Argumentative part of the Instructions

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ARGUMENTATIVE PART OF THE PRECEDING INSTRUCTIONS.

The authority of Parliament has within these few years been a question much agitated; and great difficulty, we understand, has occurred, in tracing the line between the rights of the mother country and those of the Colonies. The modern doctrine of the former is indeed truly remarkable; for though it points out what are not our rights, yet we can never learn from it, what are our rights. As for example — Great Britain claims a right to take away nine-tenths of our estates — have we a right to the remaining tenth? No. To say we have, is a "traitorous" position, denying her Supreme Legislature. So far from having property, according to these late found novels, we are ourselves a property.

We pretend not to any considerable share of learning; but, thanks be to divine goodness, common sense, experience, and some acquaintance with the Constitution, teach us a few salutary truths on this important subject.

Whatever difficulty may occur in tracing the line, yet we contend, that by the laws of God, and by the laws of the Constitution, a line there must be, beyond which her

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authority cannot extend. For all these laws are "grounded on reason, full of justice, and true equity," mild, and calculated to promote the freedom and welfare of men. These objects never can be attained by abolishing every restriction on the part of the Governours, and extinguishing every right on the part of the governed.

Suppose it be allowed, that the line is not expressly drawn, is it thence to be concluded there is no implied line? No English Lawyer, we presume, will venture to make the bold assertion. "The King may reject what bills, may make what treaties, may coin what money, may create what Peers, and may pardon what offences he pleases." But is his prerogative respecting these branches of it, unlimited? By no means. The words following those next above quoted from the "Commentaries on the Laws of England," are — "unless where the Constitution hath expressly, or by evident consequence, laid down some exception or boundary; declaring, that thus far the prerogative shall go, and no farther." There are "some boundaries then," besides the "express exceptions;" and according to the strong expression here used, "the Constitution declares there are." What "evident consequence" forms those "boundaries?"

The happiness of the people is the end, and, if the term is allowable, we would call it the body of the Constitution. Freedom is the spirit or soul. As the soul, speaking of nature, has a right to prevent or relieve, if it can, any mischief to the body of the individual, and to keep it in the best health; so the soul, speaking of the Constitution, has a right to prevent or relieve, any mischief to the body of the society, and to keep that in the best health. The "evident consequence" mentioned, must mean a tendency to injure this health, that is, to diminish the happiness of the people — or it must mean nothing. If, therefore, the Constitution "declares by evident consequence;" that a tendency to diminish the happiness of the people, is a proof, that power exceeds a "boundary," beyond which it ought not to "go;" the matter is brought to this single point, whether taking our money from us without our consent, depriving us of trial by jury, changing Constitutions of Government, and abolishing the privilege of the writ of habeas corpus, by seizing and carrying us to England, have not a greater tendency to diminish our happiness, than any enormities a King can commit under

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pretence of prerogative, can have to diminish the happiness of the subjects in England. To come to a decision upon this point, no long time need be required. To make this comparison, is stating the claim of Parliament in the most favourable light: for it puts the assumed power of Parliament, to do, "in all cases whatsoever," what they please, upon the same footing with the acknowledged power of the King, "to make what Peers — pardon what offences, &c˙, he pleases." But in this light that power is not entitled to be viewed. Such is the wisdom of the English Constitution, that it "declares" the King may transgress a "boundary laid down by evident consequence," even by using the power with which he is expressly vested by the Constitution, in doing those very acts which he is expressly trusted by the Constitution to do — as by creating too many or improper persons, Peers; or by pardoning too many or too great offences, &c. But has the Constitution of England expressly "declared," that the Parliament of Great Britain may take away the money of English Colonists without their consent, and deprive them of trial by jury, &c? It cannot be pretended. True it is, that it has been solemnly declared by Parliament, that Parliament has such a power. But that declaration leaves the point just as it was before: for if Parliament had not the power before, the declaration could not give it. Indeed if Parliament is really "omnipotent," that power is just and constitutional. We further observe that the Constitution has not expressly drawn the line beyond which, if a King shall "go," resistance becomes lawful. The learned author of those Commentaries, that, notwithstanding some human frailties, do him so much honour, has thought proper, when treating of this subject, to point out the "precedent" of the Revolution, as fixing the line. We would not venture any reflection on so great a man. It may not become us. Nor can we be provoked by his expressions concerning Colonists; because they perhaps contain his real, though hasty sentiments. Surely, it was not his intention to condemn those excellent men, who casting every tender consideration behind them, nobly presented themselves against the tyranny of the unfortunate and misguided Charles' s reign; those men whom the House of Commons, even after the Restoration, would not suffer to be censured.

We are sensible of the objection that may be made, as to drawing a line between rights on each side, and the case of a plain violation of rights. We think it not material. Circumstances have actually produced, and may again produce this question: What conduct of a Prince renders resistance lawful? James the Second, and his father, violated express rights of their subjects, by doing what their own express rights gave them no title to do, as by raising money, and levying troops without consent of Parliament. It is not even settled, what violation of those will justify resistance. But may not some future Prince, confining himself to the exercise of his own express rights, such as have been mentioned, act in a manner, that will be a transgression of a "boundary" laid down by "evident consequence," the "Constitution declaring he should go no further?" May not this exercise of these his express rights, be so far extended, as to introduce universal confusion and a subversion of the ends of Government? The whole may be oppressive, and yet any single instance legal. The cases may be improbable; but we have seen and now feel events once as little expected. Is it not possible, that one of these cases may happen; if it does, has the Constitution expressly drawn a line, beyond which resistance becomes lawful? It has not. But it may be said, a King cannot arm against his subjects — he cannot raise money without consent of Parliament. This is the constitutional check upon him. If he should, it would be a violation of their express rights. If their purses are shut his power shrinks. True. Unhappy Colonists! Our money may be taken from us — and standing armies established over us, without our consent — every expressly declared constitutional check dissolved, and the modes of opposition for relief so contracted, as to leave us only the miserable alternative of supplication or violence. And these it seems, are the liberties of Americans. Because the Constitution has not "expressly declared" the line between the rights of the mother country and those of her

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Colonists, therefore, the latter have no rights. A logick, equally edifying to the heads and hearts of men of sense and humanity.

We assert, a line there must be, and shall now proceed with great deference to the judgment of others, to trace that line, according to the ideas we entertain: and it is with satisfaction we can say, that the records, statutes, law books, and most approved writers of our mother country, those "dead but most faithful Counsellors," as Sir Edward Coke calls them, "who cannot be daunted by fear, nor "muzzled by affection, reward, or hope of preferment, and therefore may safely be believed," confirm the principles we maintain.

Liberty, life, or property, can with no consistency of words or ideas, be termed a right of the possessors, while others have a right of taking them away at pleasure. The most distinguished authors that have written on Government, declare it to be instituted for the benefit of the people; and that it never will have this tendency, where it is unlimited." Even conquest itself is held not to destroy

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all the rights of the conquered. Such is the merciful reverence judged by the best and wisest men to be due to human nature, and frequently observed even by conquerors themselves.

