Moses Mather (1719–1806). Born in Lyme, Connecticut, into a famous New England family of divines, Mather was a graduate of Yale in the class of 1739. He began preaching in 1742 in what is now the town of Darien, where he remained, preaching for sixty-four years. He was ordained in 1744. As a champion of liberty, he became an especially obnoxious personality to Tories in his vicinity; he was even twice imprisoned for his views: In 1779 he was seized in his home and imprisoned in New York for five weeks, and in 1781 the British arrived at his church during services and confined him and around fifty of his congregation in New York for some months. He conducted a doctrinal debate over infant baptism and communion with the unconverted with New Divinity leaders Joseph Bellamy and Samuel Hopkins in the late 1760s and early 1770s, but late in life he seems to have swung over to their views. Thrice married, he was the father of eight children.
Mather published eight pieces, including the Connecticut election sermon for 1781. He was honored with a D.D. from the College of New Jersey and was a fellow of Yale College from 1777 to 1790. President Dwight of Yale described him as “a man distinguished for learning and piety, a strong understanding, and [for having led] a most exemplary life” (Yale Biographies and Annals, 1:627).
America’s Appeal to the Impartial World was published anonymously in Hartford in 1775, but it is known to be Mather’s work. It breathes the fire of righteous patriotism characteristic of the pulpit of the time, as can be seen from the three mighty Old Testament texts on the title page, and is a superb statement of American liberty.
At a time when we are called upon to surrender our liberties, our religion, and country; or defend them at the point of the sword, against those, that were our friends, our brethren, and allies (whose swords, and ours, till lately were never drawn but for mutual defence; and in joint battalions, cemented in love, affinity, and valour, have wrought wonders, vanquished armies, and triumphed over the power of mighty potentates), nothing will inspire our councils with unanimity, our resolves with firmness, and render the exertions, the noble struggles of a brave, free and injured people, bold, rapid and irresistable, like a right understanding of the necessity and rectitude of the defence, we are compelled to make, in this unnatural contention.
To write upon a subject that hath been so often and ably handled—a subject so important in its nature, so extensive in its consequences, in which the fate of America, the rights and liberties of millions, nay more, of mankind, are involved; and to trace those rights to their native original source, develope the fountain from whence derived; define their nature and immutability, and shew wherefore the arbitrary institutions of civil government (originally ordained to connect the strength of each, for the security of all) cannot destroy or alter them, requires a fund of abilities far beyond mine; yet, to attempt it, may serve to awaken and stimulate some masterly pen, to execute a task so arduous, and beneficial to the world. And should these imperfect considerations, on a subject so important, call forth the prolific fire of some great intuitive genius, to lighten upon the subject, on which I have only glimmered, and like a skilful physician, comprehending the disease and the remedy, point out the one, and prescribe the other, or some mighty deliverer, while others lop here and there a scattered branch, with unerring aim, to give a blow at the root, my end would be answered, my pains compensated, and my country rescued from the darkness that invelops, and from the misery and slavery that impend it. With these views, the following pages are humbly dedicated to the candour and patronage of the impartial world; to whom (under God), we make our appeal, with fervent desires, that he, who hath the hearts of king’s in his hands suspends the fate of empires on his nod, and whom, even angry, conflicting elements instantly obey, would hush the civil tumults, still and dispel the thundering tempest, that darkens and disquiets our hemisphere.
I shall consider the subject under the following divisions.
I. The natural rights of the Americans, considered as men.
II. The rights of Americans antecedent to any charters, or colony constitutions under the crown.
III. Their rights subsequent to such charters, or colony constitutions.
IV. The equity of the demand made on the colonies, and of the manner in which it is made.
Free agency, or a rational existence, with its powers and faculties, and freedom of enjoying and exercising them, is the gift of God to man. The right of the donor, and the authenticity of the donation, are both incontestable; hence man hath an absolute property in, and right of dominion over himself, his powers and faculties; with self-love to stimulate, and reason to guide him, in the free use and exercise of them, independent of, and uncontrolable by any but him, who created and gave them. And whatever is acquired by the use, and application of a man’s faculties, is equally the property of that man, as the faculties by which the acquisitions are made; and that which is absolutely the property of a man, he cannot be divested of, but by his own voluntary act, or consent, either expressed, or implied. Expressed, by actual gift, sale, or exchange, by himself, or his lawful substitute: implied, as where a man enters into, and takes the benefits of a government, he implicitly consents to be subject to it’s laws; so, when he transgresses the laws, there is an implied consent to submit to it’s penalties. And from this principle, all the civil* exousiai, or rightful authorities, that are ordained of God, and exist in the world, are derived as from their native source. From whence are authorities, dominions and powers? from God, the sovereign ruler, as the fountain, through the voice and consent of the people. For what purpose are they erected? for the good of the people. Wherefore the sovereign ruler, condescends to cloath, with authority, the man who by the general voice, is exalted, from among the people, to bear rule; and to pronounce him his minister for their good. Hence, it is evident, that man hath the clearest right, by the most indefeasible title, to personal security, liberty, and private property. And whatever is a man’s own, he hath, most clearly, a right to enjoy and defend; to repel force by force; to recover what is injuriously pillaged or plundered from him, and to make reasonable reprisals for the unjust vexation.* And, upon this principle, an offensive war may sometimes be justifiable, viz. when it is necessary for preservation and defence.
II. I am now to consider the rights of the Americans, antecedent to any charters or colony constitutions under the crown.
When our ancestors left the kingdom of England, they were subjects of that kingdom, and entitled to equal privileges with the rest of its subjects; when they came into America, where no civil constitutions were existing, they joined themselves to none: the lands which they entered and possessed, they acquired by purchase, or by conquest of the natives: they came over of themselves, viz. were not colonies sent out, to make settlements by government; not to mention the intolerable oppressions, by which they were driven out, crossed the Atlantick, and availed themselves of possessions, at their own risque and expence, and by their own sword and prowess. Now, in America, they were still subjects of the kingdom of England, or they were not; if the former, then they were entitled to enjoy, in America, the same or equal privileges, with those enjoyed by the subjects residing in England—if the latter, then that kingdom had no right of jurisdiction over them, and they were in a state of nature, at liberty to erect such a constitution of civil government as they should chuse. Upon the supposition that they were still subjects of that kingdom, let us consider what rights and privileges they were entitled to enjoy:
1st. In regard to legislation.
2d. Taxation. And,
3d. The mode of trial.
