After a long discourse, which has nothing in it but what has been
answered already, he comes to a great subject
indeed, the British Constitution, and undertakes to prove, that "the
authority of Parliament extends to the colonies."
Why will not this writer state the question fairly? The Whigs
allow that from the necessity of a case not provided for by common law,
and to supply a defect in the British dominions which there undoubtedly
is, if they are to be governed only by that law, America has all along
consented, still consents and ever will consent, that Parliament, being
the most powerful legislature in the dominions, should regulate the
trade of the dominions. This is founding the authority of Parliament to
regulate our trade upon compact and consent of the colonies, not upon
any principle of common or statute law; not upon any original principle
of the English Constitution; not upon the principle that Parliament is
the supreme and sovereign legislature over them in all cases whatsoever.
The question is not, therefore, whether the authority of Parliament
extends to the colonies in any case, for it is admitted by the Whigs
that it does in that of commerce; but whether it extends in all cases...
We are then detained with a long account of the three simple forms
of government; and are told, "that the British Constitution, consisting
of king, lords, and commons, is formed upon the principles of monarchy,
aristocracy, and democracy, in due proportion; that it includes the
principal excellences, and excludes the principal defects of the other
kinds of government - the most perfect system that the wisdom of ages
has produced, and Englishmen glory in being subject to, and protected by
it."
Then we are told, "that the colonies are a part of the British
Empire." But what are we to understand by this? Some of the colonies,
most of them indeed were settled before the kingdom of Great Britain was
brought into existence. The union of England and Scotland was made and
established by Act of Parliament in the reign of Queen Anne, and it was
this union and statute which erected the kingdom of Great Britain. The
colonies were settled long before, in the reigns of the Jameses and
Charleses. What authority over them had Scotland? Scotland, England, and
the colonies were all under one king before that; the two crowns of
England and Scotland united on the head of James I, and continued united
on that of Charles I, when our first charter was granted. Our charter,
being granted by him who was king of both nations, to our ancestors,
most of whom were post nati, born after the union of the two crowns, and
consequently (as was adjudged in Calvin's case) free, natural subjects
of Scotland as well as England - had not the king as good a right to
have governed the colonies by his Scottish as by his English parliament,
and to have granted our charters under the seal of Scotland as well as
that of England?
But to waive this. If the English Parliament were to govern us,
where did they get the right without our consent, to take the Scottish
parliament into a participation of the government over us? When this was
done, was the American share of the democracy of the Constitution
consulted? If not, were not the Americans deprived of the benefit of the
democratical part of the Constitution? And is not the democracy as
essential to the English Constitution as the monarchy or aristocracy?
Should we have been more effectually deprived of the benefit of the
British or English Constitution, if one or both Houses of Parliament, or
if our House and Council, had made this union with the two Houses of
Parliament in Scotland, without the king?
If a new constitution was to be formed for the whole British
dominions, and a supreme legislature coextensive with it, upon the
general principles of the English Constitution, an equal mixture of
monarchy, aristocracy, and democracy, let us see what would be
necessary. England has six millions of people, we will say; America had
three. England has five hundred members in the House of Commons, we will
say; America must have two hundred and fifty. Is it possible she should
maintain them there, or could they at such a distance know the state,
the sense, or exigencies of their constituents? Ireland, too, must be
incorporated, and send another hundred or two of members. The territory
in the East Indies and West India Islands must send members. And after
all this, every navigation act, every act of trade must be repealed.
America, and the East and West Indies, and Africa too, must have equal
liberty to trade with all the world, that the favored inhabitants of
Great Britain have now. Will the ministry thank Massachusettensis for
becoming an advocate for such a union, and incorporation of all the
dominions of the King of Great Britain? Yet, without such a union, a
legislature which shall be sovereign and supreme in all cases
whatsoever, and coextensive with the empire, can never be established
upon the general principles of the English Constitution which
Massachusettensis lays down, namely, an equal mixture of monarchy,
aristocracy, and democracy. Nay, further, in order to comply with this
principle, this new government, this mighty colossus which is to
bestride the narrow world, must have a House of Lords, consisting of
Irish, East and West Indian, African, American, as well as English and
Scottish noblemen; for the nobility ought to be scattered about all the
dominions, as well as the representatives of the commons.