In fine, a power of Government, in its nature tending to the misery of the people, as a power that is unlimited, or in other words, a power in which the people have no share

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is proved to be, by reason and the experience of all ages and countries, cannot be a rightful or legal power. For, as an excellent Bishop of the Church of England argues, "the ends of Government cannot be answered by a total dissolution of all happiness at present, and of all hopes for the future."

The just inference therefore from these premises would be an exclusion of any power of Parliament over these Colonies, rather than the admission of an unbounded power.

We well know that the Colonists are charged by many persons in Great Britain with attempting to obtain such an exclusion and a total independence on her. As well we know the accusation to be utterly false. We are become criminal in the sight of such persons, by refusing to be guilty of the highest crime against ourselves and our posterity. Nolumus leges Angliae mutari. This is the rebellion with which we are stigmatised. We have committed the like offence, that was bjected by the polite and humane Fimbria against a rude Senator of his time. "We have disrespectfully refused to receive the whole weapon into our body." We could not do it and live. But that must be acknowledged to be a poor excuse, equally inconsistent with good breeding and the Supreme Legislature of Great Britain.

For these ten years past we have been incessantly attacked. Hard is our fate, when to escape the character

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of rebels, we must be degraded into that of slaves; as if there was no medium between the two extremes of anarchy and despotism, where innocence and freedom could find repose and safety.

Why should we be exhibited to mankind as a people, adjudged by Parliament unworthy of freedom? The thought alone is insupportable. Even those unhappy persons, who have had the misfortune of being born under the yoke of bondage imposed by the cruel laws, if they may be called laws, of the land where they received their birth, no sooner breathe the air of England, though they touch her shores only by accident, than they instantly become freemen. Strange contradiction! The same Kingdom at the same time, the asylum and the bane of Liberty.

To return to the charge against us, we can safely appeal to that Being, from whom no thought can be concealed, that our warmest wish and utmost ambition is, that we and our posterity may ever remain subordinate to, and dependent upon, our parent state. This submission our reason approves, our affection dictates, our duty commands, and our interest enforces.

If this submission indeed implies a dissolution of our Constitution, and a renunciation of our liberty, we should be unworthy of our relation to her, if we should not frankly declare, that we regard it with horrour; and every true Englishman will applaud this just distinction and candid declaration. Our defence necessarily touches chords in unison with the fibres of his honest heart. They must vibrate in sympathetick tones. If we, his kindred, should be base enough to promise the humiliating subjection he could not believe us. We should suffer all the infamy of the engagement without finding the benefit expected from being thought as contemptible as we should undertake to be.

But this submission implies not such insupportable evils; and our amazement is inexpressible when we consider the gradual increase of these Colonies, from their slender beginnings in the last century to their late flourishing condition, and how prodigiously, since their settlement our parent state has advanced in wealth, force, and influence, till she is become the first power on the sea, and the envy of the world — that these our better days should not strike conviction into every mind, that the freedom and happiness of the Colonists are not inconsistent with her authority and prosperity.

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The experience of more than one hundred years will surely be deemed, by wise men, to have some weight in the scale of evidence to support our opinion. We might justly ask of her, why we are not permitted to go on as we have been used to do since our existence, conferring mutual benefits, thereby strengthening each other, more and more, discovering the reciprocal advantages of our connection, and daily cultivating affections encouraged by those advantages?

What unknown offences have we committed against her within these ten years, to provoke such an unexampled change in her conduct towards us? In the last war she acknowledged us repeatedly to be faithful, dutiful, zealous, and useful in her cause. Is it criminal in us that our numbers, by the favour of Divine Providence, have greatly increased? That the poor choose to fly from their native countries in Europe to this Continent? Or, that we have so much improved these woods, that if we can be forced into an unsuccessful resistance, avarice itself might be satiated with our forfeitures?

It cannot with truth be urged, that projects of innovation have commenced with us. Facts and their dates prove the contrary. Not a disturbance has happened on any part of this Continent, but in consequence of some immediate preceding provocation.

To what purpose? The charge of our affecting one great or many small Republicks, must appear as contemptible a madness to her, as it does to us. Divided as we are into many Provinces, and incapable of union, except

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against a common danger, she knew, that we could not think of embarking our treasures of tranquillity and liberty, on an ocean of blood, in a wandering expedition to some Utopian port. The history of mankind, from the remotest antiquity, furnishes not a single instance of a people consisting of husbandmen and merchants, voluntarily engaging

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in such a phrenzy of ambition. No! Our highest pride and glory has been, with humble unsuspecting duty to labour in contributing to elevate her to that exalted station she holds among the Nations of the earth, and which, we still ardently desire and pray she may hold, with fresh accessions of fame and prosperity, till time shall be no more.

These being our sentiments, and, we are fully convinced, the sentiments of our brethren throughout the Colonies, with unspeakable affliction, we find ourselves obliged to oppose that system of dominion over us, arising from counsels pernicious both to our parent and her children — to strive, if it be possible, to close the breaches made in our former concord, and stop the sources of future animosities. And may God Almighty, who delights in the titles of just and merciful, incline the hearts of all parties to that equitable and benevolent temper, which is necessary solidly to establish peace and harmony in the place of confusion and dissension.

The legislative authority claimed by Parliament over these Colonies, consists of two heads: first, a general power of internal legislation; and, secondly, a power of regulating our trade; both, she contends, are unlimited. Under the first may be included, among other powers, those of forbidding us to worship our Creator in the manner we think most acceptable to him — imposing taxes on us — collecting them by their own officers — enforcing the collection by Admiralty Courts, or Courts Martial — abolishing trials by jury — establishing a standing army

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among us in time of peace, without consent of our Assemblies — paying them with our money — seizing our young men for recruits — changing Constitutions of Government — stopping the press — declaring any action, even a meeting of the smallest number, to consider of peaceable modes to obtain redress of grievances high treason — taking Colonists to Great Britain to be tried — exempting "murderers" of Colonists from punishment, by carrying them to England, to answer indictments found in the Colonies — shutting up our ports — prohibiting us from slitting iron to build our houses, making hats to cover our heads, or clothing to cover the rest of our bodies, &c.

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In our Provincial Legislatures, the best judges in all cases what suits us — founded on the immutable and unalienable rights of human nature, the first principles of the Constitution, and charters and grants made by the Crown, at periods when the power of making them was universally acknowledged by the parent state, a power since frequently recognised by her, subject to the control of the

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Crown, as by law established, is vested the exclusive right of internal legislation.

Such a right vested in Parliament, would place us exactly in the same situation, the people of Great Britain would have been reduced to, had James the First and his family succeeded in their scheme of arbitrary power. Changing the word Stuarts for Parliament, and Britons

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for Americans, the arguments of the illustrious patriots of those times, to whose virtues their descendants owe every blessing they now enjoy, apply with inexpressible force and appositeness, in maintenance of our cause, and in refutation of the pretensions set up by their too forgetful posterity, over their unhappy Colonists. Confiding in the undeniable truth of this single position, that, "to live by

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one man' s will, became the cause of all men' s misery," they generously suffered. And the worthy Bishop before mentioned, who, for strenuously asserting the principles of the Revolution, received the unusual honour of being recommended by a House of Commons to the Sovereign for preferment, has justly observed, that "misery is the same whether it comes from the hands of many or of one."