By nature, every man (under God) is his own legislator, judge, and avenger, and absolute lord of his property. In civil government, rightly constituted, every one retains a share in the legislative, taxative, judicial, and the vindictive powers, by having a voice in the supreme legislature, which enacts the laws, and imposes the taxes, and by having a right, in all cases wherein he is injured, to resort to, and demand redress, in a course of law, from the tribunal of the public, and the sword of state. And the English nation, early impressed, with these first great principles of natures dictates, erected a system of civil government, correspondent thereto; invested the parliament, which consisted of all the estates, that composed the nation, in epitome, with the supreme sovereignty of the kingdom; and in which, each estate made a part, and had a share, either personally or by actual representation, to advise, resolve, consent, or dissent, and in which, the concurrence of all three, viz. the King, Lords and Commons, was necessary, to every act of legislation. Thus the English government was constituted upon the foundation of reason; and the natural rights of the subjects, instead of being given up, or impaired, were confirmed, improved and strengthened, although the mode of exercising them was altered: Wherefore it is a maxim in the English laws, that to an act of parliament, every man, in judgment of law is party. The English constitution, like other imitations of nature, was a system of consummate wisdom, and policy, the balance of power, being so judiciously placed, as to connect the force, and to preserve the rights of all; each estate, armed with a power of self defence, against the encroachments of the other two, by being enabled to put a negative upon any or all of their resolves, neither the King, Lords or Commons, could be deprived of their rights or properties but by their own consent in parliament, and no laws could be made, or taxes imposed, but such as were necessary, and in the judgment of the three estates in parliament, for the common good, and interest of the realm. Most justly then did a celebrated French writer, treating of the English, and the excellence of their constitution, say, that England could never lose its freedom, until parliament lost its virtue.
The English, animated with the spirit of freedom, to their immortal honor, anciently claimed these privileges, as their unalienable rights, and anxious to preserve and transmit them unimpaired to posterity; caused them to be reduced to writing, and in the most solemn manner to be recognized, ratified and confirmed, first by King John, then by his son Henry the IIId. in the 3d and 37th years of his reign, at Westminster-Hall, where Magna Charta was read in the presence of the nobility and bishops, with lighted candles in their hands; the king, all the while laying his hand on his breast, at last, solemnly swearing faithfully and inviolably to observe all things therein contained, as he was a man, a christian, a soldier and a king; then the bishops extinguished the candles and threw them on the ground, and every one said, thus let him be extinguished and stink in hell, who violates this charter: Upon which there was universal festivity and joy, ringing of bells, &c. and again by Edward the 1st. in the 25th year of his reign, by the statute called Confirmatio Cartarum. Afterwards by a multitude of corroborating acts, reckoned in all, by Lord Cook, to be thirty-two, from Edw. 1st. to Hen. 4th. and since, in a great variety of instances, by the bills of right and acts of settlement; whereby Magna Charta, that great charter of liberties, hath been established as the standard of right throughout the realm, and all judgments contrary thereto declared void; it was ordered to be read twice a year in all the cathedral churches, and sentence of excommunication to be denounced against all, who by word or deed, acted contrary to, or infringed it.
2d. With regard to taxation.
As the rights of private property are sacred, and no one can be divested thereof without his free consent: The English constitution, in this also religiously follows the dictates of reason: No subject of England can be constrained to pay any aids or taxes, even for the defence of the realm, or the support of government, but such as are imposed by his own consent, or that of his representative in parliament. By the stat. 25 Edw. 1st. c. 5 and 6, it is provided, that the king shall not take any aids or taxes, but by the common assent of the realm: And what that common assent is, is more fully explained, by the 34th of Edw. 1st. stat. 4, c. 1, which enacts, that no talliage or aid shall be taken, without assent of archbishops, bishops, earls, barons, knights, burgesses, and other freemen of the land; and by the 14th Edw. 3. stat. 2. it is provided, that the prelates, earls, barons, commons, and citizens, burgesses and merchants, shall not be charged to make any aid, if it be not by the common assent of the great men, and Commons in Parliament: And as this fundamental principle had been shamefully violated by succeeding princes, it was made an article in the petition of right, third of King Cha. I. that no man shall be compelled to yield any gift, loan, or benevolence tax, or any such charge, without common consent, by act of Parliament; and again by the 1st of William and Mary, stat. 2, it is declared, that levying money for, or to the use of the crown, by pretence of prerogative, without grant of parliament, or for longer time, or in other manner, then the same is or shall be granted, is illegal; and that the subjects do claim, demand, and insist upon all and singular the premises, as their antient undoubted rights and liberties. Lastly, these rights and liberties were asserted and confirmed, in the act of settlement which limited the crown, to the illustrious house of his present majesty, in the beginning of this century. Talliage from the French taille to cut, signifies a part cut or carved out of the whole estate, and in a law sense includes all subsidies, taxes, impositions, and duties whatsoever, none of which might be taken without common consent in parliament. Hence, it is the antient and unalienable right of the House of Commons, to originate all money bills, they being the free donations of the people, and not the exactions of the prince; upon the principle that civil government is constituted for the good of the people, and not the people for government: And there is no difference in the reason and nature of the thing, between the king’s levying money in England without consent of parliament, and the parliament’s levying money in America without the consent of the Americans.
3d. In regard to the mode of trial.
As it is not the laws merely, that are made, considered in themselves, but the construction and sense put upon them, by the judges and triers, that falls upon the subject and affects him in his person and property; it was necessary that the constitution should guard the rights of the subject, in the executive as well as the legislative part of government: And no mode of trial would so effectually do this, be so unexceptionable, by reason of their equality, and the impartial manner in which they are taken and impanelled; so advantageous, on account of their knowledge of the parties, the credibility of the witnesses, and what weight ought to be given to their testimony, as that by our peers, a jury of the vicinity: For very good and wholsome laws may be perniciously executed. Wherefore it is expresly provided and ordained, in the Great Charter, chap. 29, “That no freeman shall be taken or disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; and we will not pass sentence upon him, nor condemn him, but by lawful judgment of his peers; or by the laws of the land.” By this no freeman might be molested in his person, liberty or estate, but according to the laws of the land, by lawful warrant, granted by lawful authority, expressing the cause for which, the time when, and place where he is to answer or be imprisoned, with the terms of his enlargement; nor have sentence passed upon him in any case, but by lawful judgment of his peers; who, in the instance of giving their verdict, do unanimously declare and announce the law, with respect to themselves, in like circumstances. It is, says Dr. Blackstone, the most transcendant privilege which
any subject can enjoy or wish for, that he cannot be affected in his property, his liberty or person, but by the unanimous consent of twelve of his neighbours and equals: And when a celebrated French writer concludes, that because Rome, Sparta, and Carthage, lost their liberties, therefore England must in time lose theirs, he should have recollected, that Rome, Sparta, and Carthage were strangers to trial by jury; and that it is a duty which every man owes to his country, his friends, his posterity and himself, to maintain, to the utmost of his power, this valuable constitution in all its parts, to restore it to its antient dignity, if at all impaired, or deviated from its first institution, &c. and above all, to guard with the most jealous circumspection, against the introduction of new and arbitrary methods of trial, which, under a variety of plausible pretences, may in time, imperceptably undermine this best preservative of English liberties.
