Protest

v1:93

Dissentient.

Because this Bill, forming a principal part in a system of punishment and regulation, has been carried through the House without a due regard to those indispensable rules of public proceeding, without the observance of which, no regulation can be prudently made, and no punishment justly inflicted. Before it can be pretended, that those rights of the Colony of Massachusetts Bay, in the election of Counsellors Magistrates, and Judges, and in the return of Jurors, which they derive from their charter, could, with propriety, be taken away, the definite legal offence, by which a forfeiture of that charter is incurred, ought to have been clearly stated, and fully proved; notice of this adverse proceeding ought to have been given to the parties affected; and they ought to have been heard in their own defence. Such a principle of proceeding would have been inviolably observed in the courts below. It is not technical formality, but substantial justice. When therefore, the magnitude of such a cause transfers it from the cognizance of the inferior courts, to the high judicature of Parliament, the Lords are so far from authorized to reject this equitable principle, that we are bound to an extraordinary and religious strictness in the observance of it. The subject ought to be indemnified by a more liberal and beneficial justice in Parliament, for what he must inevitably suffer, by being deprived of many of the forms which are wisely established in the courts of ordinary resort, for his protection against the dangerous promptitude of arbitrary discretion.

2dly. Because the necessity alleged for this precipitate mode of judicial proceeding cannot exist. If the numerous land and marine forces, which are ordered to assemble in

v1:94

Massachusetts Bay, are not sufficient to keep that single Colony in any tolerable state of order, until the cause of its charter can be fairly and equally tried, no regulation in this Bill, or in any of those hitherto brought into the House, are sufficient for that purpose; and we conceive that the mere celerity of a decision against the charter of that Province, will not reconcile the minds of the People to that mode of Government, which is to be established upon its ruins.

3dly. Because Lords are not in a situation to determine how far the regulations, of which this Bill is composed, agree or disagree with those parts of the constitution of the Colony that are not altered, with the circumstances of the People, and with the whole detail of their municipal institutions. Neither the charter of the Colony, nor any account whatsoever of its courts and judicial proceedings, their mode or exercise of their present powers, have been produced to the House. The slightest evidence concerning any one of the many inconveniences stated in the preamble of the Bill to have arisen from the present constitution of the Colony judicatures, has not been produced, or even attempted. On the same general allegations of a declamatory preamble, any other right, or all the rights, of this, or any other public body, may be taken away, and any visionary scheme of Government substituted in their place.

4thly. Because we think that the appointment of all the members of the Council, which by this Bill, is vested in the Crown, is not a proper provision for preserving the equilibrium of the Colony constitution. The power given to the Crown of occasionally increasing or lessening the number of the Council, on the report of Governors, and at the pleasure of Ministers, must make these Governors and Ministers masters of every question in that Assembly; and by destroying its freedom of deliberation, will wholly annihilate its use. The intention avowed in this Bill, of bringing the Council to the platform of other Colonies, is not likely to answer its own end; as the Colonies, where the Council is named by the Crown, are not at all better disposed to a submission to the practice of taxing for supply, without their consent, than this of Massachusetts Bay. And no pretence of bringing it to the model of the English constitution can be supported, as none of those American Councils have the least resemblance to the House of Peers, so that this new scheme of a Council stands upon no sort of foundation, which the proposers of it think proper to acknowledge.

5thly. Because the new constitution of judicature provided by this Bill, is improper and incongruous with the plan of the administration of justice in Great Britain. All the Judges are to be henceforth nominated, (not by the Crown,) but by the Governor; and all, except the Judges of the Superior Court, are to be removable at his pleasure, and expressly without the consent of that very Council which has been nominated by the Crown. The appointment of the Sheriff is by the will of the Governor only; and without requiring in the person appointed, any local or other qualification; that a Sheriff, a magistrate of great importance to the whole administration and execution of all justice, civil and criminal, and who, in England, is not removable even by the royal authority during the continuance of the term of his office, is by this Bill made changable by the Governor and Council, as often, and for such purposes as they shall think expedient. The Governor and Council thus entrusted with powers with which the British constitution has not trusted his Majesty and his Privy Council, have the means of returning such a Jury, in each particular cause, as may best suit with the gratification of their passions and interests. The lives, liberties, and properties of the subject are put into their hands without controul; and the invaluable right of trial by Jury, is turned into a snare for the People, who have hitherto looked upon it as their main security against the licentiousness of power.

