Here is my third example. It was attended with the success of the two former. Chester, civilized as well as Wales, has demonstrated that freedom, and not servitude, is the cure of anarchy; as religion, and not atheism, is the true remedy for superst.i.tion. Sir, this pattern of Chester was followed in the reign of Charles the Second with regard to the County Palatine of Durham, which is my fourth example. This county had long lain out of the pale of free legislation. So scrupulously was the example of Chester followed, that the style of the preamble is nearly the came with that of the Chester act; and, without affecting the abstract extent of the authority of Parliament, it recognizes the equity of not suffering any considerable district, in which the British subjects may act as a body, to be taxed without their own voice in the grant.
Now if the doctrines of policy contained in these preambles, and the force of these examples in the acts of Parliament, avail anything, what can be said against applying them with regard to America? Are not the people of America as much Englishmen as the Welsh? The preamble of the act of Henry the Eighth says, the Welsh speak a language no way resembling that of his Majesty"s English subjects. Are the Americana not as numerous? If we may trust the learned and accurate Judge Barrington"s account of North Wales, and take that as a standard to measure the rest, there is no comparison. The people cannot amount to above 200,000: not a tenth part of the number in the colonies. Is America in rebellion?
Wales was hardly ever free from it. Have you attempted to govern America by penal statutes? You made fifteen for Wales. But your legislative authority is perfect with regard to America: was it less perfect in Wales, Chester, and Durham? But America is virtually represented. What!
does the electric force of virtual representation more easily pa.s.s over the Atlantic than pervade Wales, which lies in your neighborhood? or than Chester and Durham, surrounded by abundance of representation that is actual and palpable? But, Sir, your ancestors thought this sort of virtual representation, however ample, to be totally insufficient for the freedom of the inhabitants of territories that are so near, and comparatively so inconsiderable. How, then, can I think it sufficient for those which are infinitely greater, and infinitely more remote?
You will now, Sir, perhaps imagine that I am on the point of proposing to you a scheme for a representation of the colonies in Parliament.
Perhaps I might be inclined to entertain some such thought; but a great flood stops me in my course. _Opposuit Natura._ I cannot remove the eternal barriers of the creation. The thing, in that mode, I do not know to be possible. As I meddle with no theory, I do not absolutely a.s.sert the impracticability of such a representation; but I do not see my way to it; and those who have been more confident have not been more successful. However, the arm of public benevolence is not shortened; and there are often several means to the same end. What Nature has disjoined in one way wisdom may unite in another. When we cannot give the benefit as we would wish, let us not refuse it altogether. If we cannot give the princ.i.p.al, let us find a subst.i.tute. But how? where?
what subst.i.tute?
Fortunately, I am not obliged, for the ways and means of this subst.i.tute, to tax my own unproductive invention. I am not even obliged to go to the rich treasury of the fertile framers of imaginary commonwealths: not to the Republic of Plato, not to the Utopia of More, not to the Oceana of Harrington. It is before me,--it is at my feet,--
"And the rude swain Treads daily on it with his clouted shoon."
I only wish you to recognize, for the theory, the ancient const.i.tutional policy of this kingdom with regard to representation, as that policy has been declared in acts of Parliament,--and as to the practice, to return to that mode which an uniform experience has marked out to you as best, and in which you walked with security, advantage, and honor, until the year 1763.
My resolutions, therefore, mean to establish the equity and justice of a taxation of America by _grant_, and not by _imposition_; to mark the _legal competency_ of the colony a.s.semblies for the support of their government in peace, and for public aids in time of war; to acknowledge that this legal competency has had a _dutiful and beneficial exercise_, and that experience has shown _the benefit of their grants_, and _the futility of Parliamentary taxation, as a method of supply_.
These solid truths compose six fundamental propositions. There are three more resolutions corollary to these. If you admit the first set, you can hardly reject the others. But if you admit the first, I shall be far from solicitous whether you accept or refuse the last. I think these six ma.s.sive pillars will be of strength sufficient to support the temple of British concord. I have no more doubt than I entertain of my existence, that, if you admitted these, you would command an immediate peace, and, with but tolerable future management, a lasting obedience in America. I am not arrogant in this confident a.s.surance. The propositions are all mere matters of fact; and if they are such facts as draw irresistible conclusions even in the stating, this is the power of truth, and not any management of mine.