English subjects, therefore, could be bound by no laws, be liable to no taxes, but what were made and imposed by their own consent; nor have any sentence passed upon them but by the judgment of their equals. Glorious constitution! worthy to be engraved in capitals of gold, on pillars of marble; to be perpetuated through all time, a barrier, to circumscribe and bound the restless ambition of aspiring monarchs, and the palladium of civil liberty; especially, when in addition to these, we consider the habeas corpus act, passed in 31 Car. II. that second Magna Charta and stable bulwark of the subjects liberties, which provides a remedy for the immediate relief of such as are unjustly imprisoned, under colour of law. And enacts, that no subject of this our realm, who is an inhabitant of England, Wales, or Berwick, shall be sent a prisoner to Scotland, Ireland, Jersey, Guernsey, or places beyond the seas, and all such imprisonments are declared illegal, the party causing them disabled to bear any office, incurs the penalty of a premunire, becomes incapable of the king’s pardon, and also is to answer damages to the party aggrieved. “Of great importance, says the above cited author, to the public, is the preservation of personal liberty, for if once it was left in the power of any, the highest magistrate, to imprison arbitrarily, whomsoever he or his officers thought proper (as in France is daily practised by the crown) there would soon be an end to all other rights and immunities.” How consistent with these principles, the present mode of administring government is, the impartial world may judge, by the late revenue and other acts of parliament, relative to America, directing its inhabitants to be imprisoned, and transported beyond sea for trial; erecting courts of admiralty, and other arbitrary tribunals, to decide in matters most interesting, without the intervention of a jury.
These privileges, important and inestimable as they are, every subject of the realm of England hath right to possess and enjoy. And the Americans, antecedent to their charters, &c. if they were still subjects of that realm, had right to have and enjoy in America. Now, if it was impossible for the Americans, in their situation, to enjoy the rights and privileges of the English government, it follows, that they were not amenable to its power, nor taxable for its support; nam qui sentit onus, sentire debet commodum, he that bears the burden ought to enjoy the blessing, and vice versa. Can any thing be more absurd, than that a man should be tied to a government, bound to yield subjection, and contribute support, wherever he is, on the face of the earth, without having any part or voice in its administration, or power to enjoy its immunities. And that it was impossible for the Americans to enjoy the privileges of the English government, is evident, there being no provision in the constitution for summoning members to parliament from the American world; and if there was, the local distance, the risk and uncertainty of crossing the atlantic, the disparity between the two countries, in respect of situation, numbers, age, abilities and other circumstances, would render any representation of America in the parliament of England, utterly impracticable and vain. So that our ancestors, in America, were unable to exercise and enjoy that capital right of all English subjects, viz. the having a voice in the supreme legislature, without which, as the causa sine qua non, the parliament of England could not bind them in any respect. Hence the right of subjectship, on the part of the Americans, and of jurisdiction over them by parliament, became dormant, ineffectual rights, incapable of being exercised; for the whole ground of the parliament’s right to bind the Americans, consisted in their being subjects; and for that very reason, if they were subjects, the parliament could have no right to bind them, or exercise jurisdiction over them, without their consent.
[II.] I will now enquire, whether the Americans, antecedent to their charters, &c. are to be considered as being subjects of the kingdom of England, or not.
From what hath been already said, it is evident, that they either were not subjects of that kingdom, or as though they were not: But this will be further illustrated, by considering, in what subjectship consists: Compleat subjectship,* consists in being under allegiance to the king, inhabiting territories within the kingdom, in having, or at least in being capable of having a voice in the supreme legislature, and enjoying, or in being able to enjoy the benefits and immunities of the government.
Allegiance, from lige, to bind, is the bond that connects the subjects with their sovereign, and their sovereign with them: Hence the king is called their liege lord, and they his liege subjects; because he is bound to protect and they to obey. And there are three kinds of allegiance, natural, acquired, and local, every one born within the realm, is by birth, inheritable to the laws, intitled to the immunities of the government, and to the protection of the king; wherefore his allegiance, like St. Pauls, is natural: Every alien friend that comes into the realm, who by the king’s letters patent is made a denizen, or by act of parliament is naturalized, hath an acquired allegiance; every alien friend that comes into the realm to reside for a time, oweth a local temporary allegiance, during his residence there. And the obligation to obedience in all these cases, arises from the reason and fitness of things, and is comprehensively expressed in this short law maxim, protectio trabit subjectionem, & subjectio protectionem, protection mutually entitles to subjection, and subjection to protection. Hence it follows (as mankind by joining to society do not mean, nor doth allegiance intend to confine them perpetually to dwell in one country) that when a person, under a natural, acquired, or local allegiance removes out of the realm to some distant climate, goes out of the protection of the king, and loses all benefit of the laws and government of the kingdom; his allegiance, which is mutual or not at all, ceaseth, for cessante causa cesset effectus, the cause or reason ceasing, which in this case is protection and the benefits of government, the effect, viz. the obligation of obedience also ceaseth. There is also what is called a legal allegiance, ex provisione legis, that is by positive institution, as the oath of allegiance taken by the subjects, wherein they swear to bear all true and faithful allegiance to the king; which is a counter part to the king’s coronation oath, whereby he swears to protect his subjects in all their just rights, to abjure popery, and maintain the protestant religion, to govern the kingdom and administer justice according to the laws of the realm. Both which are only confirmations of the mutual obligations resulting from the relation, that subsists between them as king and subjects, and do attend upon and follow it, in its extent and duration. I am not insensible that it is a doctrine of antiquity, patronized by many, that natural allegiance is universal and perpetual; cannot be lost or forfeited, but by the commission of crimes, &c. but notwithstanding, I beg leave to suggest a few considerations on this point. The place of a man’s birth, in respect to himself, is a matter of accident and necessity, and not of choice; and is a man so bound by accident and necessity, as to the place of his birth, that when he arrives to the age of discretion, he cannot remove into another kingdom and country, and become the subject of another prince? Doth not the obligation of subjection and obedience to parents, cease with our childhood and state of dependance, although that of respect and reverence ever remains? Should the king of Great-Britain voluntarily resign his crown, or abdicate the government, remove and reside in Italy, or enter into religion, whereby he would be civilly dead, would he, notwithstanding, be king, de jure & de facto, and would the subjects be under obligation of allegiance to him, as their liege lord? incapable of placing another on the throne, without incurring the crime of treason, or being involved in the dilemma of owing subjection to two rightful sovereigns, at one time? If so, then he that is once king, can never be divested of royal authority, the principles of the revolution are false; and no new subjects can ever be acquired, for all are born under allegiance to some prince or state; where, upon these principles, they must ever remain, fixed as fate; and acquired allegiance, by act of parliament in England, is all a farce.