If in twenty years more America should have six millions of
inhabitants, as there is a boundless territory to fill up, she must have
five hundred representatives. Upon these principles, if in forty years
she should have twelve millions, a thousand; and if the inhabitants of
the three kingdoms remain as they are, being already full of
inhabitants, what will become of your supreme legislative? It will be
translated, crown and all, to America. This is a sublime system for
America. It will flatter those ideas of independency which the Tories
impute to them, if they have any such, more than any other plan of
independency that I have ever heard projected.
"The best writers upon the law of nations tell us, that when a
nation takes possession of a distant country, and settles there, that
country, though separated from the principal establishment or mother
country, naturally becomes a part of the state equal with its ancient
possessions." We are not told who these "best writers" are. I think we
ought to be introduced to them. But their meaning may be no more than
that it is best they should be incorporated with the ancient
establishment by contract, or by some new law and institution, by which
the new country shall have equal right, powers, and privileges, as well
as equal protection, and be under equal obligations of obedience, with
the old. Has there been any such contract between Britain and the
colonies? Is America incorporated into the realm? Is it a part of the
realm? Is it a part of the kingdom? Has it any share in the legislative
of the realm? The Constitution requires that every foot of land should
be represented in the third estate, the democratical branch of the
Constitution. How many millions of acres in America, how many thousands
of wealthy landholders, have no representatives there?
But let these "best writers" say what they will, there is nothing
in the law of nations, which is only the law of right reason applied to
the conduct of nations, that requires that emigrants from a state should
continue, or be made, a part of the state.
The practice of nations has been different. The Greeks planted
colonies, and neither demanded nor pretended any authority over them;
but they became distinct, independent commonwealths. The Romans
continued their colonies under the jurisdiction of the mother
commonwealth, but nevertheless they allowed them the privileges of
cities. Indeed, that sagacious city seems to have been aware of
difficulties similar to those under which Great Britain is now laboring.
She seems to have been sensible of the impossibility of keeping colonies
planted at great distances, under the absolute control of her
senatus-consulta. Harington tells us, that "the commonwealth of Rome, by
planting colonies of its citizens within the bounds of Italy, took the
best way of propagating itself and naturalizing the country; whereas, if
it had planted such colonies without the bounds of Italy, it would have
alienated the citizens, and given a root to liberty abroad, that might
have sprung up foreign, or savage, and hostile to her; wherefore it
never made any such dispersion of itself and its strength till it was
under the yoke of the emperors, who, disburdening themselves of the
people, as having less apprehension of what they could do abroad than at
home, took a contrary course." But these Italian cities, although
established by decrees of the senate of Rome, to which the colonist was
always party, either as a Roman citizen about to emigrate, or as a
conquered enemy treating upon terms, were always allowed all the rights
of Roman citizens, and were governed by senates of their own. It was the
policy of Rome to conciliate her colonies by allowing them equal
liberties with her citizens. Witness the example of the Privernates...
Having mentioned the wisdom of the Romans, for not planting
colonies out of Italy, and their reasons for it, I cannot help
recollecting an observation of Harington: "For the colonies in the
Indies," says he, "they are yet babes, that cannot live without sucking
the breasts of their mother cities, but such as I mistake, if, when they
come of age, they do not wean themselves, which causes me to wonder at
princes that delight to be exhausted in that way." This was written one
hundred and twenty years ago; the colonies are now nearer manhood than
ever Harington foresaw they would arrive in such a period of time. Is it
not astonishing, then, that any British minister should ever have
considered this subject so little as to believe it possible for him to
new-model all our governments, to tax us by an authority that never
taxed us before, and subdue us to an implicit obedience to a legislature
that millions of us scarcely ever thought any thing about?
I have said, that the practice of free governments alone can be
quoted with propriety to show the sense of nations. But the sense and
practice of nations is not enough. Their practice must be reasonable,
just, and right, or it will not govern Americans.
