* Mr. 15urke's Speech, p. 51. " Thus

Sed. XL TO the Colonies. 255,
Thus appeared It to this orator; to
me, to any one, who deigned to read the
fiatute-bbok, and who chofe to fpeak of
it, it muft appear at the utmoft but a csn- '
tinuaiign of fbrrows. "
All thefe dreadful phantoms, however^
appeared to the colonifts : — all were con
jured up by thefe feemingly innocent, btit
iriagic words : — " fome provifion " — •¦
" prefent feffion " — Alas 1 who can aa-
fwer for the wildnefs of an American ima
gination. There was a time when every laundrefss,,'
everypoor negroe wench in New Eng
land ftarted up an enchantrefs ; formid
able as 'the evoker of Samuel at Endor ;¦.
when old men outdid ther wonders of the
m-agiclans of Pharoah • and daemons
ftalked about at ,noon day.— The parox-
yfms of religious madnefs are now over:
•a political phrenzy has fucceededi Inftead
of witches and dsemons, their imagination;
is now terri^ed, with the grim fpedres of
flaves,

562% Acts relating Part IL
flaves, " fhaking their uncombed lock's^
and ftamping their wooden fhocs *.
In this, as in the former cafe, the'
phrenzy, " like fome epidemical difeafe,
*' has run through the, whole country r"''-*
now, as well as then, " the roagiftrates
" and minifters, whofe prudence ought to
*' have been employed in heafling this di-
" ftemper, and affuaging its fury, throw
*' in new eombuftible matter f." . '
The truth,' however is, that the
commencement of the fears and alarms
which the Americans are now fuppofed to
have felt upon the paffing of this ad was
fubfequent :j; ; for though they remon-
fljratedv
* See Farmer's Letters, f>. ^4.
t See Account of European Settlements lA A^
ftierica, part vii. c. 4. Hutchinfon's Hiftory ef
Maflachufet's Bay, vol. ii. p. 15, & feq.
I; This ad paffed in April, 1)64, the ftamp iOi in
March 1765. It is only from the time of the Ameri-f
cans receiving account of the paffing. of the ftamp'
3(51, that a ftrenuous American dates " the great
" murmurings and' difconferits that afofe am'dii^
themw"

I^ed. 3^1. fo THE Colonies. 25;^
ftrated, and with reafon, againft foirie of
the provifions of this ad^ they at that'
time did not fo much as argue againft the
principle*. They conceived, and endea
voured to fhew, that the power of par
liament had been impoliticly exercifed;
but they did not yet go fo far as to fay,
that the power itfelf was unconftitu
tional. I do not mean to defend all the provi-
vifions of this ad. — I am ready to allow,
on the authority of governor Bernard,
that the duty it impofed ori foreign mo
laffes was higher than it ought to have
been f . I am difpofed to allow, on the
fame authority, that a diftindlon ought
them. See Proceedings of the Colonies in confe
quence . of the Stamp A6t, prefixed to the Char
ters. • , * They touched it, 3/Ir. Burke acknowledges,
very tenderly. Speech, p, 52.
f The adlimpofed three pfenc&per gallon on
foreign molaffes, governor Bernard thinks three
half-pence or two pence at moft fhould be impofed.
See the Governor's fifth letter,
S to

258 Acts relating FartIL
to have been eftablifhed, if indeed it bf
praBicable, between [the different forts of
lumber; that if policy and a regard to
our na^val eftablifhment made it neceffary
to reftrain the exportation of that- fort
which is ufed in fhip^building to our owij,
doniinions, we fjbould have- allowed thetft
to export the other fort to foreigners, fuch
as ftaves, or what was fit only for houfcr
building *. I believe.,. on. the faflje autho
rity, that proper regulations were npt
made for fixing the plac^e where the court*
of admiralty were to be holden t that the.
mode of pa-ying the judges of the admi
ralty was exceedingly wrong t = and tend
ed tQ warp their j^udgraent almoft, againft
the force of evidence. I believe on the
* This reftraint is in part taken off &y 5 Gso-.
III. c. 45.
¦\ They are paid h.y a poundage ant. of ,t|ie:
. condemnation money. Thefe twp Ufts ii^med
arrangements make no part of the a<ft in ques
tion: but- that ad,, which began this new» fyfteifj,,
ought to have corrected fuch caguul defeflSk .
fame,

Bt&. Hi. to tki. (^oLbmtSi i^'^
fathe authorityi that the order to fbrid till
the riioney arifing from thefe duties to hife
Majefty's Exchequer in Englaiidj Was a very
iffipriident one ; that the charges of double
femittanee, arid th^ ftop'ping 6f the cir-
tulatiori of fuch d furii for fo long a time
in America,' wa's afi addlfiori of near ohe-
fOUrth to the burthen to be borne by the
Colonifts, arid that without anf\Veririg any
one good purpofe.
I ani ready to allow that thefe capital
miftakes at the very firft outfet in this
riew period, did riot only juftify the cd-
, Ibnifts iri t'hfe petitiofi tfeey preferited t'O
the Houfe of Commons on this oecafion^
but would have entitled theffi to be heard
with attentiori arid favOflf, had they prd-
.Jiof^d to raife ty their owri affemblies a
Jietriiahent revenue, alwaiys to bear a cer
tain adequate proportiori with what the
ftibjeds' iri" Great BrTtaTn fhould pay. Or
had they huflibly petitioned to have t^e
kberty of fending tO^ thti Briti'fik' Fadla-
trient a certain number of k'lil^fitis' and
S 2 i?urgeffes

a6o Acts relating PartH.
burgeffes to reprefent the condition of the
coloriies *.
That the miniftry were difpofed to lift.-
en to either of thefe propofitlons is clear
from the moft indifputable authority. —
That the colonies were^ averfe to both, is
clear from the fame authority.
In a letter from Mr. Grenville to Mr.
Pownal f, he expreffes himfelf in the fol
lowing ftrong and pointed, terms :
* As the great objedl here to- be confidered in
the Gondudl of parliament toward the colonies
fmce the acceffion of his prefent majefty, is the
fteps parliament has taken to alTert its right of ini-
ternal taxation in the colonies, I pafs over the
a-dts made for encouraging the communication and
trade with the mother-country, fuch as 4 Geo, III.
c. 26, granting a bounty on hemp and flax. 4 Geo.
III. c. 27. granting a liberty of exporting rice
'from South Carolina and Georgia, to any part
of America fouthward of thofe colonies ; and to
. any part of Europe to the fouthward of Cape Fi-
nifterre. 4 Geo. III. c, 29. for the encourage
ment' of the whale fifliery. 5. Geo. III. c. 45.
• for encouraging the trade of the- colonies, &c. &c.
.f.See Apppiidix to the Adminiftratjlon of the

ColQniesj.No. i..

*'A5^

Sed. XI. TO THE Colonies. 261
" As to the great queftion of our par- '
" liament's granting' to America a com-
" petent number of reprefentatives to fit
" in our Floilfe of Commons, you are no '
" ftranger to the declarations I repeatedly
" made in the Houfe, at the time when
" the repeal of the -Stamp Ad was agita,t-
*' ed: — ^that if fuch an application ffiould
" be properly made by the colonies to
" parliament, in the fame manner as thofe
•? which were made from Chefter and
" Durham, and probably from Wales, it
" would in my opinion be intitled to the
*' moft ferlous and favourable confidera^
"tiori. But I am much afraid that nei-
*' ther the people of Great Britain nor
" thofe of America are fufficiently ap-
'" prifed of the danger which threatens'
" both from the prefent ftate of things,
*' to adopt a meafure to which both the
"one and the Other feem iridifpofed. Some
" of the colonies, in their addrefs to the
^' crown againft fome late ads pf parlia,
tf iiient have, if 1 miftake not, exprefiy dif-
S 3 " dairiea

£62 Acts RELATING Part IL
" 4aimd'it ; .jnd | 4° ?9t thinh it has beeri
'^ kind(y received iq pre^t ]^ritain ^."
Thjs was a fatS which cpuld not haye
efcaped the knowledge qf a celebrated
orator, Yet In his account of Mr. Gten-
ville's adrninlftratipn Ije did not find it cpq-
venlent to reriiember It, To fpeak the
'mhole truth may (oinetimes hurt ^ caufe, ,
But it w^s e^fier for a nainifter to it:t-
fure (uccefs to tl^e pthef propofal, " That
*' the Coloqles f^o.uld he allowed to taj^
r
^' thernfelveg Pri. requifition." — T^Is there-*
fore lyir. Grenville not pnly propofed, but
warmly recommende4 to fhe col0aie;s. ;
The defign qf laying on a Stamp Buty
was announced In parliament fo early as
the month of Mardi 1764. The Hpufe
came to a refplution pn the propriety aq4
pq0jfk exp.gdiericy of (ug]|i a tajj. ^ 33ut the
f The reader will attend tp the diff"eren96
marked by Mr. Grenville as to the manner in whicl?,
this notion was received in Great Britain and the
ppkjnies, -By her he thinks it was mt kindly re-
peiy.ed} by thejn it ^-^-(Kprefily di/ifdne4i •
-¦ ¦nn-mniJ*

Sed. XL TO THE Colonies, . 263
pafling this refolution into "an ad was de
ferred with the exprefs purpofe of allowing
the colonies time to propofe any other
raode of taxation equally produdive. The
agents., of the colonies conferred with
Mr. Grevk\'^e feparately on this fubjed.
They conferred with him on It in a body.
He told. them, what one of them at leaft
declares he had heard Mr. Grenville fay
iri the Houfe, — " That the war had found
*' \xs feventy, and left us more than a
*' hundred and forty millions in debt : — ^
*' that the American civil and military
*' eftahUfhirient after the peace of Aix la
*' Chapelle was only JhvSnty ' thoufand
*^ pounds a. year, but was now increafed
" to three hundred and fifty thoufand,-'-^
"Thait this was a great addition^ ex-
-" pence incurred on the American ac-
•* Gount.-^— That he did not exped the co- •
*' lonies to raife the whole; but fdme part
"of it he thought they ought to raife.
" That he judged this method of raifing
**• tbe money the eafieft and moft equit-
S 4. ' *' able :

264 Acts relating PartIL
" able: — that it was a tax v^hlch would
*!¦ fall only on property, would be colledr
" ed by the feweft officers, and would be
'< equally fpread over North America and
"-the Weft Indies, fo that ^// would bear
*^ their fhare of the public burthen. 1 hat
" he was not however fet upon this tax;
'5 if the Americans difliked. it, arid pre-
*' ferred any other method of raifing the
*? money themfelves, he fhould be content."'
He direded the agents " to write to their
" feveral colonies, and if they chofe any
" other mode he fhould be fatisfied, pro-
" vided the money was raifed." Nay he
even went fo far as ':' warmly to recora-
*.' mend to them the making grants by
'"their own affemblies, as the moftexpe-.
*-' dient for themfelves on feveral ac-
*.' counts." The colonies were accordingly written
to. — -But the propofal was by moft of
them rejeded with fcorn — The offer they
faid amounted, to no more than this^ —
" That if the colonies will not tax them-
" felves

Sed. XL TO the Colonies. 265
*« felves a,s they ;may be"' direded,' parlia-
*' ment will do it for them. ''^The very
propofal, which, as vre have feen before,
the whig rintlniftr.y of Queen Anne not
only made, but effedually' enforced.—
The colonies direded their agents to
" rem^nfirate againft thefe meafures, arid'
** to- prevent the impofition of any farther
*} ,duties or taxes 'in the colonies.!' Eveii
yet however they did not . diredly call In
queftion the power of parliament to tax
them. Thefe fads are advancecj on the autho
rity of three of the then agents of th^e
Colonies *. Yet
* Mr. Mauduit, Mr. Montague, and the then
agent for Georgia, I think it was Mr. Knpx.— —
See a letter figned by Mr. Mauduit, in the Gazeteer
of February 22, 1775. See alfo Review of the
Controverfy between Great Britain and her Colo-r
riies, p. 198. This pamphlet was publiftied in
the year 1769. And Mr. Burke's fpeech was
imade in 1774. Dr. Franklyn, in his examina
tion before the Houfe of Commons when the repeal
pf the ftamp aiSt was in contemplation,.- faid, 'f that
' ' ' "he

266 Acts rej-ating PatrtlL,
Yet it ha^ been boldly afferted In the
houfe '* That this fad was rielther true
" nor p(iM^lef' " that Mr. Grenville
'« never could have propofed t^^at the Co--.
*i lonies fhpuld tax themfelves oa requlT
*' fition :" — ^ " that the colony-§genf§
*' had no general powers to confent t9
" fuch a propofal:" " that they had pp
«' he had it in inftru^^-ion from the affembly of the
" colony ne lived in, to aflujre the miniftry, that
*f 9S they dwi^yi had dom., i<>. they fhoji'Id-. 3ilwa.ys>
" think it their duty to grant fuch aids tathe
" crown as were fuitahle to their fircumflances ifnd
" abilities, whenever called upon for the purpofe
''^ in tbe ufual conftitutiorml manner." And that
he had communicated that " inftru£lion to the,
'-' minifter before the ftamp act was brought in,"
So then there is another authority to prove that
the coloflies were, apprifed of the defign of the m;i-
fti.firy to obtain a larger revenue frot^ Atnericai
that fome propofal had been made them about ,jaif-
ing that revejjue in their own aflemblies. And
that thofe who called thentifely.es weH gffk£fedi co^.
lonies paft e,o vote, no refolution about it, offered?
no fpecific fum, p.ro,pofed no medium of fisfing the
ptoportion they fhould beaj of the public burthen,
l>utkept only to general terpis, which fecured no
thing to England, obliged themfelves to nothing. " time

S9^, XL TO THE-GOLONIES, 267
*' time to confuh their afTe'rii^Hes for part-.
*f,tieijlar;pqwer8*." It is clear, however, that he did make
the propofal j that the colonies had time
tp be epnfulted ; that they were confultr-
ed : that fome of them abfolutely rejeded
¦the propofal : the others would give no
precife anfwer to it,
I will not pay a worfe compliment to a
jneinbei: of the Hoyfe of Commons than
Jie paid to his brother- members. From
.any .common writer thefe mlfreprefepta-
tipn$ might have been fuppofed to be
M .cjreulated abroad with a malignant in-
'*' tent ion ; but I cannot attribute a malig-
" nant intention to him who faid the farpe
^". thing in the houfe t-"
Upon this refufal of the colonl'es the
jStamp Ad was paffed.
AMUil*? it was dependirigj petitions were
prefented againft jt by four of the colo
nies. Thefe petitions, for the firft time,
* See Burke's Sgeech, p. 53.
t IJ>. p. 53,

268 , Acts RELATING Part 11;^
called :diredly in queftion the power of
parliament to impofe taxes on the colo-^
nies. Nothing is more common than to rejed
IHOtions * for receiving petitions againft
balls ; more partidularly when the priri-'
- ¦ • c -
* I opened the Journals, and in a fingle fe.^on
in the reign of William III, I find no lefs than
ieven motions for receiving petitions rejected : — .
petitions too from bodies, miwiy of them, -without
disparagement to the colonies,- as refpt6table as the;
coloriies of Rhode Ifland,. Cc«?ne6licut, Virginia,
and Carolina. One from merchants tj-ading 'tq
New England, New York, and PenfylvSniai'
touching the duties on whale-fins from .the".faid*
colonies. Com,. Journ, vol. xii. p. 336. One-i
from the towo of Altcar in Lancafliire, ib. p. 146..
(5ne relating to a bill for graining certain duties
on coal and culm, ib. 240. Another on the fame
fubjeft, ib. p. 246. Another ori the fame fubjecl:,
by people who fet forth that they had advanced-
564,700!. on the credit of a former aft, ib, p.
248. One from the county of Northumberland,
relating to copper money, ib. p. 2s4. Another"
from merchants trading to Scotland, relating tq,
duties laid on Scotch linen, ib. p. 336. There is
fcarce a feflions of parliament where motions, for
receiving petitions do not pafs in the negative,
- ciple

5ed. IX. TO THE Colonies. 269
ciple of the bills has been already difciiff-
ed : ftill more when the objedions againft
them are drawn from topics which the
houfe will not allow to be brought in
queftion. It could hardly be expeded, I
fuppofe, that the houfe would allow the
fupreme authority of parliament, or the
extent of their power, to be canvaffed.by
counfel at their bar — Yet what cannot a
great genius effed? By force of the fingle
word *¦' fiornfullyf this rejedion of peti
tions has been branded as inequitable and
unparliamentary*. This ad, it is true, was followed by
great difturbances In America; .dlfturb*-
apces which by the accounts we ;have of
them feem to have been of ,a nature amply
to juftify the phrafes made ufe of in the
refolytiogi of the houfe on the 17th of
December 1765, which ftigmatifed them
by the title of " outrageous tumults and
" infurredlons;" as " a refiftance givea

' VPXl\

* Burke's Speech, p. 56.

±y6 Acts »BLAfiNG Paftlfif
" by open and rebelliPus force :'^ diftiirb-*!
ances the complexiori pf virhieh fefems rie*
irisprpperly fumrfted Up in the ^^6n§ ik^
preffions tifed by general Gage, in hh M^
ter writteri on the 4th of NoveHti-ber of
the fame yeir : " that all from tb^ high-
" eft to the Idweft were dcceffiry to thil
" infurredion," in th€ threats " tO |>liirp*
*' der and mnrther thOfe who fhould f#k^
*' the ftamps *."
Soriie we are told have faid, that *' ^11
*' the diilurbanees Iri Amerlda wer6 c^d^t^
" edby the repeal of the Staftip Ad." Bfcft
"the falfehood, bafenefs, and abfurdity.
" of this' affertlonf" has raifed fueh a t\i^
mult of indignation in the hre«fE M the
great orator, as Would hiv& tO'fri- a e^ft?-
mon vmn ta pieces. — With fihtMiff^t'
however, Che mi^ake is all his SWfe No
msti ever meant " to attribute aS 1

* The reader may fee an afmple account of thefe
difturbances prefixed to the Colledtion of Ghart^rsj
printed for Almon.
•J- Mr, Burke's Speech, p. 67.
- . ' 2 " difturbances

Sed. XI. TO THE Colonies. 271
" difturbance to a fubfequent tocafare:"
no man ever thought that the difturbance
previous to the repeal of jthe Stamp Ad
were caufed by that repeaL But many
have thought, and continue to think that
the timid repeal of that ad did caufe all
the difturbances that! have fucce^ed. Arid
however violent were the 'dffturbaaQc^
caufed by the Stamp Ad, they were not
of a nature to fee lafting ; they might eafily
have been quelled. — And had they been
quelled^ ^e, diftiirbairtces whieh, have fince
hiappened, and which a^e of af much liiore
alarming natme, had beea effedually pre
vented.— —Inftead of whieh the appearanae
ofweaknefs and timidity dldi,. as it was
foretold it .wouid„ bring, on fanither. iufuke.
For the. firft o£ tbefe aflertionjS. there is a&
refpedable authority as, the bare word even
of th^a orator. The piroteft of np fewer
than; twKJt ind' thirty peers ; againft the re-
. peal. A .proteft; which tbe: fflbdile lords
entered, among other reafons, becaufe
*' they were convinced ftoftf the ririani-
C ': " mous

272 Acts relating PartIL
*' mPus teftimony of the goverriors and
.** other ofiicers of the crown in America,
** that though by a moft unhappy delay
*' and negled; to provide for the. due exe-
•' cution of the law, and arming the go-
*' vernment there with proper orders and
*' powiers, thefe difturbances^ had been
** continued and encreafed, yet they might
: *' have been eafily quieted before they at-
*' tained to any dangerous height."
It appears farther from a letter to Mr.
'fecretary Conway, laid before the houfe,
and printed in the parliamentary debates*,
" that when the Bofton mob, raifed firft hy
*' the inftigation of the principal inhabi-
** tants, allured by plunder, rofe fhortly
" after of their own accord ; people then
** began to be terrified at the fpirit they
" had raifed : that each individual feared
*' he might be the next vidim to their
" rapacity i that the fame fears fpread
•' through the other provinces f and that
•'"1 ¦ • ,: V •
* Vol, V. p. 91. 92< '< as

Sed. XI. TO the Colonies^ 273
" as much pains were then taken to pre-
." vent the infurredions of the people as
*' before to excite them."
Upon this authority furely one may be
allowed to believe that the difturbances
caufed by the ftamp ad w^ere not of fo
dangerous a nature as the difturbances
which have happened fince the repeal of
the ftamp ad.
Nor can I— no, tl^ough I fhpuld have
the misfortune to be ranked with Dr.
Tucker, among " the vermin of court re-
" porters*" I cannot— help thinking " that
*' the objedions made here, both in and
" out of parliament, to the ftamp ad at
" the time of its pafling," whatever ef
fed they niight he intended to have, had
in the event that of " encouraging the
" Americans to their refiftance." — I have
not accefs to " all the papers which load-
" ed the table of the houfe." I did not
hear ".the vaft crowd of verbal witneffes
* Mr. Burke's Speech, p. 71.
T *' that

274 Acts relating Part. If.
"that appeared at their bar*" But I
have, I think, a tolerable proof that this
idea is founded.
In the account of thefe diftprbances,
referred to above f, I fee the Ameri
cans were diligent in inforttiing them
felves how their oppofition was looked up
on in the mother-country. I fee that on
the 1 8th of September, near two months
before general Gage's letter was written,
a committee was appointed at Bofton,
" to draw up, and tranfmit to Mr. Con-
*' way and tolonel Barre, addreffes of
" thanks for their patriotic fpeeches ih
" parliament in favour of the rights and
*' privileges of the colonifts ; and to defire
" corred copies thereof to be placed amonjfi;
" their moft precious archives." Ilearhtoo
from the fame account " that they voted
" the pidures of thefe gentlemen to be
" placed in their town- hall." This feenw
^ Mr. Burke's Speech, p. 71.
t See the account prefixed to the Charter^
p. 7. a com-

Sed. Xf. TO THE Colonies. 275
a compliment rather extraordinary than
otherwife, to be paid to fpeakers in " fo
** languid a debate," to orators " who
" fpoke with fo great a referve, and fo
" remarkable a temper*."
I do not know how this' gentleman's
** excellent and honourable friends" took
the compliment paid to their -languor.
— A compliment himfelf appears fdldom
to have been ambitious of .obtaining:
though it has feemed at times as if a little
more referve, and a little more temper,
might have done him no differvice.
Had he poffeffed this temper and re
ferve, he might have fpared tO his own
delicacy the pain of uttering, and to the
delicacy of his auditors the pain of hear
ing another incartade. "The agents
" and diftributors of falfehoods, fays he*
" have with their ufual induftry circulated
*' another lie, of the fame nature, with the
"former. It is this, that the difturban-
* Mr. Burke's Speech, p. 71, 72.
T 2 " ce^

276 -Acts RELATING PartIL
*' ces arofe from tjbe account which, .h^d-
*' been received in -Ain)erica of the, i:/z<3:«^^
"of the miniftry." — ".But it; does fo.
" happen .that the J^lfity c^ this clrculaT-
" tion is (like the reft) demonftrated by
"indifputable dates and recprds."— " So-
" little w^s the cha-ngeknown in America,,
," that the letters of the governors, -giving,
" an account of thefe difturbances, long,
" after they had arrived at their higheft
" pitch, were all direded to the old mU
" nlftry.^." It would be toe much tp exped that
any One man fhoo.ld unite every exceli-
lence. It is wonderful enough that to fo-
iiapetuous a genius this great man fhould^
unite a degree of cpplnefs fufficient to
keep to chronological order ; to fuperadd
exadnefs in relation would be too much
for mortal man to do. The fad is, no
man fiver fuppofed "that the difturbances^
arofe from the account of a change aBually
* Burke's Speech, p. 72, 73. made :

¦Sed. XI. TO THE Coloni^-s. 277
-made : no man could fuppofe the difturb-
arices committed in April and May, could
oirlglnate frorn the' certain knowledge of a
change, which did not ha|)^pen till July.
Though Dr. Johnfon is willing to fup
pofe the Highlanders T^zfTy be gifted with
a fecond'fight, no man is inclined to think
the Americans are fo highly favouredt
But a ftrong expeB ation of a change^ foon
likely to happen, will fometimes produce
nearly the fame- effed as'the account of a
.dharige already liappened. Now fhe dow-n"
fal of the then miniftry. was' moft certain
ly expeded, ftrOngly bxpeii^ed, by mafiy
people in England, Idhg before' thefe d-lA
turbances began;' long before the- ad,
whieh' gave birth to them,' was'paft;' The
addrefs of the letters from our gove-rnors,
:fo much infifted on by our orator, do not,
1 ftippofe; difprove the exiftence of this
opinion.' And it feeras Very probable, that
this ppinion and expedation dlid augnierit
and prolpng the diftu'rbances. '^^ ¦
¦' T 3 Con-

e.y8 ¦ Acts .relating Part If.
¦ 'Confider the fituation of affairs both
here and iri America, at the time the
ftamp ad was paft, and there will appear
BO great reafon to wonder at its meeting
with refiftance: the wonder would have'
been,] had it met with acquiefcence.. ,
;The difappoiritment given by the peace
to thofe fanguirie ~ expedations that had
-been .generated by "the fucceffef of the
war : the ehcreafe of taxes, confequent
upon the encreafe of debt: 'the ,, unpopu
lar najture pf Orie tax in particular, which
it, had been thought neceffary to hazard-:
the multiplied profecutions of a popular
xhamplbn: all thefe circumftances put
together had accumulated fuch a preffing
-body of difcontent, as could not. but ap
pear more than fufficient to bear, down
any miniftry.
In this untoward conjundure it was
that Mr. Grenville -propofed, and the le-:'
•giflature paft, the firft ad for granting
duties to be raifed in the colonies of Ame-
• :'!.'.^ ' / '• - rjca.

Sed. XI. TO THE Colonies. 279
riea. In this untoward conjundure it
was, that the refolution on which the
ftamp ad was grounded paft in the houfe
of commons.
We have already noticed the change
effeded in the fituation of the colonies.
Of their reludance to fubmit to the laws
of trade and navigation ; of their difpo
fition to conteft the authority that impof
ed them, we had feen many proofs : but
this difpofition, how early foever it had
been kindled, and how often foever it
had flafhed out in occafional ads of dif
affedion, had been damped, and kept
from running into ads or pretenfions of
fteady oppofition, by the fenfe of their
weaknefs and their wants. Thofe wants
ceafing, and that weaknefs being out
grown, it is not to be wondered at that
they greedily laid hold of that opportu
nity, whi9h prefented itfelf, of ftrength-
ening their force by the acceffion of a
body of malecontents in the mother-
country. T 4 The

2.Bo- Acts relatin<$j Fart 11,^
The watch- word given by thefe male-
contents, they eagerly caught and fpread.
abroad : a general plan of defpotifm, as
thefe malecontents believed, or wifhed, to
have believed, had beeri formed, and was
purfuiiig: and of this plan the' fuppofed
new and unheard-of projed of taxing A- .
merica Was invleghed againft as a part.
That this had been the language, both^
w:ithin doors and without, no body cai^
be ignorant: that the Americans were
blind to the affiftance they might derive
from a body thus openly efpoufing their
interefts, and leaguing themfelves on their
fide, Is what no body can fuppofe : that
they fhould be difpofed to wifh, and for
ward to exped, the downfal of a mi
niftry who oppofed their pretenfions ;
and the exaltation of one that ftood en
gaged to favour them, is what no body
can doubt : that they fhould fail to per
ceive that ads of outrage, manifefting^
their dillaffedion, muft contribute, to
the event they wifhed for, can hardly be
fuppofed*

Sed. XL TO THE Colonies, 281
fupppfed. The utmoft ftretch that poli-
tioal charity can make, is to .hope' that
thofe Englifhmen who encouraged the
oppofition of the Americans, by the ef-
poufal of their caufe, did not wifh to fee
any more inifchief done, any more out
rages committed, than what niight be ne-
ceflary to bring about a revolution, ac
cording to their notions fo defirable : and
that there might be fome- among them,
who, defireable as this revolution feemed
to them, might not think it worth pur-
chafing at any price. Among thefe laft,
let us hope to find our orator.
Be this as It may, thus much is indif
putable, that the Americans expeded a
change of miniftry; and that it was the
hope of contributing to a change, pfo-
mifing to be fo favourable to their preten
fions, that, encouraged them, if not to be
gin, at leaft to perfevere in their refiftance.
¦"' The expedatlon was fulfilled. A change
of the miniftry — from what caufe is not
material, did accordingly take place,.
The

2^2 Acts relating Part II.
The fhort period of the fucceeding ad^
miniftratiori deferves a particular atten
tion,' and happily no adminiftration ever
poffeffed a better hiftorian, pr a more abl^
apoiogift, had an apologift been want
ing to a minifter " who fought no apo
logy *".
This gentleman, " whofe fituation, he
'^ tells us, enabled him to fee as well as*,"
and whofe difcernment we cannot but
believe, enabled him to perceive rnuch
better thari " others, what was going on,
" did fee in the noble lord who then pre-
" fided at the treafury, fuch found prjnci-
" pies, fuch an enlargement of mind, fuch
*' clear and fagacious fenfe, and fuch un?
" fhaken fortitude," as might well give
room to hope, that if the empire could be
faved, it muft be by his hand. To the
gods, and to the citizens of London, it
feemed otherwife f. The
* Mr. Burke's Speech, p. 64.
* lb. p. 57.
t See their addrefs prefented to the king on

Se<3;. XL TO THE Colonies. 281
^he fituation in which the noble lorjl
ftood at this moment was, no doubt, " a
" trying one ;," — but it was furely a more
favourable one than that In which his pre
deceffor had ftood. A great part of the III
humour, arifing from domeftic caufes, had
fubfided. The minds of the people at
home were in a great meafure quieted.
The marquis, and his friends, flood clear
of the odium of unpopular meafures. The
city of London only excepted, the reft of
the riation was prepoffeffed in their favor.
The man, whPfe fufferings had excited
the ftrongeft popular difcontent, and whofe
talents were nicely calculated to put him
at the head of a fadion, was ready to fue
for pardon ; as he did afterwards fue for
pardori-td a great man who was then an
the 25th of. Auguft 1765. In which they fay,
" that whenever a happy ejlablifhment of public
" meafures fhall prefent ifa-uburable occafion, they
*' will be ready to exert their utmoft abilities in
" fupport of fuch wife councils, as apparently tend
" to rerider his majefty's reign happy and glo-
*' rious," affociate.