"It could not appear tolerable to him (meaning Mr˙ Hooker, author of the Ecclesiastical Policy) to lodge in the Governours of any Society an unlimited authority, to annul and alter the Constitution of the Government, as they should see fit, and to leave to the governed the privilege only of absolute subjection in all such alterations;" or, to use the Parliamentary phrase, "in all cases whatsoever."

From what source can Great Britain derive a single reason to support her claim to such an enormous power? That it is consistent with the laws of nature, no reasonable man will pretend. That it contradicts the precepts of Christianity, is evident. For she strives to force upon us

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terms, which she would judge to be intolerably severe and cruel, if imposed on herself. "Virtual representation" is too ridiculous to be regarded. The necessity of a supreme sovereign Legislature, internally superintending the whole Empire, is a notion equally unjust and dangerous. "The pretence" says Mr˙ Justice Blackstone, speaking of James the First' s reign, "for which arbitrary measures was no other than the tyrant' s plea of the necessity of unlimited powers, works of evident utility to the publick, the supreme reason above all reasons, which is the salvation of the King' s lands and people." This was not the doctrine of James only. His son unhappily inherited it from him. On this flimsy foundation was built the claim of ship money, &c. Nor were there wanting men, who could argue, from the Courtly text, that Parliaments were too stupid or too factious, to grant money to the Crown, when it was their interest and their duty to do so. This argument, however, was fully refuted, and slept above a century in proper contempt, till the posterity of those who had overthrown it, thought fit to revive the exploded absurdity. Trifling as the pretence was, yet it might much more properly be urged in favour of a single person, than of a multitude. The counsels of a Monarch may be more secret. His measures more quick. In passing an Act of Parliament for all the Colonies, as many men are consulted, if not more, than need be consulted, in obtaining the assent of every Legislature on the Continent. If it is a good argument for Parliaments, it is a better against them. It therefore proves nothing but its own futility. The supposed advantages of such a power could never be attained but by the destruction of real benefits, evidenced by facts to exist without it. The Swiss Cantons, and the United Provinces, are com binations of independent states. The voice of each must be given. The instance of these Colonies may be added: for stating the case, that no act of internal legislation over them had ever been passed by Great Britain, her wisest statesmen would be perplexed to show, that she or the Colonies would have been less flourishing than they now are. What benefits such a power may produce hereafter, time will discover. But the Colonies are not dependent on Great Britain, it is said, if she has not a supreme unlimited Legislature over them. "I would ask these loyal subjects of the King," says the author of a celebrated invective against us. "what King it is they profess themselves to be the loyal subjects of? It cannot be his present most gracious Majesty, George the Third, King of Great Britain, for his title is founded on an Act of Parliament, and they will not surely acknowledge that Parliament can give them a King, which is of all others, the highest act of sovereignty, when they deny it to have power to tax or bind them in any other case; and I do not recollect that there is any Act of Assembly, in any of the Colonies,

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for settling the Crown upon King William or the illustrious House of Hanover." "Curious reasoning this." It is to be wished the gentleman had "recollected" that

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without any such "Act of Assembly" none of the Colonists ever rebelled. What Act of Parliament is here meant? Surely not the eleventh of Henry the Seventh, chapter the first, in favour of a King de facto. Probably the twelfth and thirteenth of William the Third, chapter the second, "for the further limitation of the Crown, &c," is intended. And is it imagined that the words "Dominions and Territories thereunto belonging" in that statute, form his Majesty' s title to the sovereignty of these Colonies? The omission of them might have looked odd; but what force is added by their insertion? The settlement of the Crown of England includes the settlement of the Colonies. King William is mentioned — and will the gentleman venture to say, that William was not King of England and Sovereign of these Colonies, before his title was "declared" or "recognised" by "an Act of Parliament?" The gentleman slurs over this case. His zeal for the "illustrious House of Hanover" would be little gratified, by inferring, that because the two Houses, with the consent of the Nation, made a King, therefore the two

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Houses can make laws. Yet that conclusion would be as justifiable as this — that the assent of the Colonies to an election of a King by the two Houses, or to the limitation of the Crown by Act of Parliament, proves a right in Parliament to bind the Colonies by statutes "in all cases whatsoever." In such great points, the conduct of a people is influenced solely by a regard for their freedom and happiness. The Colonies have no other head than the King of England. The person, who by the laws of that Realm is King of that Realm, is our King.

A dependence on the Crown and Parliament of Great Britain, is a novelty — a dreadful novelty. It may be compared to the engine invented by the Greeks for the destruction of Troy. It is full of armed enemies, and the walls of the Constitution must be thrown down before it can be introduced among us.

When it is considered that the King as King of England has a power in making laws — the power of executing them — of finally determining on appeals — of calling upon us for supplies in times of war or any emergency — that every branch of the prerogative binds us, as the subjects are bound thereby in England — and that all our intercourse

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with foreigners is regulated by Parliament. Colonists may "surely" be acknowledged to speak with truth and precision, in answer to the "elegantly" exprest question — "What King it is," &c˙, by saying that "his most gracious Majesty George the Third" is the King of England, and, therefore, "the King" they — profess themselves to be "loyal subjects of."

We are aware of the objection, that "if the King of England is therefore King of the Colonies, they are subject to the general legislative authority of that Kingdom." The premises by no means warrant this conclusion. It is built on a mere supposition, that the Colonies are thereby acknowledged to be within the Realm, and on an incantation expected to be wrought by some magick force in those woods. To be subordinately connected with England the Colonies have contracted. To be subject to the general legislative authority of that Kingdom, they never contracted. Such a power as may be necessary to preserve this connection she has. The authority of the Sovereign, and the authority of controlling our intercourse with foreign Nations form that power. Such a power leaves the Colonies free. But a general legislative power is not a power to preserve that connection, but to distress and enslave them. If the first power cannot subsist without the last, she has no right even to the first — the Colonies were deceived in their contract — and the power must be unjust and illegal; for God has given to them a better right to preserve their liberty, than to her to destroy it. In other words, supposing King, Lords, and Commons, acting in Parliament, constitute a sovereignty over the Colonies, is that sovereignty constitutionally absolute or limited? That states without freedom should, by principle, grow out of a free state, is as impossible as that sparrows should be produced from the eggs of an eagle. The sovereignty over the Colonies must be limited. Hesiod long since said, "half is better than the whole;" and the saying never was more justly applicable than on the present occasion. Had the unhappy Charles remembered and regarded it, his private virtues might long have adorned a throne, from which his publick measures precipitated him in blood. To argue on this subject from other instances of Parliamentary power, is shifting the ground. The connection of the Colonies with England, is a point of unprecedented and delicate nature. It can be compared to no other case; and to receive a just determination, it must be considered with reference to its own peculiar circumstances. The common law extends

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to Colonies; yet Mr˙ Justice Blackstone says, "such parts of the law as are neither necessary nor convenient for them, as the jurisdiction of the spiritual courts, &c˙, are therefore not in force." If even the common law, in force within the Realm of England when the Colonists quittted it, is thus abridged by the peculiar circumstances of Colonies, at least equally just, and constitutional is it, that the power of making new laws within the Realm of England, should be abridged with respect to Colonies, by those peculiar circumstances.