Absolute monarchies, whatever their practice may be, are nothing
to us; for, as Harington observes, "Absolute monarchy, as that of the
Turks, neither plants its people at home nor abroad, otherwise than as
tenants for life or at will; wherefore, its national and provincial
government is all one."
I deny, therefore, that the practice of free nations, or the
opinions of the best writers upon the law of nations, will warrant the
position of Massachusettensis, that, "when a nation takes possession
of a distant territory, that becomes a part of the state equally with
its ancient possessions." The practice of free nations and the opinions
of the best writers are in general on the contrary.
I agree, that "two supreme and independent authorities cannot
exist in the same state," any more than two supreme beings in one
universe; and, therefore, I contend, that our provincial legislatures
are the only supreme authorities in our colonies. Parliament,
notwithstanding this, may be allowed an authority supreme and sovereign
over the ocean, which may be limited by the banks of the ocean, or the
bounds of our charters; our charters give us no authority over the high
seas. Parliament has our consent to assume a jurisdiction over them. And
here is a line fairly drawn between the rights of Britain and the rights
of the colonies, namely, the banks of the ocean, or low-water mark; the
line of division between common law, and civil or maritime law. If this
is not sufficient - if Parliament are at a loss for any principle of
natural, civil, maritime, moral, or common law, on which to ground any
authority over the high seas, the Atlantic especially, let the colonies
be treated like reasonable creatures, and they will discover great
ingenuity and modesty. The Acts of Trade and Navigation might be
confirmed by provincial laws, and carried into execution by our own
courts and juries, and in this case, illicit trade would be cut up by
the roots forever. I knew the smuggling Tories in New York and Boston
would cry out against this, because it would not only destroy their
profitable game of smuggling, but their whole place and pension system.
But the Whigs, that is, a vast majority of the whole continent, would
not regard the smuggling Tories. In one word, if public principles, and
motives, and arguments were alone to determine this dispute between the
two countries, it might be settled forever in a few hours; but the
everlasting clamors of prejudice, passion, and private interest drown
every consideration of that sort, and are precipitating us into a civil
war.
"If, then, we are a part of the British Empire, we must be subject
to the supreme power of the state, which is vested in the estates in
Parliament."
Here, again, we are to be conjured out of our senses by the magic
in the words "British Empire," and "supreme power of the state." But,
however it may sound, I say we are not a part of the British Empire;
because the British Government is not an empire. The governments of
France, Spain, &c., are not empires, but monarchies, supposed to be
governed by fixed fundamental laws, though not really. The British
Government is still less entitled to the style of an "empire." It is a
limited monarchy. If Aristotle, Livy, and Harington knew what a republic
was, the British Constitution is much more like a republic than an
empire. They define a republic to be a government of laws, and not of
men. If this definition be just, the British Constitution is nothing
more nor less than a republic, in which the King is first magistrate.
This office being hereditary, and being possessed of such ample and
splendid prerogatives, is no objection to the government's being a
republic, as long as it is bound by fixed laws which the people have a
voice in making, and a right to defend. An empire is a despotism, and an
emperor a despot, bound by no law or limitation but his own will; it is
a stretch of tyranny beyond absolute monarchy. For, although the will of
an absolute monarch is law, yet his edicts must be registered by
parliaments. Even this formality is not necessary in an empire. There
the maxim is quod principi placuit legis habet vigorem, even without
having that will and pleasure recorded. There are but three empires now
in Europe, the German or Holy Roman, the Russian, and the Ottoman.
There is another sense, indeed, in which the word "empire" is
used, in which it may be applied to the government of Geneva, or any
other republic, as well as to monarchy or despotism. In this sense it is
synonymous with government, rule, or dominion. In this sense we are
within the dominion, rule, or government of the King of Great Britain.
The question should be, whether we are a part of the kingdom of
Great Britain. This is the only language known in English laws. We are
not, then, a part of the British kingdom, realm, or state; and therefore
the supreme power of the kingdom, realm, or state is not, upon these
principles, the supreme power of us. That "supreme power over America is
vested in the estates in Parliament," is an affront to us; for there is
not an acre of American land represented there; there are no American
estates in Parliament.