2% Acts relating Part II.
affociate, and afterwards fucceffor to the
noble' marquis.
This then was as favourable a moment as
eould well be hoped for ; riot merely to de
clare but to vindicate, and eftablifh on a
permanent foundation, the rights of the
Britifh parliament.
There are three points on which the.
Americans., pretended, that the miniftry
had grofly raifund.erftood, or wantoi|ly fsu-
crificed the interefts of .the.colonles-: tKeir
commercial regulat-ions,, , the fuppreffion
of their, paper rnoney, and paffing thfi
ftamp ad. Thefe then were the objeds
which demanded the Immediate attention
of the marquis. . - .,
' As to the firft of them> a fcrupulous at-.
tention to treaties with foreign ftates, and
a partial attachment to theletter of the na
vigation ads, had, it fhould feem, mifled
his predeceffor. The noble marquis we are
told, " faw his way clear before him :
*' though, on the orie hand, treaties and
" public law ; on the other, the ad of na-
•* vigation.

Sed. ISI. TO THE Colonies. 285
« vigation, and the wh^ole, corps .of trade
*' laws, were drawn, up in array againft
" him ; he knew " in fubftance," that
they were not dired;ly againft him. But
he did not choofe to "determine rafhly,"
he chofe to know as much " formally arid_
*' oflniclally." By way of form then the
attorney general's opinion was afked ; that
once obtained, " the noble marquis imme
diately difpatched orders for the redrefs of
thefe grievances^" Orders, it fhould feem,,
which, among other good , effeds, pre
vented the total ruin which was threa;tened
of the Spanifh trade.
Here then, one would think, v^as a vaft
^furid of popularity acquired in America r
an acquifition, one would have hoped,
that might have done " knight's fervice;"
might have conciliated the opinions and
affedions of men *.
As to the fecond of thefe objeds, the
f egylatiori of the paper money of the co-
'¦* lb, p, 61. '
•¦¦ lorries.

28(& Acts RferA-fiNG P5rt If.
lonies, this^ bufinefs was left ty the noble
marquis as he found It.
t)n the conclufion of the Spanifh bufi
nefs, the noble niarquls turned himfelf to
the confideration of the third of thefe ob
jeds, the fiamp ad. And " after weigh-
" ing the matter as its dIflScultles and im-
*' portance required," determined on the
repeal of it. And here it is, that the pa-
negyrift of this miniftry puts forth the full
lirength of his amazing powers. — " A
*' partial repeal, a modification, might
*' have fatisfied a timid, unfyftematic, pro-
*' craftlnating miniftry : " but the noble
lord, and his friends, were not aduated
*' by a weak and undecided mind : — by i
*' majority that will redeem all ads ever
*' done by majorities in parliament, in the
" teeth of all the old mercenary Swifs,
*• in defiance of the whole embattled legion
*' of veteran penfioners ; — fteadily look-
" ing in the face that glaring and daz-
*' zling influence, at which the eyes of
*' eagles oft blenched ; looking in the
7 " face

Sed. Xl. to THJE Colonies. 2^7
" face one of the ableft, and not moft
"« fcrupulous oppofitions : " and what l3
more than that, " even looking lord Chat-
*' ham in the face : whilft earth below
*' fhook, heaven above menaced, and all
" the elements of minifterial fafety were
*' diffolved ;" — they fought ; they con-
*' quered : they preferved the authority
¦" of Great Britain ; they preferved the
¦" equity of Great Britain : they made the
** declaratory ad ; they repealed the ftamp
" ad *."
My bofom burned within me as I liften-
ed to the orator, — " involuntary burft of
" gratitude and tranfport," broke from
me, I wondered only how the authority
*of tjreat Britain, having been thus mira-
"ktnihy preferved, fhould all at once be lofi
'again. I turned to the ftatute book : I found
'the repealing ad as full as words could
Tnuke it. 1 examined the declaratory ad,
* See Speech from p. 60 to p. 66. and

288 Acts relating Part If.
and It Is indeed a declaratory ad. It pre
ferved the authority of Great Brltainw
How ? By declaring it to be preferved,
,What elfe does It ? Juft nothing. — It exads
no recognition of that authority. It pre
fcribes no means of enforcing it. What
a vidory ! • what dangers furmountedl
what giants vanqulfhed ! I hope* the ora
tor will forgive me ; but I could not help
exclaiming with lord Grizzle to Dollal*
lolla, I tell you, madarn. It is all a trick.
He made the giants firft, and then he
killed them *.
At beft the noble lord miftook the ob
jed of his attack. He thought all was
don^ when he had out-talked and out
voted " an unfcrupulous oppofition :" this
was done, but was flothing that ought to
have been done procraftinated ? Was it
" fyftematic " wholly to take away the
* Tr.-igedy of Tragedies, or the Hiftory of Tom
Thumb. 6 tux.

Sed. XL TO THE Colonies. 289
tax, and declare our right to lay it ? to
tear up a tree which if watered might
have " yielded fruit," for no other pur
pofe than to *' plant what was called in
" America a barren yew, cafting.a noxious
" fhade over the colonies*?" Was it not
timid to affert at home a right, of which
he dared not exad a recognition on the
other fide the Atlantic ? Is not leaving
every thing ' to be decided hereafter, to
procraftlnate ? This vaunted ad '¦^ of fpirit
" and fortitude i^'' —^\ of fupreme magna-
" nimity," what was it after all, more
than the unmeaning rhodomantade of
ambaffadors, who ftyle their mafters kings
of France, or pf Jerufalem ? thefe titles
do. not fecure a foot of land : the declara
tory ad does not fecure an atom of autho
rity. If the colonies had objeded to the
ftamp ad on principles of expediency, on
mere commercial principles, it might have
* See Farmer's Letters, p. 77.
U been,

290 Acts relating PartIL,
been altered ; the oppreffive provifions,,
if any fuch there were, or even the whole
ad, might have been fafely repealed.
But the colonies now objeded to it on
very different principles: they denied
the rights of the parliament to tax them.
To repeal the bill abfolutely, totally, and-
unconditionally, was therefore to give up-
that right. To fay that fuch a repeal was
grounded on commercial principles, was^
it not nugatory? To affert -the right in
parliament, without infifting on a recog
nition of that right in the colonies ; with
out infifting even on the poor fatisfadlon-
of a refciffion of the colonial refolves a-
galnft the right, was this the ad " of fpirit
" and fortitude" fo much boafted of ?
What was he to do then ? Give up the
right ? This would be " cutting indeed
"the Gordian knot:" — though hardly
" with a fword :" not much " in the he
roic ftyle*." To yield requires little
* Sec Mr. Burke's Speech, p. 60, 61. he-

«c

Sed. XL TO THE Colonies. 291
herolfm. If the knot was to be xut by
yielding, the fciffars of a trembling fpinfter
might have done the work as well.
Was he to enforce the ad by fire and
fword? I cannot perfuade myfelf that fire
and fword would have been neceffary.
But I would fuppofe the noble marquis
and his friends to have been aduated by
greater views. I would fuppofe them to
have been anxious to follow the didates
of that " equity, by which we are bound
" as much as poffible to extend the fpirit
*' and benefit of the Britifh conftitution to
" every part of the Britifh dominions *."
This indeed would have been an objed
worthy of fuch a man as the noble lord's
panegyrlft has defcribed him. He had
official information, that there was no fixed
idea of the relation between Great Britain
and America. This relation fliould have
been fixed. The fupreme authority of the
parliament had been openly dirtied by the
* See Burke's Speech, p. 60, 61.
U 2 Ame-

292 Acts .Relating PartIL
Americans : this fhould have been afferted,
vindicated, and recognized.
The powers of the fubordinate legifla
tures were vague, and indetermined :
thefe fhould have been preeifely marked
out. The mode of taxation was difputed :
this fhould have been fettled.
The want of knights and burgeffes to
ireprefent the condition of the colonies in
the Britifh parliament, was the only ground
on which the equity of a parliamentary
taxation could be difputed : this fhould
have been obviated.
Inftead of obtaining any of thefe iiri-
portant points, what did he ? " He re-
" pealed the ftamp ad : he made the de-
" claratory ad;" that is, he gave up the
purfe at the firft word : and when the
fpoiler had carried it off, and was out of
fight, and out of hearing, he vauntingly
declared he had ftill a right to the purfe
if he chofe to claim it. Of this fort is the
7 *' fu-

Sed. XL TO THE Colonies. 293
" fupreme magnanimity'' fo magnificently
difplayed. But though this ad of fpirit, fortitude,
and magnanimity, fhould be found to have
done nothing toward fecuring the dignity,
or authority of Britain, the ad of concef-
, fion we are required to believe reftored
tranquility to the colonies — " They were
*^ quiet." What are we to underftand by
their being " quiet ?'' Is it only, that
having forced from us that which they
demanded, they were quiet till another
opportunity of refifting fhould prefent it
felf ?. — We allow the fad; make the moft
of it. Or are we to underftand by it, that
they were ready to fubmit to the principle
of the declaratory ad; to yield a ready
obedience to the other laws enaded by
Great Britain ? fo the orator feems to
. underftand th.e phrafe,, and undertakes
to prove, that they werjs " not only
" quiet, but fliewed many unequivocal
" marks of acknowledgment and grati-
*' tude :" he gives us every advantage : he
U 3 feleds

294 Acts relating PartIL
feleds *' the obnoxious colony of Maffa-
" chufet's Bay.'' He calls on us to hear
" how thefe rugged people can exprefs
" themfelves on a meafure of conceffion."
" If it is not in our power (fay they in
*' their addrefs to governor Bernard) in fo
*' full a manner as will- be expeded, to
" fhew our refpedful gratitude to the mo-
" ther-country, or to make a dutiful and
" affedionate return to the indulgence of
^' the king and parliament, it fhall be np
*' fault of ours : for this we intend, and
*' hope we fhall be fully able to effed."
This is quoted as the genuine expreffion
of their real fentiments, as originating
from themfelves *. — What then will be
the feelings of the reader, when he learns
that thefe pretended expreffions of thfc
Boftonians Y^ere no expreffions of their
own : that they are only re-echoed back
from the fpeech of the governor : that
the aiTi" bly refufed fo much as to take
int) confideration the very meafures tp
" Mr Eu.'ke's Speech, p. 75. which

Sed. XL TO THE Colonies, 295
which thefe words had been applied by
him : that the whole tenor of the addrefs
is perhaps one of the foureft, moft fullen,
moft furly, that ever was .prefented tp a
governor *. — Yet fome men fcruple not
to complain of " an unfcrupulous oppo-
" pofition !"
Might a minifterial advocate indulge
-himfelf in like liberties, he might fay with
this orator, changing but a fingle word,
" Thus are blown away the infed race of
^'¦faBious falfehoods! thus perifh the mi-
" ferable inventions of the wretched run-
" ners for a wretched caufe, which they
" have fly blown into every weak and
" rotten part of the country, in vain hopes
" that when their maggots had taken
" wing, their importunate buzzing might
>" found fomething like the public voice f.
* See the governor's fpeech, and the addrefs in
anfwer to it, in the Appendix to the Annual Re-
gifter, vol. ix. p. 176, 179.
f Mr. Burke's Speech, p.. 74.
U 4 The

296 Acts relating Part IL
The noble marquis refigned his place
to a noble duke, who had been a compa
nion of his battles, and a partner in his
vidories. The noble duke was affifted by
the chief, who had led " the phalanx'' in
the lower houfe, and " infpired even the
" meaneft of them with courage.'' — The
people's lawyer, the great defender of
Britifh and American libeity, held the
feals : and he, who was alone a hoft, not
only deigned to put the miniftry in ar
ray, but condefcended to take his poft
among them. No doubt he did It on
mature deliberation. lie could not haftily
give his confidence, " confidence he had
"before afferted in the houfe — was a
" plant of flow growth in an aged bofom.''
He was paft the feafon of credulity.
Who could have imagined, that In his
adminiftration, any fubjed of contention
could poffibly have arifen between Great
Britain, and her colonies. — Yet fo It
was. Very early in this adminiftra
tion, the demon of difcord again ftept
forth :

Sed. XL TO the Colonies. 297
forth : nor has any magician yet been
found to lay him.
Very early in the year 1767, the colony
of New York prefented a remarkable pe
tition, in which they fet forth, that not
withftanding the tender regard for their
happinefs, manifefted in the laft feffions
of parliament, " yet the commercial re-
" gulations then enaded, inftead of re-
" medying, had increafed, the heavy bur-
** thens, under which the colony already
"laboured*." Thefe regulations were
regulations made under the very admlnlf-r
tration of our panegyrlft's hero. So im-
poffible was it for that noble perfon, with
all his penetration, and all his patriotifm,
to perfuade this untoward people of his
being able to difcern their true intereft,
and willing to purfue them.
But if this colony could not bring itfelf
to approve the wifdom of parliament in
its commercial regulations, much lefs
* See Comnjons Journals, vol, xxxi. p. i6o. could

298 Acts relating Partll*
could It bear any application of the prin*^
ciple of the declaratory ad.
' Two years before, an ad had paft a-
mong other purpofes, for that of better
quartering his majefty's troops in North
America. The affembly of New York
did not like the mode prefcribed by that
ad : they therefore paft an ad of their
own, direding another mode, inconfiftenl
with the provifions made by parliament.
The parliament on this occafion deter
mined to inforce the principle laid dowri
in the declaratory ad, and vindicate its
power of making laws binding on the co*-
lonies. An ad was accordingly paft, fuf-
pending the affembly of New York, till
the provifions of the former ad fhould be
complied with *.
What Ideas the Americans entertained
of this exertion of power; what a conqueft
the magnanimous affertion of the decla
ratory ad had gained over them ; how
* 7 Geo, III. c. 59. fully

Sed. XL TO THE Colonies. 299
fully the authority of Britain was pre^-
ferved by it, was now apparent. " An
"ad of parliament, fay the colonifts*,
" commanding us to do a certain thing,
~ " if it has any validity, is a tax upon us
** for the expence that accrues in comply-
*' ing with it." Hence they argue —
" The affembly of New York either had,
** or had not, a right to refufe fubmiffion
" to that ad — If they had — and I ima-
^* gine, continues this writer, no Ame-
" rican will fay they had not — then
" the parliament had no right to compel
f them to execute it." ,
The Ideas of liberty are different on th«
other fide the Atlantic from thofe we eri-
tertain on the borders of the Thames.
Had " the crown by its prerogative ref-
'*'' trained the governor from calling the
" affembly together," all it feems would
tiave been well -f : but that parliament

* See Farmer's Letters, p. 8, g,
f See ib. p. 9, 10.

ihould

300 Acts relating PartIL
fiiOuld interfere, and punlfli an ad " of
'.' difobedience to the authority of the
" Britifh legiflature'' carries with it, " con-
" fcquences vaftly more affeding §."
And why fo ? — " Becaufe it is a parliamen-
" tary affertion of the fupreme authority
" of the Britifh legiflature, over thefe co-
" lonies In the part of taxation ;" — and
is intended " to compel New York into a
fubmiffion to that authority." One would
think then that a reftridion from the king,
under the fame circumftances, would have
been a royal affertion of the fupreme au
thority of the kmg over the colonies in the
part of taxation ; an affertion which to
Englifhmen would appear to have " con-
" fequences vaftly more affeding." — One
thing is unqueftionable ; that to " reftrain
" the governor from calling the affembly^''
till the affembly fhould comply with the
ads; to prevent their meeting till they
fhould have met, and done what was
wanted of them ; however pradieable It
§ See Farmer's Letters, p. g, lo. might

Sed. IX. TO THE Colonies. 301
might appear In America, is what would
appear totally impradicable in Eng
land. The principle of the declaratory ad was
'again called forth on another occafion.
The parliament found that the colonies
would not grant a permanent and ade
quate provifion for the charges of the ad
miniftration of juftice, and the fupport of
^clvll government : the ¦ houfe therefore
gave it in charge to their committee to
vonfider of -proper methods of making fuch
provifion *.
The very next day an order was made
to bring in a bill for enabling his majefly
to put the cuftoms, and other duties, in
the Britifli dominions in America, and the
execution of laws relating to trade there.
under the management of commiffioners
to be appointed lor that purpofe, and to
• be refident there f . In conformity to
* See Com. Journ. vol. xx.\"i. p. 392.
t See ib. p. 395. thefe

302 Acts relating PartIL
thefe two refolutions two ads -were
paffed *.
The ad for granting duties declares in
the preamble, " that it is expedient a re-
" venue fhould be raifed for making a
" more certain and adequate provifion for
" defraying the,charge of the admlnlftra-
" tion of juftice, and the fupport of civil
'*' government." The commons then go
on to give and grant certain duties on
glafs, red-lead, white-lead, colours, tea,
and paper. By way of compenfation, the
fame ad gives a farther encouragernent to
the exportation of coffee and cocoa-nuts,
of the growth of Britifli America.
The monies arifing from the duties im
pofed by this ad are appropriated. So
much is to be kept back, as fhall be found
neceffary to the making of a certain and
adequate provifion for the adminiftration
of juftice, and the fupport of the civil go-
* 7 Geo. IIL c. 41, and c. 46. vern-

Sed. XL TO THE Colonies,. 303
vernment, in the colonies. The refidue
is to be paid Into the king's exche
quer. Of thefe duties, that on tea was accom
panied by an exoneration, quadruple the
amount. The fum impofed by it is three
pence in the pound weight. But by an
other ad of the fame feffions, an inland
duty of one fhilling that had been paid
before is taken off„
The ad for . appointing cuftom-houfe
ofiicers, declares, that the officers who had
been appointed in virtue of an ad of
Charles the fecond, were obliged to apply
to the commiffioners in England for fpe
cial inftrudions in particular cafes; that
hence, all who were concerned In the
commerce of the colonies, were delayed
and obdruded in their comm.erclal tranf-
adions ; as a relief therefore to merchants,
and traders, his majefty is empowered to
appoint comiriiffioners of cuftoms, with
the fame powers as are exercifed by the
6 com-

304 Acts relating Part IL
commiffioners of the cuftoms in Eng
land. Thefe ads, moderate and conciliatory
as they appear, were received in America
with the fame abhorrence and indignation
as the ftamp ad. — The refiftance of the
colonies againft the ftamp ad was recalled
to memory : was propofed as a pattern. —
The fuccefs qf that refiftance is pointed
out by the moft popular of their leaders
as an earneft of like fuccefs, to a perfever-
ance in a fimilar condud *. At the fame
time they are cautloufly forewarned againft
that tumultuous fpirit which had accom^-
panied the laft refiftance, and which, if
fuffered to 'run its own length, might
have defeated its own purpofes,
¦X- See Farmer's Letter iii. p. 29. Do they (mean
ing the advocates for acquiefcence) fays the author,
" Do they condemn the condud: of thefe colonies,
" concerning the ftamp afl: ? or have they forgot
" its fuccefsful iffue ? ought the colonies at that
" time, inftead of ailing as they did, to have trufted
" for relief to the fortuitous events of futurity r"
The

Sed. XL TO THE Colonies. 305
;. >The diftiridion between internal and
external taxes, upon wliich the repeal of
the ftarivp ad had been contended for, was
now abandoned. A new ground was ta
ken. , The power of parliament to lay any
ta-kes whatever on the colonjes, was, flatly
and totally denied. The authority, nay the
very words of Mr. Pitt, though ading with
thevery miniftry who paffed this obnoxious
ad, were cited In fupport of this de
nial *.
In confequence of the fpirit rather than
the letter" of thefe inftrudions, the com
miffioners of the cuftoms appointed under
the ad were infulted and beaten ; their
hoiifes rifled ; their lives threatened. The
magiftrates looked on as unconcerned spec
tators, refufing all aflSftance f. It now ap
peared, that the ftamp ad or the tea ad
were In themfelves matters of indiffer
ence : that the queftion now was, whether
* See Farmer's Letter.iv.
t See Letters from Hutchinfon and Oliver.
, X the

3o6 Acts reIating Part. 11.^
the Americans were at all fubjed to the
fupreme legiflature of Great Britain *.
" That lenient meafures and foft fpeeches
" would not do with this people -f-."-^
That parliament rnuft either give up all
power of compelling the Americans to
contribute towards the fupport bf the
public burthens of the empire : or elfe
- muft fix a conftitutional mode of com
pelling them to fuch contribution; and
having once fixed it, mrift inforce it by
firm and unrelenting meafures.
Such was the fituiation of the colonies
at the diffolutlon of the twelfth parliament
of Great Britain.
* See Bernard's Letters, p. 42*
•J- See ib. p. 62,

PART

Sed. I. TO the Colonies. 307

PART III.
EXAMINATION OF TH,E ACTS PAST BY
THE THIRTEENTH PARLIAMEJSTT OF
GREAT BRITAIN RELATING TO THE
COLONIES.

SECT. L
Advantages of the periodical renewal of the
legifative body, Vfe which this parlia
ment might have made of theni in the
American affairs.
THE periodical renewal of the fu-
prenie legiflaiture of Great Britain,
is on all harids allowed to be a circum
ftance very favourable to the' people. It
puts into their hands the falutary power
of excluding thbfe from one branch of the
X 2 , . legifla-

3o8 Acts*rej.ating PartllL
ture, who fhall fiave been found unequal
to the talk, or unfaithful to the truft. By
an attentive exercife of, this power 'the
people may root up fuch evils as happen
to refult, not fo much from any vite in
the government, as from the bad inten
tions/ or miftaken views of individuals'.
They fhay dorred, or fortify the ptlndple
of the government without, endarigefirig
its effence.
But what is not commonly attended to,^'
this circumftance is fcarcely more favour
able to the people, than it is to government
itfelf. By a movement thus regular and
tranquil, the operations of governriient are'
facilitated, and its dignity preferved. When
the fovereign authority refts undivided in
a permanent un> hanging body, the diffi
culty of reformation is extreifie. An er
roneous fyftem once begun muft be per
fifted in; fince to recede from it would
carry that confeffion of fallibility vvhich
is fo galling to the pride of power. That
pride is an obftacle rarely to be furraount- ed

iSeft. I. TO THE Colonies.

309

cd. ' Not but that a reafon njlght be given
to juftify in fome meafure, as well as to
account for its pertinacity. The refped
and confidence of the people, are poffef-r
fions which no government, however def
potic, find it fafe to fquander, and call
away. The objeds of refped being j-ather
the perfons of the men in power, than
any principle diffufed through the corifti-
t-ution, whatever tends to dimiriifh that
confidence and that refped cannot but
have a dangerous effed. ' :
Our happy conftitution is free from this
incorivenience. The riltimate dependence
of the -people is placed not in this or that
body of men in office, but in itfelf. .One
parliament inay depart from the princi
ples of another parliament, and the ref-'
|jed to government continue the fame.
The politicai regeneration of the moft ae-
tive of the three bodies that compofe the
legiflature, is a palliative at leaft, amongft
Ptliercorruptlon's of arbitrary governments,
for that pf obftinacy. The new body, in-
X 3 . ftruded

310 Acts relating Part III.
ftruded by, though uninvolved in the mif-
carriages of that which perifhed, appears,
at its firft entrance into the world in the
purity of youth, with the expefrlence of
old age. The principles the ads of a
preceding parliament are nOt the princi
ples or ads of a fucceeding one, any far
ther than it thinks proper to adopt them.
To recede from the former, or to repeal
the latter, is no mark of levity or incon-
fiftency. It is only profiting by the er
rors of another.
Thefe are fome of the advantages which
every new parliament might enjoy. And
certainly the twelfth parliament of Great
Britain had been guilty of fome errors by
by which its fucceffor might have pro-r
fited. That parliament had laid down fome
principles which corild hot be maintained :
had paft fome ads which could not be
juftified. This we may affert without he
fitation : for it had laid down principles,
and paft ads, contradidory to each other. It

$ed. I. TO THE Colonies. 311
It laid It down as a principle, that it was
expedient to raife a revenue in America:
it paft an ad in confequence of thiis prin
ciple, without having fufficiently, or in
deed at all, prepared the Way for its recep
tion. It then abandoned the principle,
and repealed the ad, wltl^out doing any
thing effediial for the fupport of its own
dignity, or the recognition of -its own au
thority. It then again recurred to its firft
principle, and paft another ad in confor
mity to it", without having taken a fingle
ftep towards obviating the augmented dif
ficulties that now ftood in the way of its
reception. — Hence a matter, not yet clearly
underftood, was involved in greater per-,
plexity : and an enterprize which, at any
time required great fkill and addrefs to fuc-
' ceed in, Was rendered tenfold lefs eafy of
execution. But ori the other hand, from the colli -
fion of thefe different' plans, lights, had
" been ftr'uck out which niight ferve to
^' •: ,2^ 4 guide

312 Acts relating Part IIL
guide a new parliament through the laby
rinth, which this very diverfity of plans
had rendered fo intricate. 'The very
works which each party had thrown up
in its own defence, were fo many vantage
grounds, from whence a new- parliament
taking a comprehenfive view of the counr
try ,all around, might have direded its
meafures with a certainty of fuccefs.
The great objeds before the parliament,
were to fix the relation between Britain
and her colonies : to examine into the
right of the Britifh parliament to impofe
taxes on the colonies : to enquire whe
ther it was grounded on the conftitution:
if it was not, to give it up : If it was,
to affert it ; and regulate and fix the
mode in which it fhould be exerted : to
confider whether the prefent were a fea-
fonable time : to poftpone accordingly,
or give prefent effed to fuch regula;tions
for that purpofe as fhould be concluded
on ; and then to doj what after the fet^-
tilng

Sed. I. to the Colonies. 2i2
tling of thefe moft contefted points would
have followed as of courfe ; to fix on pro
per regulations for vindicating the unlimit
ed fupremacy of the Britifh parllamerit in
all points whatever.
Whether this parliament attained all,
or any of thefe important objeds, will beft
appear from Its own ads.

SECT.