Sir, I shall open the whole plan to you together, with such observations on the motions as may tend to ill.u.s.trate them, where they may want explanation.
The first is a resolution,--"That the colonies and plantations of Great Britain in North America, consisting of fourteen separate governments, and containing two millions and upwards of free inhabitants, have not had the liberty and privilege of electing and sending any knights and burgesses, or others, to represent them in the high court of Parliament."
This is a plain matter of fact, necessary to be laid down, and (excepting the description) it is laid down in the language of the Const.i.tution; it is taken nearly _verbatim_ from acts of Parliament.
The second is like unto the first,--"That the said colonies and plantations have been made liable to, and bounden by, several subsidies, payments, rates, and taxes, given and granted by Parliament, though the said colonies and plantations have not their knights and burgesses in the said high court of Parliament, of their own election, to represent the condition of their country; by lack whereof they have been oftentimes touched and grieved by subsidies, given, granted, and a.s.sented to, in the said court, in a manner prejudicial to the common wealth, quietness, rest, and peace of the subjects inhabiting within the same."
Is this description too hot or too cold, too strong or too weak? Does it arrogate too much to the supreme legislature? Does it lean too much to the claims of the people? If it runs into any of these errors, the fault is not mine. It is the language of your own ancient acts of Parliament.
Non meus hic sermo, sed quae praecepit Ofellus Rusticus, abnormis sapiens.
It is the genuine produce of the ancient, rustic, manly, home-bred sense of this country. I did not dare to rub off a particle of the venerable rust that rather adorns and preserves than destroys the metal. It would be a profanation to touch with a tool the stones which construct the sacred altar of peace. I would not violate with modern polish the ingenuous and n.o.ble roughness of these truly const.i.tutional materials.
Above all things, I was resolved not to be guilty of tampering,--the odious vice of restless and unstable minds. I put my foot in the tracks of our forefathers, where I can neither wander nor stumble. Determining to fix articles of peace, I was resolved not to be wise beyond what was written; I was resolved to use nothing else than the form of sound words, to let others abound in their own sense, and carefully to abstain from all expressions of my own. What the law has said, I say. In all things else I am silent. I have no organ but for her words. This, if it be not ingenious, I am sure is safe.
There are, indeed, words expressive of grievance in this second resolution, which those who are resolved always to be in the right will deny to contain matter of fact, as applied to the present case; although Parliament thought them true with regard to the Counties of Chester and Durham. They will deny that the Americans were ever "touched and grieved" with the taxes. If they consider nothing in taxes but their weight as pecuniary impositions, there might be some pretence for this denial. But men may be sorely touched and deeply grieved in their privileges, as well as in their purses. Men may lose little in property by the act which takes away all their freedom. When a man is robbed of a trifle on the highway, it is not the twopence lost that const.i.tutes the capital outrage. This is not confined to privileges. Even ancient indulgences withdrawn, without offence on the part of those who enjoyed such favors, operate as grievances. But were the Americans, then, not touched and grieved by the taxes, in some measure, merely as taxes? If so, why were they almost all either wholly repealed or exceedingly reduced? Were they not touched and grieved even by the regulating duties of the sixth of George the Second? Else why were the duties first reduced to one third in 1764, and afterwards to a third of that third in the year 1766? Were they not touched and grieved by the Stamp Act? I shall say they were, until that tax is revived. Were they not touched and grieved by the duties of 1767, which were likewise repealed, and which Lord Hillsborough tells you (for the ministry) were laid contrary to the true principle of commerce? Is not the a.s.surance given by that n.o.ble person to the colonies of a resolution to lay no more taxes on them an admission that taxes would touch and grieve them? Is not the resolution of the n.o.ble lord in the blue riband, now standing on your journals, the strongest of all proofs that Parliamentary subsidies really touched and grieved them? Else why all these changes, modifications, repeals, a.s.surances, and resolutions?
The next proposition is,--"That, from the distance of the said colonies, and from other circ.u.mstances, no method hath hitherto been devised for procuring a representation in Parliament for the said colonies."
This is an a.s.sertion of a fact. I go no further on the paper; though, in my private judgment, an useful representation is impossible; I am sure it is not desired by them, nor ought it, perhaps, by us: but I abstain from opinions.