But be this as it may, yet should a number of the subjects of Great-Britain, under a natural allegiance to the king, by his licence remove voluntarily, or by accident be carried to some distant, uncivilized, or uninhabited country, where they should find it convenient and beneficial to settle; would they be incapable of erecting civil government, and making laws, for the well ordering of their affairs, independent of the king and kingdom? If so, they would be of all men most miserable, and their boasted subjectship would be their greatest calamity, because they have the rights of British subjects, they are rendered incapable of enjoying the rights of men. Upon this contracted principle, no new countries could be peopled, or new empires founded; but all things must remain as they were. And is the world and its empires so fixed and concluded by an unalterable fate? Are men, who were created in the image of their maker, to contemplate the heavens and soar above the stars, whose first great law was to increase, multiply and replenish the earth, and by experiencing the boundless profusion of divine goodness, learn to be profusely bounteous and good, to be so restrained? Is this becoming the dignity of their rational nature, and suited to the selfish* social passions, implanted in the human soul? Whose motives are our own good and the good of mankind: To attempt to eradicate or alter these, by the arbitrary restraints of civil government, is to impeach the wisdom of the Creator, for not suiting man’s passions and faculties, to his station here, and offering violence to human nature. Let civil government then be suited to man’s nature and passions (I mean not the depraved, ungodly desires and cravings of tyranny, which grasps for universal despotic sway; or of licentiousness, that is ever impatient of all legal restraints, how ever reasonable and righteous), for if it is not, there will be a perpetual conflict between the regulations and restraints of government, and the reasonable desires and passions of the subjects.
It may be said, that the reason why natural allegiance is perpetual, is not merely on account of our being born, &c. but the protection and support of the government, afforded us where born; this is an obligation of debt. Much, most undoubtedly, we owe to our parents and to the government that supported and protected our infantile state: But is it true, that because we were once dependant, we must ever be so? Because we were once obliged, we can never be disengaged from the obligation? If it is, then all mankind are insolvents, servants of servants, the curse of Canaan is the portion of all: And every alien born is utterly incapable of ever becoming a subject of the kingdom of Great-Britain.
But to return, allegiance is due to the king in his natural and political capacity; and doth not necessarily superinduce an obligation of obedience to the power of parliament; for a person may be a subject of the king of England and not of the realm; be under allegiance to the king, yet owe no obedience to parliament; as was the case of Scotland, upon the accession of King James the 1st. to the throne of England, before the act of union; and as the case is at present with Hanover; and as was the case of Normandy, when William the Conqueror wore the crown of England.
The rights of a subject may be suspended for a time, with respect to the enjoyment and exercise of them, by some temporary impediment, which when removed they revive: But when the obstacle that suspends and impedes the exercise and enjoyment of them, is universal, permanent and perpetual, it is an extinguishment of those rights. Thus much I thought necessary to observe, before I gave a relation of the cause and manner of our ancestors first coming and settling in America.
North-America was first discovered by Sebastian Cabot, in the reign of Henry the 7th, A. D. 1498, and was at that time inhabited by the Indian natives, who lived principally by hunting: In A. D. 1606 King James, by letters patent, erected two companies called the Virginia Companies, with power to make settlements in America. Though none were made in New-England by virtue of that authority. About the close of the sixteenth century, several attempts were made for settling Virginia, before any proved successful: The three first companies that came all perished, by hunger, diseases or Indian cruelty: The fourth was reduced to almost the same situation, when Lord Delaware came to their relief. Thus Virginia, being the first province that was settled in America, to her honour be it remembered, hath likewise been foremost in maintaining and vindicating the rights of the Americans.
In A. D. 1620, England, torn with religious dissentions, the friends of the reformation, persecuted with unrelenting cruelty, by the intolerant spirit that influenced government, were forced to renounce their religion and liberties, or assert them with their lives. The protestants, to the number of one hundred and fifty, who before had fled to Holland for safety, having made a purchase under the Plymouth Company, and obtained the royal licence, quitted their native country, preferring the enjoyment of their religion and liberty, in a howling desert, to the pomp and pleasures of luxury and sin in England; crossed the Atlantic and arrived at Plymouth in America in A. D. 1620, and by their own valour, industry, risk and expence (under the smiles of heaven) acquired plantations, subdued savage enemies, built cities, turned the wilderness into fruitful fields, and rendered it vocal with the praises of their Saviour, and from small beginnings, in process of time, became great in number, and in extent of territory; great numbers, not long after, from religious considerations, emigrating from England, came and settled the other colonies in America; for, says an English historian, “it seems that all the provinces of North-America were planted from motives of religion.” Thus was gradually unfolded the rudiments of a future empire, before in embryo.
Upon what principles then, could England have jurisdiction over the persons and properties of those brave and free adventurers who settled the colonies? Because England was most powerful? This would be founding right in might, an argument too absurd to need refutation, applied to any but the supreme Being; who, though almighty, yet can do no wrong. Or because they were once subjects of that kingdom? This, if it proves any thing, proves too much, as hath been shown. Or was it because the country was discovered by the king of England? Whatever rights accrue by first discovering a vacant country, accrue to the prince, under whom it is made; and they are jura coronæ, rights of the crown, belonging to the king and not to the kingdom. But America, had long before been discovered and inhabited by numerous tribes of Indians, the original proprietors of the country; subjects capable of property, and who made a part of the human species, when the Almighty gave the earth to the children of men; and why black squalid hair, a tawny complexion, a particular manner of living, and ignorance of divine revelation, should be absolute disqualifications, to have and hold property, any more than a black skin, curled head, flat nose and bandy legs, should be the infallible criterion of slavery, I cant devise.
III.Let us consider the rights of the Americans subsequent to their charters and colony constitutions.