314 Acts relating Part IIL

S ^ C T. IL
proceedings of the fecond feflions of the thir-
teenth parliament.
TH E firft feflions of this parliament
was very fhort, and, except the
paffing the corn ad, and' continuing the
expiring laws, was wholly taken rip in
the choice of a fpeaker, adminiftering the
©aths tp members, and taking fuch other
arrangements as are taken of courfe by a
new parliament, for the unfolding of Its
powers. It was the fecond meeting that was the
firft of bufinefs j and that of America, as
might be expeded, took the lead.
The feffions was opened by a fpeech
from the throne, in which his majefty ex
preffes " his, concern that the fpirit of
" fadion had broken out afrefh in fome of
*' his colonies in North America ; and In
" one of them had proceeded even to afls of

Sed.IL TO the Colonies. 315
** of violence, and refiftance, to the exee.u-
** tion of the .la-.v," — The parliament is
told, " that the capital town of this colo-
*' ny had proceeded to meafures fubverfive
*' of the conftitution ; and attended with
*' circumftances that manifefted a difpofi-
" tion to throw off their dependence on
« Great Britain."
The houfe in return anfwered his ma
jefty, that they participated with him ip.
"¦ the concern he felt at feeing " that the arts
" of wicked and defigning men had re-kin-
*' died the flame of fedition in America;
*' that they fhould ever be ready to hear
" and redrefs ahy real grievance of his^ ma-
^^ jeflfsfubjeBs in America, but would ne-
'' ver betray the truft repofed in them- ;
** would always confider It as bne of their
*'. moft important duties to maintain in-
*' tire and inviolable, the fupreme autho-
*' rity of Great Britain over every part of
" the Britifh. empire."
So far all was well. To affert the fu
preme authority of Great Efitain over the
colo-

3i6 Acts relating Part IIL
colonies 'feemed due tp their own dignity;
to promife a redrefs of real grievances, if
any fuch, fhould be found, was due to their
oWn juftice.
The firft ftep towards afcertalning the
bounds, if any bounds there be, to the au
thority of parliament over the colonies^
was to enquire into the powers and ex
emptions which had been originally grant^
ed them- Before the houfe could proceed
to the redrefs of grievances. It was necef
fary, that it Ihould know, if any griev
ances did exift; arid then fropi what
fource it was they proceeded.
-It feemed, therefore, a very proper mo
tion, that all letters patent and charter:^,
that all commiffions, orders, and Inftruc^^
tions Iffued by the crown, that all officia,!
letters and affidavits, received from Ame
rica fince the firft rife of the difturbances
complained of, fhould be laid before th(;
houfe. And one cannot fee v/Ithout a
mixture of vexation and furprlfe, that fuch
a motion, without any amendment or
expla-

Sed. IL to the Colonies. '317
explanation being offered, paffed abfo
lutely in tiie negative *.
The doquments thus moved for, ftand
dlftributed, we may obferve, into thfee
claffes. The firft contains fuch as were
proper to be confideted with a view to the
queflion of the right : the fecond, fuch as
were proper to be confidered with a view
to the policy, that had been hitherto ob
ferved in the eriforcemerit of it : the third
was to furnifh fuch evidences of the tem
per of the people as feemed neceffary, with
a view to the policy that fhoul4 be obferved
in future.
To with-hold the firfi was very confiflent
I in thofe who, fatisfied with the determina
tion of the preceding parliament, wifhed
not to enter Into any frefh difcuflions. The .
misfortune here is, that the determination.
of that preceding parliament had been made
without any regard to thofe feemingly ne
ceffary materids.
* See Com. Journ. vol. xxxii, p. 92, 93, With

318 Acts relating Part III,'
With refped to thofe^ of the third clafs,
thefe agairi are diftinguifhable into fuch
irifoi-matioris, relatloris of matter of fad,.
or expreflions of opiriion, as had been
communicated by the governors of the re
fpedive colonies, and fuch as had been
communicated by private perfons. ^ With
refped to the latter, it might be alledged,
and it fhould feem with juftice, that to
make them public would be to facrifice the
informants to the fury of a people not very
backward to take revenge, nor very deli
cate in the mode of taking It ; that the con
fequence, in regard to the informant;
would be the deftrudion of a number of
perfons, for what, with refped to this
country at leaft, could not but be deemed a
merit ; and in regard to the public that no
information would ever be given In fu
ture *.
* An obvious expedient is to leave the names in
blank ; but this would not hold good in thbfe cafes
where the nature of the intelligence is fufficient to
betray the perfon who has furnilhed it.
7 As

Sed.IL TO the Colonies. 319
' As to the goverriors, it could not, I think,
be faid, that the duty of their ftation would
not excufe therii, in fome degree at: leaft,
even among the moft violent malecontents;
or that the refped habitually paid to that
ftation would not proted them from the
fate of inferior informants ; and as to o-
. dium, they fhould not have accepted their -
trufts, urider any other terms, than that of
being ready to bear fo much of it as was in
cident to the difcharge of their duty.
With refped to the fecond clafs of docu^
ments, I wifh it may be poffible to produce
any juftifiable reafons for withholding //i^/".
I am fure I know of none ; and it feemed
Ho aufplcious omen of the charader of the
riew parliament, that it fhould be difpofed
to acquiefce implicitly, and without exami-
riatlori in the meafures of. the miniftry.
Garbled and cad rated documents, are no
-documents at all. The end of judicial ex
amination is, if neceffary, to cenfure ; and
what chance can there be of cenfure refult-
ing from informations, which thofe who
would

320 Acts relating Part III.
would be the objeds of it are at liberty to
feled, need not be obferved. - .
Some papers, however, fuch as men
in place thought proper to produce,
were laid before the two Houfes. And
upon the information contained in' them,
feveral refolutions were formed. The pur
port of them was to reprobate as illegal,
and unconftitutional, the refolves of the
Houfe of Reprefentatives of Maffachufet's
Bay, calling in queftion the fupreme au
thority of parliament : to cenfure, as tend
ing to inflame the minds of the people*
and to create unlawful combinations, the
letters written by that aflembly to the other
affemblies on the continent, inviting them
to join in petitions, which called the fu
preme authority of parhament in queftion :
to record that riots and tumjults of a dan
gerous nature, had lately happened in the
province of Maffachufet's Bay ; to blame
the council, and other civil magiftrates for
not properly exerting their authority for
the fuppreffion of thefe riots : to affert the
confequent

Sed. IL TO THE Colonies. 321
confequent neceiTity of employing the irii-
litary in fupport of the civil magifirate *,
and the officers of the revenue : to repro^
bate the refolutions of the town-meetings
at Bofton, and their appointment of a
convention, which laft ad is termed a dar
ing infult on his majefty's authority, and
an audacious ufurpation of the powers of
government f .
Thefe refolutions were followed by art
addrefs to the king, in whieh the meafures
already taken by him to fupport the confti
tution, and to induce a due obedience to the
authority of the legiflature are approved i
affurances of effedual fupport are given,
and his majefty is requefted to dired the
* There is fomething father fingular in the
ihanner of drawiYig Up thefe refolutiohs. If the
cafe was as ftated in the preceding refolution,
that the civil magiftrates did not exert them
felves J it was not fupport they wanted, but incli-
natibn. If inclination, it was fcarce expeSed, 1
prefume, that the ihilitary fhould create it.
> t See Com. Journ. vol. xxxii. p. 107, lo8<
185, 186. Y go ver-

322 Acts RELATING Part IIL
governor of Maffachufet's Bay to procure,
and tranfmit, the fulleft information touch
ing all treafpns, or mifprifions of treafons,
committed fince the thirteenth of Decem
ber 1767, in order that his majefty might
iffue a fpecial commlflion for trying the
faid offences within this realm, purfuant tp
the ftatute of Henry VIII *.
This proceeding has been the fubjed of
much cenfure ; nor is it to be wondered at.
The objedions againft it are plaufible :
thus at leaft I am bound to believe, who
once was fwayed by them. A more atten
tive confideration has obliged me to alter
my opinion.
The ftatute. It has been faid, was made
before any colonies exifted ; it could not
therefore have the cafe of the colonies in
contemplation. To refort to It therefore
as a warrant for trying men for treafons,
?illedged to have been committed in the cor
lonies, . is a perverfion of the law ; a per.-
* 35 Henry VIII. c. 2. Com. Jouyn, vol,
xxxii, p. 108. Anno 1768. verfion

Sed. IL TO THE Colonies. 323
verfion the more wanton, becaufe com
mitted by thofe very perfons, to whom, if
a law for the purpofe had been advifeable, it
belonged to make one : " Durum eft tor-
*' quere leges, ad hoc ut torqueant homi-
*' nes *." Whatever is to be done to the
men, let the laws at leaft efcape untor-
tured. — Yet more :r— Confider the pream
ble of the ad, ^nd nothing will appear '
fo monftrous 'as this application of it. The
treafons fpoken of in the preamble, the trea
fons confequently which, , and which alone
it was the defign of the ad to put in a
courfe of trial, are '^ treafons " committed
*' out of the .king's dominions." To ap
ply this to the cafe of treafpns coniniltted
in Maffachufet's Bay, vvhat is it but to de
clare that Maffachufet's Bay is, not within
the king's dominions ? This is going far
ther in favour of American pretenfions,
than even the mofi fanguine American ever
* Lord Bacon, De Angm. fcient. lib. viii. c.
3. Aphor. xiii. Y 2 dreattit

324 ' Acts relating Partlll.
dreamt of going. The utmoft that any A-
merican ever thought of maintaining, was,
that Anierlca was out of the dominion of
the Britifh parliament. In all the paro-
xyfms of party-rage, no one ever thought
of maintaining that America Is out of the
dominions of the king. Here then have
you gone to work, and cut the ground
from under you; and in the waywardnefs ,
' of vour cunning, and the bllndnefs of your
zeal, blundered out a parliamentary recog
nition of your own injuftice and ufurpa
tion. — Nor is all the venom of this infidi-
ous proceeding apparent on the face of
it. The main purpofe of it, which it was
refolved to accompUfh, though it dared not
to avow, was to give fandlon to meafures
that were concerted by the miniftry, for
feizlng obnoxious perfons in the colonies,
and tranfporting them over to England : a
meafure too odious to be trufted to open
debate ; too unpopular to be warranted by
a law, to be now made for it on purpofe ;
too atrocious even to have entered into the
breaft

Sed. II. TO the Colonies. ' 325
breaft of the arbitrary monarch upon
whom it is now attempted to be fathered,
Even that defpot, under all the anxiety
which dida^ed the extenfiOn of the penal
ties of treafon to ads done out of his do
minions, thought not of punifhing them
any otherwife, than in the perfons of fuch
as fhould happen to be found in this his
kingdom ; for as to bringing over by
force perfons refiding out of it, no fuch
power is given : that power is now, it
feems, by fome forced and unnatural
conftrudlon, for the firft time to be at^
fumed. To thefe arguments,- as being once my
own, I hope I have done no injuftice. The
anfwer that might be, and was I fuppofe
made to them, feems notwithftanding fa-
tisfadory. " . .
The preamble, without doubt, may be,
and fometimes is of ufe In direding us,
when the words are ambiguous, to the
ipeaning of a ftatute, as nien pught to
give attention to all circumftances that
Y 3 proinife

326 Acts relating Bart IIL
promife to throw light upon the inten
tions of a legiflator when they are ob-
fcure. But it neither is * nor ought to be
a rule of law, when the preamble fpeaks
of a particular cafe, and the enading part
eftabllfhes a general provifion, that the
amplitude of the enading part be limited
by the narrownefs of the preamble. It is
in the preamble generally that we find an
intimation of the particular inifchief that
called forth the exertion of the legiflator's
will : it is the body of the law (that is, the
only part of the difcourfe to which with
propriety belongs the name of law) that
contains the provifion made againft mif
chiefs of the like kind In general. The
views of legiflators, it is to be confeffed,
have been apt in general to be too con-
traded ; they have been too apt to con
tent themfelves with applying a particular
and narrow reniedy to the individual mif-
chief that happened to have ftruck them,
* See Bacon's Abridgement, Title Statute, and
half a dozen authorities tlier-e cited. But

Sed.IL TO THE Colonies. 327
But if by good fortune they have done in
one inftance what they ought to do in all,
and given to the expreffion of their will
that generality which is capable of ex
tending the remedy to other fituatlons of
things than that particular one, in which
the Individual inifchief happened to fpring
up ; it neither ought tO be, nor has It been
the rule, that the providence or felicity
of preceding legiflators fhould be fruftrat-
ed by fucceeding interpreters. Too much,
indeed, w,ould it be to fay, and very hard'
upon the unlettered fubjed, were he never
to know" what obedience he fhould pay
to a law, unlefs he knew the hiftory of
the times it paffed in.
The ftatute in queftion feerris to have
been by no means ineonfiderately penned ;
it points in the preamble to fome in
dividual cafe or cafes, as having been the
occafion of that general provifion which it
was prepared in the body to eftablifh..- It
fpeaks of " doubts that had been moved
*? ooncerning certain kinds of treafons, &c,
Y4 "and

328 Acts relating Part IIL
«? and thofe committed not only out of
*.' the king's realm of England, but out
*? of other his grace's dominions, that
*f thefe could not be determined or, en- '
*f quired of within his faid realm of Eng-
*' land." Thus particular is the preamble:
the enading part is full and general, and
meaning, as It fhould feern, to do more than
niake an ex pofifaBo regulation, meaning
, to eftablifh a, perriianent^r(9t;£/7(5«; it fpeaks,
of offences, not only fuch as were '' 2\-
*.' ready made and declared treafons," and
fo forth, but fuch as fhould be hereafter
made, and declared fo,- by any the laws
of the realm (meaning the common law)
or ftatutes ; and here the words, " other
'' his grace's dom'tnidnsf-^ are dropped der
fignedly, and confiderately dropped (as I,
feeing other marks of defign and confidera
tion, cannot but fuppofe), in order to
give that amplitude to the provifion in re
fped of territory, which by the word
hereafter, it was unqueftlonably meant
to giye it in point of time : and it is then it

Sed. II. TO the Colonies. 329
it goes on, and fays, that all fuch " trea-
*^ fons, &c. fhall be from henceforth en-
?' quired of and determined before the
"juftices of the King's Bench, by a. jury
*' of the Ihire where the faid bench ihall
V fit, or elfe before fuch commiffioners,
*' and in fuch fhire of the realm as fhall
"be afligned by the king's commlfllion,
^' and by a jury of the fame fhire; and
*' this, in like manner and form, and to
H all intents and purpofes, as if fuch trea-
*^ fons, &c. had been committed within
',* the fame fhire where they fhall fo be en-
*' quired of and determined."
It is true, that at that time there were
no Englifh colonies in America ; but it is >
alfo true, that America then, as now, was
out of this realm of England, and confe
quently by the letter of the ad, treafons
thereafter committed there, might be
tried as if committed here.
It is alfo true, that though there were no
dominions of the king at that time in Ame
rica, yet there were dominions of the

330 Acts relating Partlll.
king, which as the American dominions
are now, were dominions of the king, al
though out of " this his realm of England."
There were the iflands of Jerfey, Guern*
fey, Sark, and Alderney, parcels of' the
duchy of Normandy ; there was the town
of Calais, parcel of his realm (as it is call
ed) of France. If America has courts of
its own now-, in which treafons there com
mitted may be tried, fo had Calais, and
the iflands then ; yet it is plain, that for
treafons committed in Calais, or in- the
iflands, a man might, by virtue of that
ad, have been tried in England, . becaufe
the ad provides for the trying in England ,
of treafons committed wherefoever elfe a
treafon can be committed, fince there is
no exception. For the fame reafon, there
fore, it cannot but be underftood to have
provided for the trial of treafons commlt-
ed in America. Thus much as to the
trial of the cririies in queftion ; the taking
order for which was the avowed and
fpecified

Sed.IL TO THE Colonies. 331
fpecified objed of this proceeding of the
two houfes.
As to the meafure of bringing over the
offenders; this, though .not fpecificaliy re
commended by the addrefs, is alledged
to have been in contemplation of thofe
who framed it ; and, it muft be confeffed,
that nothing can be more natural than to
fuppofe it was ; but for what reafon .? be
caufe, it is appai^ent, that without this
meafure, the other could not in thp na
ture of things, I will not fay have any
effed, but could not be fo much as put
in pradlce. To think of fuppr effing an
infurredion, or putting a ftop to a courfe
of treafonable refiftance prevailing in Ame-.
rica, or in the Norman ifles, by thepunifh-
ment of fuch of the perfons concerned in
it, as fhould from time to time come vo
luntarily and offer their heads to be cut
off in England, is what no man in his
fenfes could propofe to himfelf; yet fure
ly, from any thing the ad has faid, there
is no good ground for prefuming the
penners

332 Acts RELATING Part III.
penners of it to have been Otherwife than
in their fenfes. This one fliould have
thought might have led the objedors
to fufped, that the exprefs mention of the
power of arrefting, and bringing over,
was not fo neceffary to be made, either
by thofe who framed the ad, or by thofe
who recommended it to be enforced. If
the power of arreftfng for treafon is vir
tually and implicitly given by the provi
fion that gives a power of trying for trea
fon ; given in this inftance, as in any
other, virtually, implicitly, and of courfe;
to give it by exprefs words is at beft un
neceffary : it is perhaps nugatory ; to fay
nothing of its being impolitic, which is a
matter of diftind con ll deration. Now that
this power was thus given ;s what feenis
to be the cafe.
A general and well known maxim of
law is, that vv'here a right or power is
given, every thing Is given that is necef
fary to the exercife of it. A more parti
cular rule pf law, applied to felpny (arid
1 all

Sed. IL TO THE Colonies. 333
all treafon is felony) is, that every ftatute
making that fort of ad felony, which was
not fo before, eftabllfhes, ipfo foBo, all
thefe acceffary provifions, which are ia-
cident to the main provifions againit
felony eftablifhed by common law*.
Without faying ariy thing of accomplices,
it fubjeds the accomplice to the puuKh-
ment to * which accomplices in original
common law felonies are fubjed : it fub
jeds both principals and accomplices to
the penalties of forfeiture and attainder,,
without faying any thing about forfeiture
or attainder : a fortiori, it muft be un
derftood to eftablifh that mode of profe-
* " As to the fecond point, viz. what is, \m-
•' mediately implied in every ftatute making aa
*' offence febny, it feems clear (lays Hawkins)
""'that every fuch ftatute does by neceflajy,c©nfe-
" quence fubjeft the offender to the like attaiiuler
"^ forfeiture, &c. and alfo does require the like
" conftruiftion as tq thofe who fliall be accounted
" acccflaries before or after, and to all atber intenti
" and purpofes, as are incident to a felony at com-
*' mon law." Hawkins, b. i. ch. iv, fe£t iv. r 11 tion

334 Acts relating Part IIL
fcutlon, which' is in ufe for felony, al
though it fays nothing of any jnode of
-profecution, a fortiori, ftill muft It be un
derftood to eftablifh thefe firft fteps,'
which are purfuable in every profecution
for felony, where it authorlfes by expre;fs
appointment others that come^ after them.
What inftance, in fhort. Is ¦ there of a
claufe in any ftatute to warrant the arreft
ing of a perfon for a felony committed
againft that or any 'other "ftatute? I verily
believe none : certainly not many; yet
was it ever thought that for fuch felonies
meri were not arreftable ?
By the common law, therefore, perfons
committing treafons in America may be
arrefted there. By the ftatute law, viz, by
the ftatute we are fpeaking of, they may
be tried here. Was it neceffary to fay
that being to be tried here they fhall. be
brought here f I think hardly. There
would be no end of legiflative babbling,
if men muft be eternally fpecifying what
is neceffarily implied. If this power then of

Sed.IL TO THE Colonies. 335
6f bringing offenders over, is a power that
followed neceffarily and of courfe, from
that of putting them on their trial ; if it
was not neceffary to be mentioned even in
a law. at large, to what purpofe it fhould
have been fpecified in a fhort and general
addrefs, is more than I can fee. And if,
however neceffary, it was formidable and
¦unpopular, I fee not why that fhould have
been a reafon for bringing it into view.
*« But the apphcatlon of the ftatute ; of
, *' this power, and every thing elfe belpng-
*' ing to It, if not illegal, it has been faid,
*' would be harfh ^nd cruel: as a meafure,
" therefore that would not, and perhaps
*' ought not to be borne, the recommen-
*? dation of it was Impolitic. Are there
*' not courts of criminal jurifdidion- iri
" America? — 'Profecute in them." — "Pro-
" fecute in America for the treafons of
•' America!'' This a man may bring him
felf to put on paper; becaufe'* the paper
fliews no blufhes. But that any man
fhould be able to fay this in a firm tone,
8 and

336 Acts relating Part III.
and with a fteady countenance, is more than
I can conceive.
The Golden Legend, or fome other hff-
tory equal authentic, fpeaks of a time when
this might have been done. It was a time
brought into remembrance by an ingenious
pleader *, at an xra when thefe authorities
were in high repute for the purpofe of
proving what a man in thofe days would
not have thought of proving^ from any
other than fuch authorities ; that a ifian
may without inconvenience be judge in
his own caufe. A certain pope, infallible
as all popes are, was by fome ftrange ac
cident found to have done fomething that
he ought not to have done. This put
men in a great , perplexity. For who
fliould judge the judge of judges, God's
lord lieutenant upon earth ? the cardinals
being the next perfons in the world, he
wanted the cardinals to judge him. — No—**
* See a paflage of the Year Boots, cited in Hi.
Blackft. Comi^. c. 20, p. 299, they

Sed. II. TO THE Colonies. 337
they begged to be excufed. What is to
be done then ? faid the pope. To be done ?
replied the cardinals. Why you muft e'en
judge yourfelf. Agreed, faid the pope. I
fentence myfelf to be burnt ; and burnt he
was accordingly. For fo generous a piece
of complaifance, the leaft thing they could
do was to make a faint of him ; and a faint
he was. But the Bofton faints are not of
this ftamp.
Thus much as to what was done in this
feffion towards maintairiing the authority
of Great Britain. But parliament had pro-
feffed, that it would be ready to redrefs the
grievarices ofAmerica.
To be ready at all times to hear com
plaints of grievances, is no more than one
expeds from a Houfe of Commons. They
had been at the pains, we fee, of exprefsly
profeffing fuch a readlnefs on this particu
lar occafion. After thefe profefliOns, when
complaints were preferred, if couched in
decent terms, it was natural to exped that
a decent attention fhould be paid them.
Z ' Yet

3,38 Acts relating Part IIL
Yet a petition from the major part of the
council of Maffachufet's Bay was near be^
Ing rejeded, becaufe It was not paffed in a
legal affenibly of the council; though the
diffolution of the general court rendered
it impoffible to addrefs the houfe In their
le jiflative capacity. — It was at laft received
as a petition from the individuals who
figned it. But though couched in very
moderate terms, and glancing only ob
liquely at the want of conftitutional right
In the parliament to lay internal taxes on
the colonies, it was ordered to lie upon the
table *.
A petition from the agent of Maffachu
fet's Bay, and a reprefentatldn from the
general affembly of New York, were of
fered to the houfe. But as thefe addreffes
diredly denied the right of taxing, they
were with better reafon rejeded.
Towards the clofe of the feffions, a rno-
tion was made, that the houfe fhould re-
* See Com, Journ. vol. xxxii p. 136, ij/. folvc

Sed. II. TO THE Colonies^ 339
fOlve itfe'f into a committee, iri order to
take the laft American ad into confidera
tion. The defign was, as it feemed, tO
pave the way to a repeal of the ad. But
the motion was over-ruled *; and in a man
ner rather flighting, by calling for the or
der of the day.
In the fpeech which clofed the feffions,
his majefty thus addreffes himfelf to his
parliament. — " The meafures which I had
^' taken regarding the late unhappy dif-
** turbances in North Ame ilea, have been
*' already laid before you. They have
" received your approbation, and you
*' have affured me of your firm fupport ini
*? the profecution of them f ."
What approbation was due to the mea
fures ta^ken by his majefty, I pretend not
to determine, But furely the meafures
takeri by parliament during this feflionsi
afford not much fcope for panegyric
* See Com. Journ. vol. xxXii. p. if^U
\ See lb', p. 453. Z 2 Plro-

34<3 Acts relating Part IIL
Promifes had been made of hearing and
redreffing grievances : v^hen the time came
they would fcareely hear complaints of
grievances. Promifes had been riiade of
maintaining the fupreme authority of
Great Britain : the way thefe 'proiriifes
were fulfilled, was by invefting his majefty
with a power, which, iaccording to them,
he was invefted with before. What elfe
did they do ? juft nothing. Things were
left in the fame ftate of uncertainty and
confufion at the end as at the beglriniflg of
the feffions.
If parliariierit was backward in fpeaking
out, the fame could not be objeded to the.
miniftry. It Was no longer than five days
after the prorogation of parliament, that
a circular letter was written by lord Hillf-
borough, then fecretary Of ftate for the co
lonies. In this letter, after reciting the
fubftance bf the king's fpeech, the fecre
tary fays :
"I can take upon me to affure you,
•' notwithftanding infinuations to the con-
.8 «' trary,

Sed. II. TO THE Colonies. 341
1
" trary, from men with fadlous and fe-
" ditious views, that his majefty's pre-i •
*• ferit adminiftration have at no time>
'* entertained a defign to propofe to par-
" liamerit, to lay any further taxes upon
*• America for the purpofe of raifing a
" revenue ; and that it is at prefent their
f' intention to propofe, in the next feffions,
'' to parliament to take off the duties upon
"glafs, paper, -and colours; upon con-
" fideratlon of fuch duties having been.
" laid contrary to the true principles of
" commerce *."
I cannot affent to many of the fevere
Elridures which have been made upon this
letter. — It is unfair to call it, as it has
been called f " the promife of a peer, re-
¦' latlve to the repeal of taxes." — The letter
vas written officially ; by a fecretary who
indeed happened to be a peer. But whofe
was the promife ? the promife not of the
beer, but of the fecretary. Nor is it a
* See Buike's, Speech, p, 24, 25.
_ t lb. p. 26.
Z3 pro-

342 Acts relating Part III.
promife to repeal a tax ; but a promife
only that the repeal fhall be propofed tq
the houfe. Nor does it imply, as it has
been faid to imply *, " that the idea of
"taxing America for the purpofe of raif-
" ing a revenue, is an abominable pro-
" jed.'' — Nor does it rejeB the principle,
or deny the right, of taxing for a revenue. '
It declares only, that it is not the Inteni-
tention of the prefent miniftry to propofe
the making of any further ufe of that
right: to exert it by the impofition of
any new tax : it promifes only, that the
miniftry will endeavour to obtain a repeal
of part of the duties impofed on that
principle ; not becaufe the principle wa§
falfe, but becaufe the right had in this in
ftance been fo exerted as to violate another
fet of principles ; the principles of com?
merce. — Thefe mif-ftatings however are not
uncommon with *' unfcrupulous oppofij
V tions.'^ f Mr. Burke's Speech, p. 27.

^ed. IT. TO THE CoLONffiS. 343
But In vindicating the letter from un
juft cenfures and unfair conftrudions, it
is Impoffible not to eonfefs that the writing
of fuch a letter, at fuch a tiriie, feemed on
many accounts reprehenfible. A ftrange
•flight feemed to be put upon parliament.
Sentiments appear to be attributed to it,
not only which it had not manifefted, but
diredly oppofite to thofe which it had ma
nifefted. If it was the opinion of par
liament to repeal the duties, how came a
motion made for that very purpofe to be
rejeded ¦?
By this letter, fubj-eds were taught to
await their deftiny, not from the refolves of
parliament, but from the good pleafure of
the crown. With parliament every thing
w.as to originate, which carried the face
«©f feverity ; with the miniftry, every thing
Xif grace and favour.
That the refolutions made by parlia-
anent, and the plan announced in the let
ter of the fecretary, were at leaft difcor-
dant, will, I think hardly be denied.
Z 4 What

•244 Acts relating Part. Ill,
What conclufions would the colonifts draw
from thence ? either, they would fay, par-
liament in the next feffions will controul
the minifter J and then no faith Is to be
given to the projnifes held, out in this
letter : or the minifter will manage par
liament, and then we may laugh at its
thunders,; in vain it points them : the mi
nifter will not fuffer them to be hurled.
Whether of the two conclufions was
drawn, the effeds of the letter could not
but be hurtful. On the one hand the mi
niftry, on the other the parliament, was
brought into difgrace.