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The laws of England with respect to prerogative, and in other instances, have accommodated themselves, without alteration by statutes, to a change of circumstances, the welfare of the people so requiring. A regard for that grand object perpetually animates the Constitution and regulates all its movements — unless unnatural obstructions interfere —

" Speritus intus alit, totamque infusa per artus
Mens agitat molem, et magno se corpore miscet.
"

Another argument for the extravagant power of internal

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legislation over us remains. It has been urged with great warmth against us, that "precedents" show this power is rightfully vested in Parliament.

Submission to unjust sentences proves not a right to pass them. Carelessness or regard for the peace and welfare of the community may cause the submission. Submission may sometimes be a less evil than opposition, and, therefore, a duty. In such cases it is a submission to the Divine authority, which forbids us to injure our country; not to the assumed authority on which the unjust sentences were founded. But when submission becomes inconsistent with and destructive of the publick good, the same veneration for, and duty to the Divine authority, commands us to oppose. The all— wise Creator of man impressed certain laws on his nature. A desire of happiness and of society are two of those laws. They were not intended to destroy, but to support each other. Man has therefore a right to promote the best union of both, in order to enjoy both in the highest degree. Thus, while this right is properly exercised, desires that seem selfish, by a happy combination, produce the welfare of others. "This is removing submission from a foundation unable to support it, and injurious to the honour of God, and fixing it upon much firmer ground."

No sensible or good man ever suspected Mr˙ Hooker of being a weak or factious person, "yet he plainly enough teacheth, that a society, upon experience of universal evil, have a right to try by another form to answer more effectually the ends of Government." And Mr˙ Hoadly asks — "Would the ends of Government be destroyed "should the miserable condition of the people of France, which has proceeded from the King' s being absolute, awaken the thoughts of the wisest heads amongst them, and move them all to exert themselves, so as that those ends should be better answered for the time to come?"

What mind can relish the hardy proposition, that because precedents have been introduced by the inattention or timidity of some, and the cunning or violence of others, therefore the latter have a right to make the former miserable — that is, that precedents that ought never to have been set, yet being set, repeal the eternal laws of natural justice, humanity, and equity.

The argument from precedents begins unluckily for its advocates. The first produced against us by the gentleman before mentioned, was an Act past by the Commonwealth Parliament in 1650 to "punish" Virginia, Barbadoes, Antigua, and Bermudas, for their fidelity to Charles the Second. So ancient is the right of Parliament to "punish" Colonists for doing their duty. But the Parliament had before overturned Church and Throne, so that there in an older "precedent" set against these.

That Parliament sat amidst the ruins that surrounded it, fiercer than Marius among those of Carthage. Brutal power became an irresistible argument of boundless right. What the style of an Aristotle could not prove, the point of a Cromwell' s sword sufficiently demonstrated. Innocence and justice sighed and submitted. What more could

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they do? The Restoration took place, and a legal Parliament would not doubt but it had as extensive a right as an illegal one. The Revolution succeeded, and with it methods for blending together the powers of King and people in a manner before unknown. A new political alembick was fixed on the great principle of resistance, and in it severe experiments were to be made on every other principle of the Constitution. How the boldness of Ministers and contempt of the people have increased since that period, not a man the least acquainted with English history can be ignorant. The Colonies were in a state of infancy — still in a state of childhood. Not a single statute concerning them is recollected to have been passed before the Revolution but such as related to the regulation of trade. "Precedents" were afterwards made, that, when they grew up, the authority of a master might succeed that of a parent.

Precedents, it is apprehended, are no otherwise regarded in the English laws than as they establish certainty for the benefit of the people — according to the maxim — "Miserable is the servitude when the laws are uncertain." Precedents militating against the welfare or happiness of a people, are inconsistent with the grand original principle on which they ought to be founded. Their supposed sanction increases in proportion to the repetitions of injustice. They must be void. In subjects of dispute between man and man, precedents may be of use, though not founded on the best reason. They cause a certainty, and all may govern themselves accordingly. If they take from an individual one day, they may give to him the next. But precedents, to overthrow principles, to justify the perpetual oppression of all, and to impair the power of the Constitution, though a cloud of them appear, have no more force than the volumes of dust that surround a triumphal car. They may obscure it: they cannot stop it. What would the liberties of the people of England have been at this time if precedents could have made laws inconsistent with the Constitution? Precedents, tending to make men unhappy, can with propriety of character be quoted only by those beings to whom the misery of men is a delight.

"If the usage had been immemorial and uniform, and ten thousand instances could have been produced, it would not have been sufficient; because the practice must likewise be agreeable to the principles of the law, in order to be good: whereas this is a practice inconsistent with, and in direct opposition to, the first and clearest principles of the law" — to those feelings of humanity, out of which mankind will not be reasoned, when power advances with gigantick strides threatening dissolution to a state — to those inherent though latent powers of society, which no climate, no time, no constitution, no contract, can ever destroy or diminish."

A Parliamentary power of internal legislation over these Colonies, appears therefore to us, equally contradictory to humanity and the Constitution, and illegal.

As to the second head, a power of regulating our trade, our opinion is, that it is legally vested in Parliament, not as a Supreme Legislature over these Colonies, but as the Supreme Legislature and full Representative of the parent state, and the only judge between her and her children in commercial interests, which the nature of the case, in the progress of their growth, admitted. It has been urged with great vehemence against us, and seems to be thought their fort by our adversaries, "that a power of regulation is a power of legislation; and a power of legislation, if constitutional,

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must be universal and supreme in the utmost sense of the words." It is therefore concluded, that the Colonists by acknowledging the power of regulation, have acknowledged every other power. On this objection we observe, that according to a maxim of law, "It is deceitful and dangerous to deal in general propositions." The freedom and happiness of states depend not on artful arguments, but on a few plain principles. The plausible appearance of the objection consists in a confused comprehension of several points, entirely distinct in their nature, and leading to consequences directly opposite to each other. There was a time when England had no Colonies. Trade was the object she attended to, in encouraging them. A love of freedom was manifestly the chief motive of the adventurers. The connection of Colonies with their parent state may be called a new object of the English laws. That her right extinguishes all their rights — rights essential to freedom, and which they would have enjoyed, by remaining in their parent state, is offensive to reason, humanity, and the Constitution of that state. Colonies could not have been planted on these terms. What Englishman, but an ideot, would have become a Colonist on these conditions? to mention no more particulars, "That every shilling he gained might rightfully be taken from him — trial by jury abolished — the building houses, or making cloths with the materials found or raised in the Colonies, prohibited — and armed men set over him to govern him in every action?"

