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, [Page 34] is a "traiterous" 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 authority cannot extend. For all these laws are^§ ground­ed on reason, full of justice,^† and true equity," [Page 35] 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 governors, 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, [Page 36] 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 [...]UNDARY: 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 [Page 37] 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 pri­viledge of the writ of habeas corpus, by seizing and^‖ carrying us to England, have not a great­er [Page 38] tendency to diminish our happiness, than any enormities a King can commit under 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. [...]e 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 experss­ly 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 tryal by ju [...]y, &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 [Page 39] 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 no Eng­lish lawyer, as we remember, has pointed out precisely the line beyond which, if a king, shall "go," resistance becomes lawful. Gene­ral terms have been used. The learned author of those commentaries, that notwithstanding some human frailties, do him so much honor, 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 reflexion 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 [Page 40] 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 de la [...]ing 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 [Page 41] 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 costi­tution has not "expressly declared" the line be­tween the rights of the mother country and those of her colonists, THEREFORE, the latter have no rights. A logic, 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 [Page 42] 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 all the rights of the [Page 43] conquered. Such is the merciful reverence judged by the best and wisest men to be due [Page 44] to human nature, and frequently observed even by conquerors themselves.

[Page 45] 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 pow [...] in which the people have no share, ^§ is proved to be, by reason and the experience of all ages and [Page 46] countries, cannot be: rightful or legal power. For, as an excellent Bishop of the Church of [Page 47] 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."

[Page 48] 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.

[Page 49] WE well know, that the colonists are charged by many persons in Great Britain, with at­tempting to obtain such an exclusion and a total independance 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 [Page 50] which we are stigmatized. [We have commit­ted the like offence, that was objected 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 [Page 51] 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 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 shore only by accident,^§ than they instantly become freemen. [Page 52] 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 dependant upon our parent state. This sub­mission our reason approves, our affection dic­tates, our duty commands, and our interest enforces.

[Page 53] 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^* horror; and every true true Englishman will applaud this just distinction [Page 54] and candid declaration. [Our defence necessarily touches chords in unison with the fibres of his honest heart. They must vibrate in sympathetic tones. If we, [...] 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.

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, [Page 55] 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 encreased? That the poor chuse 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 [Page 56] continent, but in consequence of some imme­diately preceding provocation.

To what purpose? The charge of our af­fecting one great, or many small republics, 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 [Page 57] against a common danger, she knew, that we could not think of embarking our treasures [Page 58] of tranquility and liberty, on an ocean of blood, in a wandering expedition to some Utopian [Page 59] port. The history of mankind, from the re­motest antiquity, furnishes not a single instance [Page 60] of a people consisting of husbandmen and mer­chants, [Page 61] voluntarily engaging in such a phrenzy [Page 62] 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, [Page 63] 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 forbiding 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 tryals by jury—establishing a standing army^‡ among us in [Page 64] time of peace, without consent of our assem­blies— [Page 65] paying them with our money—seizing [Page 66] our young men^§ for recruits—changing consti­tutions of government^†—stopping the press— [Page 67] 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.^††

[Page 68] IN our provincial legislatures, the best judges in all cases what suits us—founded on the immut­able and unalienable rights of human nature, the principles of the constitution, and charters and grants made by the crown at periods, when the [Page 69] power of making them was universally acknow­ledged by the parent state, a power since fre­quently recognized by her,—subject to the con­troul of the crown as by law established, is vested the exclusive right of internal legislation.