As there are certain rights of men, which are unalienable even by themselves; and others which they do not mean to alienate, when they enter into civil society. And as power is naturally restless, aspiring and insatiable; it therefore becomes necessary in all civil communities (either at their first formation or by degrees) that certain great first principles be settled and established, determining and bounding the power and prerogative of the ruler, ascertaining and securing the rights and liberties of the subjects, as the foundation stamina of the government; which in all civil states is called the constitution, on the certainty and permanency of which, the rights of both the ruler and the subjects depend; nor may they be altered or changed by ruler or people, but by the whole collective body, or a major part at least, nor may they be touched by the legislator; for the moment that alters essentially the constitution, it annihilates its own existence, its constitutional authority. Not only so, but on supposition the legislator might alter it; such a stretch of power would be dangerous beyond conception; for could the British parliament alter the original principles of the constitution, the people might be deprived of their liberties and properties, and the parliament become absolute and perpetual; and for redress in such case, should it ever happen, they must resort to their native rights, and be justified in making insurrection. For when the constitution is violated, they have no other remedy; but for all other wrongs and abuses that may possibly happen, the constitution remaining inviolate, the people have a remedy thereby.
The Americans antecedent to their colony constitutions, must be considered either as the subjects of the kingdom of England, or as subjects of the king and not of the kingdom, or as subjects of neither; and their territory as belonging either to that kingdom, the king, or to neither. In which of these lights they should be considered, I leave the impartial world to judge. If the first, then the grants and patents from the crown conveyed nothing, nam ex nibilo nibil gignitur, for what the king had not he could not grant, and the colonies, besides their rights as English subjects, have acquired an indefeasable title by prescription, to the lands they have possessed, to the privileges, immunities and exemptions they have enjoyed, and to all the powers of government, rights of jurisdiction, regalities, &c. which they have had and exercised, beyond which, the memory of man runneth not to the contrary. If the second, then by the royal grants, patents, &c. all the powers of government, rights of jurisdiction, liberties and privileges, with the property of the lands in fee, are passed from the crown, and vested in the colonies, absolutely and indefeasably, according to the tenor of their several grants and constitutions. If the last, then all these rights of jurisdiction, of property and liberty, were underived and self-originated. If, therefore, they were to be considered as English subjects, by the constitution of that kingdom, they had right to enjoy all these privileges; if not as English subjects, then they were theirs without being beholden therefor. In either view, therefore, they were entitled to have and enjoy all the rights, liberties and privileges, which, by their several constitutions, were granted and confirmed to them, antecedent thereto. And their constitutions are the original compacts, containing the first great principles, or stamina of their governments; combining the members, connecting and subordinating them to the king as their supreme head and liege lord; also prescribing the forms of their several governments, determining and bounding the power of the crown over them, within proper limits, and ascertaining and securing their rights, jurisdictions and liberties; and are not to be compared to the charters of corporations in England (although they are to be deemed sacred) which are royal favours granted to particular corporations, beyond what are enjoyed by the subjects in common; if they should be forfeited and taken away the members will still retain the great essential rights of British subjects, and these original compacts were made and entered into by the king, not only for himself, but expressly for his heirs and successors on the one part, and the colonies, their successors and assigns on the other; whereby the connection was formed, not only between the parties then in being, but between the crown and the colonies, through all successions of each; and those compacts are permanent and perpetual, as unalterable as Magna Charta, or the primary principles of the English constitution: nor can they be vacated or changed by the king, any more than by the colonies, nor be forfeited by one more than the other; for they are mutually obligatory on both, and are the ligaments and bonds that connect the colonies with the king of Great-Britain, and the king with them: cut, therefore, and dissolve them, and the colonies will become immediately disunited from the crown, and the crown from them. Should the original parties to these constitutions awake in their tombs, and come forth (on a controversy that would awake the dead, could the dead be waked) and with united voice testify, that this was their original, true intent and meaning, would it not be awfully striking and convincing? But we have greater evidence; we have their original declaration, made in that day, deliberately reduced to writing, and solemnly ratified and confirmed, which is as follows:
We do, for us, our heirs and successors, grant to, &c. and their successors, by these presents, that these our letters patent, shall be firm, good, and effectual in the law, to all intents, constructions and purposes whatever, according to our true intent and meaning herein before declared, as shall be construed, reputed and adjudged most favourable on the behalf, and for the best benefit and behoof of the grantees, &c. notwithstanding any omissions therein, or any statute, act, ordinance, provision, proclamation or restriction heretofore made, had, enacted, ordained or provided, or any other matter, cause or thing whatsoever, to the contrary thereof, in any wise notwithstanding.
And the reasons for erecting these constitutions, are recited in the preamble of some of them, as follows, viz.
Whereas by the several navigations, discoveries, and successful plantations of divers of our loving subjects of this our realm of England, several lands, islands, places, colonies and plantations have been obtained and settled, &c. and thereby the trade and commerce there, greatly increased, &c. and that the same, or the greatest part thereof, was purchased and obtained, for great and valuable considerations, and some other parts thereof gained by conquest, with much difficulty, and at the only endeavours, expence and charge of them and their associates and those under whom they claim, subdued and improved, and thereby become a considerable addition of our dominions and interest there. Now, know ye, that in consideration thereof, and in regard the said colony is remote from other the English plantations in the place aforesaid, and to the end the affairs and business which shall from time to time happen, or arise concerning the same, may be duly ordered and managed, we have therefore thought fit, &c.
Through this portal, majesty itself, like the meridian sun, lightens upon the subject, and makes plain and clear a matter, which the wits and disputers of a venal age, would envelope in midnight obscurity. In consideration that these discoveries, settlements, &c. were obtained for great and valuable considerations, &c. and at their, viz. the colonist’s only endeavours and expence of blood and treasure, and in regard that they are remote, so that they cannot otherwise enjoy the benefits of civil government, &c. therefore, it is most reasonable and necessary, that they should have a government of their own. These constitutions are in some respects various in different colonies; all have their assemblies, or parliaments, consisting of the governor, council, and the representatives of the people; invested with the supreme power of legislation and taxation; though in some, their laws are subject to be negativ’d by the royal dissent, within a limited time: in some, the governor and council are chosen by the people, in others, the council; and in some, both governor and council are appointed by the crown. All have their courts of judicature, to take cognizance of all causes, arising within their territorial limits, and the power of judging in the last resort, though this right hath been infringed in sundry instances, by appeals to the king and council. But how a judgment in England can be executed in America, according to the course of law, is to me a paradox.
Further, it is ordained and declared,
That all and every of the subjects of us, our heirs, &c. which shall go to inhabit in said colony, and every of their children that shall happen to be born there, or on the sea in going to or returning from thence, shall have and enjoy all liberties and immunities of free and natural subjects, within any the dominions of us, our heirs or successors, to all intents, constructions and purposes whatever, as if they and every of them were born within the realm of England.