SECT.

Sed. IIL TO THE Colonies. 3.45
SECT. IIL
Proceedings of the third feflions.
THE effeds of the letter mentloried
at the end of the laft fedion, appear
to have been preeifely fuch as might have
been expeded. It feems to have been at
tributed, as well It might, to the fears of
government. The authority of parlia
ment was ftill more defpifed : the preten
fions of the colonies rofe ftill higher. No
thing lefs would now ferve them, tp judge
from the difcourfe of one of their leaders
in Bofton, than the total repeal of all the
revenue ads from the fifteenth of Charles
II. This leader muft, incomparlfon of the
reft, have been a man of fingular modera
tion, not to fay a falfe brother : fince If
we may believe an officer of rank of that
province., writing frorii New York*, it
* See Hutchinfon and Oliver's Letters, p. 38,
39- was

34^ Acts relating Part IIL
Was by this time univerfally underftood in
the laft mentioned place, that not thefe
ads alone, but all ads of parliament what
foever, made concerning the colonies,
were ipfofaBo Void ; all exercife of par- '
liamentary authority over them, an ufurp
ation ab initio. " That they were bound
" by none made fince their emigration,
*' but fuch as they chofe to fubmit to for
''' their own convenience :" that is by none
at all.
In this fituation were the affairs of
America wdien the third feffion of this
parliament was opened by a fpeech from
the throne, which muft now be mention
ed. In this fpeech his majefty * begins with
recommending to the ferlous attention of
his parliament the ftate of his government
in America. He declares that he had en
deavoured on his part, by every means, to
bring back his fubjeds there to their duty,
* Jan. 9, 1770. and

Sed.IIL to the Colonies. 34^
ai;i4 to a due fenfe of lawful authority ; but
he adds with conc.ern, that his endeavourg
had not anfwered his expedations ; that in
fome of his colonies many perfons had
embarked in meafures highly unwarrant
able, and calculated to deftroy the commer
cial connedion betweeq. them ^nd the mo--
ther- country.
This fpeech, compared with that which
had opened the preceding feffion, cannot
but appear extraordinary. In that we had
been told of" a ftate of difobedience to all
*? la\y and government " prevailing in one
" of the colonies ; of " a fpirit of fadion"
being prevalent in more ; of circumftances
that " manifefted a difpofition to throw
^.* off their dependence;" and " of a fteady
'.' perfeyerance that had been refolved on in
" confequence, for the purpofe of fup-
'* porting the conftitution, and inducing
'.' a due obedience to the authority of the
*' legiflature." This was the language then \
— and now, without any thing having
Jiatipened ,to Indicate, that that^ftate had
changed

348 Acts relating Part III,
changed, unlefs it were for the worfe ; or
that that fpirit had been, as was vainly
hoped, " extlngulfhed,'* without any mea
fure having been taken to give that fupport,
or to induce that obedience. Now that the
colonies had voted the proceedings of the
laft feffions of parliament, with refped to
them, to be illegal and unconftitutional ;
we hear of unwarrantable meafures to de
ftroy — what ? — not the dependence on the
mother-country, but a certain " commer-
*' cial connedion."
When the anfwer to this fpeech came to
be debated, a propofition was made, in the
way of amendment, to Intimate an Inten
tion of " enquiring, into the caufes of the
*' unhappy difcontents which prevail (fays
*' the amendment) in every part of his ma^
" jefty's dominions."
Of a propofition thus generally worded,
the defign feemed to be full as much to
promote the difcontents themfelves, as an
enquiry into the caufes of them. If in-
fl.ead of " every part of his majefty's do-
«' minionsj"

Sed. III. To THE Colonies. 349
*' minions," the words had been " hisma-
** jefty *s American dominions," the propo
fition might have been more difficult to
combat. Howfoever it was in any other
part of his majefty's dominions, in Ame
rica, and on account ofAmerica, difcon
tents moft certainly did prevail ; difcon
tents the moft violent in their degree, and
the moft univerfal In their extent ; difcon
tents in comparifon of which any others
that might happento prevail in the metro
polis, or a few counties, fcarcely deferved
the name. Difcontents, into the caufes bf
wTiich, no enquiry, even In this late period,
had as yet been made : an enquiry which
has never been yet made, fpeaking even
of the prefent riioment ; but which muft be
made, and that thoroughly, in order to
give any chance for quieting them.
A provident and determined minifter,
orie fliould have thought, might himfelf
have propofed the enquiry under fuch .a
limitation ; fo, however, it happened, that
as the oppofition was content to propofe it
in

2^6 Acts Delating Firtllii
in the lump, fo was the miniftry to throw'
it out. The amendment was not amended,*
but over -ruled. And on this occafion one
can hardly help acknowledging of the mi
niftry, in the words of their fevere a'ccufer,
that they had not hitherto given " any
" proof of large, and liberal ideas " in
the management " of this great concern j
*' that they had never looked at the whole
" of our compKcated interefts in one con-
*' fleded view ; never feemed in fhort to
" have any kind of fyftem right or
" wrong*." I wifh this had been as ill
founded as many of his other charges, f
But though the houfe would not engage
to enquire into the caufes of the difcon
tents in America, they acknowledged,'
that the ftate of his majefty's government
there did " undoubtedly well deferve the.,
* Mr. Burke's Speech, p. 17.; ,
•}• In allowing the truth of this charge, it is but
fair to remind the reader of its being equally true
of the miniftry %iiith whom this gentleman adted,'
as of thefe againfl whom he declaims.
2 " mofi

Sed. III. TO THE Colonies. ^^t
" moft ferlous attention of parliament."
They reprefented the effeds of thofe dif
contents in a more ferlous light than they
had been reprefented from the throne : the
meafures of the malcontepts, they faid,
" by attempting to fubjed the higheft legal
" authority to the controul of individuals,
" tended to fuhvert the foundation of all
" government." A matter of infinitely
more import and danger than the bare
breaking a " commercial connedion."
Againft meafures thus unwarrantable they
promifed, that " no endeavou-rs fhould he
" wanting on their part to make effedual
"provifion." What fteps were taken to
fulfil thefe promifes ?
As foon as this bufinefs came to be taken
up in the Houfe, two petitions were pre
fented ; one from the agent of the council
of Maffachufet's Bay, drawn up in a
quaint, pert ftyle, equally unbecoming the
fubjed it treated, and the affembly to
whom It, was addreffed. Of this no no
tice was taken — which was as much as it
appears

352 Acts relating Part III.
appears to have deferved : the rather as it
did not even ftate that it was prefented- by
order of his conftltuents*.
Another petition was prefented from the ,
Britifh merchants trading to America,
complaining of the great interruption of
their trade, and attributing that interrup
tion to the ad paffed in the fcventh of his'
majefty's reign.
This petition was read ; and In com
pliance with it, a bill was ordered to be
brought In for the repeal of fo much of
the ad as laid duties upon glafs, red lead,
* This curious petition may be feen at length.
Com. Jour. vol. xxxii. p. 726. The following
lines may ferve as a fpecimen : " The errors and
*' improvidence of minifters (he has all along been
talking of the minifters- of the prefent reign, and
it feems it was their errors and improvidence
that) " with the hoftile defigns and proceedings of
" France." Did wiat ? " Brought on the lato
*• expenfive and dangerous war : and Britifh Ame-
*' rica is now, in confequence of the errors and
" improvidence of his majefty's minifters, brought
" into"-— what ?—guefs reader—" a ftate of i«-
" vitation of foreign war." white

Sgd. IIL to: THE Colonies. 353
vphlte lead J painters colours* paper, pafte-
boards, mill-boards, arid fcale-boards. The
taking off the duty upori tea Was, by this
mearis all that W&s' wariting to a full and .
effedual compliance with the petition. A
motion for ;that purpofe was accordingly
made, but it paffgd in the negative.
This partial repeal of the ad complained
of, could not be confidered as an obligatiori
conferred on the Americans.; Nay a total,
repeal of it at this moment woTjld not per
haps have- been confidered in that light.
Lord Hillfoorough's letter was ftill before
them. The motive for the repeal would
have been fought in the fears of the mini
ftry, nof in the juftiee of parliament, They
did not vouchfafe fo mucK as to afk for the
repeal ; rio petition was prefented In
their name ; at leaft none by their exprefs
authority. The partial repeal was granted
as a favour to Britifh merchants. A total
repeal would have been a greater favour,
but ftill the favour would have been to
them, and not to the colonifts.
A a Had

354 Acts relating Part IIL ^
Had this meafure, however originated'
in parliament itfelf, had not the merit of
it been foreftalled by its being announced
beforehand In- a minifterial letter, it might? ¦
perhaps have done fomething, though but
little, towards conciliating the minds -of
the colonifts. But thus announced it feem
ed rather to- proceed from complaifance to
the minifter, than- from a<iefire of giving*-
fatisfaflion to the colonies. Fbr preeifely
fo much of the obnoxious ad was repealed
as the fecretary had promifed fhould be^
repealed, and no more.
Mean time the Idea that the parliament'
was only fubfervient to the minifter; that It
was riot even alegal parliament, was'openly
maintained by the malecontents at home.
In a remonftrance to the throne it was de--
clared, that " reprefentatives of the people
*' were effential to the making of laws r
" that there is a time when it is morally
*' demonftrable'that men ceafe to be re-
" prefentatives : that time (add the remon-
" ftrants) is now arrived ; the prefent
" houfe

SeiA. lit. t'O the CoLokiEs. 355
" houfe of commoris does not reprefent
" the people*."
The fame idea Wds cdrefiilly dommu-
nicated to the colonies by a felf-created fo
ciety, which called Itfelf " the Society of
" the Bin of Rights." Suriis were col
leded for the fupport of the douhcil and'
affemblies, who refifted the ' execution of
the ads of parliament: with thefe fums
were tranfmitted letters frpiri a committee
of this fociety, figned by members of the
Britifh parliament f , exhorting thefe af
femblies to perfevere In their refiftance 'to'
the laws of that very parllkment ; which
they declared to be no parliament, though
the writers fate and voted in it.
" Property (fay thefe able'fertatots and
*' acute lawyers) is the natural tight of
" tnarikind. The connedion between
* See Commons Journals, vol. xxxii. p. 804.
f See Annual Regifter, vol.- xiii. p. "224, 225.
The names are John Glynn, Richard Oliver, John
Trevanian, Robert Bernard, Jofeph - Mawbey,
James To^v'nfend, .and John Sawbridg?.
- A a 2 " tax-

356 Acts relating Part IIL
*' taxation and reprefentation is 'its nee ef-
*¦'¦ fary ^confequence. This connedion is
*• now broken^ and taxes are attempted to
•' be levied both In England and America,.
" by men who are not their refpedive re-
" prefentatives. Our caufe is one. Our
" enemies are the fame. . We truft our
*' conftancy and condud will not differ.
" Demands which are made without au-
^' thority fhould be heard without obedi-
** ence^ :7
Thus encouraged to refift tod defpife,
parliament, was it likely that the colonifls
fhould be contented with a partial repeal-
of the obnoxious ad? A repeal which
retained the principle, and left a duty to
be levied which had been impofed on that
principle. During the courfe of the feffions a fe
cond attempt was made to obtain an abfo
lute repeal of the obnoxious ad. But that
too failed*. And toward the clofe of the
* See Comm. Journ. vol. xxxii. p. 876. fame

Sed. IIL TO the Colonies. 357
fame feffions another attempt was made
to Induce the parliament to conform to
the diredlons of the king, and to fulfill
its own engagements, by entering into a
full and ferlous confideration of the ftate
•of the government in America.
The commiffions of the goverrior of
Maffachrifet's bay, and of the command*
ers in chief of the forces in North Ame
rica, fome meffages from the affembly to
the goverrior, and the governor's anfwers
Vvere laid before the houfe. As foon as
they had been read it was moved to pre
fent ari addrefs to his majefty, to thank
him for the communication of thefe pa
pers, and for having thus referred to his
parliament the ftate of his government In.
¦ America; to affure him that the houfe had
entered into a' ferlous confideration of the
matter thus referred to them; to repre
fent to him, that mifunderftandings and
difputes had arifen in almoft every part of
his dominions in America, between the
civil goyernment and military command^
A a 3 ers

358 Acts relating Part HI;
ers, fince the appointnient bf a command-
s
er in chief ; that the reprefentatives Of the
people in general court had complained,
that according to the arrangement of com
mands in America, there was a mili-»
tary po-^er without any check by the
power of the civil government, . and un
controllable by the fupreme e^iecutlve
powerof the province; to ftate their o-
plnlon, that this unhappy ftate of doubts
and difputes had long called for, a clear
and explicit definition of the powers and
authorities granted to the governors and
commanders in chief of the provinces. and
colonies, and to the commanders in chief
of the military forces in North America:
-—and did require fome exprefs diredlons
and inftrudions as tc? the exercife of the
faid povvers. — And therefore to befeech hi?
Majefty to give diredlons that the powerg
and authorities granted in the refpedive
pommiflions, orders, and inftru'S^Ions
might be amended in fuch cafes where
they clafh \yifh each other, o.r coiitaine^.

Sed.IIL TO the Colonies. 359
powers not wa,rranted by law and the con-
fjltution*. ' .. ., ,
.. Never furely was a lefs, exceptionable
motion made in parliameat. Had tfiofe
who took the lead been really inclined to
^do what they had folemnly engaged to do ;
had they .meant to take the ftate of Ame
rica into feriovis confideration, what one
fhould have expeded, is,, tfiat inftead of
,ftifling the motion, they) would have pro-
..moted a full enquiry. If- the momentary
eftablifhment .of a commainder in chief,
.independent of the civil magiftrate, was at ,
all to be juftified, it muft be becaufe, under
the prefent conftitution of the provincial
.government, the power of the civil magif-
^trate had been found too weak for the fup-
iport of the civil goyernment. If this was
not the cafe the eftablifhment of fuch a
.co.mriian.der fhould .be revoked: if it was
the cafe, it wa.s the duty of thofe who ad-
^vifed this eftablifhment to point out this
,* See Com. Journ. vol. xxxii, p. 967.
A a 4 COP"

360 Acts relating Partlll,
conftitutional weaknefs, to call on par
liament to apply a conftitutional remedy.
'Here then was offered as good an oppor
tunity as could be offered, to haVe the
whole fyftem of American government
' fairly canyaffed, and to prepare the way
for a general conftitutional reform.
Parliament could have grounded* that
reform on a popular idea : In ftrerigthen-
ing the hands of the civil magiftrate, they
would not fo much have feemed to have
'been laying riew reftrapts on the colo
nies, as fhielding them froni the danger
. of feeing the military ereded into execu-
tors of the law.
But fb it wa:s, parliament chofe rather
to fit ftill and fee every ad of its power
abhorred, every ad of its lenity treated
with contempt ; it chofe rather to negled
the recommendation from the throne, and
to forfeit its own engagements, than boldly
enter on a fubjed, which, fooner or later,
muft be entered on more fully : the hue
pf refolution, which it had borrowed at
the

Sed.IIL TO the Colonies. 361
the beginning, was now fickened over,
and the fjeftions .plof^ed without having
done any thing effedual, either to relieve
the complaints or check the' tumults of
the colonies. All that it did was to adopt
a, wretched pallative.
" That dii but flfin and ijltp the ulcerous part,
*' Wfiile foul corruption running all beneath,
" Unfeen, infeaed"—

SECT.

7^2 Acts relating Pfrt^L

S EC T. ly. ;
Proceedings efthe feventh feffions. '
HOW little i attention, during the fe
cond and third fefi[ions, was paid to
the affairs of America, ilrong as were the
terms in which they had been recom
mended from the throne, we have already
feen. The three fucceeding feffions paffr
«d away,, as if they had been equally for
gotten both by the crown and by the two
houfes^ Early however in the concluding fefr
fions an Incident happened which roufed
the ruling powers from their lethargy.
A meffage accordingly was fent from
his majefty to the two houfes, together
with certain papers. The meffage con
tained two requlfitlons ; the one of a more
particular purport, that he might be en
abled to put an end to the difturbances
then fubfiftlng; the other in general
6 terms.

Sed. IV. TO the Colonies. 363
terms, that he might be enabled to fecure
the dependence of the colonies. The pa
pers contained a hiftory of the difturb
ances.. The duty, payable In America, that
had been impofed on the article of tea by
the laft parliament, this duty, we may re-
member, continued unrepealed. An altera
ation indeed had been made refpedlng that
article In the feffions preceding this, tho'
of a nature very different from taxation.
The duties paid here in England under
,the name of cuftom, upon its original im
portation, v/as by a drawback remitted
upon all teas exported to Ariierica ; whe
ther exported by the company diredly,
or by fuch private adventurers as fhould
have purchafed it at their fales*. No
thing was added on this account to the
¦ xiuties payable In America. By this ope
ration' the charge upon the only article
that continued the objed of a tax payable
.* 13 ,Gep III. c. 44,

364 Acts relating Part III.
in America, was reduced to a pitch helow
that at which it fubfifted here in."^ Eng
land. The degree of prefent eafe thus given
to the Americans, it was hoped, would
completely calm their anxieties for the
•future. The policy however was not fo
refined, as to pafs upon a people, in whofe
minds fufplcion had been rivetted by a ten
years ftruggle. This operation' would"
have made it plain to them beyond a doubt,'
though it had not been fo before, that the
profits of that fpecific tax were not the
reafon of Impofing it, and that the only
purpofe of Its being kept alive was to let
in an indefinite train of others that were
to follow. Indeed it was now rendered
impoffible for' the moft credulous to be^
lleve what had been fo folemnly averred,
thaj: " his majefty's minifters," allowing
thai ' they o'hce might have been, were
then without any defign to lay any farther
taxes upon " America for the purpofe of
I " raifing

Sed. IV. TO the Colonies. ' 365 '
'•raifing a revenue*." The moft na
tural conclufion to men in their temper
of ftiind was, that his majefty's minifters
were never to be depended uj^on ; the moft'
charitable conclufion, that they were rtot
now. Any definite fyfterii of taxes, to
fuch an amount as could appear to con
tain in itfelf a fufficierit reafon for efta
blifhing it, and could ferve to mark out
the limits of the prefent exigencies; any
definite fyftem of taxes, however heavy,
wouM have affeded them lefs fenfibly^
than that indefinite and endlefs trairi which
their imagination painted to them as a-
bOut to be grounded on this infidlous ma
noeuvre. The effeds of this perfuafion .foon ma-
aifefted themfelves in adion. The Eaft
India Company, who had not that ftrong
intereft which the Americans had to
quicken their apprehenfions with fefped
. .* See Lord HilUborough's Letter, as quoted in
Mr. Burke's Speech, p. %^. to

^66 Acts Relating Part IIL
to the Idnfequ'ences of this ' nianoeuvre,
had been allured by the profpedofa co
pious fale, and againft the opinion of a
great many of its members, fhipped for
the colonies large quantities of' the ob
noxious drug.
The firft cargo that came to Bofton
found the inhabitants . determined at all:
events not to fuffer it to belauded. The
refolution was comtnunicated to the con-
fignees. A committee of inhabitants af
fociated to fee to the obfervance of. it : and
the neceffity of returning without land
ing any part of the cargo was fignlfied to
the perfons who had the charge of it, in
the ftrongeft terms. The alacrity of thofe
to whom this fingular mandate was ad
dreffed, not correfponding with the im
patience of thofe who iffued it, 'the nego-
clatiori was terminated by a company of
perfons in difguife; who- after making
themfelves mafters of the veffels on board
of which the commodity had beeri ftowed,
emptied the lading Into the fea. Of

Sed.lV. To The Colonies. ^6'^
Of this" nature were the difturbances, of
which the papers communicated by his
majefty contained the hiftory. ^ :
In confequence of thefe advices, and
the meffage that accompanied them, four
feveral ads were paft. .
Orie to difcontlnue, for, a certain time',
the landing or lading any goods at the
town, or" within the harbour of Bofton *.
A fecond, for the iiii partial adminiftra
tion -of juftice, in the cafes of perfons quef
tioned for ariy- ads done by them in the
execution of the law, *or for the fuppref
fion of riots and tumults in the province
of Maffachufet's Bay f. - ¦
A third for the better providing fuitable
quarters for- the officers and foldiers in
North America J. And
* 14 Geo. III. c. ig.
t 14 Geo. III. c. 39.
% 14 Gbo. III. c. 54. — As this adl only pro
vides that the rroops fhall be quartered there, where
their prefence may be required j as the Americans,
in honouring it with a place among their lift of
grievances.

368 Acts relating^ Part IIL
And a fourth for tho better yeg'tilat-
irig' of the government of tl^ pro-,
vince of Maffachufet's Bay in New Engr
land*. To thefe y^e riiay add a fifth ad, foe re-.
gulatirig the government of the new ac
quired province of Quebec "f". Mofc/.fEiat
the laft ad had any avowed connedion
with his majefty's nieffage, or with', the
diftui"banees da which that meffagj^ was
founded; or with- arty of the griefs, real,
or pretended, of which the old colonies
had coiriplalnedi I add it here, becaufe
it makes a paft of the colonial fyfteifi
of government : and becaufe the General
Gorigrefs, as it calls itfelf, has thought
proper to rank it now in the number of
their grievances.
grievances, have not flrated any fpecific objedion ta
it, it will be fufficient juft to have named it. In
faft the troops might as well be recalled, as fta-
tiohed in barracks, where they cannot be ready to
do the duty for which they are fent.
* 14 Geo. III. c. 45.
t 14 Geo. III. c. 83.
Of

Sed. IV. TO the Colonies* 369
Of thefe five ads, the firft three
are only temporary remedies applied to
temporary evils. The two laft feem in
tended as parts of a general arid per-
mariCrit plan.

BV SECT,

370 1 Acts relating Part. Ill,
!
SECT. V.
AB for fhut ting up the port ofB.ofion,
TH E preamble of this ad fets forth
that commotions and infurrediohs,
fubverfive of his majefty's government,
and deftrudive of, the public peace, had
been raifed and fomented in Bofton : that
during the courfe of thefe infurredions.
Tome valuable cargoes of tea belonging to
the Eaft India company had been deftroy-
ed : that while things continue in this
fituation, commerce cannot be fafely car
ried on ; nor the cuftoms, payable to his
majefty, be colleded ; and that It is there
fore become expedient that the officers of
his majefty's cuftoms fhould "be removed
from thence.
It is then enaded, that from the twenty-
firft of June then next enfuing, no good&
whatever fhall be exported from, or im-
% ported

Sed. IV. TO tMe Colonies. 371
Jjorted to, the port or harbbur of Bofton,
under penalties therein fpecified.
In order the more furely to provide for
the efficacy of this prohibitibn, a kind of
introdudofy offence, Is, by another claufe
ftiperadded to the main offences created by
the foregoing. Veffels are forbidden to
lie at anchor, or to hover Within a league
of the faid port or harbour ; and to enforce
¦this prohibition, power Is given to, any
ofiicer of the navy, or of the cuftoms, to
feize dnd confifcate any veffel not depart
ing after a proper warning, therein fpe
cified " to fuch ftation as the faid officers
*' fhall appoint," or to fome other port.
From this general prohibition are ex
cepted ftores for his majefty's ufe; fuel
arid viduals brought coaft-wife from any
part of the continent of America, for the
neceffary ufe and fufteUance of the inha
bitants; and alfo all fhips which were ac
tually within the faid harbour, on the faid
firft day of June, either ladeii, or with in-
B b 2 ten-

372 Acts relating PartllL
tention to lade or land any goods, and
which fhould depart within fourteen days*
" Power Is given to his majefty in his
privy council, whenever it fhall there be
made to appear to him, that peace and obe
dience to the laws are fo y^r reftored, as
that trade may be fafely carried on^ and'
the cuftoms duly colleded, to fix the ex
tent and bounds of the harbour, and fuch
quays and wharfs therein for landing or
lading goods ; and to appoint fuch a num
ber of officers of the cuftoms as he fees fit;
'which quays and wharfs, and no other,
' fhall be open for tbe landmg or lading of
goods. ' . T
This power however is riOt to be exer
cifed till his majefty fhall be duly inform!-,
ed in council, that full fatisfadlon has >
been made to the Eaft India company for
the tea deftroyed; as weM as to t?he cuf
tom-houfe officers, and others, for the da
mage they may have fuftained by the in
furredions in- the preceding, months of
December and January. This

Sed. V. TO the Colonies. 373
This is a temporary ad of coercion :
and I cannot fee that any reafonable ob
jedion lies againft it. Two objedions were
however made to it — That it condemned
the town unheard ; and that it inyolved
the innocent with the guilty.
As to the firft of thefe objedions, what
occafion was there to liear the town of
Bofton ? were not the fads fufficiently
notorious ? that from the beginning of
November to the feventeenth of Decem
ber, jaffociatlons had been formed at Bof
ton, denying the power or efficacy of ads
of parliament : ;that at public meetings,
confifting of many of the principal inha
bitants of Bofton, nightly watches had
been appointed to prevent the lariding of
the tea : that from thefe meetings, orjders
had been fent to the confignees not to re
ceive it; to the mafters of the fhips not
to unlade it, but to return back to Eng-
lari,d with it: that at laft, wheh the tea had
lairi fo long in the harbour without clear-
Srioe, that it would the next day have
B b 3 been

374 Acts relating Part HI.
been liable to be feized, and fo* landed by.
the officers of the cuftoms. It was public
ly and openly deftroyed ; deftroyed by
perfons in difguife Indeed, but ading to
all a'ppearande under the guidance of thefe
public meetings : — All thefe were circum
ftances that appeared from, accounts pub
lifhed by order of their meetings ; in pa
pers under their own diredion.
Thefe accounts indeed fpeak of thofe
who deftroyed the tea, as of perfons who by
a difguife they had affumed had rendered
themfelves undiftlngulfhable : but this was
a veil too thin to conceal, nay we may
venture to fay, was never meant to conceal
the real authors. ' The outrage committed,
if fo they will have it, by unknown in-
- dividuals, was adopted by the public:
and the deftrudion of the odious weed was
openly juftified, as the only means which
now remained to. prevent its landing.
In truth, if the ad impofing the duty
on this commodity, was In their opinion
fuch an infringement on their liberties as
juftified

Sed. V. TO THE Colonies. 37-5
juftified refiftance, they could not well
have done lefs than what they did. But
the queftiori before us is not concerning
the propriety Of what was done, but con
cerning the ground there was for being
perfuaded that it was done; whether the
violences alledged were fufficiently au
thenticated for parliament to proceed ei
ther to ads of indemnification, if it Was
thought proper to give up Its -authority ;
or to ads of vindication, if it was thought
proper to maintain it.
Let us put the cafe of a foreign prince :
fuppofe the king of Spain. He thinks fit to
iriterpret an article of treaty, as if it ex
cluded Britifh fhips from trading to any
given port, or in any given comriiodity :
to which port, and in which commodity,
the treaty, according to our interpretation,
gave us a full right of trading :— a fecre-,
tary of, ftate receives intelligence that the
Spaniards had aded preeifely in the fame
inanrier, as the Boflonians have, done :
this account comes to him from the
B b 4 owners

376 Acts relatin® Partlll,
owners of the fhips, from the confignees
at the fadory, and is moreover confirmed
to him by the papers regularly publifhed
under the authority and infpedion of the
Spaniards, Will any riian fay this is not
fufficient evidence, fufficient nbtorlety, to
proceed upon ? Upon one half of tfiat evi
dence, M;-. Pitt's advice would have been
to fit out a fleet, and demand fatisfadlon
at the cannon's mouth.
What farther evidence therefore could,
reafonably be required, is more than I can
perceive ; and unlefs parliament meant to
give up its rights entirely, I fee not how
it could have proceeded in a milder ftrain.
-The officers of the xuftoms had beeri
^forcibly debarred from the exercife of their
duty. What could the ad do lefs than'
recal thofe oncers from a ftation, in which
tjie violence of the people had rendered
their prefence ufelefs ? Haying done fhu?
much, how could it do otherwife than
put a total ftop to the commerce of the
place, unlefs by giving to it a total exemp- tioi^