[Page 70] SUCH a right vested in parliament, would place us exactly in the same situatian, the peo­ple [Page 71] of Great-Britain would have been reduced to, had James the first and his family succeeded [Page 72] in their scheme of arbitrary power. Changing the word Stuarts for parliament, and Britons for [Page 73] Americans, the arguments of the illustrious pa­triots [Page 74] of those times, to whose virtues their [Page 75] descendants owe every blessing they now enjoy, [Page 76] apply with inexpressible force and appositeness, [Page 77] in maintainance of our cause, and in refutation [Page 78] of the pretensions set up by their too forgetful [Page 79] posterity, over their unhappy colonists. Con­fiding [Page 80] in the undeniable truth of this single position, that, "to live by one man's^† will, [Page 81] 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 honor 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 governors of any society an UNLIMITED AUTHORITY, to anull 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, 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 [Page 82] 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 TY­RANTS PLEA of the NECESSITY OF UNLIMITED POWERS, in works of evident utility to the^† public, the supreme reason above all reasons, which is the salvation of the king's lands and [Page 83] people." This was not the doctrine of James only His son unhappily inherited it from him. On this [...] 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 [...] 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. Tri [...]ing 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 par­liament, 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, [Page 84] evidenced by facts to exist without it. The Swiss Cantons, and the United Provinces, are combinations of independant 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 past by Great-Britain, her wisest statesmen would be perplexed to shew, 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 dependant 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 invect we against us)^‡ what king it is, they profess themselves to be 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 [Page 85] or bind them in any other case; and I do not recollect, that there is any act of assembly, in any of the colonies 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 without any such "act of assembly" none of the colonists ever rebelled. What act of parliament is here meant? Surely not the 11th of Henry the seventh, chapter the 1st in [Page 86] favour of a king de facto. Probably the 12th and 13th of William the 3d chapter the 2d "for the further limitation of the crown &c." is intended. And, is it imagined that the words "dominions and territories thereunto [Page 87] 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 [Page 88] of the crown of England includes the settlement of the sovereignty of the colonies. King William is mentioned—and will the gen­tleman venture to say, that William was not [Page 89] king of England and sovereign of these colonies, before his title was "declared" or "recog­nized" by "an act of parliament?" The gen­tleman slurs over this case. His zeal for the [Page 90] "illustrious house of Hanover" would be lit­tle gratified, by infering, that because the two [Page 91] houses with the consent of the nation, made a king, therefore the two houses can make [Page 92] laws. Yet that conclusion would be as justifiable as this—that the assent of the colonies to an elec­tion [Page 93] 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 [Page 94] 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 DEPENDANCE^* 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—o [...] finally determining on appeals—of calling upon us for supplies in [Page 95] 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 with foreigners is regulated by parliament.—Colonists may "surely" be acknowledged to speak with truth, and precis­sion, 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 magic 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 controul­ing our intercourse with foreign nations form that power. Such a power leaves the colonies free. [Page 96] 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 o [...] a free state, is as impossible, as that sparrows, should be produced from the eggs of an e [...]gle. 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 public measures precipitated him in blood. To argue on this subject from other instances of parliamentary power, is shifting the [Page 97] ground. The connexion of the colonies with England, is a point of an 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 [Page 98] to colonies; yet Mr. justice Blackstone says, "such parts of the law as are neither necessa­ry [Page 99] nor convenient for them, as the jurisdiction of the spiritual courts, &c. are therefore not in [Page 100] force." If even the COMMON LAW, in force with­in the realm of England when the colonists quit­ted 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 of colonies, by those peculiar circumstances.^‡

[Page 101] THE laws of England with respect to preroga­tive, and in other instances, have accommodated [Page 102] themselves, without alteration by statutes to a change of circumstances, the welfare of the people [Page 103] so requiring. A regard for that grand object per­petualiy [Page 104] animates the constitution, and regu­lates all its movements—unless unnatural ob­structions interfere—

[Page 105] ANOTHER argument for the extravagant pow­er of internal legislation over us remains. It has been urged with great warmth against us, that "precedents" shew 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, [...]nay 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 public good, the same venera­tion for and duty to the divine a [...]thority, com­mands us to oppose. The all wise Creator of man imprest 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 [Page 106] 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 honor of GOD, and fixing it upon much firmer ground."^*

No sensible or good man ever suspected Mr. Hooker of being a weak or [...]actious 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. Hoadley asks—"Would the ends of government be destroyed should the miserable condition of the people of France, WHICH HATH 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 [Page 107] —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 passed by the Commonwealth parlia­ment [Page 108] in 1650 to "punish" Virginia ^†, Barbados, Antigua, and Bermudas, FOR THEIR FIDELITY TO CHARLES THE SECOND. So antient is the right of parliament to "punish" Colonists for doing their duty. But the parliament had before overturned church and throne, so that there is 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 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 alembic 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 [Page 109] & 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 i [...] recollected to have been past 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 encreases 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, [Page 110] 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 gigantic 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."^‡

[Page 111] 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 [Page 112] constitutional, 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 [Page 113] 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 connexion 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?"

[Page 114] 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 [Page 115] 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. "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 kings 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 injoin any man from going abroad, or command any man to return. The powers of establishing public 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 [Page 116] 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 clausum", are several regulations made by kings^* Time forbids a more exact enquiry [Page 117] into this point: but such it is apprehended, will on enquiry be found to have been the power of [Page 118] the crown, that our argument may gain, but cannot lose. 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 [Page 119] 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, Moors, &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, [Page 120] 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, involves not [Page 121] in it the idea of supreme legislature over us. The first is a power of a preserving "protecting" [Page 122] nature. The last, as applied to America, is such a power as Mr. Justice Blackstone de­scribes [Page 123] in these words, "whose enormous weight spreads horror and destruction on all inferior [Page 124] movements." Th [...] 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 so remote as to be despised by her.

THE power of regulation was the only band that could have held us together; formed on one of those "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 licence. This our duty resembles that of children to a pa­rent. The parent has a power over them: but [Page 125] they have rights, which 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 decreases the memory of former kindnesses, may supply its decays, and her colonies like dutiful children, may serve and guard their aged parent, for ever 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 center, 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 stiled "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 [Page 126] 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 this united sentiments and resolutions are exprest. 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, [...] 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 act, 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 preceeding instances.

[Page 127] 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 orgument 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 trust and not dominium utile. He hath power to open and shut, UPON CONSIDERA­TION OF PUBLIC 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 Le may therefore take money, not to restrain or not to enjoin, IS TO SELL GOVERNMENT, TRUST, AND COMMON JUSTICE^*.