This doth not bring the Americans within the realm of England; but it proves them to be out of it: For were it not so, the granting to them and to their children privileges equal to natural subjects, born within the realm, would have been idle and unnecessary, being no more than they would have been entitled to without it, after setling the foundation principles, and enumerating a variety of capital articles in the constitution of their governments; to avoid prolixity and all mistake and omissions in a recital of their rights and priviledges; they are in short, summed up and declared to be similar and as ample in every respect, as those of the natural born subjects of the realm, to which the colonists are referred, to learn the full extent of their own; which demonstrates the similarity and likeness that subsists between the civil constitutions of the two countries; although several and distinct; and the lands are granted to be holden, not in capite, or by knight service, but in free and common soccage, as of the manor of East-Greenwich; paying there for a certain proportion of the gold and silver ore, that should from time to time be found, &c. in lieu of all services, duties and demands whatsoever. Thus, whether the Americans, antecedent to their constitutions, were subjects of the kingdom of England or not, they have now the clearest right to enjoy the liberties and privileges of English subjects: and to hold their lands discharged of all duties and demands of every kind, except as above. And nothing is plainer, than that the colonists cannot enjoy such privileges, unless they have parliaments and assemblies of their own, invested with the supreme power of legislation and taxation, in which they may be represented, and for this I have a very great and antient authority, viz. the case of the Virginians, determined by one of the kings of England, near a century and a half ago, which, to use the words of the English historian, is as follows:
The government of this province was not at first adapted to the principles of the English constitution, and to the enjoyment of that liberty, to which a subject of Great-Britain thinks himself entitled, in every part of the globe. It was governed by a governor and council appointed by the king of Great-Britain. As the inhabitants increased, the inconveniency of this form became more grievous; and a new branch was added to their constitution, by which the people, who had formerly no consideration, were allowed to elect their representatives from each county, with privileges resembling those of the representatives of the commons of England; thus two houses, the upper and lower house of assembly were formed; the upper house appointed by the crown are stiled honourable, and answer in some measure to the house of peers in the British constitution. The lower house is the guardian of the people’s liberties. And thus, with a governor representing the king, and an upper and lower house of assembly, this government bears a striking resemblance to our own.
Now, if the parliament hath right to bind the colonists in any instance of legislation and taxation, it hath in all: Wherein, then, will consist the similarity of the colony constitutions to that of Great-Britain? Wherein the power of their assemblies to guard the rights of the people? In fine, where is the boasted English liberties of the subjects? All laid in the dust, and the colonies subjected to be governed and taxed by the parliament, who are, and their constituents both, interested in augmenting their taxes and burdens.
Realm signifies kingdom; and kingdom signifies the country or countries, that are subject to one sovereign prince. And should a school boy be asked, whether America, which is three thousand miles distant, was within the kingdom of Great-Britain, both being subject to one prince, he must answer that it was not; but that it was within the kingdom of the king of Great-Britain and America. Nor are the following questions more difficult, viz. whether the House of Commons, who have only a representative authority, have right to bind those whom they do not represent? Or whether, in virtue of their being the representatives of the people in Great-Britain, they are the representatives of the people in America? viz. whether the Britons and the Americans are identically the same persons, or whether the Britons are, have, or ought to have, every thing, and the Americans nothing? If the colonies, when they were first constituted, were not subject to the jurisdiction of parliament, they are not become so, by any thing since: and that they were not is evident, not only from the declaration of the king in the constitutions, but by the royal conduct towards them from time to time, treating them as though they were not.
Upon the remonstrance of the Virginians against the imposition of duties on their trade, King Charles the second issued a declaration under his privy seal, dated 19th of April, A. D. 1676, “affirming, that taxes ought not to be laid upon the proprietors and inhabitants of the colony, but by the common consent of the General Assembly.” And when a revenue was wanted for the support of civil government in Virginia, in A. D. 1679, an act was framed and sent over to be passed by their assembly in these words, “Enacted by the king’s most excellent majesty, by and with the consent of the General Assembly of the colony of Virginia, that a duty of, &c.” which was accordingly passed into a law.
And it was declared by James the first and Charles first, when a bill was proposed in the House of Commons, and repeatedly and strenuously urged, to give liberty to the subjects of England to fish on the coast of America; “that it was unnecessary, that the colonies were without the realm and jurisdiction of parliament, and that the privy council would take orders in matters relating to them.” And liberty of fishing in America, is reserved in some of the charters that were afterwards made; which shews that without such reservation, they would not have had right to fish on the coast of the colonies. And upon complaint of piracies, &c. committed off the coast of Connecticut, King Charles the second, in A. D. 1683–4, instead of causing an act of Parliament to be made to restrain and punish them, writes this letter to the General Assembly in Connecticut, which letter, is now extant in the hands of the secretary.
Charles Rex, trusty and well-beloved, we greet you well: Whereas we are informed of great disorders and depredations daily committed, to the prejudice of our allies; contrary to treaties between us and a good correspondence that ought to be maintained between christian princes and states; and we having already given strict order in our island of Jamaica, against such illegal proceedings, by passing a law for restraining and punishing privateers and pirates, &c. our will and pleasure is, that you take care that such a law (a copy whereof is herewith sent you) be passed within our colony, under your government, which you are to certify unto us by the first opportunity, so we bid you heartily farewell: Given at our court at New-Market, the 8th day of March, A. D. 1683–4, in the 36th year of our reign. By his majesty’s command, L. Jenkins.
And accordingly the bill was passed into a law by the general assembly of Connecticut. Can it be supposed, that this bill would have been sent to Connecticut to be passed into a law, if the parliament had had jurisdiction thereof? Further, Great-Britain sending their culprits into banishment in America, demonstrates, that America is out of the jurisdiction of that kingdom, for banishment consists in putting a subject out of the limits and jurisdiction of the government. It is in the memory of every one, that the king sent his requisitions to the colonies to raise men and money in the last war, which were readily complied with, by his most dutiful and loyal subjects, in the provinces: Wherefore was this, if the Parliament hath supreme legislative and taxative jurisdiction over them? And to put this matter beyond all doubt, and to shew that the colonies have right, not only to enjoy, but to defend themselves, and their liberties, against any and all (the parliament not excepted) that should be so stupid, or vile, as to invade them; hear the solemn declaration and warrant of their king, in their original constitutions:
And we do for us, our heirs and successors, give and grant unto, &c. and their successors, by these presents, that it shall and may be lawful to and for the chief commanders, governors and officers of the said company for the time being, who shall be resident in the parts, &c. hereafter mentioned, and others inhabiting there, by their leave, admittance, &c. from time to time, and at all times hereafter, for their special defence and safety, to assemble, martial array, and put in warlike posture, the inhabitants of the said colony, and commissionate, impower and authorise such person or persons as they shall think fit to lead and conduct the said inhabitants; and to encounter, expulse, repel and resist, by force of arms, as well by sea as by land; and also to kill, slay and destroy, by all fitting ways, enterprises and means whatsoever, all and every such person or persons, as shall at any time hereafter, attempt or enterprise the destruction, invasion, detriment or annoyance of the said inhabitants or plantation; and to use and exercise the law martial, &c. and to take or surprize, by all ways and means whatsoever, all and every such person or persons, with their ships, armour, ammunition, and other goods of such as shall in such hostile manner, invade, or attempt the defeating of the said plantation, or the hurt of the said company and inhabitants.