Sed.V, TO THE Colonies. 377
tiion from the burthen of thofe impofts, pf
which the officers had- the charge, it re-^ .
warded where it meant to punifh? His
majefty's Britifh fubjeds (to fay nothing of
the deftrudion of the fubjed matter of
their trade) had been debarred, by the A-
merlcans, the common liberty of trading.
What could be more confonant to all the
ordinary notloris of juftice current among
' mankind, than to punifh the authors of
this oppreffion, by giving the oppreffor*
themfelves a tafte of it ?
Care Is taken, in the mean time, to pre
vent the punifhment from running into
excefs, and beyond what feemed neceffary,
for the purpofe of prevention, as to the
meafure, the objed, or the continuance of
, it. The means are alfo given of feleding
ffom amongft the croud of delinquents
thofe wh9m a pre-eminence in delinquency
might render fit objeds for a pre-eminence
iri punifhment, whofe ftronger bias re-
fluired a ftronger balance to corred it. Care

378 Acts relating Part IH.
Care, for example, Is taken to leave the
port open for provifions ; to prevent fhips
already there from fuffering by a regula
tion they could not be apprifed of. The
duration of the ad depends on the Boftoni-
ans themfelves ; and the power left in the
hands of the crown of appointing the
wharfs and quays, where exclufively goods
are thereafter to be laden or unladen, is
only a power of direding the greateft
weight of punifhment againft the greateft
body of delinquency. This power irideed
may be abufed ; and fo may any power,
in the exercife of which the king, or any
other magiftrate, may ufe his difcretion.
In whatever hands it had been lodged, it
was liable to abufe ; yet the fame power
has been given to the crown here in Eng
land, by different ads of the legiflature,
where tbe fame reafons did not fubfift *, '
* See I Eliz. c. 11. 13 & 14 Car. II. c. 11.
?lackfione's Commentaries, Book I. c. j. But

Sed. V. TO the Colonies. 379
But againft this ad there is yet another
objedion : in one common punlfhmgiift
it involves both guilty and innocent ; and
it is therefore, we are told, unjuft.
He who urges this topic of accufation,
-*-and none has been urged more univer
fally, or with greater vehenience-r-does not
rightly confider the end of punifhment.
It may feem ftrange at firft fight, yet it
is moft certainly true, that this plea, le
velled as It Is agalnfty^iym/y, and urged on
behalf of lenity, is built on the favage
principle of vengeance.
If vengeance be the end of punifhment,
that punifhment which ads upon him who
did not do the obnoxious ad, as well as
upon thofe who did It, is certainly impro
per. If It is with A I am angry ; the
fufferings of A may give me fatisfadlon,
but, the fuffering of B, with whom I am
not angry, will give nae rione. Were I to
beat A, who had angered me, my beha
viour might perhaps, according to the cir
cumftances. of the quarrel, be approved; were-

3S0 Acts relating Part IIL
were I to beat B, or any other perfOn who
had not angered me,' I fhould certainly be
conderrined : every moUth would exclaim,
and with reafon, that my behaviour was
unjuft. Individuals obeying the impulfe of paf- .
fion, ading on the felfifh principle, punifh
becaufe they are angry, and within cer
tain bounds, upon certain occafions ; the
fuffrage of mankind in general allows'.
them to do fo.
But furely governments, magiftrates, as
fuch, do not punifh, becaufe they are an
gry, — at leaft they ought not. Thus much
at leaft will, I fuppofe, be acknowledged
on all hands, that were It certain, that In,
any inftance, the legiflature punlfhed a
man, or fet of men, bepaufe the members
who compofed the legiflature were angry
with them, and for no other reafon, every
mail would certainly cry fhajne on fuch ^
legiflature. The end, the only defenfible end, of pu-
riifhiaent inflided by public hands, is the
fup*

Sed. y. TO THE Colonies. 381
fuppreflion of mifchlef ; of that particular
mifchief, the fenfe of which was the caufe
of punifhment being thought oL Now
whether this end, the fuppreffion of mif
chief, be obtained by the punifhment of
A, who was the author of it, or of B, who
was not the author of it, does not make
fo material a difference, as at firft fight,
we are apt to think : provided always,
that the fum of evil introduced by* the pu
nifhment, be in neither cafe greater than
what is neceffary for the fuppreffion of the
¦mifchief. True it is, that the fuffering of B, who
is not guilty, is a thing by no means, to be
wifhed ; but neither, is the fuffering^ of A,
who is guilty, a thing at all to be wifhed^
unlefs upon the pririclple of vengeance,
which we have reprobated above. That
the mifchief could be fuppreflfed without
the fuffering either of the Innocent, or the
guilty, were a thing devoutly to be
wifhed. It

3S2 Acts relating Partlll.
It is alfo true, that were a man to chufes
it is againft A, who w guiky, that he
^ould level the punifhment, much rather
than againft B, who is nOt guilty. He
would do this for the eafe of his own mo-*
ral feelings. He would do It to fave that
diffatisfadion, which reafonable or unrea-
fonable, is fure to arife in the breafts of the
multitude, from the principles above fet
forth. 'A diffatisfadion, which increafes
the funi of evil, introduced by the punifh-
merit, and which therefore is to be de-
duded from the total account of the utility
of the meafure.
But if, after all, the evil of the punifh-
riient in this mode can be lefs than the
evil of the Iriifchief, and there be no other
way in which the mifchief can be fujf-
preffed, at a lefs, or equal, expence of pU-
rilfhirient ; the magiftrate has but one
riiode of condud to purfue, if he wouM
do his duty. He muft punlfti the Inno
cent, or betray his duty.
One

Sed. V. TO THE Colonies. > 383
One confideration may help to recon
cile him to this irkfome neceffity. Taking
the whole fum of innocence into the ac
count, that Is, the whole number of in
nocent perfons affeded, either by the in-
fl,id:ion of the punifhment, or the conti
nuance of the mifchief, it will appear,
that lefs detriment accrues to, lefs fuffer
ing is laid on, innocence by this eompll-
anccj than would be laid on^ or accrue to
it, in refufing to comply. Innocence fuf-
fors, , it Is true, by the inflidion of punifh
ment ; but innocence would alfo fuffer,
and that by a fuppofitlon to a degree ftill
''greater, by a continuance of the mifchief;
for if the evil of the mifchief be not greater
than the evil of the punifhment, >rio pu
nifhment, no ad of power, ought to be
exerted. The benefit of the meafure cal
culated for relief, will not bear the ex-
pence of it*. • ^
* £very a£tt)f authority of ene man over aftotli^r,
for which there is not an abfolute neceiTity^ is ty
rannical, Beccaria,
He

384 Acts relating PartlfL
He who fhould extend, or think I
meant to extend, this idea fo far as to
Confound innocence and guilt, or to mete
out to both alike, in any cafe where a
diftindlon can poffibly be drawn, the fame
meafure of favour or difcountefiance,
would either argue very ill himfelf, or
make a very unfair ufe of my princljlles.
It is only the impradicability of fevering
the innocent from the guilty, nor even that
fingly, that can juftify the involving of
them in one common pUriifhment. Not to
make a diftindlon, where it is pradieable
to make a diftindlon, between gnilt . and
innocencei is to deftroy the efficacy of
punifhment as a fpur tb adion. To pu
nifh the innocent, where the continuance
of the mifchief to be prevented by punifh-
ment, would not be a greater evil to the
innocent, than the evil they fuffer by the
punifhment, we have already faid, and
muft again repeat', would be an arbitrairy
and cruel exertion of power. Under

feed; Vi ±0 tttE GotoMiES. 3$^
Under thefe leftrldlons let us apply
; this maxim to the ad before us.
There are but two ways of punifhing :
—individually, or colledively. To pu-
hlfh individualiy, you muft punifh judi
cially ; and to punifh judicially, there
riiuft be a trial. But it is va:iri ' to try,
where you are fure before-harid there can
be^corividlon. There can be no affurance
of convrdion, be the guilt ever fo iridif-'
putable^ where the probability is, that the
jury are accomplices with the culprits.
Accomplices will not convid one another »
wheri they can avoid it. Juries will not
conVid, as for an ad of guilt, for an ad
in which they ar^ perfuaded in theit con-
feienee, there Is «<? guilt, much lefs .for an
ad, which they are perfuaded -is merito
rious. Gould it be expeded, that a jury
of Jacobites would convid a man of hi^h
treafon for adhering to -the 'Pretender ?'
Conceive the Pretender, by a-miracle of a?n
avenging deity, placed en the throne bf
¦ thefe kingdoms, would ,a free jury of
C c whIgs

386 Acts relating ~ Part IH.
whigs convid a man of high treafon for
adhering to king George ? Juft as foon
.would a jury of Boftonlans have convlded
the Mohawks of guilt for- deftroying the
tea. '
In difproof of this laft affertion, indeed, ,
a precedent is cited : the acquittal of cap
tain Prefton was urged in an addrefs to the
houfe againft this very bill, as a proof that
the due courfe of law held out redrefs for
any injury fuftained in America : but
however It may feem, on a fuperficlal
view, a little attention will convince, us,
that the cafes are not parallel. There is
furely a wide difference between abfolvirig
a man, who being charged with an ad of
enmity, appears after all not to have com
mitted it; and the deftrudion of a friend
for the very ad, whereby he proved him
felf a friend.
In fuch a cafe it can hardly be con--.
celvedj that thofe who contend againft.
colledlve punifhment can really mean any
thing but univerfal impunity : — thinking
8 the

Sed. V. ' TO the Colonies. 387
the Americans in the right to refift, quo-
cunque inodo, they of courfe are againft
their being punlfhed at all.
But when it was already decided, that
they fhould be punlfhed,— ^and fuch was
the opinion of the whole houfe :— -when
the only queftion was how they fhould be
punlfhed, it is but aBum agere to contend
againft this, or that mode of punifhment,
without attempting to point out a better.
Suppofing it even erroneous,or criminal, to
have adopted compulfive meafures ; yet to
urge that as a new crime, which was the
neceffary confequence of fuch a refolution
once adopted, is but a piece of party difin-
genuity, eafier to be excufed than juftified.
A difcrimlnating punifhment we have
already feen could not be exercifed, becaufe
all corividion of the guilty appeared im-
-poffible. A colledlve punifhment became
therefore neceffary ; that is, a punifhment
which involves, to a certain degree at leaft,
the innocerit with the guilty.
C c 2 Nor

Acts relating PartHL.
Nor is this mode of punifhment, how--
ever It may have been exclaimed againft orii
the prefent occafion, unknown to or in*
frequent in our lawi
By the inftitution of frank pkdge, attri
buted, I think, to Alfred, every man was
inade f efponfible, that is, was to a certain
degree punifhable, for the delinquency of
every other man in the fariie decennary.*
The whole fyftem of thp law on forfei
tures for high treafon is built upOn this
principle of colledive, or vicarious, pu-
tilfhtnent. And tbe only objedion to thls<
application of the principle in this parti
cular cafe is, that here it is eafy to fever
the father from the ¦ children, the .guilty
from the innocent. - '
Corporations, where this, feveration
cannot be made, are -often punlfhed for
the mifdemeanors of their members. And
na man thinks it unjuft.
* See Blackftone's Commentaries, vol. i. p..
113. ' '
Hun-

;Sed. V. TO the Colonies. 389
Hundreds are charged for damage fuf-.
tained in the maiming of cattle*, &c. and
for robberies committed between fun and
fun f.
Hulbands, In the opinion of Hawkins^,
are anfwerable for their wives In the pe
cuniary penalty inflided by a penal fta-^
tute. A mafter is indidable for a nuifance
done by his fervants § ; he is refponfibie
for his fervant in publifhing a libel |[.
Though a' ftieriff cannot be punlfhed as
for a felony, for a voluntary efcape of a
felon permitted by the goaler ; yet, " wher
" ther the efcape be volimtary, or negli-
*' gent, the fheriff may be indided for it
*' fo as to fubjed him to a great :fine and
* 9 Geo. I. c. 22. f. 7.
t 27 Eliz. c. 13. 29 Geo. II. c. 36. f. 9.
X See I. p. 3, " ;
§ Lord Raymond, 264. Burn on Servants,
xxiii. 146. Bacon's Abridgment, tit. Mafter and
Servant. I See three flrong cafes, in 2 SelT. Cafes, 33.
' C c 3 " impri-

390 Acts relating Part IIL
" imprlfonment, for the offence of his
*' goaler, though not to make h'un guilty
« of felony *." And this it fliould be ob
ferved. Is a much ftronger cafe than that
of a mafter being Criminally refponfibie for
the ad of his fervant, efpecially if a me
nial fervant, over whom he is fuppofed to
have a much greater and more conftant in
fluence, than what a fheriff has over his
goaler. By the conventicle ad f, in cafe of the
poverty of one perfon prefent at a conven
ticle, and therefore fubjed to -a fine of five
ihllllngs for the firft, and ten fhillings for
the fecond, offence, the penalty is direded
to be levied on any other perfon prefent, fo
that no one bear more than ten pounds.
By the Mutiny Ad if, if a foldier de-
ftroys game, the, commanding ofiicer for--
felts twenty ftiillings ; and if, after con-
* I Holt. C. P. 5Q7. pulton, <;. 10,6. Dbcr
tor and Student, 42.
+ 21 Car, II, c. I, f, 2, 3.
X See Dialogue on Game Laws. 34, 14,
*' vid;ion,

Sed. V. TO the Colonies. 391
vidion, he does not pay the forfeiture,
within two days of the demand being made
by the conftable or overfeer, ,he lofes his
commiffion. It appears then, that the principle
adopted by this ad, the principle of apply
ing colledive and vicarious punifhments,
of involving the innocent with the guilty,
whenever fuch involution is neceffarv to
the fuppreffion of mifthief, is warranted
by the general fpirit and pradlce of our
law, as well as is this cafe juftified by ne
ceffity f.
Iri farther deferice of the ad In queftion,
let it be added, that the primary intent of
it was not that either the Innocent fhould
fuffer, or the guilty ; but that the inno
cent fhould ftand up and join in meafures
for compelling the guilty to repair the
nilfchlef they had done, and to return to
' t See many other cafes cited in Yorke's Confi- '
deration on the Law of Forfeitures for High
Treafoq, C c 4 obedience

392 acts relating I'aSfHL'
obedience to the laws. If the parlies fup-:
pofed- innocent did this, rio punifhment at,
all would enfue ; if they did not, if they
tamely fate ftill, and g^ve 'vv^ay to the en-
terprizes of the guilty, they ceafed to hp
innocent : th^y became accomplices wltl^
the gqilty.

SECT,

Sed. VI, TO the Colonies. 393

SECT. VL
ABfor the_ impartial adminiftrati<in of juf-^
tice in the cafe of perfons queftioned for
any aB done in the execution' of the law
in Maffachufet's Bay.
TH E preamble of this ad fets forth,
that an attempt had lately been
made in Maffachufet's Bay tb throw off
the authority of parliament, by refifting '
avowedly, and by open force, the exe
cution of certain of its ads : that it is of
the utmoft importance to the general well-
fare of the province, and the re-eftabllfh-
ment of lawful authority, that neither the
magiftrates ading in fupport of the laws,
nor fubjeds affifting them therein, fhould
be difcouraged from the proper difcharge
of their duty by an apprehenfion of their
being tried before perfons who do not ac
knowledge the Validity of the laws, in the
gxecution of whichj nor the authority of
the

394 ACTS relating rartilJ.
the magiftrates in fupport of whom, fuch
ads had been done.
It Is then enaded, that if any inquifi-
tion, or indidment fhall be found or any
appeal fued againft any perfon for mur-
ther, or other capital offence in Maffa
chufet's bay; and It fhall appear by infor
mation given upon oath to the governor,
that the fad was committed by the per
fon accufed, either in the execution of his
duty as a magiftrate, for the fuppreflion
of riots, or In fupport of the laws of the
revenue -, or in the difcharge of his duty,
as an officer of revenue— or under the di
redion, or order of a magiftrate : and if
it fhall alfo appear by the fatisfadlon, of
the governor, that an indifferent trial
cannot be had within the province, then
the governor, with the advice of his coun-n
cil, may fend the party accufed to be tried
either in fome other colony, or in Great
Britain. The witneffes, whofe evidence fhall be
defired, ^Itjier by tlie profecutor, or thq
culprit,

Sed. VI. TO the Colonies. ^95
culprit, are to be bound over to give eyi-
dence at the time, and place of trial. And
the governor is to affefs a reafonable al
lowance to the. witneffes fo bound over:
tb be paid by the officers of the cuftoms.
The witneffes are to be free from all
arrefts, and reftraints, in any adion or
fult, during the time of their going to,
flaying at, and returning from the place
of trial.
The perfons accufed are to be admitted/
to bail. Judges are to poftpone the trial
• of fuch perfons, and adriiit them to bail
for a reafonable time, if they fignlfy their
defire T)f applying to the goverrior for the
benefit of this ad.
Care is taken to obviate the failure of
juftice from indidments quafhed, or ad
judged bad upon demurrer.
The ad Is to sontinue for three years.
A more ftridly neceffary ad than this
can fcarcely be imagined. Yet the terms'
in which it has been fpoken of are per
fedly aftonifliiing: thofe who employed thewj

396 Acts relating I'artJIL
them,'One fhould think, had together with
all temper put away all fhame. In their pe
tition to the king the American Congrefs
exprefs themfelves perfedly fatisfied that
the effeds of it will be '.' that offenders
" will efcape legal punifhment." In their
addrefs to the " good people of Eogland'
they go fo far as to call it, *• an ad to
" proted, indemnify, and fcreen from
*' punifhment, fuch as might be guilty
*' even- of murther, in endeavouring to .
*' carry the oppreffive edids of parliament
*' into execution*." — -In their addrefs to
the Inhabitants of the colonies they rife if
poffible ftill higher in their extravagance,
and ftyle it " an ad for indemnifying the
" murderers of the inhabitants bf Maffa-'
« chufet's Bay f."
In the ad we have, feen, what can there
be to defefve thefe frantic appellations ?—
What is it that it does, more than eon-
t
* See Votes and Proceedings of the American,
Continental Congrefs, p. 37. "
t Seeib. p. '59. ^ . rey

Sed. VL TO the CoLONiEfs. 397 .
vey a general fecurity to the officers of
the executive power ?
It does not alter the mode of trial ; the
trial Is ftill to be by a jury. In this cafe
indeed, the jury cannot be of the vicin
age. But that circumftance is, or is not
an advantage, as it may happen. It may,
or may not, be right that they be " next
*' neighbours." It is, and muft always
be right that they be fuch, as ,to ufe the
' words of an antlent ftatute, fhall be " moft
" fufficient, and leaft fufpiclous *." —
Were an officer of the revenue to be ac-
cufed of murder in the difcharge of hj^^
duty here in England— would ' it be right
to have a jury from a town inhabited o«/)/
by fmuglers, merely on account of their'
being of the vicinage ?
In difputes between individual and in^
4i,vldual, though the fubje<^ matter be of
no higher importance than fome trifling
elaim of property, or a demarid of fatls^
*' 28 Ed* I, c. 9,
' ' . fadion

39^

Acts relating Part IIL

fadion for fome petty perfonal injury ; if
it appear, that " a cry is raifed; that the
*' paffions of the multitude are inflamed;
** that one party is popular, and the other
*' a ftranger, and obnoxious *:" it is the
conftant pradlce under our law, by means
of fome expedient or other, by the autho
rity of fome court or other, to change the
fcene of trial, and the perfons of the triers.
Can there be lefs reafon for fuch a pradlce
in a cafe of blood, where the caufe of one
man Is the caufe of the very people, who,
were it not for fuch provifion, would be
to try it ?
Nor even In capital caufes Is a provifion ,
of this nature without example in our fta
tute book. Murders and felonies, com
mitted in any part of Wales, may be tried
in the next Englifh county -f-. By a fta
tute of George the Second, offences of
high treafon committed in certain coun
ties in Scotland might be tried in any
* Blackftone's Comm. Ill, 384,
t I Strange 553. _ Other

Sed,VL TO THE Colonies. 399
other county in Scotland *. Arid if the
whole kingdom of Scotland had been as
warmly attached to the interefts of the
Pretender, or as refolute to deny all obe
dience to the lawful fovereign as thoTe
counties were, who can doubt but that
the legiflature would have gone further,
and ffiifted even into England the fcene
of trial ? Nor, let it be forgotten, that in
the cafe of Scotland, the legiflature exert
ed its power for the ftern purpofe of in-
, Aiding punifhment on the guilty: where
as in the ad before us, the fame power is
exerted for the benign end of faving th6
, innocent from undeferved, or the guilty
from exceffive punifhment.
It may be faid indeed that America Is
removed at fuch a diftance fr6m Eng
land, that the cafes are not parallel. But
this local difference was neither created by
parliament, nor is it changeable by it.
Parliament can neither fwallow the wa-
* 21 Geo. II. c. 19, terir

46c3 Acts reIating f'art III,
ters of- the Atlantic, nor build a bridge
over them. Nay farther, — if any one
colony can be found, where an indifferent
trial can be had, It is not required that ei
ther the culprit or the witneffes ihoUld be
made to crofs the feas. ,
It has been urged, that the acquittal of
captain Prefton is here at leaft a cafe in
point, to prove the needleffnefs of the pre
cautions taken by this ad againft par-
¦ tiality in the local judicature^ But it is
not fo by any means. — At that time the
judges affumed as the ground work of
their charge — that Prefton was in the
-king's peace: — was doing alegal ad, in
difcharge of a legal duty: — they from
thence deduced, that he was illegally af-
faulted ; illegally put in fear of his life ;, ,
and therefore aded only fe defendendo.
"They muft now affume another principle J
the ftationing of foldiers in the colonies is
now declared illegal and unconftitutiorial :
the appointment of a board of cuftoms Is
6 now

Sed.VI. TO the Colonies." 401
noiv declared Illegal and unconftitutional :
the tax to. be levied by the officers of
that boar-d is now declared illegal and
urieonftku-tional : the order, by which
the governor and council may require
the aid of the military, muft now be ille
gal and unconftitutional, fmce the ap
pointment of the council itfelf is .declared
to^be-fo. If it he a'ffum.ed as kw (and in 4?he pre
fent temper . and difpofitiori of things, if
the j^udgcs do not lay It down as law, it Is
manifeft the jury will affume it) that the
King has no right to fend troops to Bofton ;
on that fuppofitlon, : neither can the officer
of thofe troops have any rlght-to place cen-
ilnols; nor can a centinel fo placed -be faid
to-be In the King's peace. Nor can any ^
ad he does in defending his poft be a le-
.gal ad. If ;It be laid down as Ifiw, that
cthe board of cuftoms is an. illegal trlbuhaU
-andthe tax .they are to levy an illegal im
pofition, then the officers of the cuftoms
Dd are

402 Acts relating Part IIL
are neither more nor lefs than, robbers ;, the
exadion of the tax is an ad of robbery:
and no ad done in defence of the ijfficers,
or In the exadlon Of the tax can be legal.
If it be laid down as Jaw, that, thp coun
cil is an illegal body, then an order _ of
council- to enforce the laws, or requiring
the fupport.of the military, Is an illegal ad,
and every man who fhould come to 'his
death in confequence of that order;, would
indeed be murthered: every _ man who
obeyed that order would be . a mur-
therer. -,;,j
It follows, that the fame ju4ge and jury,
who affuming one principle, acquitted
captain Prefton, being now obliged to
affume a contrary principle, muft convid
every man who. In fimilar:.circumftances>
is brought before them. :.; , Ii
I fee not therefore how it Is poffible to
help concluding, that parliament was
under an abfolute neceffity, either of re
pealing all its other laws, and of recall ing

Sfed. VI. TO the Colonies. 403
ing the bodies, whether civil or military,
it had commiffioned to enforce them : or
elfe of fupporting thofe bodies, and en
forcing the provifions of thofe former
laws by the further provifions of the pre
fent.

D d 3 SECT.

404 Acts relating Fart. Ill,

SECT. VIL
^he aB for the better regulating the go
vernment of Maffachufet's Bay.
THAT, at the time of paffing this ad,
the property, or the perfons of in
dividuals were fafe In the province of
Maffachufet's Bay, will, I think, hardly
be pretended : that no fubordination to the
laws of England could be maintained, no
compliance w^Ith them enforced; that the
penalties by which they were guarded
might be fafely defied, and therefore the
execution of the commands contained in
them openly obftruded, was the boaft of
every New Englander who aimed at po
pularity. It muft then have happened
that thofe whofe duty it was to preferve
good order in the provinces, and to fee a
due obedience paid to the laws of parlia
ment, either did not make a proper ufe of
the powers with which they were entruft- ec

Sed. VII. TO THE Colonies, 405
ed for that purpofe, or really had not
powers fufficient to maintain *' the inter-
" nal welfare, peace, and good govern—
** ment" of the province, or what parlia
ment at leaft chofe to call " the juft fub-
*' ordination to, and' conformity with the
** laws of Great Britain." This Impo-
potence of thofe who were to execute the
laws, was a thing neither new nor mo
mentary, it had been daily increafing for
years. It was therefore natural to look for
the caufe of this weaknefs, not fo much
in the good or ill condud of this or that
governor, as In the original conftitution
and frame of the government itfelf. That
there were many and leading defeds In
it had been confeffed, and complained of
by thofe,-whofe ftation enabled, and whofe
duty obliged them to examine it moft at
tentively *. Here then it was that par
liament fought the caufe of the prefent
* Mr. Pownal, Sir Francis Bernard, Meflrs.
flutchinfon and Oliver. D d 3 difaffedion

4o6 Acts relatin© Jr'art IJI.
difaffedion which prevailed In New Eng
land : and it therefore determined to pre
ferve the authority of Great Britain, from
that time forward, by new-modelling the
government of the province.
Let us examine the defeds complained
of in the government as it ftood previous
to the paffing of this ad, and the reme
dies this ad has applied.
King William, we may remember, when
he granted a new charter to the province
of Maffachufet's Bay, put the nomination
of the governor, lieutenant-governor, and
fecretary Into the hands of the crown.
This was a fevere blow to that fpirit of
democracy for which this province ha^
been diftingi;Iffied from it? firft founda
tion. But he left the court of affiftants,
or council, as he found them, eligible,
and in cafe of a mifdemeanor, amoveable
Jjy the general affemblies.
At the fame time he attributed to this
eouqcll, thus eligible and amoveable
fundions which it fhould feem ought no' t<

Sed. VII. TO the Colonies. 407
to be exercifed by one and the fame body.
This council is firft, a council of ftate, that
is, in fome cafes It is a branch of the exe
cutive power ; for its confent is neceffary
to the performance of certain ads by the
governor : in many more it Is an afftftant
of the executive power, for 'its- advice is
to be afked at leaft, if not followed, pre
vious to many other ads to be done by
the governor. And this fame council is
befides a conftituent branch of the legif
lature. Many inconveniences had it feems arifen
from this union of fundlons fo diftind in
one and the fame body of men *. To
thefe inconveniences, whatever they be,
the government Is ftill left open ; no re
medy is provided by this ad.
Yet it was not perhaps unnatural to ex
ped, that In new regulating the govern
ment of this province, one objed would
have been to have brought It as near as

* See Adipiniftrati-on of the Colonies, vol. i. ^.

n^.

D d 4 might

4©^ Acts rblatinS P'aft BL
might be to the model- of the conflitution
wiiicb " obtains iri the mothef-cotnrtryr
Had this objed been in view, it is prc*-
bable, that what fo many governors had
recomiriended would have been complied
with. Two councils would then have
been appointed : one a conftituent branch
of the legiflature, equally Independent of
the governor and the people*. The other
a council of ftate, to be appointed, and
removeable either diredly by the king,
or by the governor in the name of the
king. And that this laft council might
be able to fupply inftrudion relative to
every department of adminiftration, we
might have expeded to have feen it com
pofed promifcuoufly of men taken from
every department; of fome in military,
of others in judicial ftatlons; of others
again In each of the two branches of le-
* " A true middle legiflative power, appoint-
*' ed by the king for life, and feparate from the
*f privy council." Bernard's Letters, p. 36.
giflative.