The fourth resolution is,--"That each of the said colonies hath within itself a body, chosen, in part or in the whole, by the freemen, freeholders, or other free inhabitants thereof, commonly called the General a.s.sembly, or General Court, with powers legally to raise, levy, and a.s.sess, according to the several usages of such colonies, duties and taxes towards defraying all sorts of public services."
This competence in the colony a.s.semblies is certain. It is proved by the whole tenor of their acts of supply in all the a.s.semblies, in which the constant style of granting is, "An aid to his Majesty"; and acts granting to the crown have regularly, for near a century, pa.s.sed the public offices without dispute. Those who have been pleased paradoxically to deny this right, holding that none but the British Parliament can grant to the crown, are wished to look to what is done, not only in the colonies, but in Ireland, in one uniform, unbroken tenor, every session. Sir, I am surprised that this doctrine should come from Rome of the law servants of the crown. I say, that, if the crown could be responsible, his Majesty,--but certainly the ministers, and even these law officers themselves, through whose hands the acts pa.s.s biennially in Ireland, or annually in the colonies, are in an habitual course of committing impeachable offences. What habitual offenders have been all Presidents of the Council, all Secretaries of State, all First Lords of Trade, all Attorneys and all Solicitors General! However, they are safe, as no one impeaches them; and there is no ground of charge against them, except in their own unfounded theories.
The fifth resolution is also a resolution of fact,--"That the said general a.s.semblies, general courts, or other bodies legally qualified as aforesaid, have at sundry times freely granted several large subsidies and public aids for his Majesty"s service, according to their abilities, when required thereto by letter from one of his Majesty"s princ.i.p.al Secretaries of State; and that their right to grant the same, and their cheerfulness and sufficiency in the said grants, have been at sundry times acknowledged by Parliament."
To say nothing of their great expenses in the Indian wars, and not to take their exertion in foreign ones, so high as the supplies in the year 1695, not to go back to their public contributions in the year 1710, I shall begin to travel only where the journals give me light,--resolving to deal in nothing but fact authenticated by Parliamentary record, and to build myself wholly on that solid basis.
On the 4th of April, 1748,[25] a committee of this House came to the following resolution:--
"_Resolved_, That it is the opinion of this committee, _that it is just and reasonable_, that the several provinces and colonies of Ma.s.sachusetts Bay, New Hampshire, Connecticut, and Rhode Island be reimbursed the expenses they have been at in taking and securing to the crown of Great Britain the island of Caps Breton and its dependencies."
These expenses were immense for such colonies. They were above 200,000_l._ sterling: money first raised and advanced on their public credit.
On the 28th of January, 1756,[26] a message from the king came to us, to this effect:--"His Majesty, being sensible of the zeal and vigor with which his faithful subjects of certain colonies in North America have exerted themselves in defence of his Majesty"s just rights and possessions, recommends it to this House to take the same into their consideration, and to enable his Majesty to give them such a.s.sistance as may be _proper reward and encouragement_."
On the 3d of February, 1756,[27] the House came to a suitable resolution, expressed in words nearly the same as those of the message; but with the further addition, that the money then voted was as an _encouragement_ to the colonies to exert themselves with vigor. It will not be necessary to go through all the testimonies which your own records have given to the truth of my resolutions. I will only refer you to the places in the journals:--
Vol. XXVII--16th and 19th May, 1757.
Vol. XXVIII.--June 1st, 1758,--April 26th and 30th, 1759,--March 26th and 31st, and April 28th, 1760,--Jan. 9th and 20th, 1761.
Vol. XXIX.--Jan. 22d and 26th, 1762,--March 14th and 17th, 1763.