Thus, these liberties and priviledges are not only granted and confirmed, but a power is expressly given to the colonies to defend them to the utmost, against those who should invade or attempt to destroy them. And are the Americans chargeable with treason and rebellion, for yielding to the irresistable impulses of self-preservation and acting under and in pursuance of the royal licence and authority of their king? It is certain that the colonies, in all their constitutions, were considered as being out of the jurisdiction of parliament, from the provisions made in every one, to supply the want of such jurisdiction, by investing their several assemblies with supreme power of legislation; and that their kings ever considered and treated them as being so, until that fatal period when George Grenville, that monster of ministers, came into administration; and that the colonies so understood themselves to be.
From all which I think we may infer, with great clearness and certainty, that he that is king of Great-Britain, is, by the constitutions of the colonies, also king of the American colonies, bound to protect and govern them according to their several constitutions, and not to destroy them: and that the parliament hath no jurisdiction or power with respect to them; for the parliament consists of the three estates, the king, lords and commons, and was constituted for the government of that realm; and the king sustains a three-fold capacity, as king of Great-Britain, the first of the three estates in parliament, and as king of the American colonies, and according to the maxim of the English laws, Quando duo jura concurrent in una & eadem persona, idem est, ac si essent in diversis; when several rights or capacities meet and are vested in one and the same person, they remain entire, and as distinct as though they were vested in different persons. This right of sovereignty over the Americans, is derived from a different source from that of Great-Britain, viz. the constitutions of the colonies, extends to different objects, viz. the colonies; and is exercisable in a different manner, viz. according to their several constitutions. And what the king doth as king of Great-Britain, or as one of the estates in parliament, he doth not as king of the colonies; for if so, then all the judges and officers appointed in the realm of England, would be judges and officers in America; all the laws and taxes that receive the royal assent in parliament, would immediately be binding upon the Americans, unless expresly excepted; contrary to the united voice of all their princes, politicians and lawyers, which is, that even Ireland, which they hold as a conquered country, is not bound by acts of parliament, unless specially named. The lords being the noble peers of that realm, set in parliament in right of their estates and dignity, their authority cannot extend beyond the limits of the kingdom of which they are peers. The House of Commons, act by a delegated authority, and can have no greater power than their constituents can give, and their constituents can give no greater than they have; and from whence, in the name of common sense, have the people of Great-Britain right of dominion over the persons, properties and liberties of the good people in America?
But some may object, that upon these principles, the colonies have an unlimited power of legislation, &c. within themselves, contrary to an express clause in their constitutions, which restrains them from making laws, &c. contrary to the laws of the realm of England.
These constitutions are to be considered, not only as the stipulations of the sovereign and the particular colonies with whom they are made, but also of the colonists among themselves; although they are conceived wholly in the style and language of grants from the crown. And the language of the clause referred to in the objection, is after this manner, “and we do further of, &c. give and grant unto the said governor and company, &c. that it shall and may be lawful for them, &c. to erect and make all necessary and proper judicatories; to hear and decide all matters and causes, &c. and to make, ordain and establish all manner of wholsome and reasonable laws, statutes, ordinances, directions and instructions, not contrary to the laws of this our realm of England.”
This restraint to colony legislation, cannot be construed to extend the jurisdiction of parliament; for if it could, it would be repugnant to the grant, & void; for parliament might make laws contrary to all the laws the colonies have or could make; in this sense, it would be reserving a power that would devour and destroy all the powers constituted and granted in the patents, &c.
Nor is it to be understood, that the colonies may not make laws respecting their own people, which are contrary to laws in England, concerning a similar matter; for instance, in England the laws permit persons of certain rank and estate to play at games; in the colonies all persons without distinction are prohibited playing at games. By the laws of this our realm, then is not meant, any particular rules and regulations of law; but the grounds, principles and spirit of the laws and constitution, then existing in the realm of England, on which the whole system of their laws were founded, by which dictated, and to which they were conformed. As the constitutions of the colonies were founded on the same principles with that of England, and the colonists entitled to like privileges with the natural subjects of that realm, and referred to the great charter of English liberties, to learn the full extent and nature of their own: Therefore it is stipulated and granted, that they may make all reasonable laws, &c. not contrary, to what? To the genius of the laws and civil constitution of this our realm of England; for such would likewise be contrary to the genius of their own governments. Between which and the English constitution there is such a similarity, that you cannot thwart the principles of one, without contradicting the spirit of the other; and the sword that pierces the sides of one, penetrates the bowels of the other. This restriction is limited to the laws or system of government then in being in and over that realm: and doth not extend to any civil constitutions that might afterwards be made; nor to any laws made, or that should be made there, to extend to the colonies, out of that realm; for this would, as hath been shewn, be repugnant to the grant; and further, such would not be the laws of that realm, but of the colonies. This clause therefore, instead of restraining the colonies under the power of parliament, doth demonstrate them to be distinct states, without and independent of the jurisdiction of parliament.
I am not insensible, that by act of parliament 7 and 8 Will. III. cap. 22. it is declared, that all laws, by laws, usages and customs which shall be in practice in any of the plantations, repugnant to any law made, or to be made in England relative to the said plantations, shall be utterly void and of none effect. And by stat. 6 of Geo. III. cap. 12. It is further declared, that all his majesties colonies and plantations in America, have been, are, and of right ought to be, subordinate to and dependant on the imperial crown and parliament of Great-Britain, who have full power and authority to make laws and statutes of sufficient validity, to bind the colonies and people of America, subjects of the crown of Great-Britain, in all cases whatsoever, with a number of other statutes of the present reign, founded on the same principles and of the same fatal tendency. By these statutes, the Americans are deprived of all authority, even to make a by-law; and of all their liberties and properties; by subjecting both to the arbitrary power and disposal of parliament, in all cases whatsoever. Let these statutes be executed upon the Americans; and what, in the name of wonder, I ask, what will they have left, that has even the shadow of power or privilege, natural, civil, or religious; that they will be able to exercise and enjoy? But let us examine the ground and authority of these acts that sound such a peal, the knell of American freedom.