Sed. VIL TO the Colonies. 409
giflative-. But as we have before faid to
this effential defed in the conftitution of
thl^ government, the ad before us has
applied no remedy whatever.
, The eledion of this council by the houfe
of reprefentatives had been frequently
complained of by different governors *.
They had fo'und it highly inconvenient,
that what ought to be the middle fhould
be fubordinate to the lower branch of the
legiflature. And ftill more fo, that thofe
who were to advife and aflift the gover
nor in the execution of the laws, and in
the maintenance of the authority of Great
Britain, were dependent on that very af
fembly, which was ever ready to coun-
jterad thofe laws, and call that authority

* *' In this province (which though royal irj
f the appointment of a governor, is democratical
" in all its other parts, efpecially in what is fre-
?' quently regretted, the appointment of the council)
*' the fprings of government are fo relaxed, that
J* they can never recover their force again by any
?f povver of their own." Bernard's Letters, p. 43. in

410 AoTS relating Partni.
in queftion. Thefe Inconveniences had
been particularly felt fince the heats ftruck
Hp by the ftamp ad, From that moment,
to be known, or believed, or even to be
fufpeded of being inclined to fupport the
fupreme authority of parliament, or the
conftitutional rights of the king in the
provincial government, was fufficient rea
fon for exclufion from the provincial
council *. Officers who, by their parti-'
cular fundlons and their official know
ledge of public bufinefs, were almoft ne
ceffary to that body, confidered as a coun
cil of ftate, were excluded : though the
charter fuppofed them entitled to a feat
there, in virtue of their offices. So much
did thefe popular eledions weaken the au
thority of the counfellors; fo thoroughly
dependent did It render them on the houfe
of reprefentatives, " that nothing was
* See proofs of this in Bernard's Letters, p. 98,
99, 100, 101, and in Hutchinfon's and Oliver'si
Letters, p. 20, 21. *' more

Sed. VIL TO THE Colonies. .411
" more common, it feems, than for the
" reprefentatives, when they found the
**' council a little untradable at the clofe
" of the year, to remind them that May
•• was at hand *."
At firft fight it fhould feem evident, that
this dependence of one branch of the legi
flature upon another, tended to defeat all
the advantages which fhould be derived
from the divifion of the legiflative power :
that it tended to defeat that very ftability
of conftitution which the Auierlcans talk
fo much of, and praife fo highly, with
out feeming to know by what means it is
to be effeded ; becaufe it tended to de
prive the intermediate branch of the legi
flature of that power of refiftance which it
fhould employ alternately againft the pre
ponderance of either of the other two : —
by depriving It of that free agency, with
out which that power cannot exift; and
# $ee Hutchijifoii's and Oliver's l/ctters, p. 32.
of

412 AcTs relating Partlll.
of that dignity and refped, without which
it cannot operate.
The ad before us applied a remedy,
fuch as it Is, to this evil. Or rather it
created another evil to fubftitute in the
room of it.
Henceforward the members of the coun
cil are not only to be named by his ma
jefty, but are to hold their offices no longer
than during his pleafure. This indeed was
taking away their dependence on the demo
cratical part of government, but it was
neither rendering them independent, nor
fecuring them that refped which alone
could make them ufeful. If they were
liable to contempt whilft they were confi
dered only the inftruments of the houfe of
reprefentatives, they muft exped to meet,
as indeed they have met with abhorrence,
as well as contempt, appearing to be the
inftruments of the crown. No doubt the
outrages countenanced, or at leaft con
nived at, under the former democratic go
yernment, did require for the prefent,
8 that

Sed. VII. TO THE ColONlES. 413
that thfe intermediate brdnch of the legif
lature fhould throw its weight into the
foak of the crown. But dieri that weight
fliould have been thrown in voluntarily,
in which cafe tihe momentum of it would
have beeri fomething in point ;of inilu-
erice as v^rdl as po'^ver. Such refiftance as
it might in that cafe give to the extrava
gances of the democratic party, might then
have been confidered as the effed of inter
nal ccxnvidlon. The belief of that con-
vidrdn might then have operated on o-
thers. Had they been appointed for life, or at
•leaft had proofs and convidion of mal-
pradlpe neceflarily preceded their remov
al or flifpenfion, they would at once have
acquired a degree of dignity, which they
cOuld never acquire whilft they Were eled
ed by the repireferitatiyes ; arid a dpgree of
confidence which they never can hope to
acquire whilft they are removeable at the
pleafure of the crown. And they would,
befides, have had fomething worth con
tending

414 Acts Delating ^FartllL
tending for themfelves; tbey would have
had a real and a permanent intereft, fuffi
cient to incite them to labour earneftly and
effedually, to check the encroachments
either of the crown or people*.
This fecond defod in the law before
us was perhaps a confequence of the ori
ginal error, of confounding togethei: the

* Mr. Oliver obfervcs, the honour of beirig a
legiflative counfellor could not be hereditary in
Maflachufet's Bay, becaufe efl:ates are partable af
ter the death of the proprietor : but recommends it
warmly that they be appointed quam diu fe bene
gejjirint. Or as a farther check, upon the exor
bitance of the democratic power he propofes an
order of noblefle, who fliould eledt counfellors out
of their own body, as the Scotch peers elefi; out
of their body- lords of parliament, referving only
a negative to the crown. See Letters, p. 31, 32.
Such a fcheme, coming from a man fo well ac
quainted with the country, furely deferved atten
tion. — It fliould feem befldes to be of fuch a na
ture, as either to. meet with little, or overcome
all refifliance. Efpecially if the crown had given
up — as I think it might fafely have done — the
right of putting a negative upon all vacancies to
be fupplied, after the firft nomination. legiflative

Sed. VIL TO THE Colonies'. 415
legiflative coun?}!,., arid the council of
ftate. From the fame fource perhaps fprung
another defed>;. Among' the qualifica
tions of the counfellors, they are required
to be proprietors of land, or inhabitants
within the province. A menvber of the
council of ftate, flands in a refponfibie of
fice: — many officers of the crown, who
arje mere inhabitants, may with propri
ety, nay ought perhaps to be called to
this board : but furely the members of
t|ie legiflative council ought, to have a na
tural, as well as a political relation to the
country. Territorial poffeffions feem an
indifpenfible qualification to a member of
the legiflature.
-_ HItherto;the ad feems to have confider
ed this council merely as a council of ftate.
And neither requires fuch qualifications as
^ould have been required of, nor gives fuch
a degree of independence as ffiould have
been given to, mepbers ^ho were to form
rf. a diftind

4i6 Acts REX AT IN ffl Tart IIL.
a diftind: torifl^ituent braach of 4hei€^^
flature. In the next provifion' -It feems to con
fider it mei-ely as a legiflative council, aaJ
takes from it the fundlons ^hich had be
fore been atllotted, and -for ought, appear^i
fhould have been t:ontiflu<§fl to the coun
cil, confidered as a council of ftate. Tb^r
concurrence is riO longer xieceffary to tile
nomination or retaovai of the judges ^f
the iriferlor courts of common pleas, com
miffioners of oyer and terminer, attorney*
general, provoft, marflials or juftices of
the peace : nor to the nomination, thcmgfi
it be to the removal of a ffi'erlff. The ap2
polntment of a certairi number of perfons^
a certain body, without whofe advice at
leaft. If not their confent, the governor
fhould do no a"d of goVerrtmcnt, feems to
have been generally confidered as d nfefifl
guide in the exercife^ as weH as a. "fklu-
tary" check upon the abufe of power. At
leaft it increafes the pUmber of petfoni
immediately

Sed; VII. id the Coio'NiEsi 417
imriiediately refponfibie. Arid who Is thegd-
veirrior that would uot rather tfuft to the of
ficial information and advice of a body of
men ading in a refponfibie charader, than
to the private advice which may be Whifper-
fed in his ear, by the very fame perfons,
adirig drily in theii: private dnd individual
capaeity ? Whatever advantages the go*
Vernor might derive from the informatioii^
or advice of fuch a refponfibie body;
\vhatever check he might be urider from
the neceffity of dbtaining the fconcurrencig
Of fuch a bddy in the nomination of tbof^
who are to exercife the judicial power, are
taken awiay by, this ad. The corifent ol'
the council is riot neceffary: nor is th©
governor bound to afk, nor they td givg
their advice,
Indeed it appears, that the intention of
Ihe legiflatujre was to render the officers of
Juftice, as well as the eduncil, eqfirely
dependent on the crown. Under the for-!:
Jner government the judges were depefl-
dent on the deputies of the people for ^
Ee Xsm'

4i8 ' Acts relating Fart IIL
temporary, wretch^ed, and arbitrary fup
port *. Was it reafonable to exped, that
judges, under fuch circumftances, ffiould
firmly maintain the rights of the crown,
or enforce the laws of trade, or in- any
cafe faithfully difcharge their drity, in,
oppofition to the overbearing fpirit . of a
democracy, or even to the paffions and
prejudices of the multitude ? Whilft the
judges were kept in fuch a ftate of de
pendence, coyld it even be . expeded that
the rights of individuals would be better
proteded than the rights of government ?
Muft not all redrefs of wrongs done by a.
' more to a lefs powerful fubjed be defr
perate and unattainable ? It might well
be expeded to happen, and according
ly we learn from the beft authority, that
it adually did happen, as formerly in
the county courts in England — " Th^t
" all bufinefs of any moment was car-
* See Adminiftration of the Colonies, vol. i.
p. 111. " ried

Sed; VIL TO THE Colon tES. 419
" ried by parties arid fadions ; and that
" thofe of great power arid intereft in
" the country did eafily overbear others
" in their own caufes, or in fuch where*.
*' in they were interefted, either by rela*^'
" tion of 'kindred, tenure, fervice, de^
•' pendericcj or application *."
What remedy has the ad provided for
an evil of fo dangerous a nature ? None
at all. Or, at beft, miftaking. the re^
verfe of wrong for right, it has onlyfubr
ftituted one evil In the place of another^
Not a fyllable is faid about the falaries
of the judges. They are left, as to this
point, -fo far as this ad extends, in the
fame ftate of dependence as before. Th^
crown indeed does now iffue falaj'ies
for them. But it is a voluntary, arbit^
rary ad of the crown. It is no legal efta-
bliffiment. And It feems to the full as
dangeroqs, that the judges fliould depen4
* Quoted from lord chief juftice Hale, in th^
Adminifiration of the Colonies, vol. i, p. 119,

4ZO Acts relating Part IIL
en the crown, as on the people, for aa ar
bitrary fupport.
To leffen their dependence on the peo
ple, it is enaded, that the judges ffiall not
only be appointed by the deputy of the
king, but fhall hold their office, the infe
rior ones, during the pleafure of the fame
deputy, the fuperior during the pleafure of
the king. This indeed is ftrengthening the
power of the crown, but it is weakening
the fecurity of the people. The impar
tial adminiftration of juftice will no longer
be impeded hy tbe cabals of fadion, but
will it not be liable to be impeded by the
intrigues of minifters ? What then has the
community gained by this change ?
Thofe who had fo ftrongly reprefented
to government the neceffity of making the
judges independent of the people, did not
advife their being 'made as dependent on
the crown. They advifed, that ade
quate and fixed appointments ffiould be
affigned them ; that they ffiould hold their
places, not during the pleafure either of
2 the

"Sed. VIL. TO THE Colonies. 4:21
the king or of the governor, or pf the af-
ifemblies, but as the judges hold their
places In England., quam Jiu fe bene gefle-
rint. Their advice was, that the king
ihould appoint them, but the law ahne
Ihould difplace them.
But what check woiild there then have
heen on tbe provincial courts, if the
judges were appointed for life ? That
.check which the Conftitution points out.
Appeals ffiould have lain from the -deci-
•fions of the provincial courts, but -not to
a court, which exercifes an ufurped jurlf-
-didlon, to \VhIch it is in every light in
competent ; not to the king incouncil, but
^o the court of klng^s bench in England.
The next thing neceffary towards
infuring the impartial adminiftration of
j[uftice w^as to regulate the^modeof ap
pointing juries. Under the former go
vernment, we are told, the mode of eled-
ing the grand juries was liable to many
©bjedlons. They were chofen and returned
jby the freemen, on notice fent them' by
E e 3 ' the

4^2 ' Acts relating Part llfi
the clerk of the court ; and out of the per-
quifiteS of the'court they had a falary of
three or four ffiillings a day *".
*' This method lay open to manage-j
'•'ment;*' fo at leaft we learn from a
great law officer of the province : " who-
" ever pleafes (fays he) nominates them
'? at our town-meetings.'* As a proof
how very open they lay to manage
ment, he adds, " that by this raeans one
*' who w^as fuppofed to be a principal in
?' the riots of the loth of June (preceding
" his letter) was upon that jury, whofe bu-
" finefs It was to enquire into them f.
That an inftitution, which Was not only
fo liable to abufe, but had adually beeii
thus abufed, called for reformation, will,
I fuppofe, be readily allowed. To efla-
bliffi that reformation is a bufinefs of if
large part of this ad.. Particular diredions
* See Appendi.K to Neale's Hiftoty of New
England, vol. ii. No. 4. Article Juries.
t See Hutchinfon and Oliver's letters, p. 31. are

Sed. VIL TO THE Colonies. 423
are given about making out the lifts of
perfons qualified Xo ferve on juries ; but as
to the qualification itfelf, the ad is totally
filent. About the time of iffuing the fum
mons for jurors i^about the manner of fup
plying the want of jurors, where a fuffi
cient number do not appear, or having ap
peared, are reduced to an infufficient num
ber, by challenges, or otherwife; about the
mode of afcertainlng the number, and of
drawing the names of jurors, the ad is
full and particular : and appears to be li
able to no objedion. — -
Not fo with" refped to the offcer who Is
to fummon the jurors. They are to be
fummoned' by the ftjeriffs. — Names are
powerful things. — Nine tenths of the
World are governed by them. Had the
* ad provided for the fufficiency and irv-
dependenice of the officer, who Is to fum
mon juries, it would have been a matter
of prudence, and allowable policy, to call
hiin a fheriff; but was it allo^yab]ie to give
this name to a needy dependent, liable to
^' f^ e 4 be

4^4 Acts relating Fart ifl.
be difmlffed at*any,tlme, for rio affignible
reafon, by the fervant of the crown, and
a council which itfelf is only an inftru
ment of the crown ? 'A fheriff in England
muft have lands in the county where hg
ferves*. For ought that appears by this ad,
a governor may naine his own footman to
be ffieriff. A ffieriff in England is ap
pointed for a year t ; for Ought that appears
by this ad, one man may be ffieriff for
life. A ffieriff in Englan.d is to take an,
oath of office | ; no oath, rio engagement
whatever, is prefcribed by this ad* A,
fheriff in England is punifhable by fine,
pr otherwife, if proof be given of negli
gence or partiality, in the return of juries§ j
» 9 Eel. II. ft. 2. Ed. III. c. 4. .j. Ed. III.
p. 9. 5 Ed. III. c. 4.
+ 9 Ed. IL ft.' 2. 14 Ed. III.c. 7. 23 Hell.
VI. c. 8.
X .3 Geo. I. c. 15. f. 18.
§ 28 Ed, I. c. 9. 7 & 8 Will. III. c. p.
3 Anne, c. 18. 4 & 5 Will, and Mary, c, 24, 3
Geo. II, c. 25.

no

.6ed. VIL TO the Colonies, 425
po fine, no punifhment whatever, is de-
poiinced by this ad againft the negligence,
or partiality of affieriff. Yet it is remark
able, that the fame ad impofes a fine on
the conftable, if he give in falfe lifts of
perfons qualified to ftrve as jurors : he is
alfo puniffiable if he negleBs to give in true
Jifts. — But fuppofe ihe^^er'i^i to falfify thefe
lifts: fuppofe him to impanel, or return
perfons to ferve in juries, who are not
named in thefe lifts, to what punifhment
is he liable ? — To be difplaced by the go
vernor and council. He would meet this
puniffiment, no doubt of it, if fuch falfi-
fication, or untrue return, be difadvanta-
geous to government. Or hurtful to the go-
yernor or his friends *. This
* In fpeaking of the council — this afl: provides,
,that the members fhall take the fame qaths, &c. as
heretofore. — In fpeaking pf the fheriff, no fuch
provifion is made.— None of the provincial laws,
if any fuch there be, which fix t;he qualifi'cation
for a fheriff, or his oath of ofEcc, are confirmed by
^ ' . this

4^6 Acts relating Part III.
This ad then, fo far as it relates to the
nomination, and fundlons of theffieriffs,
feems to be at once unjuft and impolitic : — .
unjuft, becaufe It does not fecUre the rights
of the people ; impolitic, becaufe it defeats
one at leaft' of Its own ends.
For the ends which the legiflature" had,
or ought to have had, in view, were firft
to fecure to the colonifts, and to convince
them, that it was intended to fecure to
them, an impartial adminiftration of juf
tice, by providing effedually for the re
turn of a fufficient and indifferent jury. — '•
And in the next place to convince them,
"^that the legiflature, in the changes effeded
in their conftitutiori, meant only to bring
it nearer to what themfelves boaft to be its
original model, the conftitution of the mo
ther-country. — Now will ]the people ever
believe, that a jury fummoned, by fuch'an
officer as this, who gives no pledge, nd
this aft, or even fo much as noticed —Nor is the
governor required to take notice of them. ; ¦;
fecurity

Sed. VIL TO THE Colonies. 42/
fecurity whatever to the public for his
good condud, who may be, for ought that
appears, without a foot of land In the pro
vince, who takes no oath, enters into no
recognizance for the impartial difcharge of
his duty, and who holds his place at the will
of the governor, will be a fufficient and
indifferent jury ? WiU'nOt any jury he can
fummOn in any caufe, where the rights of
the crown, or the interefts of its officers,
are concerned, be at leaft fufpeded ? Will
they hereafter truft to your pl'ofeffions of
^iffilng to communicate to the colonies,
the bleffings of the Britiffi conftitution ?
Will they not refent as a mockery, this af-
' fixing the name of an, officer refpedable
in England, to a creature fo totally diffi «
mllar In America ? There is no more re
femblance between an Ehgliffi ffieriff, and
the ffieriff appointed by this ad, than be-
tween^ a conful commanding the troops pf
the moft. powerful ftate in the world, and
a conful fettling difputes about figs and rai
fing, at Smyrna.
' , •'. Another

428 Acts relating Part IIL
Another objed of this.ad Is, to regulate
the annual and occafional meetings of the
freemen. Thefe meetings, it feems, had
been perverted from the original purpofe
for which they were inftituted, and, in
ftead of confining themfelves to their own
municipal bufinefs, " had been mifled*'
^ys the ad, " to treat upon matters of
*' the moft general concern, and to pafs
*' many dangerou.s and unwarrantable re-
*' folves." To remedy this abufe, two provifions
are made ; both of which appear impoli
tic, and one of them impradicable.
It is enaded, that no occafional meet
ing, that is, no meeting, except the an
nual ones for the eledion of officers, and
tthofe for the eledion of reprefentatives,
ffiall be fummoned without the confent of
the governor. This, no doubt, is pradi
eable, but is it juft or politic ? Thus much
is, I believe, certain, that here in Eng
land, the frequent meetings of the gentry
and freeholders, have always been confi dered

Sed. VIL TO THE Colonies. 429
dered as one of the greateft fupports of, our
liberties.— Our petit and grand feffions,,
our affizes, are upon this account, as well
as others, of real and falutary importance;
nay* If the Reftoration is to be rariked
among the national bleffings, even cock-
'matches and horfe-races may claim fome
ihare of the praife of utility : there It was
the royalifts held their, confultations *.
Nor was the prohibition of thefe diver^
fions the leaft galling ad of Croiiiweirs
tyranny. Nor is there perhaps a nieafurq
that would be mor^ likely to roufe the jea-
loufy, oj' inflame the paffions of Englifh
men, than an attempt to put the power of
meeting, or the exclufive prefcription of
the matters to be carivaffed when met, ia
the arbitrary difpofition of the fervants of
the crown.
No doubt It was true, as the ad afferts,
— '* that great abufes had been made of
<* the power of calling fuch meetings :" —
* Palrymple's Memoirs, vol. 'i. p. 74,
No

430 Acts relatins Partlll.
No doubt '• the Inh'abltants had paffed
*' many unwarrantable refolves ; " but
does it therefore follow, that free meet
ings ffiould be difallowed, becaufe free
meetings had been abufed? — What js It
that may not be abufed ? — Convivial meet*
ings may be abufed ; they often are fo :
would you therefore pafs a lave, that no
man ffiould give or receive a dinner, withr-
out the permiffion of government ? Bring
the cafe nearer home : however dange^-
rous and unwarrantable the refolves of the
town-meetings may have been In Maffa
chufet's Bay, they were certainly neither
more dangerous, nor more unwarrantable,
than many refolves paffed In the town-
meetings at London. Why did not go
vernment apply the fame remedy to the
fame evil, exifting and operating under i^s
own eye?
He would furely be miftaken who fup
pofed, that the town-meetings raifed the
fpirit of difcontent: they did not raife, they
found it. Men were not called together to,
meet,

Sed. VU. TO THE Colonies. 43.1
meet, and pafs refolves, in order that they
might grow difcontented with government;
but they met and paffed th^fe refolves be
caufe they were already difcontented.
Where the meafures of government are
diredly contrary to the interefts, and de
ftrudive of the happinefs, of the whole
community, no doubt public meetings
are dangerous to government ; and for
that very reafon they are beneficial to
the community, grievances are mutually
communicated ; plans of redrefs are cori-
certed -, fupport is mutually promifed. —
Th.'s plea, 1 fuppofe, will not be fet up in
defence of the provifions of this ad j yet
upon no other plea can I, conceive them to
he defenfible. For where the meafures of
government are levelled not againft the
intereft of the community in general, but
againft the views and interefts of a faBion
only, it is there at moft an equal chance,
whether public meetings will, or will riot
be attended with inconvenience. But fup
pofe the 'VForft \ fuppofe the prevaiHi;ig
, ., ' fadion

43^ Acts tiELAtiNfe 'Partiftj
fadion for a time to take the lead, whal
then? Why Opinions will be propagated;
refolutions will be paffed, which are un
warrantable ; and which, if carried into
execution, would be dangerous. Thishas
been the cafe in New England i this has
been the cafe in London, But to opine of
jcefolve is one thing; to ad In confequenc6
of thofe refolutions, or opinions, is anotheri
The eitirens of London, for inftance, re
folved in fome of their public riieetingSj
that the laft parliament was no parliament i
•—nay, they went a ftep farther, they de
clared as much in an addrefs to the throne*
What effed did this declaration produce ?
The parliament fat as ufual, paffed its ads
as ufual, and was obeyed as ufual. One
gentleriian went farther ;- — he refufed to
pay a tax impofed by that parliament*
What was the confequence ? The officers
appointed to colled the tax, feized his
goods for non-payment, as they would
have feized mine, or any other perfons*
who from any other caufe or motive had
r^fitifedi

Sed. VIL To THE Colonies. 433
refnfed, or negleded, to pay the tax. The
gentleman applied to a court of juftice for
redrefs againft the officers. The court juf
tified the officers, and t^e gentleman paid
the expences of the fult. What fhock did
government receive from thence ?
The people of Maffachufet's have de
clared the counfellors, or affiftants, ap*
pointed In conformity to the ad before
us, to be no council.— They have affem
bied, and forced the new counfellors, as
many of them as they could get at, to en
gage themfelves by oath to throw up,
what the infurgents called an Illegal of
fice. — " See here," it may be faid, " the
*• dangerous effeds of jiublic meetings."
But the public meetings were prohibited
by this V:ery a,d, previoufly to the eledion
of tbefe very counfellors. " True," it
will be anfwered, '* but the ad was not
** enforced ; the public meetings aflem-
. *,' bled notwithftanding." And why was
it not enforced ? — " Becaufe government
Was too weak to enforce it." Here then
F f was

434

Acts relating Part. III.

was the defed, in the weaknefs of govern-
ment; and here only the remedy ffiouldhave
been applied. The fame ftrength which
would have fufficed to fupprefs the public
meetings, would have fufficed to give ac
tivity to the new council; and had the
new council been able to ad:, there would
have been nothing to fear from the pub
lic meetings.
In general, that government muft be
very weak, or very arbitrary, which has
any thing to fear from public meetings ;
or which makes a point of fuppreffing
them. It is farther enaded, that at the annual
meetings for eledions, no other bufinefs
ffiall be done than that of the eledions; and
that at occafional meetings, no other bufi
nefs ffiall be done, except the bufinefs ex
preffed in the leave given by the governor
to convoke fuch affemblies. This provi-'
fion appears to me to be as little confonant
to juftice, or to policy, as the former ; and
withal impradicable. Had

Sed. Vn. TO THE Colonies. 43^
Had it indeed been confined to the mfe-
tropolls, it might have been faid, that the
governor * was always at hand, always
acceflible ; that It would be eafy tOrCxplaln
to him the bufinfs Intended to be done at
the meeting, and if that bufinefs were con
ftitutional, he would certainly confent to
it ; but the fad is, that the provifions ex
tend to all the towns and diftrids in the
province. Now thefe towns are fome of
them at one, two, or even three hundred
miles diftance from the capital. Almoft
all the municipal bufinefs Is regularly done
at thefe town-meetings. Is it not peculiar
ly hard, that all the municipal bufinefs
of thefe towns ffiould be at a ftand, 'till
difpatches can be fent to his excellency the
governor, explaining the circumftances of
each particular bufinefs to be canvaffed ;,
* Wherever the word governor is ufed in the re
marks on this aft, it is ufed to mean, tbe perfon
V.'ho prefides in the province for tjie time being ;
whether governor, Or lieutenant. governor. The
provifions of the aiSt being fo extended.
Ff 2 till >

436 Acts relating Part IIL
till his excellency ffiall have read thefe dif
patches; ffiallhave ferit back pierhapS for
explanations ; ffiall at laft, havirig madd
himfelf niafier of the bufinefs, fent back
other difpatches, granting licence to meet ?
What muft be the authority of a govern
ment reduced to fuch precautions as thefe?
Would it be thought to add greatly to the
fecurity of the throne, if not a veftry could
be fummoned .in, England without licence
from the king ?
The policy of this provifion feems to
ftand upon no better footing, than the
juftice of it, A town meeting affembles
with leave of the governor ; its bufinefs Is
preeifely marked out. In the courfe of
the bufinefs the friends of government ob
ferve a turn in the tide of the popular
opinions ; they wiffi to take advantage of
it ; to propofe refolutions, to form alfoci-
ations for counterading the manoeuvres of
the fadlous, and ill difpofed ; for fup-
pOrting government, and for giving force,
and efficacy, to the laws.—" No," fays tills

Sed. VIL TO the Colonies. 437
this ad, " you ffiall not do it: this is not
" the bufinefs of the meeting ; it is not
*' expreffed in the licence to meet ; your
" refolutions are null ; your affoclations
"illegal. —
The beft defence of, this provifion, per
haps, is, that it Is impradicable. — When
the afTembly^ is met, either for eledions,
or for any municipal purpofe,, who ffiall
with-hol(i them from proceeding to fuch
bufinefs as they fee fit ? In all affemblies
the will of the majority, controuls the
. will of the whole. If the majority of thefe
affemblies be not difaffeded to govern
ment, there would be no danger in leav
ing them free to vote arid refolve as they'
pleafed. if the majority be difaffeded,
there will be no means of preventing them
from voting and refolving as they pleafe,
unlefs by preventing their coming toge
ther at all.

Ff3 --: :j. sect.