Sir, here is the repeated acknowledgment of Parliament, that the colonies not only gave, but gave to satiety. This nation has formally acknowledged two things: first, that the colonies had gone beyond their abilities, Parliament having thought it necessary to reimburse them; secondly, that they had acted legally and laudably in their grants of money, and their maintenance of troops, since the compensation is expressly given as reward and encouragement. Reward is not bestowed for acts that are unlawful; and encouragement is not held out to things that deserve reprehension. My resolution, therefore, does nothing more than collect into one proposition what is scattered through your journals. I give you nothing but your own; and you cannot refuse in the gross what you have so often acknowledged in detail. The admission of this, which will be so honorable to them and to you, will, indeed, be mortal to all the miserable stories by which the pa.s.sions of the misguided people have been engaged in an unhappy system. The people heard, indeed, from the beginning of these disputes, one thing continually dinned in their ears: that reason and justice demanded, that the Americans, who paid no taxes, should be compelled to contribute. How did that fact, of their paying nothing, stand, when the taxing system began? When Mr. Grenville began to form his system of American revenue, he stated in this House that the colonies were then in debt two million six hundred thousand pounds sterling money, and was of opinion they would discharge that debt in four years. On this state, those untaxed people were actually subject to the payment of taxes to the amount of six hundred and fifty thousand a year. In fact, however, Mr. Grenville was mistaken. The funds given for sinking the debt did not prove quite so ample as both the colonies and he expected. The calculation was too sanguine: the reduction was not completed till some years after, and at different times in different colonies. However, the taxes after the war continued too great to bear any addition, with prudence or propriety; and when the burdens imposed in consequence of former requisitions were discharged, our tone became too high to resort again to requisition. No colony, since that time, ever has had any requisition whatsoever made to it.
We see the sense of the crown, and the sense of Parliament, on the productive nature of a _revenue by grant_. Now search the same journals for the produce of the _revenue by imposition_. Where is it?--let us know the volume and the page. What is the gross, what is the net produce? To what service is it applied? How have you appropriated its surplus?--What! can none of the many skilful index-makers that we are now employing find any trace of it?--Well, let them and that rest together.--But are the journals, which say nothing of the revenue, as silent on the discontent?--Oh, no! a child may find it. It is the melancholy burden and blot of every page.
I think, then, I am, from those journals, justified in the sixth and last resolution, which is,--"That it hath been found by experience, that the manner of granting the said supplies and aids by the said general a.s.semblies hath been more agreeable to the inhabitants of the said colonies, and more beneficial and conducive to the public service, than the mode of giving and granting aids and subsidies in Parliament, to be raised and paid in the said colonies."
This makes the whole of the fundamental part of the plan. The conclusion is irresistible. You cannot say that you were driven by any necessity to an exercise of the utmost rights of legislature. You cannot a.s.sert that you took on yourselves the task of imposing colony taxes, from the want of another legal body that is competent to the purpose of supplying the exigencies of the state without wounding the prejudices of the people.
Neither is it true, that the body so qualified, and having that competence, had neglected the duty.
The question now, on all this acc.u.mulated matter, is,--Whether you will choose to abide by a profitable experience or a mischievous theory?
whether you choose to build on imagination or fact? whether you prefer enjoyment or hope? satisfaction in your subjects, or discontent?
If these propositions are accepted, everything which has been made to enforce a contrary system must, I take it for granted, fall along with it. On that ground, I have drawn the following resolution, which, when it comes to be moved, will naturally be divided in a proper manner:--"That it may be proper to repeal an act, made in the seventh year of the reign of his present Majesty, int.i.tuled, "An act for granting certain duties in the British colonies and plantations in America; for allowing a drawback of the duties of customs, upon the exportation from this kingdom, of coffee and cocoa-nuts, of the produce of the said colonies or plantations; for discontinuing the drawbacks payable on China earthen ware exported to America; and for more effectually preventing the clandestine running of goods in the said colonies and plantations."--And also, that it may be proper to repeal an act, made in the fourteenth year of the reign of his present Majesty, int.i.tuled, "An act to discontinue, in such manner and for such time as are therein mentioned, the landing and discharging, lading or shipping, of goods, wares, and merchandise, at the town and within the harbor of Boston, in the province of Ma.s.sachusetts Bay, in North America."--And also, that it may be proper to repeal an act, made in the fourteenth year of the reign of his present Majesty, int.i.tuled, "An act for the impartial administration of justice, in the cases of persons questioned for any acts done by them, in the execution of the law, or for the suppression of riots and tumults, in the province of the Ma.s.sachusetts Bay, in New England."--And also, that it may be proper to repeal an act, made in the fourteenth year of the reign of his present Majesty, int.i.tuled," An act for the better regulating the government of the province of the Ma.s.sachusetts Bay, in New England."--And also, that it may be proper to explain and amend an act, made in the thirty-fifth year of the reign of King Henry the Eighth, int.i.tuled, "An act for the trial of treasons committed out of the king"s dominions.""