Had these Provinces never been settled — had all the inhabitants of them now living been born in England and resident there, they would now enjoy the rights of Englishmen; that is, they would be free in that Kingdom. We claim in the Colonies these and no other rights. There no other Kingdom or state Interferes. But their trade, however important it may be, as the affairs of mankind are circumstanced, turns on other principles. All the power of Parliament cannot regulate that at their pleasure. It must be regulated not by Parliament alone, but by treaties and alliances formed by the King without the consent of the Nation, with other States and Kingdoms. The freedom of a people consists in being governed by laws, in which no alteration can be made, without their consent. Yet the wholesome force of these laws is confined to the limits of their own country. That is, a Supreme Legislature to a people, which acts internally over that people, and inevitably implies personal assent, representation, or slavery. When an universal Empire is established, and not till then, can regulations of trade properly be called acts of Supreme Legislature. It seems from many authorities, as if almost the whole power of regulating the trade of England was originally vested in the Crown. One restriction appears to have been, that no duty could be imposed without the consent of Parliament. Trade was little regarded by our warlike ancestors. As commerce became of more importance, duties and severities were judged necessary additions to its first simple state, Parliament more and more interfered. The Constitution was always free, but not always exactly in the same manner.

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"By the Feodal law, all navigable rivers and havens were computed among the regalia; and were subject to the Sovereign of the state. And in England it hath always been held, that the King is Lord of the whole shore, and particularly is guardian of the ports and havens, which are the inlets and gates of the Realm: and, therefore, so early as the reign of King John, we find ships seized by the King' s officers for putting in at a place that was not a legal port. These legal ports were undoubtedly at first assigned by the Crown; since to each of them a Court of Portmote is incident, the jurisdiction of which must flow from the Royal authority. The erection of beacons, lighthouses, and sea marks, is also a branch of the Royal prerogative. The King may enjoin any man from going abroad, or command any man to return. The powers of establishing publick marts, regulating of weights and measures, and the giving authority to, or making current, money, the medium of commerce, belong to the Crown. By making peace or war, leagues and treaties, the King may open or stop trade as he pleases. The Admiralty Courts are grounded on the necessity of supporting a jurisdiction so extensive, though opposite to the usual doctrines of the common law. The laws of Oleron were made by Richard the First, and are still used in those courts." In the "Mare causum" are several regulations made by Kings. Time forbids a more exact inquiry into this point: but such it is apprehended will, on inquiry, be found to have been the power of the Crown, that our argument may gain but cannot lose.

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We will proceed on a concession, that the power of regulating trade is vested in Parliament.

Commerce rests on concessions and restrictions mutually stipulated between the different Powers of the world ; and if these Colonies were sovereign states, they would, in all probability, be restricted to their present portion. The people of England were freemen before they were merchants. Whether they will continue free, they themselves must determine. How they shall trade must be determined by Germans, French, Spaniards, Italians, Turks, Moores, &c. The right of acquiring property depends on the rights of others; the right of acquired property solely on the owner. The possessor is no owner without it. "Almost every leaf and page of all the volumes of the common law prove this right of property." Why should this right be sacred in Great Britain, "the chief corner stone" in the solid foundation of her Constitution, and an empty name in her Colonies? The lamb that presumed to drink in the same stream with a stronger animal, though lower down the current, could not refute the charge of incommoding the latter by disturbing the water. Such power have reasons that appear despicable and detestable at first when they are properly enforced.

From this very principle arose her power; and can that power now be justly exerted in suppression of that principle? It cannot. Therefore a power of regulating our trade

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involves not in it the idea of Supreme Legislature over us. The first is a power of a preserving "protecting" nature. The last, as applied to America, is such a power as Mr˙ Justice Blackstone describes in these words: "whose enormous weight spreads horrour and destruction on all inferiour movements." The first is a power subject to a constitutional check. Great Britain cannot injure us by taking away our commerce without hurting herself immediately. The last is a power without check or limit. She might ruin us by it. The injury thereby to herself might be remote as to be despised by her.

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The power of regulation was the only band that could have held us together, formed on one of these "original contracts" which only can be a foundation of just authority. Without such a band, our general commerce with foreign Nations, might have been injurious and destructive to her. Reason and duty reject such a license. This our duty resembles that of children to a parent. The parent has a power over them; but they have rights that the parent cannot take away. Heaven grant that our mother country may regard us as her children, that if, by the dispensation of Providence, the time shall come when her power increases the memory of former kindnesses, may supply its decays, and her Colonies, like dutiful children, may serve and guard their aged parent, forever revering the arms that held them in their infancy, and the breasts that supported their lives while they were little ones.

It seems as if the power of regulation might not inaptly be compared to the prerogative of making peace, war, treaties, or alliances, whereby "the whole Nation are bound against their consent;" and yet the prerogative by no means implies a Supreme Legislature. The language held in "the Commentaries" on this point, is very remarkable. "With regard to foreign concerns, the King is the Delegate or Representative of the people; and in him, as in a centre, all the rays of his people are united; and the sovereign power, quoad hoc, is vested in his person." Will any Englishman say these expressions are descriptive of the King' s authority within the Realm? "Is the sovereign power within that vested in his person? He is styled "Sovereign" indeed; "his Realm is declared by many Acts of Parliament an Empire, and his Crown Imperial." But do these splendid appellations, the highest known in Europe, signify that "sovereign power is vested in his person within the Realm?" We have a full answer in the Commentaries. "The meaning of the Legislature, when it uses these terms of Empire and Imperial, and applies them to the Realm and Crown of England, is only to assert that our King is equally sovereign and independent within these his Dominions; and owes no kind of subjection to any Potentate upon earth." Thus we maintain, that with regard to foreign affairs, the parent original state" is the Delegate or Representative" of the entire Dominions, "the sovereign power, quoad hoc, is vested" in her. Her acts under this power "irrevocably bind the whole Nation." But yet this power by no means implies a Supreme Legislature.

The exercise of this power, by statutes, was absolutely necessary; because it was, and could only be lodged, as the laws of the parent state stand in the Supreme Legislature of that state, consisting of King, Lords, and Commons; and statutes are the modes by which these united sentiments and resolutions are expressed. It is universally acknowledged in Great Britain, that it infers no power of taxation in King and Lords, that their limited authority is used in cloathing gifts and grants of the Commons with the forms of law, nor does it infer Supreme Legislature over us, that the limited authority of King, Lords, and Commons, is used in cloathing regulations of trade with the form of law. The Commons joining in the law is not material. The difference is only in the mode of assent. Theirs is express, ours is implied, as the assent of the "whole Nation" is in the preceding instances.

This power of regulation appears to us to have been pure in its principle, simple in its operation, and salutary in its effects. But for some time past, we have observed, with pain, that it hath been turned to other purposes than it was originally designed for, and retaining its title, hath become an engine of intolerable oppressions and grievous taxations. The argument of an eminent Judge states the point in a similar case, strongly for us, in these words: "Though it be granted that the King hath the custody of the havens and ports of this Island, being the very gates of this Kingdom, and is trusted with the keys of these gates; yet, the inference and argument thereupon made, I utterly deny. For in it there is mutatio hypothesis, and a transition from a thing of one nature to another; as the premises are of a power only fiduciary, and in point of trust and government, and the conclusion infers a right of interest and gain. Admit the King has custodiam portuum, yet he hath but the custody, which is a

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trust, and not dominium utile. He hath power to open and shut, upon consideration of publick good to the people and state, but not to make gain and benefit by it: the one is protection; the other is expilation." By common law, the King may restrain a subject from going abroad, or enjoin him by his Chancellor from proceeding at law: But to conclude, that he may therefore take money, not to restrain or not to enjoin, is to sell Government, trust, and common justice.