438 Acts relating Part IIL
S. E G T. VIIL
The ^'ebec AB.
THE firft objed propofed by this ad
is to defcribe the boundaries of
what Is hereafter to be called the province
of Quebec. For It feems all that had been
hitherto done towards fettling either the
limits or the government of this colony,
fince Its firft acquifition, was by a procla
mation iffued by the king in the third
year of his reign. And fo wifely and
carefully was this proclamation, drawn
up, that (as the ad fets forth) " a large
*' extent of country, within which were
" feveral colonies and fettlements of the
" fpbjeds of France, yvhq claimed to re-
*' main there under the faith of the treaty
" of Paris, was left without any provi-
*' vifion being made for the admlniftra-
*' tion of civil government therein ; and
f * certain parts of the territory of Canada,
" where

Sed. VIII. TO THE Colonies. . 439
" where fedentary fiffierles had been efta-
*' bllffied, and carried on by the fubjeds
*' of Frarice, inhabitants of the province.
*' of Canada, tinder grants and concef-
" fions of the government thereof, were
*' annexed to the government of New-
*' foundland^ a.nd thereby fubjeded to re-
" gulations inconfiftenf with the nature
"of fuch fiffierles." — r Thefe certainly
were great inconveniences : and it is won
derful that during a fpace of eleven years
no remedy had been applied to them.
At the end of this period, the ad be
fore us provides a remedy. It extends
and defcribes the boundaries of the pro
vinces, including within thofe boundaries
the colonies, and back fettlements, for
which no civil goyernment had been pro
vided by the proclamation ; and the La-
bradore coaft,' v.^hich by that proclama-
' tion had been affeded to the government
of Newfoundland ; providing at the fame
time, by a claufe, which feems to coritra-
did- the defcription ~ itfelf, that nothing
F f ,4 herein"

"440 Acts Iielating Pah III.
herein contained " ffiall in any wife affed
" the boundaries of any other colony." —
Saving likewlfe all rights derived" from
preceding grants aqd conveyances.
Having thus fixed, if indeed the ad
can be faid to have fixed, what are the
territories and people, whom the legifla
ture has in contemplation, the ad goes on
to appoint the civil government of the
province. For this putpofe, it firft repeals
all the provifions made by the proclama
tion cited above, fo far as it relates to the
province of Quebec, or to the commiffion,
under the authority of which the govern
ment of the province had been hitherto-
adminiftered ; it, repeals all the ordinances
hitherto made by the governor and coun
cil, relative to the civil government, and,
all commiffions granted to judges and
other officers.
All thefe provifions are repealed, becaufe
as It is declared, " they are inapplicable
" to the ftate and circumftances of the
*' province," Two grounds are affigned foi*

^ed. VIIL TO the Colonies. 441
for this fevere cenfure on the king^s pro-
clahiation. The one " that the inhabitants
*' of this province did, at the time of its
" being conquered, amount to above fix-
" ty-five thoufand peffons profeffing the
*^ religion, of the church of Rortie:" — the
other, " that they did then erijoy an efta-
" bllffied form of conftitution, and fyftem
" of laws, by which their perfons . and
** propierty had been proteded, governed,
" and oMered for a long feries of years."
Combining the cenfure on the royal
proclamation, and the grounds affigned
for it together, we muft conclude, that the
proclamation was looked upon as faulty,
in not having fufficiently provided for the
fecurity of the inhabitants who profeffed
the Roman catholic religion ; and in hav
ing wantonly, and without reafon, broken
in upon the ancient fyftem of laws. And
thefe are the faults which the ad endea
vours toredlfy.
It provides that his majefty's fubjeds,
profeffing the religion " of the. church of
« Rome,

442 Acts relating Part IIL
*' Rome, of, arid In the faid province of
*' Quebec^, may have, hold, and enjoy,
*' the free exercife of the religion of the
" church of Rome, fubjed to the king's
'¦^fupremacy, declared, and eftabllffied, by
" an ad made in the firft year of the
" reign of queen Elizabeth over all the
'^countries which then did, or hereafter
" ffiould belong f to the imperial crown of
*' this realm." The clergy of the church
of Rome are confirmed iri the enjoyment
of their accuftomed dues and rights, with
refped to fuch perfons only, as ffiall pro-
fefs the faid religion. Out of the reft of
fuch accuftomed dues and rights, his ma
jefty Is empowered to make fuch provifion
as he ffiall think expedient for the encou-
* Such is the uncouth phrafeology of the a£l ;
fo that one might be tempted to imagine the reli
gion of the church of Rome was one thing .at
Quebec, and a different thing elfewhere.
f The words " hereafter fhall he,'' occur in the
xvi. fe£i:. of the aft of Elizabeth ; the intent of which
is to 'f extinguifh " all foreign power in countries,
.within the dominion of England ; but are dropt in the
xix. fe^. v/hich impofes the oath of fupremacy.
•"'-- ragement

Sed. VIIL TO THE Colonies. 443
ragement of the proteftant religion, and
the niaintenance of a proteftant clergy.
Such of the inhabitants as adhere to the
Romlffi church, are neither to take the
oath prefcribed by the ftatute of Elizabeth,
nor any oath hitherto ftibftituted for it ; but
-another oath' is prefcribed in this ad.
Thofe who refufe or negled to take this
oath, are made liable to the fame penal
ties as by the ad of Elizabeth would have
been incurred for refufing to take the oaik
prefcribed in that ad.
"The ad then goes on to fecure his ma
jefty's Canadian fubjeds in Quebec (".the
. " religious orders and communities only
*' ex.cepted) in all their properties and pof-
" feffions, together with all the cuftoms
'* and ufages relative thereto, and all other
"their civil rights, in as large, . ample,
" and beneficial a manner, as if the faid
" proclamation, commiffions, ordinances,
" and other ads and inftruments had not
" been made, and as may confift with
*' with their allegiance to bis majefty, and
" fubjedioi^

444 Acts relating Part IIL
" fubjedion to thelaing and parliax^mt of
" Great Britain."
It ordains that all controverfies relative
to property and civil right, ffiall be de
cided by the laws and cuftoms of Canada,
till altered by any ordinance of the gover
nor, with the. advice and confent of the le
giflative council.
To this claufe two provifoes are annex
ed. The one, that it ffiall not extbnd to
any lands which already are, or hereafter
may be granted by the king in free and
common foccage. The other, that it ffiall
not preclude any perfon who has a right
to alienate his lands, goods, or credits,
in his life time, by deed of fa!e or gift,
or otherwife, from deviling, or bequeath
ing them at his death by his laft will or
teftament. The ad then remarks^ that the certain
ty and lenity of the criminal law of Eng
land, and the benefits and advantages re-
fulting from the ufe of it, had beenTeri-
fibly felt by the inhabitants from an ex
perience

Sed. VIII. TO THE Colonies. 445
perience of more than nine years, during
which It had been uniformly adminiftered ;
and therefore enads, that the fame law
ffiall continue to be adminiftered, and ob
ferved, as well in the defcription and qua
lity of the offence, as In the method of
profecution and trial ; and the punlffiments
and forfeitiires thereby inflided to the ex
clufion of every other rule of criminal law,
fubjed neverthelefs to fuch alterations, and
amendments as the governor, vnth the ad
vice and confent of the legiflative couricil,
ffiall from time to time caufe to be made
therein. So much power is left to this legiflative .
council, that great part of the merit, or
demerit of this ad, will depend on the
conftitutiori given by it to this body.
The ad acknowledges, that the power
of making many- regulations for the future
welfare and good government of the pro
vince, muft of neceffity be intrufted for a
certain time— (and it might have been faid
at all times) and under proper reftridions,
8 to

446 Acts relating PattllL
to perfons refident there : It declares it to
be at prefent (though it does not fay why,
nor therefore give any datum, by which
it may be conjedured when it will be lefs)
inexpedient to call an affembly; — and it
therefore empowers his majefty, by war
rant under his fign manual, with the ad-
' vice of his privy council, to conftitute the
council in queftion under the defcription
of — a council for the affairs of the pro
vince ; — to confift of fuch perfons refident
there, not more than twenty-three, nor
fewer than feventeen, as his majefty ffiall
appoint ; which council thus appointed, or
the major part thereof, with the confent of
the governor, are to make laws " for the
" peace, welfare, and good government of
*' the province."
From the general power of legiflation,
thus given, that of taxation, however,
ftands excepted, unlefs it be with refped
to fuch rates and taxes as the inhabitants
of any town or diftrld, may be authorlfed
by the council to levy, and apply within
6 the

Sed. Vlll. TO tHE Colonies'.! 447
the faid town or diftrld for making roads,
ereding, or repairing, public buildings, or
for any other purpofe refpedlng the local
convenience and ceconomy of fuch townor
diftrld. All ordinances to be made by this coun
cil are to be tranfmitted to his majefty,
within fix months, for the royal affent.
Nor is any ordinance touching religion, '
or any ordinance infllding a greater pu
niffiment than fine, or imprlfonment for
three months, to be of any validity, till
fuch confent is obtained. No ordinance
can be paffed at any meeting of the coun
cil, where lefs than a majority of the ,
whole council Is prefent ; nor at any time,
except between the firft of January, and
the firft of May, unlefs on urgent occa
fions : on Which occafions the governor is
to fummon every member refident at Que
bec, or within fifty miles of it.
There is one circumftance which muft
ilrike every man who reads this ad. It is
acknowledged over and over again in it,
that

448 Acts relating- Part IIL
that the proclamation publlffied in thg
third year of his majefty's reign, was In-^
applicable to the ftate of the provlncci Is
it poffible that parliament ffiould have fate
fix long years before it made this difeo-
very ? The confufion which prevailed in
the reft of the American con,tinent was at* ¦
tributed by thofe who were beft Informed,
to the want of a parliamentary fettlement.
Why was the fettlement of Quebec fo long
delayed ? The laws and cuftoms, the tem
per and manners, of the people, muft fure*
ly havC' been learned by the miniftry in the
courfe of five years, which preceded the
exiftence of the laft parliament. It cannot
then but appear fingular, that an ad of
this nature ffiould have been deferred fo
the very latter end of the laft feffions of
the parliament before us. It was furely an
ad of wanton cruelty to fuffer the province
to groan for fix whole years under a form
of government, " inco.nfiftent with their
" commercial interefts, and inapplicable to
« the

3ed. VIII. TO 'THE Colonies. 445
" the ftate and circumftances of the coun-
" try."
To atone for this, I muft call it culp
able negligence, we may with reafon ex
ped, that the regulation which fo much
time was taken to digeft, was well adapts
ed to the ftate and circumftances, and
conducive to all the interefts of the pro
vince. We have the more reafon to ex
ped this, as here at leaft parliament had
it's han.ds at liberty. No contending and
.oppofite claims had it to adjuft, no grants
to fteer clear of, or revoke.
All the peculiar privileges which the
inhabitants of Quebec could claim, were
¦ comprifed in a ffiort capitulation, and a
fingle article of a treaty of peace.
Let us fee now if the juftice and policy
. of the ad are fuch, as to atone for the
aftoniffiing tardinefs In paffing it.
With regard to the extenfion of the
' bouridaries of the province, I think all the
. objedions againft it, have been fully and
ably anfwered by an author, who feems to
G g have

450 Acts rela'J'ing Part IlL
have written upon full information, and a
thorough knov/ledge of the fubjed *.
But the loudeft clamours have been
raifed againft other parts of this ad. Re
ligious prejudices are, of all, the ftrongeft
and moft likely to work upon the minds
of the people. This topic was, therefore,
greedily feized by oppofition. The horrid
crime, and the dreadful danger of efta-
bliffiing- popery in fo large a part of his
majefty's dominions, has been thundered
in the ears of the king, lords^ and com
mons in remonftrances from very religious
magiftrates, and echoed back again to the
public with all the clamour and turbulence
of an enraged and mifguided populace.
Meantime the defenders of the bill feemed
afraid of fpeaking out. They were will
ing to allow any thing, to have re-
* See this part of the bill ably defended by
the author of " the Appeal to the Public, flat-
" ing and confidering the Objections to theQue-
" bee bill," printed for Payne, 1774, from page
36 to the end. courfe

Sed. VIIL TO the Colonies. 451
courfe to any lubterfuge, ratherthancon-
fefs that the Romifli religion v?as efia-
bliftjed by this ad. — It is tolerated they faid,
but not eflablifhed. — Nay one writer found
out, that, the church of England was efta
bllffied by it. " For the Canadians (fays
*' he) are to acknowledge the king to be
"fupreme head of the church in Quebec,
" by the authority of the ad of Elizabeth :
" of whatever church, then the firft of E-
" lizabeth declares the king to be fupreme
"head, that mu^he the church eftabllffied
*' in Quebec by this ad*."
If this gentleman had turned to the ad
of Elizabeth, he would have found that it
does not declare the queen to be the head
of any particular church. He might have
recolleded too, that what is now called the
church of England, did not then exift.
The ad of uniformity was not paff
ed ; the queen Is fimply declared " fu-
*¦ See Juftice and Policy of this Aft aflerted and
p;-oved, p. 50.
G g 2 " preme

452 Acts relating Part IIL
" preme governor of thefe realms, as well
in matters ecclefiafiaftical as civil." A very
different thing from being head of this or
that particular church. By virtue of this
ad, I fuppofe, the king Is head of the
churches of the ariabaptifts and preffiyte-
rians, and of our fober honeft friends, the
Quakers, as well as of the church of Eng
land. This author indeed does allow — *
" that the point might have been made
more clear". Afk him why It was not,' — and
he gravely tells you, " then there would
*' have been danger of undoing what the
*' claufe fets out with the profeffed purpofe
*' of doing, — the giving eafe and fecurity
** to the minds of the Canadians *" How
the Canadians would ftart and ffirinkat fuch
a plea as this ! — " You fet out (they would
*' fay) with profeffing to eftabliffi our
" church ; and lo ! by an ungenerous fub-
* See Juftice and Policy of this Adt afierted and
proved, p. 51. " terfuge

Sed. VIIL TO the Colonies. 453
/," terfuge, It is the church of England you
" mean all the time to eftabliffi." —
If the ads of the legiflature are to be de
fended, let It not^by arguments like thefe.
— To utter dark fayings ; to fpeak unin
telligibly, would be'dlfgraceful enough to
a legiflature ; but to fpeak deceitful words,
to ufe words which have two meanings,
with the profeffed purpofe of deceiving; —
for that I cannot find a name. No ! let us
fpeak out, let us boldly acknowledge the
truth : — the ad has efiablifhed the religion,
of Rome at Quebec. Why torture our
felves to explain away a truth that is fo
clear ? or why hefitate to acknowledge a
fad, that needs no apology ? If there be
any force in treaties ; if any faith is due
to them ; if they can convey a right ; the
Canadians had a right to this eftabliffi-
ment. ,
By the 27th article of the capitulation
between general Amherft and the marquis
^e Vaudrueil, It Is ftipulated, that " the
.' ' G g 3 , :' free

454 Acts relating Partlll.
" free exercife of the Roman religion ffiall
" fubfift intire. In fuch manner, that all
" the ftates and people, of the towns and
"countries, places, and diftant pofts, ffiall
" continue to affemble in the churches,
" and to frequent the facraments as here-
" tofore, without being molelled in any
" manner, diredly or indiredly." In the
fecond article of the definitive treaty of
Paris, " his Britannic majefty agrees to
"grant to the inhabitants of Canada the
*' liberty of the Catholic religion ;" and
engages " to give the moft exad and moft
" effedual orders, that his new Roman
*' Catholic fubjeds may profefs the wor-
" ffiip of their religion, according to the
" rites of the Romlffi church, as far as the
" laws of Great Britain permit." — Now
furely the laws of Great Britain permit
him, with the , advice and confent of his
parliament, to fecure to his Canadian fub- ¦
jeds every thing that the capitulation had
granted them. To Interpret the laft un
neceffary

Sed. VIIL TO the Colonie?. 455
neceffary claufe, fo as to annul the tenor
and purport of the whole, might be re
ceived as a legitimate mode of interpreta
tion in the fchools of Berlin or Vienna ;
but I hope It is a mode that will never be
adopted in England. By the terms of
capitulation, by the plain meaning of the
treaty, the Canadians had a right to an
eftabliffiment." — The Roman Catholics In
Quebec are, as to this point, In the fame
fituation as the Proteftant diffenters In
England. The capitulation, and the trea
ty, operate with refped to the one, juft as
the toleration ad operates with refpeft to
the other. In truth, it was they that rendered
jharwhich " in Britiffi fubjeds would havp
," been Illegal without them, thenceforth le-
.*• gal ; by them this way of worffiip was
^' permitted and allowed : it was not only
" exempted from puniffiment, but rendered
"innocent and lawful." In a word, as
ford Mansfield nobly declared of the way
-^pf worffiip of the diffenters, — " It was
G g 4 " efta-

456 Acts relating Partlll.
" eflabliffied *.'' And what has the ad
done more, than barely confirm what the
capitulation and treaty had folemnly grant
ed before?
But It is faid the Roman religion is not only
efiablifhed. It Is even endowed, by this ad.
True, it is fo. And to fome endowment too
the Canadians had a right by the fame capi
tulation. In the article already cited, it was
" demanded, that the people ffiould be ob-
" liged by the Engliffi government to pay
" to the prieft? the tythes, and all the taxes
" they were ufed to pay under the govern-
" ment of the moft chriftian king." The ge
neral's anfwer was, " That theobligation of
*' paying the tythes to the priefts, muft de-
" pend on the king's pleafure." After the
place had furrendered, the king's pleafure
* See lord Mansfield's fpeech in the Houfe -of
Lords, in the cafe of the chamberlain of London,
againft Allen Evan?, Efq. printed at the end of
Dr. Furneaux's Letters to Mr. Juftice Blackftone.
a fpeech which is more worth than whole volumes-
of Commentaries. could

Sed. VIII. TO THE Colonies. 457
could be declared only in parliament ; and
this ad is that parliamentary declaration of
his pleafure. The moment the exercife of
their religion was granted to the Canadians,
the maintenance of their priefts in fome way
or other; became neceffary ; the king, that
is, the king In parliament, was to exercife
his judgment as to the mode and meafure of
maintenance to be affigned ; he has exer
cifed it, and the refult is, that he has
fixed upon that meafure and that mode, to
which they, who are to furniffi the main
tenance, had for ages been accuftomed,
with which they were, contented ; which
they themfelves entreated to be conti
nued. What founder principles of juftice or po
licy could have been adopted ? Had the
other provifions in the ad been as unex
ceptionable as this, I know, of few ads
that would lie open to lefs objedion ; — but
thofe who are beft acquainted with the na
ture and genius of the Romiffii religion,
will allow, that the ad has not fufficiently provided

458 Acts relating Part IIL
provided againft the dangers with which
that fed Is always threatening the peace of
the community. It is npt the dogmas of
the church of Rome which ffiould alarrq,
the legiflator. What is it to him whe
ther men believe In the abfurd dodrlne
of tranfubftantiation, or the no lefs abfurd
dodrlne of confubftantlatjon, which we all
of us learn in our catechifm ? But there
are other matters of a quite other impor
tance. It is a matter of a quite other impor
tance whether or no fubjeds acknowledge
a dependence on a foreign power, incon-
fiftent with the obedience to their natural
fovereign ; whether or no the priefts enter
into vows, or form focieties Incompat'
ible with the welfare of the ftate. Againfl
thefe inconveniencles, which affed the fo
ciety in Its civil capacity, the ad has pro
vided either none or inadequate checks.
It is indeed enaded, that the Canadi
ans ffiall be fubjed to the king's fupre
macy as eftabllffied by the firft of Eliza
beth, and an oath is prefcribed to enforce
7 this

Sed. VIII. TO the Colonies. 459
this provifion. It has been faid, that the
bill as it came from the Houfe of Lords,
enjoined the Canadians to take the oath
prefcribed in the ftatute of Elizabeth. The
lay lords perhaps did not know, that no
true catholic could voluntarily fwear
"to renounce all foreign jurifdidion,
" power, and authority in matters eccle-
*' fiaftical." The fpiritual lords one would
think could not but knqw It ; and yet It
Would feem rather uncharitable to fuppofe,
that they thought fo ill of the Canadians,
as to fufped them capable of giving their
*' unfeigned affent and confent," to an ar
ticle which they diffielieved : be that as It,
may, the oath was changed in the lower
houfe. As it now ftands, it Is a general
oath of allegiance, without any particu
lar reference to matters ecelefiaftical ; and
fo far it is right *. But the fad is, that
oaths
* I fzy fa far, becaufe I think the laft claufe
injudicious, " renouncing all pardons and dif-
" penfations from any powrer or perfon whomfo- " ever

460 Acts relating Partlll.
oaths are of no ufe, no validity in this
eaie. The religious principle can never
have force fufficient to bind a firm be
liever in the plenitude of power in the in
fallible to any ad, by which that plenitude
of power is acknowledged to be circum-
fcrlbable. Here then the ad ffiould have been
more explicit ; It ffiould plainly have de
fined what was meant by the king's fu
premacy. It ffiould have prohibited all
appeals to the court of Rome in any caufe
or on any pretence whatever : it ffiould
have eftabllffied courts for the decifion of
" ever to the contrary." The member who
brought in this oath muft, one fhould think, have
known, that whoever was ftaunch papift enough
to believe the pope has the power of difpenfing
with obedience to the oath, muft believe too, that
he had power enough to difpenfe with the renunci
ation-. And it feems, therefore, injudicious in the
legiflature, to let the Canadians fee, that it even
fuppofed it poflible they fhould be capable of hold
ing a tenet which would deftroy the fandtion of ail
oaths. If, indeed, the fanclion of an oath he of
that ufe it is generally fuppofed to be. all

Sed. VIII. TO the Colonies. 461
all ecelefiaftical caufes, which, like afl
our other courts, ffiould have fat and ad^
ed in the name, and by the authority of
the king. It ffiould have guarded thefe
provifions by pains and penalties clearly
expreffed, and eafy to be inflided. As the
ad now ftands, how is the Canadian to
know what is the fupremacy to which he
is fubjed, or what are the penalties under
which he is to fubmit to if ? He Is to find-^
it out, if he can, In the firft of Elizabeth,
a ftatute which is a repeal, or a revivor
of no lefs than fixteen other ftatutes-, which
itfelf has been altered, and in part repeal
ed by eight or ten later ftatutes. A fta
tute, therefore, which we may venture to
fay, not one Engliffiman in a thoufand
underftands, which, therefore, It cannot
be reafonable to exped the Canadians
ffiould ever underftand.
The celibacy of the Roman clergy is ,
another point, in which the welfare of
the civil fociety is more deeply interefted
than many may at firft fight Imagine. Men

462 Acts relating Part III.
Men who are debarred from being huf-
bands or fathers, have not the fame mo
tives to be good citizens as the reft of man
kind ; they cannot give the fame pledges
to fociety for their good condud in it.
The fpirit of the citizen Is abforbed,
" dans Yefprit du corps." " But what, we
" ffiall be afked, would you have the
*' clergy conftralned to marry ?" No, fure
ly. Nay, it was better perhaps not to
give them permiffion to marry in ex
prefs and dired terms. But fomething
might have been done ; the com-ts might
have been prohibited from holding, and
the parties from profecuting any plea
againft priefts who ffiould marry. If the
ad had removed all legal reftraints, the
reft might have been left to nature.
In the capitulation * it is ftipulated,
that " the communities of nuns ffiall be
" preferved in their conftitution and pri-
" vileges ; that they ffiall continue to ob-
* Art. XXXn. " ferve

Sed. VIIL To TH]? Colonies. 463
" ferve their rules, and to be exempted
"^ from lodging any military : that it ffiall
" be forbid to trouble them in their reli-
" gious exercife, or to enter their monaf-
" teriesi'* I
The fame privileges were demanded*,
but refufed, " with regard to, the com-
" munities of Jefuits and Recolets, and
" of the houfe of the priefts of St. Sul-
*' picef. Yet the communities and all the
*' priefts are to preferve their moveables,
*' and the property arid revenues of the
" fignorles, and other eftates which they
" poffefs In the colony ; and the fame
*' eftates are to be preferved in their pri-
" vileges, rights, honours, and exemp-
*' tions." In the definitive treaty of peace*
not a fyllable is faid about thefe articles.
Here then a queftion may arife, whether
the grants made in a capitulation are to
be confidered as perpetually binding, or >
« Art. XXXn. t Art. XXXIV. only

464 Acts relating Part III.
only In force till the definitive treaty be
figned, and to lofe all farther validity un
lefs confirmed there, either by exprefs or
general terms ?
This latter feems to have been the idea
adopted by parliament ; for, notwithftand
ing the XXXIVth article of the capitula
tion, recited above, the religious orders
and communities are excepted from the
number of thofe, who are to hold their
property and poffeffions, with all the cuf
toms and ufages relative thereto. Now if
grants conveyed by a capitulation of them
felves, and without any fubfequent con
firmation by the definitive treaty, be of
permanent validity, then it ffiould feem
that parliament did an ad of injuftice to
the religious orders in not confirming
them in all their poffeffions and rights.
If, on the other hand, the grants made by
a capitulation be only temporary grants,
and lofe all fubfequent validity, ufllefs
confirmed by the definitive treaty, then if
will be difficult to vindicate the prudence of

Sed. Vtn. TO the Colonles. 465
of parliament for flopping ffiort where it
did, and negledirig to pave the way for
a certain and total' diffolution of thefe
orders. We have feen princes of the Romlffi
fed-, the mo^ faithful king, the catholic
king., with even the eldeft fori of the
¦church, unite 'm forcing their fpiritual pa
rent to fupprefs one religious order : other
catholic princes have, by their own auth'o-*
rity, fuppreffed other orders in their own
dominions. Why a proteftant fovereign
ffiould be more fcrupulous on this head,
I own does not readily appear.
Heaven forbid we ffiould Imitate the
clrcuniftarices of cruelty and injuftice
which attended the fuppreffion of the Je
fuits. But, furely parliament might have
prohibited thefe orders from receiving any
more novices ; have obliged them, to give
in an exad account of their eftates, have
divided thefe, eftates Into certain por-*
tions, have affigned a competent poi-tioa
to each of the prefent members ; and as
H h they

466 Acts REt ATiNtf Part IE.
they died off, it might have appropriat
ed their refpedive ffiares to the build-'
ing and endowing of fchools, to the mak
ing of roads, to the maintenance of a ,,
proteftant clergy, and to other works of
public utility.
It may be urged perhaps, that fuch an-
arrangement would have ffiocked or re
volted the Canadians ; but is there any
thing more ffiocking, or revolting, thaa
the cruel ftate of dependence in which the
ad has now left them ? they are mere
tenants- at will : was that then the inten
tion^ of parliament ?- Did it mean that
thefe communities, men who have fuch
an influence over the minds of the people
ffiould be kept dependent on the will
of the crown for their lands and pof
feffions ?
The gradual fuppreffion of convents
would have furniffied a fufficient provi-'
fion for a proteftant clergy. The protef
tant laity might then have been finally
exempted from the payments accuftomed to '

Sed. VIIL TO the Colonies. 467
to be made to the Romlffi clergy ; and >
thus without any new expence to the
ftate, might have been held forth a power
ful and ever operating inducement to
abandon the church of Rome. As the ad
now ftands, this inducement is with
drawn ; catholics are to pay the accuftom
ed dues and rights to the catholic priefts ;
but proteftants too are to pay them to fome
colledor or other, and out of them his ma
jefty may, if he pleafes, make a provifion
for a proteftant clergy. If his majefty is
to apply, he is then to receive thefe rights
. and dues from his proteftant fubjeds.
Did the framers of this, ad confider,
that a part of thefe rights and dues arifes
from fums paid in commutation for pe
nance, for maffes faid for the delivery of
fouls from purgatory, for difpenfations
for breaches of the canon law ? Commuta
tions and difpenfations are indeed perfonal
affairs, and when a man withdraws from
the fociety where only they are current,
I fuppofe he may do without them. But
Hh2 the

468 Acts relating Part. IIL
the fums to be paid for the releafe of our
anceftors from purgatory are debts of an
other fort ; the whole of a man's eftate is
chargeable with them. Thefe then are to
be carried to his majefty's account, Tythes
too are to be carried to his account. Are
the fums arifing from them to go with the
other unappropriated fums and fwell the
civil lift ? or are they to be brought into
the exchequer and accounted for to par
liament? It would be an amufing item to
read in fome treafury account, " Caffi
*' from a noble Canadian for one thoufand
" maffes which ffiould have been faid for
" his grandfather's foul. Ditto for the
" foul of his grandmother, &c."
Thus much for the tender nefs ffiewn by
this ad to- the religious rights of the Ca
nadians. W^ith regard to their civil rights
it is enaded, " that In all matters of
" controverfy relative to property and ci-
" vii rights, refort fhall be had to the
"laws of Canada.'* No:

Sed. VIIL TO the Colonies. 469
^ No man can judge of the propriety or
impropriety of this claufe, who is not
thoroughly mafter of the ftate of the
country, and the temper and -difpofition of
the inhabitants. It is always difficult, and
often dangerous, to tranfplant in an in-
ftant a fyftem of laws eftabllffied in one
country by the progreffive experience of
ages, and to impofe it on another coun
try, where neither the cuftoms nor pre
judices, nor habits of thinking have pav
ed the way for its reception.
Whether, during the many years we
had been in poffeffion of Canada, the
minds of the people had been prepared
for the reception of the Engliffi law, is a
point on which parliament could reafon
but imperfedly for want of fufficient
data to go upon. Reports from the board
of trade on the ftate of the province, re-
preferitations from men in the higheft of
fices In it, with plans for the form of go
vernment , which was beft adapted to it,
H h 3 opinions

470

Acts relating Part III.

opinions on thefe plans from the law of
ficers at home, and many other impor
tant papers had been laid before the coun
cil board ; they were called for by one at
leaft of the two houfes, but not produced,
becaufe it ffiould feem there was not time
to copy them ; a reafon which muft appear
fingular at the end of fo many years. Nor ¦
is this all, many competent witneffes'
were with-held from examination for no
apparent reafon at all ; and one withefs,
high in office, was fuffered to infult the
houfe by anfwers, that would not, under
the fame circumftance, have been endur
ed at the bar of an inferior court *. Thus
* I do not by this mean any reflection on Dr.
Marriot ; it was not he who infulted the houfe ;
the infult comes properly fpeaking, from another
quarter, be was only the conveyance by which it
was off^ered. The reafons alledged why the papers
demanded could not be laid before the houfe, were
thefe : that the papers were not copied ; that the
copymg of them would be a work of time, and
create long delays, and that the fame information might

Sed. Vlil. TO THE Colonies. 47J
Thus much however may be gathered
even from the imperfed account we have
of the debates, that the defenders of this,
claufe feem to have confounded two things
perfedly diftind and independent ; the
laws relating,to fucceffion, and the tranf-
fer ofyythe laws relating to judicial pro-
x;eedlngs. It might have been very cruel.
and very impolitic to have changed the
one, and yet, at the fame tiriie, very be
nevolent, and very politic to have changed
the other. The eftabliffiment of a trial
by jury In civil caufes would furely have
made no change in the laws of fucceffion ;
f jury may try a right to lands in common
foccage, or to lands in gavel kind ; a jury
is as competent to the trial in one cafe as
in the other ; .a jury does not create. It on
ly find a title.
micht be had from living witnefles. In confe-
quence of this idea, Dr. Marriot was fummoned,
and, under the.'e circumftances, it was certainly
to infult the houfe, to bring him to the bar
without a full permiffion to lay his opinion before
the houfe,
H h 4 Wi;

472 Acts relating Part III.
We may obferve too, that of the argu
ments urged againft the trial by jUry in
civil cafes, fome went diredly in favour
of that mode; others proved, not that the
Canadians difliked a jury, but that they
wiflicd to make a real improvement in
it. For it was faid by one witnefs, that
the reafon why the Canadians difliked a
jury in civil caufes was, that they did not
think their property fo fafe in the deter
mination of taylors and ffioemakers, mix
ed with people in trade, as in that of the
judges. Now this objedion was evident
ly didated by the pride of noblefle; a
French gentleman finds himfelf humbled
by feeing a roturicr put on a par with his
dignity. If the inftitution of juries would
tend to check this pride, fo inconfiftent
with the fpirit of freedom, that very cir
cumftance is the ftrongeft alignment why
juries ffiould be permitted in civil caufes.
If the gentleman thinks his property fafer
iu the hands of the judges, becaufe they
are nearer his rank, the plebeianwill think his ,

Sed. VIII, TO THE Colonies. 473
his property fecurer In the determinat'iori
of a jury, for they are nearer his rank.
Now the law which beft fecures the pro-?
perty of the greateft number, is furely
the beft law. The law which gives the
greateft acceffion of fecurity, where there
is natirally the greateft weaknefs. Is fure
ly the beft law.
It was urged too, that the Canadians
.did not wiffi for an Engliffi jury ; for they
neither doated on the number twelve,
nor expeded a jury to be what many think
in their confcience they feldom are, though
they muft pretend to be, unanimous.
They therefore wiffied their juries to con
fift of uneven numbers, and the decifions
to be colleded from a plurality of voices.
This furely did not prove their diflike to
juries ; it proved only, that they had feen
a defed in the conftitution of our juries,
to which habit and cuftom has blinded us,
and that they wiffied to have a remedy for
that defed. Inftead of refufing them a
jury on this account, fome have thought it

474 Acts relating Partlll.
it would have been wifer, and better to
have modelled our own juries in the plan
they held oiit to us.
Another very ftrong objedion was urged
againft this general extenfion of the law^
and cuftoms of Canada in all matters rela
tive to property and civil rights *. By tfie
laws and cuftoms of Canada, the govern
nor was intrufted with blank lettres de ca
chet, which he might fill up at his dif
cretion, and commit the party, whofe
name he inferted, to prifon during plea
fure. By this claufe of the ad then a king
of England may give blank lettres de ca
chet to his governor, and his governor
may make the fam^ ufe of them ; for if
his majefty's Canadian fubjeds are to be
governed by the ancient laws and cuftoms

* See the examination of Mr. Mafefes In the
Parliamentary Debates, Vol. IX. p. 317, &c.' — -
Though this book is of no authority, and in many
places faulty, yet the accounts of this, and fome
other examinations, feemed to be pretty accurately
taken.

of

Sed. VIII. TO THE Colonies. 475
of Canada : if this mode of iffuing let
tres de cachet be among thofe ancient laws
and cuftoms, how can it be proved illegal
in the king to iffue them, or in the'governor
to apply them ? Or what puniffiment can
you inflid on the minifter who ffiould ad
vife the king to exercife, or on the gover
nor who ffiould adually exercife, a power
which parliament thus declares to be legal ?
Or what remedy could a fubjed, injured
by a wanton exercife of that power, ob
tain in the courts of Canada? Perfonal li
berty is a civil right. — ^The laws of Cana
da are to provide the remedy againft a
civil wrong. If they give no remedy, no
remedy is to be had. And it Is, I fuppofe,
out of doubt, that the laws of Canada pro
vided no remedy againft this abufe of power
in a governor.
It was therefore 'Infinuated by the very
refpedable witnefs, who during the courfe
of his examination urged thefe arguments,
that a claufe ffiould be Inferted granting
the benefit of the Habeas Corpus Ad to
his

476 Acts relating Part IIL
his majefty's , fubjeds in Canada. The
claufe however was -not inferted, becaufe
it was faid, that it was not probable that
lettres de cachet ffiould ever be made ufe
of. A reafon, which if it has any weight,
would operate to the tearing up all the
fences fet about our liberty *.
The introdudion, or rather confirma
tion of the criminal law of England, Is
certainly one of the moft laudable parts of
the ad ; the reafons affigned for it are fuch
as do honour to the legiflature ; but there
is an inaccuracy, ffiall I call It, or a fal
lacy, which perhaps efcaped the legifla-
* In criminal profecutions, I take it for granted
the Canadians are entitled to the benefit of this aft :
but this does not juftify the author of the Appeal in
calling '* arguments ifluing from the idea of the
*' non-extenfion of the writ of Habeas Corpus, mere
«' moonfhine," p. 34. He is wonderfully miftaken
when he fuppofes, that " the liberty of the fub-
*' jc£l " is not concerned in civil adlions. Or that
in civil aSioni " the crown may not gain an oppor-
" tunity of interfering to the oppreffion of the fub-
'• jea." Ibid. p. 33. ture

Sed. VIII. TO THE Colonies. 477
ture itfelf. What are exclufively the ob
jeds of the criminal law in England ?
-?-This queftion perhaps did not occur to
the framers of the ad ; If it had, I per
fuade myfelf the benefits intended by this
provifion would have been better fecured
than they are. All crimes are objeds of
the criminal law. So it may be faid, —
but what are crimes in the eye of the law ?
- — ^Many adions may be confidered, at the
option of the plaintiff, as public or as pri
vate wrongs, as crimes or as civil injuries*
The fame adions therefore riiay be pro
ceeded againft in different courts, be tried
by different laws, juft as he pleafes ; fo
that the provifion ffirinks to this. If you
profecute another criminally, you ffiall da
it in the method prefcribed by the crimi
nal law of England. As " to thedefcrip-
" tion and quality of the offence," the
Engliffi law Is no farther a rule than as it
may be alledged to prevent a greater de
gree of criminality being attributed to any
' ad, for which a man Is proceeded againfl
Griminally,

478 Acts relating Part IIL
criminally, than the criminal law of Eng
land attributes to it. Manflaughter, for
inftance, ffiall not be called murther, no*
ffiall mifprifion of treafon fwell into trea
fon. But to have made this claufe as bene
ficial to the fubjed as it feems probable
the legiflature Intended to make it, the
ad ffiould have defined what adions were
to be confidered as private, what as public
wrongs ; but no fuch definition is there.
See, therefore, how the cafe ftands now : a
Canadian noble takes it into his head to
attempt to feduce the wife, or the daugh
ter of a peafant, the peafant comes in,
hears the perfuafive tongue urging his
wife or daughter to diffionour ; fired with
refentment, he beftows on the culprit the
chaftifement he deferves. What is the
noble to do ? If he indids him for an af-
fault, fuch is the lenity of the Engliffi law,
fuch are the prejudices of a jury, that the
man will be let off without any puniffiment,
or at moft for a trifling fine, or a ffiort im
prlfonment.

Sed. VIII. TO TH£ CoLONIES^. 479
prifonment. The noble feels that his dig- '
nity will be fafer in the hands of a Cana
dian judge, than of a plebeian jury ; he,
therefore, rejeds the mode of indidment
as for a public wrong, and brings an
adion as for a civil injury. An Engliffi
man takes it in his head to write againft
one of the legiflative council that undefin-
able thing called a libel. If the Engliffi
man be indided for a crime, a jury may
perhaps find the fuppofed libel to be no
libel ; or at worft will fend him for a ffiort
time to prifon. No, fays the counfellor,
this Canaille of a jury have not the fine
feelings of honour. — I will fue the man for
damages : that way I can throw him into
prifon for life.
But the moft exceptionable part of the
ad, that which I conceive it impoffible to
defend, that which deftroys, or at leaft
may be ufed to deftroy, all the beneficial
provifions which precede it, is the confti
tution of the legiflative council.
7 The

480 Acts relating Part IIL
The majority of feventeen men, in whom
no earthly qualification is required, but
that they be refident in the province of
Quebec ; who, for ought appears by this
ad, may be men of no property, no prin
ciples, no knowledge; to be named by
the crown, removeable by the crown, are
intrufted with the important bufinefs " of
" making ordinances for the peace, wel-
" fare, and good government of the pro-
" vince."—The reftridions, under which they are
to exercife this extenfive authority, and
which the ad calls " proper reftridions,"
are only thefe : they cannot Impofe taxes,
except for local oeconomlcal purpofes 1
they muft tranfmit their ordinances for
the approbation of the king in council :
they cannot indeed during the interval be
tween the time of tranfmitting them, and
that of their receiving the royal affent, en
force any ordinance which inflids a higher
penalty than a five, or imprlfonment for
three months : but the fine is unlimited ;
fo

Sed. VIIL .TO THE Colonies. 481
fo that they may pafs ordinances which may
effedually ruin every man who is obnox
ious to them.
And to every other purpofe this very
refpedable council has an abfolute power.
It has the power of altering, under pretence
of amending, the civil law : it has the power
pf altering, under the pretence of amend
ing, the criminal law. The amendment
' of the civil law was an undertaking be
yond the reach of the wifdom of a Britiffi
parllamerit ; but is only a competent ob
jed of thefe heaven-born legiflators. The
communication of the criminal law of Eng
land was from experience, found to be very
beneficial and advantageous : why then
ffiould the power of amending it be in
trufted to fuch a body ££ this ? A reafon
has been fuggefted, which I would not
fuppofe to be the true cne, though I may
venture to repeat it : ffiould a man (it is
faid) be obnoxious to his excellency the go
vernor, he haS only to fummon his de
voted council of nine (for a majority of this
I i majority

482 Acts relating, &c. Part IIL
majority is a competent number) ; a new
mode of procedure, a new fornu of. trial
will be appointed, by way of " alteration
" and amendment ;" and the culprit will
hear no more of the certainty, and lenity,
of the criminal law of England.
Such then is the tenure by which the
Canadians hoI4 the bleffing conveyed to
them by this ad. If the whole province
does but furniffi nine men of bad princi
ples — and where Is the province that will
not? — the governor has only to recom
mend them to the crown as fit perfons to
be of the legiflative council, and the Ca
nadians may be legally ftrlpt of every
right, every bleffing they enjoy. Ten
men would have faved the city with the
odious name : nine only are enough to
damn Quebec.

PLAN

( 4^3 )
L A .N

O F

RECON CILIA T I O N.
GREAT outcries have been raifed
againft the tyranny and violence
with which the laft parliament is alledged
to have proceeded againft the Americans,
The very reverfe appears to have been the
cafe; for fix whole 'feffions they flept
over the bufinefs ; it was not till the laft
feffions that they awoke. If, when rouf^
ed at laft from that long lethargy, they did
lefs, or acquitted themfelves .worfe than
they might have done, no fmall ffiare of
blame perhaps Is due to that party whicK
exerted all its force In obftruding what
was propofed, without offering any thing
of its own.
The truth feems to be, that parhament
is iiiore to' be blamed for what it left
undone, than for what, it did; for having
left things at the end of near feven years
I i 2 in

484 P L a Ji 0 P
in the -iierf fariie unfettled ftate In which
it found them, rather than for having
done what is fcarce poffible, put them in
to a worfe.
A propofition once avowed by a quon
dam howfe of commons is, '* that it is a
*' very unfafe thing, in any fettled govern-^
*' ment, to argue the reafons of the funda^
*' mental conflitutions, for that Caq ten4
*• to nothing that Is profitable to the
*« whole*.'' A m^xim of the very ftamp of thofe^
behind which all bigots either iri religion
or politics Intrench themfelvfes ; as if a
government could be faid to be fettled, or
at leaft well fettled, thtt cou|d riot bear fo
have the reafons of its eftabliffinients en
quired into. One cannot but \>e forry at
obferving a parliament in this ftiore eri-
lightened age aduaited by the fame fear of
* Se0 Coril. Jourii. vol. i^. p,\24^. Wfeakefi-

Reconciliation, 485
weakening the furidamentals, Iftheyeur
deavoured to explain them.
It appeared by all the proceedings of
the Americans, by the votes of their af
femblies, by the books In greateft repute
0,mong them, that the Americans had no
precife ideas of the relation in which they
ftand to the mother country. Thefe ac
counts were confirmed by repeated advices
from the fervants of the crown ; yet till
that relation was fixed, nothing permanent
could be done. Inftead of fetting about
this bufinefs, what was the parliament
employed about for fix long years ? They
were at the pains of giving their fandion
to a power, which by their own ffiewing
needed no fuch thing, and which after it
. had that fandion, it was thought, and
that without any change of circumftances,
not fafe, or not prudent to exert. To
threaten a puniffiment, and that of the
firft magnitude, which you dare not In
fiid', is /Wanting onl^l to grafp.all the
I i ^ odium

486 P L A N O F
odium of feverity, without one of its ad-
vaivtages =
At the time thefe impradicable threats
were thrown out, affUrances of conceffions
in fome points were given In a. manner,
that even a lefs haughty people might
have attributed to fear, Conceffions were
adually made, by which the greater part
of the profits of the obnoxious meafures
were abaridoned, at the fame time that
all the odium of them was retained. A
redrefs of grievances was promifed, which,
when the time came, they could not bear
to look into : parliament feeming all a-
long as much afraid of entering into the
queftion of American grievances, or of its
own rights, as a zealous catholic is afraid
of examining the foundation of tbe power
of the church. What was the confequence ?
Whilft parliament was fo cautious of rea
foning about fundamental conftitutions,
the Americans reafoned fo long, and fo
wildly, that at length they found out,
there

Reconciliation. 487
there were no common fundamentals be
tween us at all; and as parliament had
crudely afferted its own fupreme power
over the colonies in all cafes, they "came
at laft as fully and flatly to deny it *.
Then It was indeed that parliament
awoke, and for a time put on the appear
ance at leaft of vigour. But from the
review we have taken of the ads of this
laft feffion of it, two only appear to have
been intended as parts of a regular plan,
or permanent fyftem ; the other two are
mere temporary expedients, fet qxi foot
upon the fpur of neceffity, tO' check
father than remedy fudden .and unexped-
ed evils.
In neither of thefe temporary laws how
ever, does It appear that parliament has
exerted any unconftitutional powers. The
laws indeed have been branded with every
ignominious title, but furely they are
fully juftified by the mifchiefs that called
* See Tucker's Fifth Traft, p. 47.
I i 4 for

4S8 Plan of
for them ; inlfchiefs, If not created, yet
moft certainly precipitated by the very men
who clamoured againft fhe remedies.
As to the two permanent laws, we may
upon the whole perhaps, in fome meafure
excufe, but we cannot praife them : they
might be, we muft fuppofe they were
well meant ; but that is their chief merit.
To the deep policy, to the comprehenfive
wifdom of an enlightened legiflature,
their pretences furely are but flender.
" Cefi une chofe bien facile (fays fome
" one) que d etrefdge apres coup." And
no doubt when a plan has been tried, and
has mifcarried, it Is eafy to deceive our
felves, and to imagine we ffiould have
forefeen the inconveniencles which the ex
periment only has difcovered ; yet In this
cafe it does appear, that the fcheme of
parliament was defedlve. To repeal a
part of an uncommercial regulation, up
on motives profeffedly commercial, and
yet to retain the obnoxious principle,
without any qualification whatever, coul4
never

Reconciliation. 489
never lay the foundation of a regular per-r
manent fyftem.
The foundation of fuch a fyftem could
be laid only in a bill of American rights.
This bill ffiould have afferted the fupre
macy of the Britiffi parliament, arid its
power to make laws binding over the co
lonies — not in the ftyle of the Rocking-^
ham ad, " in all cafes Whatever." — This
the colonies derided at the time as a mere
brutum fiilmen, and have fince declared to
be unconftitutional. But in all cafes, exr
cept taxation, abfolutely and uncondi
tionally. With refped to taxation, it had been
urged in the laft parliament on behalf of
the Americans, " that parliament had no
" right to lay internal taxes on them, be-
" caufe they have no reprefentatives iri
" parKament ; but that it had a right to
" Impofe port duties, or external taxes,
" becaufe fuch duties are for the regula-
" tion of trade." The difference between
taxes external and Internal was, at the
fame

490 Plan o t
fame time declared to be this, that the di
red objed of the former clafs was to re
gulate trade, and that any revenue arifing
therefrom was incidental ; that the pro
feffed objed of the other was to raife a re
venue, and the regulation of trade ferved
only as the mode of getting at the re
venue. The Americans admitted the dlftinc-
tion, and hence concluded, that port du
ties impofed for the raifing of a revenue
were internal taxes s that port duties, the
produce of which was to be paid into the
exchequer, were Im.pofed for the purpofe
of raifing a revenue. The produce of all
port duties in America, they added, was
ordered to be paid into the exchequer,
therefore ^11 port duties we e internal
taxes *.
Nay, they went farther; if inftead of
impofing port duties, another mode of
taxation had been adopted ; if the duties
* See Bernard's Letters, p. 55, 56. had

Reconciliation. 49 i
had been made payable on the exporta
tion of the commodities from England,
and not on their importation into Ame
rica, they declared it would be all one :
this mode they declared would be equally
burthenfome on their purfes, and equally
deftrudlve~ of their rights *.
In thefe arguments, allowing them
their utmoft force, there was nothing
from whence It could fairly be inferred
that tlie Americans ought not to be taxed
at all, nor even that parliament ought not
to have taxed them. All that cquld be
inferred was, that, previoufly to their be
ing taxed, they ought to be put on an
equal footing in this re(ped with the other
fubjeds of the empire, either by being
permitted to fend reprefentatives, or if
that be not pradieable, by fome other
mode. •' /
Here then the propofed bill of rights
ffiould have refpeded their opinions, and
* See Farmer's Letters, p. 19. ffiould

492 Plan op
ffiould have put them on the fame footlrig;
as the other fubjeds of the empire.
There were two modes of doing this :
the moft obvious and nathral, and Which
to a man deeply learned in American af
fairs *, feems to have appeared preferable
to any other that can be propofed, is that
juft mentioned. An objedion indeed has
been made to it on account of the number
which the houfe muft theq confift of, in
order for that of fhe new members to bear
a due proportion to that of the old. But
that proportion rieed not have been large,
if the idea of a reprefentative were taken
from the defcription of his fundion, given
in an ancient ftatute, the Durham ad, in
which he is defcribed 'as a " man fent to
" reprefent the condition of the country.'*
This fundion, a number comparatively
fmalf would have been fufficient to dif
charge, nor need it mount by any means
to Dr. Tucker's " goodly number of
* See Governor Bernard's Letters, paflim. " two

Reconciliation;

493

** two thoufand feven hundred and nine-
" ty;" an affembly whereof " the decency;
" order, wifdoiri, and gravity," appear
ed fo tempting an objdd of ridicule to the
worthy dean *.
If ^thls plan, from local cifcumftancesi
br from mutual difinclination had beeri
found iriadmiffible, there feemed yet ari-
Dthcr, which fubftituted in the room of
the former, or fcombined With it, riiight
have compaffed the end in view.
If the Amei-Icans could nbt, or would
hot fend reprefentatives to the Brijiffi par
llamerit, and yet if the good Of the Whole
Empire required that parliament ffiould
affefs the portion they were to pay of
the public expence, fuch a iriode hiight
have been prefcribed tO the exercife of
this right, as would have fectired in the
krticle bf taxes, all the beneficial pur-
{}Ofed bf ' reprefentation. Parliament,
though It ffiould be thought not to have
* See his Four Tra^s* r. 107. found.

494 Plan of
found, might, however, have created the
fame relation between itfelf and the co
lonies, as between itfelf and the inhabi
tants of Great Britain.
To communicate, and for ever to fecure
to the Americans all the bleffings of the
Britiffi conftitution, fo far as their local
circumftances' would permit, the bill might
have laid down certain fundamental rules,
which ffiould for ever be obferved in the
laying of impofts or duties.
Thefe duties are laid either upon goods
imported from America into Great Bri
tain, or on goods exported from Great
Britain to America, or on goods tranf
ported from one colony to another, or on
goods exported or imported to or from
places out of the king's dominions.
As to the firft clafs of goods, thofe im
ported from America into Great Britain,
parliament might have left itfelf at full
liberty to impofe what duties it pleafed
on the importation of them here in Erig
land. Whatever duties were thus impof ed.

Reconciliation. > 49-5
ed, would not have been impofed on the
Americans who exported, but on the
Britiffi fubjeds who confumed them.
As to the fecond clafs, namely, goods
exported from Great Britain to Ame
rica, the bill might have provided, that
no other duty ffiould be laid on goods of
this clafs, than on the fame goods con
fumed in Great Britain. .
As to the third and fourth clafs, goods
tranfported from one colony to another,
and goods exported or imported to or
from places out of the king's dominions ;
parliament muft have referved the full
rights of Impofing fuch duties as it faw
fit, becaufe that right is effential to the re
gulation of trade.
:¦: That thefe impofts- however might
not be called internal taxes, the bill
might - have provided, that the monies
arifing from thefe duties ffiould not he
paid Into the .exchequer here, but to
treafurers to be appointed by the crown,
and accountable to the provincial legif-
6 latures

496 Plan Of
latures ihere j the fums to be by the fame
legiflatures appropriated to the refpedive
fervices of American government.
Out of thefe fums, and fuch taxes as
the provirieial legiflatures ffiould impofe,
an adequate provifion ffiould have been
made for the adminiftration bf juftice, and
the fupport of civil government. Ade
quate and permanent falaries ffiould have
been fixed on the governors and judges,
and fuch other officers appoiiited by tbe
crown as have permarient f:'aries InEng-
land. The quantum of the falaries to
have borne a certain proportion to the fa
laries paid to fimilar Officers in England.
Neither thefe, nor any other offices, to be
given to non-refidents.
Thefe expen.ces regard only their own
internal government ; but the colonies are
to be confidered yet in another light ; as
members of the empire.
Confidering them in this light, they
are benefited by the miffion, and reception
of foreign minifters ; by the troops kept
7 "P

, Reconciliation. 497
up for the general defence, by the general
fund; of warlike ftores, and, above all, by
the. navy. If they receive their ffiare of
tbe benefit arifing from thefe eftabliffi-
ments, it is but juft they ffiould pay their
ffiare of the expences that are to fupport
them. Parliament therefore has the fame
right of demanding that the Americans
ffiould contribute their proportion, as that
we ffiould contribute ours.
The only difficulty here would have
been, to prevent the parliament from ex~
ceeding that proportion. And - furely this
difficulty is not of fuch a nature but that
it might have been furmounted. Any
given tax or fum to be raifed in England
might have been taken as the ftandard.
The land-tax would have been the pro-
pereft ftandard, becaufe that is a tax, in
which of all others it is the moft difficult
for a mirilfter to ftretch beyorid a certairi
poirit. , A certain proportion ffiould have been
fixed, fo that when Great Britain raifed
K. k any

4g8 Plan of
any given fum by a land-tax, the colonies
ffiould raife each a proportionate fum : the
mode of levying this tax to be left entirely
to the provincial legiflatures ; the appro
priation of it to be left to parliament.
1
By this mode the fame relation would
have been created between the houfe of
commons, aud the colonies, as betweeii
the houfe of commons and the inhabitants
of Great Britain. The houfe of commons
could not tax them any more than they
can us, without at the fame time taxing
themfelves. Tbe houfe of commons might with the
fame propriety have given and granted
their money as they now do ours. Every
man of landed eftates in England would
have been as ftrenuous a guardian of their
properties as of his own. Both muft hav€
ftood, or fallen together.
If at the beginning of the laft parliament
the matter of taxation had been fixed
upon this footing— and furely this would have

Reconciliation. 499
have been a conftitutional footing to have
fixed it on — the recognition of the fupreme
authority of parliament in all other points,
would have met with little difficulty.
The neceffary alterations in their in
ternal conftitution^ and in their commer
cial fyftem, might then have been fub-
naitted to with lefs difficulty. At the fame
time, to put an end to that patch- work^
which fo difgraces our law in general: a
total repeal of all the laws relating to the
colonies might have been effeded ; and
the thirteenth parliament might have had
the glory of forming one comprehenfive
conneded codci fulted to the fituation of
things fubfiftlng.
That we muft either give up the colo
nies, or ftrike out fome method of recon
ciling Britiffi fuperiority with American
*' liberty," feems to be allowed on all
hands. In tke mean time thofe who tell
us, that " both may yet be preferved;"
who promife to make this " the great
« objed

50O Plan, &c.
" objed of their care*," have yet offered
nothing confiftent, nothing pradieable:
nothing beyond the plan which the colo
nies have already rejeded as unconftitu
tional. In fuch a moment a man of far
lefs abilities may be excufed if he throws
in his mite. The plan, of which s a rude
outline is here fketched out, appears to me
at leaft to have been an eligible plan : in
deed, for aught I can fee, the only eligi
ble one which the cafe admits of. I think
it was not then, I hope It Is not now im
poffible.
* See Mr. Burke's Speech at Briftol aftfer his
Election.

END OF THE FIRST VOLUME.

ERRATA.
Page 39, 1. 4, for Chailes I. rut/ James I. — P. 117, I. 16, for this
tax, 7-M(i there. — P. 156, 1. n, for independent, read dependent,—
P. 176, 1. 16, for the v/ord, read by the word.— P. 199, 1. i-Jifor con
sidering, read confiia. — P. 313, 1. $,for all points, readaW other points.
—P. 336, 1. 4, /acj equal, read equally.— .P. 385, 1. 9, for be convicj
tion, ««</ be no conviGion. — P. 394, 1. 16, ^r by, read tq. — P. 471,
1. 7, for transfer of the laws, read transfer of'^propeity with the laws'.-—
P, ^85;. line laft, for wanting only, rtad wantonly.

1627

- mfiat%

^^.:\' "^ :^---^t