To say, that we "must be" subject, seems to betray a consciousness
that we are not by any law, or upon any principles but those of mere
power; and an opinion that we ought to be, or that it is necessary that
we should be. But if this should be admitted for argument's sake only,
what is the consequence? The consequences that may fairly be drawn are
these; that Britain has been imprudent enough to let colonies be
planted, until they are become numerous and important, without ever
having wisdom enough to concert a plan for their government, consistent
with her own welfare; that now it is necessary to make them submit to
the authority of Parliament; and, because there is no principle of law,
or justice, or reason, by which she can effect it, therefore she will
resort to war and conquest - to the maxim, delenda est Carthago. These
are the consequences, according to this writer's idea. We think the
consequences are, that she has, after one hundred and fifty years,
discovered a defect in her government, which ought to be supplied by
some just and reasonable means, that is, by the consent of the colonies;
for metaphysicians and politicians may dispute forever, but they will
never find any other moral principle or foundation of rule or obedience,
than the consent of governors and governed. She has found out that the
great machine will not go any longer without a new wheel. She will make
this herself. We think she is making it of such materials and
workmanship as will tear the whole machine to pieces. We are willing, if
she can convince us of the necessity of such a wheel, to assist with
artists and materials in making it, so that it may answer the end. But
she says, we shall have no share in it; and if we will not let her patch
it up as she pleases, her Massachusettensis and other advocates tell us,
she will tear it to pieces herself, by cutting our throats. To this kind
of reasoning, we can only answer, that we will not stand still to be
butchered. We will defend our lives as long as Providence shall enable
us.
"It is beyond doubt, that it was the sense both of the parent
country and our ancestors, that they were to remain subject to
Parliament."
This has been often asserted, and as often contradicted and fully
confuted. The confutation may not, however, have come to every eye which
has read this newspaper.
That the authority of Parliament "has been exercised almost ever
since the first settlement of the country," is a mistake; for there is
no instance, until the first Navigation Act, which was in 1660, more
than forty years after the first settlement. This Act was never executed
nor regarded until seventeen years afterwards, and then it was not
executed as an Act of Parliament, but as a law of the colony, to which
the king agreed.
This "has been expressly acknowledged by our provincial
legislatures." There is too much truth in this. It has been twice
acknowledged by our House of Representatives, that Parliament was the
supreme legislative; but this was directly repugnant to a multitude of
other votes, by which it was denied. This was in conformity to the
distinction between taxation and legislation, which has since been found
to be a distinction without a difference.
When a great question is first started, there are very few, even
of the greatest minds, which suddenly and intuitively comprehend it, in
all its consequences.
It is both "our interest and our duty to continue subject to the
authority of Parliament," as far as the regulation of our trade, if it
will be content with that, but no longer.
"If the colonies are not subject to the authority of Parliament,
Great Britain and the colonies must be distinct states, as completely so
as England and Scotland were before the union, or as Great Britain and
Hanover are now." There is no need of being startled at this
consequence. It is very harmless. There is no absurdity at all in it.
Distinct states may be united under one king. And those states may be
further cemented and united together by a treaty of commerce. This is
the case. We have, by our own express consent, contracted to observe the
Navigation Act, and by our implied consent, by long usage and
uninterrupted acquiescence, have submitted to the other acts of trade,
however grievous some of them may be. This may be compared to a treaty
of commerce, by which those distinct states are cemented together, in
perpetual league and amity. And if any further ratifications of this
pact or treaty are necessary, the colonies would readily enter into
them, provided their other liberties were inviolate.
That "the colonies owe no allegiance to any imperial crown,"
provided such a crown involves in it a house of lords and a house of
commons, is certain. Indeed, we owe no allegiance to any crown at all.