Notes

nts

* Parl˙ Deb˙ 7, 409. "What of that? Shall not we give judgment, because it is not adjudged in the books before? We will give judgment according to reason, and if there be no reason in the books, I will not regard them." — Speech of ANDERSON, Lord Chief Justice of the Queen' s Bench, in the reign of ELIZABETH. — GOULDSB. Rep˙ 96 edit˙, 1653.

† "It seems to me; that the natural justice, which is a duty of man, ought to be styled the parent and nourisher of every other virtue: and assuredly without this habit, a man can neither moderate his desires, nor be brave, nor wise. For, it is a harmony and peace of the whole soul; with a fall concert of words and actions: and the dominion of such a habit may be rendered more conspicuous, if we examine the other habits of virtue. For the good of these is private, respecting the individual; but the good of natural justice respects whole systems, and throughout the universe."

"In the celestial system of the world, as it marshals out the universal rule of things, which are thus decreed by God; it is providence, and harmony, and right. In a civil state, it is justly called peace and good order. In a domestic state, it is the like mindedness of husband and wife towards each other; the good will of subordinate members. In the body, it is health and symmetry of parts, which are principal things, and much beloved by every living creature. In the soul, it is wisdom; that wisdom which ariseth amongst men, from the knowledge of causes, and from natural justice.

Since therefore, this habit doth thus instruct, and preserve, the whole and every part; rendering all the same, in heart, and in tongue, why may it not be saluted by the universal voice, the parent and nourisher of every virtue?" — POL˙ PYTH˙ LUC˙ apud, STONBAEUM, 105, edit˙ Tiguri, 1559.

‡ 1 Blackst˙ Com˙ 250.

|| "Of great importance to the publick is the preservation of this personal liberty: for if once it were left in the power of any, the highest Magistrate, to imprison arbitrarily whomever he or his officers thought proper, (as in France it is daily practised by the Crown) there would soon be an end of all other rights and immunities." — "A natural and regular consequence of this personal liberty is, that every Englishman may claim a right to abide in his own country so long as he pleases, and not to be driven from it unless by the sentence of law. Exile or transportation is a punishment unknown to the common law." "The King cannot constitute a man Lord Lieutenant of Ireland against his will, nor make him a foreign ambassador. For this might in reality be no more than an honourable exile." — 1 Blackstone, 135 to 138.

"These precedents collected by the reverend and learned Judge, Chief Justice Anderson, and all written with his own hand, do fully resolve for the maintenance of the ancient and fundamental point of liberty of the person, to be regained by habeas corpus, when any one is imprisoned," — Parl˙ Hist˙ 7. 418.

* 1 Blackstone, 161.

* Hoadly' s Disc˙ on Government.

† 4 Geo˙ 3, ch˙ 15. 4 Geo˙ 3, ch˙ 34. 5 Geo˙ 3, ch˙ 12. 5 Geo˙ 3, ch˙ 45. 6 Geo˙ 3, ch˙ 12. 6 Geo˙ 3, ch˙ 52. 7 Geo˙ 3, ch˙ 41. 7 Geo 3˙ ch˙ 46. 7 Geo˙ 3, ch˙ 59. 8 Geo˙ 3, ch˙ 22. The Resolves that Colonists may be tried in England under the thirty-fifth Henry the Eighth. The blockade of Boston — the Rhode-Island Court, &c. The statutes since the eighth year of this reign, relating to the Colonies, follow one another much in the same quick manner as before: but they could not be collected. Many of the statutes here mentioned, particularly those relating to the Admiralty Courts and the Commissioners of the Customs, are connected with a multitude of other statutes, by being compared with which the artifices will appear, that gradually departing from the laws of England, have at length invested these Courts and Commissioners with such new, unreasonable, unconstitutional, and dangerous powers.

* Somerset' s case.

† To this contradiction, the following may be added — Her policy at once to keep peace with her natural enemies, and to provoke her natural friends, whose assistance one day — and that day seems to be approaching — in the vicissitudes of human affairs, great as she is, she may want; her interest, as she thinks, to protect and to oppress Protestant countries — to abhor a large standing army and yet voluntarily to put herself under the absolute necessity of perpetuating an immensely large one, to govern the many millions of slaves she expects soon to have on this vast Continent. Two of the shrewdest, though not best Emperors, that ever lived, Augustus and Tiberius, prohibited every man of distinction from setting his foot in Egypt, * because of the importance of that Province to Rome. But Great Britain, as if these numerous Provinces, much more remote from her than Egypt from Rome, were of little consequence, willingly obliges herself to trust a mighty armed power into the hands of a subject, in these Colonies, the tempting interest of which subject, and of the people, may engage them to unite in establishing an independent Empire, on her own model. Great Britain ought not to forget that Rome was ruined by keeping standing armies in her provinces.

* Tac.

‡ The Privernates had revolted from the Romans, but were reduced. The question was what judgment should be given against them? This is Livy' s account of the affair, it the twenty-first chapter of his eighth book:

"Quum ipsa per se res anceps esset, prout cujusque ingenium erat, atrociùs mitiùsve suadentibus; tum incertiora omnia unus ex Privernatibus legatis fecit, magis conditionis, in qua natus esset, quàm praesentis necessitas, memor: qui, interrogatus à quodam tristioris sententiae auctore, quam paenam meritos Privernates censeret? eam, inquit, quam merentur, qui se libertate dignos censent: cujus quum feroci responso infostiores factos videret consul eos, qui antè Privernatium causam impugnabant; ut ipse benignâ interrogatione mitius responsum eliceret, Quid, si poenam, inquit, remittimus vobis, qualem nos pacem vobiscum habituros speremus? Si bonam dederitis, inquit, et fidam et perpetuam: si malam, haud diuturnam. Tum verò minari, nec id ambiguè, Privernatem quidam, et illis vocibus ad reballandum incitari pacatos populos, pars melior senatùs ad meliora responsum trahere, et dicere, Viri, et liberi, vocem auditam, an credi posse, ullum populum, aut hominem denique, in ea conditione, cujus eum paeniteat, diutùs, quàm necesse sit, mansurum? Ibi pacemesae fidam, ubi voluntarii pacati sint: noque eo loco, ubi servitutem esse velint, fidem eperandam esae. In hanc sententian maximè consul ipse inclinavit animos, identidem ad principes sententiarum consulares, uti exaudire posset à pluribus, dicendo, Eos demum, qui nihil, praeterquam de libertate, cogitent, dignos esse, qui Romani fiant. Itaque et in senatu causam obtinuere, et ex auctoritate Patrum latum ad populum est, ut Privernatibus civitas dabitur."

* "The winds lift up the waves," — said a wise man — yet we read of a weak man who scourged waves, but he had not raised them. To excite commotions, and then to scourge for being excited, is an addition to the wildness of a Xerxes, reserved more particularly to distinguish the present age, already sufficiently illustrious by the injuries offered to the rights of human nature.