I wish, Sir, to repeal the Boston Port Bill, because (independently of the dangerous precedent of suspending the rights of the subject during the king"s pleasure) it was pa.s.sed, as I apprehend, with less regularity, and on more partial principles, than it ought. The corporation of Boston was not heard before it was condemned. Other towns, full as guilty as she was, have not had their ports blocked up.
Even the Restraining Bill of the present session does not go to the length of the Boston Port Act. The same ideas of prudence, which induced you not to extend equal punishment to equal guilt, even when you were punishing, induce me, who mean not to chastise, but to reconcile, to be satisfied with the punishment already partially inflicted.
Ideas of prudence and accommodation to circ.u.mstances prevent you from taking away the charters of Connecticut and Rhode Island, as you have taken away that of Ma.s.sachusetts Colony, though the crown has far less power in the two former provinces than it enjoyed in the latter, and though the abuses have bean full as great and as flagrant in the exempted as in the punished. The same reasons of prudence and accommodation have weight with me in restoring the charter of Ma.s.sachusetts Bay. Besides, Sir, the act which changes the charter of Ma.s.sachusetts is in many particulars so exceptionable, that, if I did not wish absolutely to repeal, I would by all means desire to alter it; as several of its provisions tend to the subversion of all public and private justice. Such, among others, is the power in the governor to change the sheriff at his pleasure, and to make a new returning officer for every special cause. It is shameful to behold such a regulation standing among English laws.
The act for bringing persons accused of committing murder under the orders of government to England for trial is but temporary. That act has calculated the probable duration of our quarrel with the colonies, and is accommodated to that supposed duration. I would hasten the happy moment of reconciliation, and therefore must, on my principle, get rid of that most justly obnoxious act.
The act of Henry the Eighth for the trial of treasons I do not mean to take away, but to confine it to its proper bounds and original intention: to make it expressly for trial of treasons (and the greatest treasons may be committed) in places where the jurisdiction of the crown does not extend.
Having guarded the privileges of local legislature, I would next secure to the colonies a fair and unbiased judicature; for which purpose, Sir, I propose the following resolution:--"That, from the time when the general a.s.sembly, or general court, of any colony or plantation in North America shall have appointed, by act of a.s.sembly duly confirmed, a settled salary to the offices of the chief justice and other judges of the superior courts, it may be proper that the said chief justice and other judges of the superior courts of such colony shall hold his and their office and offices during their good behavior, and shall not be removed therefrom, but when the said removal shall be adjudged by his Majesty in council, upon a hearing on complaint from the general a.s.sembly, or on a complaint from the governor, or the council, or the house of representatives, severally, of the colony in which the said chief justice and other judges have exercised the said offices."
The next resolution relates to the courts of admiralty. It is this:--"That it may be proper to regulate the courts of admiralty or vice-admiralty, authorized by the 15th chapter of the 4th George the Third, in such a manner as to make the same more commodious to those who sue or are sued in the said courts, and to provide for the more decent maintenance of the judges of the same."
These courts I do not wish to take away: they are in themselves proper establishments. This court is one of the capital securities of the Act of Navigation. The extent of its jurisdiction, indeed, has been increased; but this is altogether as proper, and is, indeed, on many accounts, more eligible, where new powers were wanted, than a court absolutely new. But courts incommodiously situated, in effect, deny justice; and a court partaking in the fruits of its own condemnation is a robber. The Congress complain, and complain justly, of this grievance.[28]
These are the three consequential propositions. I have thought of two or three more; but they come rather too near detail, and to the province of executive government, which I wish Parliament always to superintend, never to a.s.sume. If the first six are granted, congruity will carry the latter three. If not, the things that remain unrepealed will be, I hope, rather unseemly inc.u.mbrances on the building than very materially detrimental to its strength and stability.
Here, Sir, I should close, but that I plainly perceive some objections remain, which I ought, if possible, to remove. The first will be, that, in resorting to the doctrine of our ancestors, as contained in the preamble to the Chester act, I prove too much: that the grievance from a want of representation, stated in that preamble, goes to the whole of legislation as well as to taxation; and that the colonies, grounding themselves upon that doctrine, will apply it to all parts of legislative authority.