We owe allegiance to the person of His Majesty, King George III, whom
God preserve. But allegiance is due universally, both from Britons and
Americans, to the person of the king, not to his crown; to his natural,
not his politic capacity, as I will undertake to prove hereafter, from
the highest authorities, and the most solemn adjudications, which were
ever made within any part of the British dominions.
If His Majesty's title to the crown is "derived from an act of
Parliament, made since the settlement of these colonies," it was not
made since the date of our charter. Our charter was granted by King
William and Queen Mary, three years after the revolution; and the oaths
of allegiance are established by a law of the province. So that our
allegiance to His Majesty is not due by virtue of any Act of a British
Parliament, but by our own charter and province laws. It ought to be
remembered that there was a revolution here, as well as in England, and
that we, as well as the people of England, made an original, express
contract with King William.
If it follows from thence, that he appears "King of Massachusetts,
King of Rhode Island, King of Connecticut, &c.," this is no absurdity at
all. He will appear in this light, and does appear so, whether
Parliament has authority over us or not. He is King of Ireland, I
suppose, although Parliament is allowed to have authority there. As to
giving His Majesty those titles, I have no objection at all; I wish he
would be graciously pleased to assume them.
The only proposition in all this writer's long string of pretended
absurdities, which he says follows from the position that we are
distinct states, is this: That "as the King must govern each state by
its Parliament, those several Parliaments would pursue the particular
interest of its own state; and however well disposed the king might be
to pursue a line of interest that was common to all, the checks and
control that he would meet with would render it impossible." Every
argument ought to be allowed its full weight; and therefore candor
obliges me to acknowledge, that here lies all the difficulty that there
is in this whole controversy. There has been, from the first to last, on
both sides of the Atlantic, an idea, an apprehension, that it was
necessary there should be some superintending power, to draw together
all the wills, and unite all the strength of the subjects in all the
dominions, in case of war, and in the case of trade. The necessity of
this, in case of trade, has been so apparent, that, as has often been
said, we have consented that Parliament should exercise such a power. In
case of war, it has by some been thought necessary. But in fact and
experience, it has not been found so. What though the proprietary
colonies, on account of disputes with the proprietors, did not come in
so early to the assistance of the general cause in the last war as they
ought, and perhaps one of them not at all? The inconveniences of this
were small, in comparison of the absolute ruin to the liberties of all
which must follow the submission to Parliament, in all cases, which
would be giving up all the popular limitations upon the government.
These inconveniences fell chiefly upon New England. She was necessitated
to greater exertions; but she had rather suffer these again and again
than others infinitely greater. However, this subject has been so long
in contemplation, that it is fully understood now in all the colonies;
so that there is no danger, in case of another war, of any colony's
failing of its duty.
But, admitting the proposition in its full force, that it is
absolutely necessary there should be a supreme power, coextensive with
all the dominions, will it follow that parliament, as now constituted,
has a right to assume this supreme jurisdiction? By no means.
A union of the colonies might be projected, and an American
legislature; for, if America has three millions of people, and the whole
dominions, twelve millions, she ought to send a quarter part of all the
members to the House of Commons; and, instead of holding parliaments
always at Westminster, the haughty members for Great Britain must humble
themselves, one session in four, to cross the Atlantic, and hold the
parliament In America.
There is no avoiding all inconveniences in human affairs. The
greatest possible, or conceivable, would arise from ceding to Parliament
power over us without a representation in it. The next greatest would
accrue from any plan that can be devised for a representation there. The
least of all would arise from going on as we began, and fared well for
one hundred and fifty years, by letting Parliament regulate trade, and
our own assemblies all other matters.
We are a part of the British dominions, that is, of the King of
Great Britain, and it is our interest and duty to continue so. It is
equally our interest and duty to continue subject to the authority of
Parliament in the regulation of our trade, as long as she shall leave us
to govern our internal policy, and to give and grant our own money, and
no longer. This letter concludes with an agreeable flight of fancy.
The time may not be so far off, however, as this writer imagines, when
the colonies may have the balance of numbers and wealth in their favor.
But when that shall happen, if we should attempt to rule her by an
American Parliament, without an adequate representation in it, she will
infallibly resist us by her arms.
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