* It has been suggested, "that subjects sometimes err, by not believing that Princes mean as well as they do." But the instances are numerous where princes and their courtiers err, by not believing that subjects mean as well as they do.

† See Canada Bill.

* The Germans have been justly celebrated in different ages, for sagacity in promoting the arts, and for martial spirit; yet, how unhappy have they been made in a short period of time, by that single engine of arbitrary power, a standing army. Their distress was wrought up to such a degree, that thousands and tens of thousands relinquished their native country, and fled to the wildernesses of America. It was a way of thinking and acting that became them. For Germans may truly be called the fathers of Englishmen. From * Germany came their ancestors, and the first principles of the Constitution. Germans, therefore, seem to be more justly entitled than other foreigners to the blessings of that Constitution. To enjoy them in this free country as it then was, they came here; but now unfortunately find arbitrary Government and a standing army pursuing them even into these woods. Numbers of them now in these Provinces have served in the armies of tile several Princes in Germany, and know well, that one reason with their rulers for putting swords into their hands, was to cut the throats of their own fathers, brothers, and relations, who should attempt to relieve themselves from any part of their miseries. Their former Sovereigns are now completing, it is said, the cruel tragedy of tyranny. They will not suffer those they have made wretched, to seek for a. more tolerable existence in some other part of the globe. It is their duty, say these unfeeling Princes, "to be unhappy, and to renounce all hopes of relief." They are prohibited from leaving their country. Those who have already escaped into these Colonies, remember what they and their parents suffered in Germany. The old tell the stories of their oppressions to the younger; and however improbable it may appear on the other side of the Atlantic, it is asserted by persons well acquainted with this people, that they have very little inclination to suffer the same cruelties again in America.

* 1 Blackstone, p˙ 147.

† Bill for changing the Constitution of Massachusetts Bay.

‡ General Gage' s Proclamation, dated June 29, 1774.

|| Resolves in the House of Lords, on thirty-fifth Henry the Eighth, chapter 2.

§ Bill for the Administration of Justice, &c.

Boston Act.

** Twenty-third George the Second, chapter 29.

†† Fifth George the Second, chapter 21.

* Hooker. "For a man to be tenant at will of his liberty, I can never agree to it. It is a tenure not to be found in all Littleton." — Speech of Sir EDWARD COKE.

"Etiam si dominus nan sit molestus, tamen miserrimum est, posse si velit." — CICERO. — "The free
Know no gentle tyranny." — ROWE.

Hoadly' s Discourse on Government.

* With such smooth words may the most dreadful designs be glossed over. "There are some men who call evil, good, and bitter, sweet. — justice is now called popularity and faction." — Parl˙ Hist˙ 8. 193.

"A man shall not unprofitably spend his contemplation, that upon this occasion considers the method of God' s justice (a method terribly remarkable in many passages, and upon many persons, which we shall be compelled to remember in this discourse), that the same principles, and the same application of these principles, should be used to the wresting all sovereign power from the Crown, which the Crown had a little before made use of for the extending its authority and power beyond its bounds, to the prejudice of the just rights of the subject. A supposed necessity was then thought ground enough to create a power, and a bare averment of that necessity to beget a practice to impose what tax they thought convenient upon the subject, by writs of ship money never before known; and a supposed necessity now, and a bare averment of that necessity, is as confidently, and more fatally, concluded a good ground to exclude the Crown from the use of any power, by an ordinance never before heard of, and the same maxim of "salus populi suprema lex," which has been used to the infringing the liberty of the one, made use of for destroying the rights of the other." — Lord CLARENDON' S Hist˙ b˙ v˙ p˙ 54.

† Thus the Patriots of Charles' s days argued: "It is not, that ship money hath been levied against us, but it is, that thereby ship money is claimed, which is the gift and earnest penny of all we have: it is not, that our persons have been imprisoned for the payment of ship money, but that our persons and lives are, upon the same ground of law, delivered up to will and pleasure. It is, that our birthright is destroyed, and that there hath been an endeavour to reduce us to a lower state than villa nage. The Lord might tax his villain de haut et de basse, might imprison him, but his life was his own; the law secured him that." — Lord CLARENDON.

‡ See note on these words "Therefore a power of regulating our trade, involves not in it the idea of a Supreme Legislature over us." — Page 590.

† Id˙ p˙ 17.

† This word, "dependence," as applied to the states connected with England, seems to be a new one. It appears to have been introduced into the language of the law, by the Commonwealth Act of 1659. A "dependence on Parliament" is still more modern. A people cannot be too cautious in guarding against such innovations. "The credentials of the Imperial Ambassadors to the states of Holland, were directed ‘to our faithful and beloved.’ The words seem to be very kind, but the cautious states discovered that this was the style of the Imperial Chancery in writing to the vassals of the Empire. The question was, whether the credentials should be opened? And it was urged, that a solemn embassy ought not to be disappointed, for a few trifling words. But the stairs resolved to send them back unopened, which they did. Other credentials were then sent, with a proper direction, and the Ambassadors were well received." — Arcana, imp˙ det˙ p˙ 196.

‡ 7 Co˙ 18.

* "Nec regibus infinita aut libera potestas, was the Constitution of our German ancestors on the Continent, and this is not only consonant to the principles of nature, of liberty, of reason, and of society, but has always been esteemed an express part of the common law of England, even when prerogative was at the highest." — 1 Black. 233.

* Hoadly' s Discourse on Government.

† —

"I could never think
A mortal' s law of power or strength sufficient
To abrogate the unwritten law divine,
Immutable, eternal, not like these
Of yesterday, but made ere time began."

SOPHOCLES' S Antig˙ Frank˙ Transl˙

It should be considered whether it ever was or ever can be the true interest of a Kingdom or state to violate the laws of natural justice, equity, and humanity. These laws may be called the laws of God. Can they be broken with impunity? The Scriptures are full of lessons on this subject, and history furnishes instances sufficient to alarm oppressors if they would attend to them. All the glories of Charles the Bold, — Charles the Fifth, — Philip the Second, — Charles the Twelfth, — Lewis the Fourteenth, — and a numerous list of distinguished Princes, were overcast, when unrelenting cruelty came to preside over their resolutions. From Athens to Genoa the observation holds true. Let not the opinion be condemned as presumptuous before it be fully inquired into. It is worth an inquiry.

"Discite justitiam moniti et non temnere divos."

England has been prosperous in many civil wars, but they were in defence of liberty. She never engaged in one against liberty. Would to Heaven she would set the world the much wanted example of lenity in Government. Mankind might gain by it. The other mode has been sufficiently tried, and proved to be impolitick and ruinous.

‡ This loyal, generous Colony preserved its principles with such spirit, notwithstanding the oppression above mentioned, that in January, 1659, they threw off all obedience to the Parliament, replaced the King' s Governour, and proclaimed Charles the Second several months before the Restoration in Europe.

* This is a maxim of law, that — "A bad usage ought to be abolished."

† Letter on general warrants.