6thly. Because we see in this Bill the same scheme of strengthening the authority of the Officers and Ministers of State, at the expense of the rights and liberties of the subject, which was indicated by the inauspicious Act for shutting up the harbour of Boston. By that Act, which is immediately connected with this Bill, the example was set of a large important city, containing vast multitudes of People,

v1:95

many of whom must be innocent, and all of whom are unheard, by an arbitrary sentence, deprived of the advantage of that port, upon which all means of acquiring their livelihood did immediately depend. This proscription is not made determinable on the payment of a fine for an offence, or a compensation for an injury; but is to continue until the Ministers of the Crown shall think fit to advise the King in Council to revoke it. The legal condition of the subject (standing unattainted by conviction for treason or felony) ought never to depend upon the arbitrary will of any person whatsoever. This Act, unexampled on the records of Parliament, has been entered on the journals of this House, as voted nemine dissentiente, and has been stated, in the debate of this day, to have been sent to the Colonies, as passed without a division in either House, and therefore as conveying the uncontroverted universal sense of the nation. The despair of making effectual opposition to an unjust measure, has been construed into an approbation of it; an unfair advantage has been taken on the final question for passing that penal Bill, of the absence of those Lords who had debated it for several hours, and strongly dissented from it on the second reading, that period on which it is most usual to debate the principle of a Bill. If this proceeding were to pass, without animadversion, Lords might think themselves obliged to reiterate their debates at every state of every Bill which they oppose, and to make a formal division whenever they debate.

7thly. Because this Bill, and the other proceedings that accompany it, are intended for the support of that unadvised scheme of taxing the Colonies in a manner new and unsuitable to their situation and constitutional circumstances. Parliament has asserted the authority of the Legislature of this Kingdom, supreme and unlimited over all the members of the British Empire. But the legal extent of this authority furnishes no argument in favour of an unwarrantable use of it. The sense of the nation on the repeal of the Stamp Act was, that, in equity and sound policy, the taxation of the Colonies for the ordinary purposes of supply, ought to be forborn; and that this Kingdom ought to satisfy itself with the advantages to be derived from a flourishing and increasing trade, and with the free grants of the American Assemblies, as being far more beneficial, far more easily obtained, less oppressive, and more likely to be lasting, than any revenue to be acquired by Parliamentary taxes, accompanied by a total alienation of the affections of those who were to pay them. This principle of repeal was nothing more than a return to the ancient standing policy of this Empire. The unhappy departure from it has led to that course of shifting and contradictory measures, which has since given rise to such continued distractions; by which unadvised plan, new duties have been imposed in the very year after the former had been repealed. These new duties afterwards in part repealed, and in part continued, in contradiction to the principles upon which those repealed were given up; all which, with many weak, injudicious, and precipitate steps, taken to enforce a compliance, have kept up that jealousy, which on the repeal of the Stamp Act was subsiding; revived dangerous questions, and gradually estranged the affections of the Colonies from the mother country, without any object of advantage to either. If the force proposed should have its full effect, that effect we greatly apprehend may not continue longer than whilst the sword is held up. To render the Colonies permanently advantageous, they must be satisfied with their condition. That satisfaction we see no chance of restoring whatever measures maybe pursued, except by recurring, in the whole, to the wise and salutary principles on which the Stamp Act was repealed.

Richmond,
Abingdon,
Effingham,
Rockingham,
Leinster,
Fitzwilliam,
Portland,
King,
Ponsonby,
Abergavenny,
Craven.