Blackstone, p˙ 245.

|| "Equal distribution of justice, and free enjoyment of property, are the great objects of society; and no time, precedent, statute, or institution, should deter men from keeping these uppermost in their thoughts." — Mr˙ HUME' S History of England.

"The jurisdiction of the Star Chamber, martial law, imprisonment by warrants from the Privy Council, and other practices of a like nature, though established for several centuries, were scarce ever allowed by the English to be parts of their Constitution: the affection of the Nation for liberty still prevailed over all precedent and over all political reasoning: The exercise of these powers, after being long the source of secret murmurs among the people, was, in fullness of time, solemnly abolished, as illegal, at least as oppressive, by the whole Legislative authority." — Id.

To these instances may be added, the late practice of general warrants, that had the sanction of precedents, even since the Revolution.

* Our chance of success would be slight indeed if it depended on subtleties of reasoning. Who can resist the skilful and courageous attacks of those Britons, who have not long since distinguished themselves in the polemical fields? Have they not proved to the satisfaction of thousands, the non-existence of matter — the necessity of human actions — consequently the innocence of them — the comfortable mortality of the soul — that virtue is a name — vice a jest — liberty a nonentity — Christianity an imposture — and, with due detestation be it mentioned, that we have no idea of power, nor of any Being endowed with any power, much less of one endowed with infinite power?

With explosions of learning and flashes of wit, these well trained troops would keep up a terrible fire of artillery and small arms against us undisciplined Americans. We must not meet them in the shock of battle. That would be madness in the extreme. We must make the most of our natural advantages. There we are safe; and all the forces that can be brought to the assault, will never be able to prevail against us. To drop the metaphor. "Inquiry ceases to be rational, and becomes both whimsical and pernicious, when it advances as far as some late authors have carried it, to controvert the first principles of knowledge, morality, religion, and consequently the fundamental laws of the British Government, and of all well regulated society." — Mr˙ BEATTIE on Truth.

It has been asserted by some men distinguished as historians, that the zeal of the reformers in religion engaging them to think liberally on that subject, led them to think with like freedom in civil affairs, whereby the Government of England received its greatest improvement. If the sentiment is just, may it not be inferred, that contempt for religion must necessarily introduce an indifference for all the just rules of Government and the principles of the Constitution?

* The power of regulating trade was carried so far by the Crown as sometimes to impose duties; and Queen Elizabeth obtained several judgments in the Exchequer on such regulations. Lord Chief Justice Coke answers the argument founded on these, in 2 Inst˙ 62, 63. Princes aimed at too much power — exceeded due bounds — their imprudence produced "grievances" — and the people, who always suffer when their rulers are weak or wicked, would no longer trust such opportunities of oppression in their hand. The power of impressing seamen shows the extensive authority in naval affairs trusted to "the Crown." — 1 BLACKSTONE, 419. FOSTER' S Rep 154.

So extremely averse were the English to foreign affairs, and to the exercise even of Parliamentary authority concerning them, that though the Nation was justly provoked against the French King for the injury done to Edward the First, by withholding Acquitaine and his other inheritances in manner (as Lord Chief Justice Coke observes in his 2d Inst˙ p˙ 532,) and by some cruel actions of Frenchmen against Englishmen, and had in full Parliament granted him aids, subsidies, for the maintenance of his wars in foreign parts, yet in the confirmationes chartarum, Edward the First, therein taking notice, "that many men doubted whether these grants by Parliament might not turn in servage of them and their heirs, as precedents, expressly declares in those statutes, that such grants shall not be drawn into custom," The comment says — "It was holden that the subjects of the Realm ought not to contribute to the maintenance of the King' s wars out of the Realm — but this matter never was in quiet until it was more particularly explained by divers Acts of Parliament." The comment then mentions several Acts declaring that no Englishman should be bound to contribute to the King' s wars out of England, in Scotland, Gascoigny, Ireland, Calais, (though these three last were countries dependent on England) and says, "these Acts of Parliament are but declarations of the ancient law of England. But here may be observed that when any ancient law or custom of Parliament" [such as before mentioned by making Acts relating to foreign wars] "is broken, and the Crown possessed of a precedent, how difficult a think it is to restore the subject again to his former freedom and safety." — 2 In˙ 527-529.

The author of "The Controversy," who, with a, liberality of sentiment, becoming a pleader against freedom and the bes t interest of mankind, counts "statute books" — "Ministers" — "King' s Council" — p˙ 77, 78 — "scraps of Journals" — p˙ 81, and ordinances of "the Rump Parliament" — p˙ 87, among his "Deities" — p˙ 78; and grieves that we poor "infidel" Colonists will not pay his idols the veneration his zeal judges due to them, has collected a good many fragments of proceedings in the House of Commons from the year 1614 to 1628. The amount is this, that the Ministers of the Crown insisted that Parliament could not make laws for America; that the Commons doubted; but at length, in 1724, came to an opinion that the King' s patent for "a monopoly of fishing on the coasts of America was a grievance," — that a "clause of forfeiture" against those who interfered in the fishery was void — and past a Bill "for a free liberty of fishing," &c. It appears in the debates that the fishery was free before the patent was granted. These extracts do not show what became of the Bill in the House of Lords. One Mr˙ Brooke said in 1621 — "We may make laws here for Virginia, for if the King gives consent to this Bill past here and by the Lords, this will control the patent."

It seems, as if the notion of the King' s regulating power still prevailed, but, that "a clause of forfeiture" in such regulations was void. So much had the power of Parliament grown since King John' s reign. Nor does it appear to have been unreasonable, as commerce became of more consequence. The instance here mentioned related to a regulation of trade; and however the King might have accommodated the point, with the other branches of the Legislature, the whole proceeding is immaterial. If it was a right actually enjoyed by Englishmen to fish on the coasts of a plantation — and a grant by the Crown of the fishery to the people of the plantation excluding the people of England, could not divest them of their right — or, "if by the King' s giving his consent to a Bill passed by Lords and Commons" — "the patent might be controlled" — it does not follow that the King, Lords, and Commons could divest the people of the plantations of all their rights.

* Case of the Ostend East India Company.

† "Another light, in which the laws of England consider the King with regard to domestick concerns, is the arbiter of commerce. By commerce, I at present mean domestick commerce only. It would lead me into too large a field, if I were to attempt to enter upon the nature of foreign trade, its privileges, regulations, and restrictions; and would be also quite beside the purpose of these commentaries, which are confined to the laws of England. Whereas no municipal laws can be sufficient to order and determine the very extensive and complicated affairs of traffick and merchandise; neither can they have a proper authority for this purpose. For, as these are transactions carried on between subjects of independent states, the municipal laws of one will not be regarded by the other. For which reason the affairs of commerce are regulated by a law of their own, called the Law Merchant, or Lex Mercatoria, which all Nations agree in and take notice of. And in particular it is held to be part of the law of England, which decides the causes of merchants by the general rules which obtain in all commercial countries; and that often even in matters relating to domestic trade, as for instance with regard to the drawing, the acceptance, and the transfer of inland bills of exchange."

‡ Parliamentary History.

* 1 Blackst˙ 252, 257.

Fol˙ 252.

Fol˙ 257.

* Rights of the people as to impositions.