It is not the parliament’s declaring a thing to be so, that makes it so, nor their enjoining a thing to be done, that makes it a duty to do it. Should the parliament, in the plenitude of their power, pass an act, that the four elements have been, are, and ought to be subordinate to, and dependant on the jurisdiction of parliament; and that they have full power, &c. to make laws of sufficient validity to bind them, in all cases whatsoever. And that there should be neither rain nor sunshine, seed time nor harvest, in all the continent of America, for three years and seven months; would the elements and the heavens be guilty of treason and rebellion, if they pursued their antient course: And are not the liberties of men, who are appointed lords of this lower creation, of more importance than those of the elements, and are they not equally sacred and inviolable?
The obligation of obedience to a law, arises wholly from the authority of the makers, over those on whom it is enjoined; so that if the Americans are naturally independant of the power of parliament, and by no concessions and civil constitutions of their own have submitted thereto, and put themselves under it; no acts of parliament can make them dependant. And if the parliament hath no right of dominion over the Americans; it follows that the Americans are under no obligation of obedience to its laws.
I cannot but remark upon the singular phraseology of this declaratory act of parliament, viz. that all his majesty’s colonies (not our colonies) have been, are, and of right ought to be subordinate to, and dependant on the imperial crown and parliament of Great-Britain, who have full power and authority to make laws and statutes of sufficient validity to bind the colonies and people in America, subjects of the crown of Great-Britain, in all cases whatsoever. What strange circumlocution of law language is used to express what they meant to conceal! What is the amount of this declaratory act? That the parliament has full power and authority to make laws, &c. to bind the colonies and people of America in all cases whatsoever? No, but to bind the colonies and people of America subjects of the crown of Great-Britain, viz. they have power to bind the subjects of the crown of Great Britain in America. Now if the colonies are not subjects of the crown of Great-Britain, viz. are not subjects of the king in virtue of his crown of that kingdom, then by their own declaration the parliament hath no right to bind them. And it is very evident from what has been said, that the king’s right of sovereignty over the colonies is not derived from, or holden in virtue of his crown, as king of Great-Britain; but from the particular stipulations entered into with the colonies by their several constitutions; otherwise their constitutions would have been idle and unnecessary. Nor will it help the matter, should we for argument’s sake, yield to them that the colonies were subjects of the crown of Great-Britain; then they would be entitled to the privileges of subjects, which is an exemption from legislation or taxation without their voice or consent. So that whether the colonies are or are not subjects of the crown of Great-Britain, the act is altogether unfounded.
But it may be objected to the colonies claim of exemption from the jurisdiction of parliament on account of their not being represented; that there are many persons of property, and large towns in England who do not vote in the election of representatives to parliament, yet are bound by its laws, &c. There is no borough, city, town, or shire in England, nor any man of competent estate and a subject of the kingdom, but what may have a voice in the election of representatives to parliament; if, therefore, some do wave a privilege which they might enjoy, their stupidity ought to be a warning, and not an example for the Americans to imitate: Nor doth it by any means follow, that because some are bound, who might and will not send representatives; that therefore, the parliament hath right to bind all, even those who cannot, if they would, be represented. Besides, every member of parliament, though chosen by one particular district, when elected and returned, serves for the whole realm; and no laws or taxes are made and imposed on such, but what equally affect those that make them, and their constituents. The case of the unrepresented Americans is directly the reverse; they cannot be represented, and the burthens laid on them proportionably alleviate the burthens of those that impose them, and their constituents.
Again, it may be objected, that several acts of parliament respecting America, have been acquiesced in, &c. Neither the parliament’s making laws, nor the American’s acquiescing therein, can create an authority to make them on one hand, nor an obligation to obey them on the other, though they may be considered as some evidence thereof. From the first settlement of the colonies, to the conclusion of the last war, no taxes, or duties have been claimed, or imposed by act of parliament in America, for the purpose of raising a revenue, unless the act respecting the post-office is considered as such. The first act that was made to extend to America, equally extended to Asia and Africa; and was made in the 12th of Charles II merely for the regulation of trade; requiring all English goods to be shipped in English vessels, and navigated by English mariners. The 25th of the same reign produced the first act that imposed duties for any purpose in America, and the preamble declares it to be for the regulation of trade only; nor are the avails appropriated to any part of the revenue: Yet this produced an insurrection in Virginia, agents were sent to England on the account; and a declaration obtained from the king under his privy seal, dated April 19th, A. D. 1676 “That taxes ought not to be laid upon the proprietors and inhabitants of the colony, but by the common consent of the general assembly.” The other acts that respected the colonies, except the 7 and 8 of Will. III. antea, were for the regulation of trade only, until of late; the duties were never acquiesced in, were always murmered at, protested against, as being oppressive and unjust, and eluded as far as possible. And as the trade of the colonies was, of choice, principally with Great-Britain and the British Islands, many of those acts did not much affect them in their interest or inclination. If such an acquiescence may be construed a submission to acts of parliament; the nonuser of such power by parliament, for so long a time, may, with greater reason, be construed a relinquishment thereof. For the non user of a power, by those that are able to exercise such power, is greater evidence against the existence of it, than the non-resistence of thousands is for it, who are incapable of making resistance.
But it will be said that the post-office in America was by act of parliament and is for the express purpose of raising a revenue.
The post-office is a convenient and useful institution, and on that account, it hath been received and used in America, and not on account of the act of parliament; and derives all its authority, in America, from its being received and adopted there: As many of the rules of the Roman civil law, are received and adopted by universal consent in England, and are obligatory upon the people, not from the authority of the Roman emperors that ordained them, but from their own act in receiving and adopting them. Further, the act of parliament forbids all persons to carry or transport any letters, &c. by land or water, on pain of severe penalties, except the post-master or his deputies: And it is well known, that this part of the act was daily violated; yet no person was ever prosecuted: Which shews that the post-office in America was not such, as the parliament had enacted; but such as the universal consent and practice of the people there had made it; and also, how little deference is paid to acts of parliament in America.
From all the cases of pretended acquiescence to acts of parliament, nothing can be inferred favourable to the jurisdiction of parliament, for either it was for the interest of the Americans to comply with them, or it was not; if the former, then they complied, not from a principle of obedience to them; but from motives of interest and inclination; if the latter, then they demonstrate the incompetency of parliament to make laws for the Americans; who thro’ ignorance, or some other principle, hath enjoined what is prejudicial. And no wise constitution would vest a power in any body of men, who, from their situation and circumstances, are and must be, necessarily incompetent for the proper exercise of it.
It may be objected, that all these charters and colony constitutions were made by and with the king, in his political capacity, as the supreme head of the kingdom; and that whatever he doth as such, is in virtue of authority derived from the kingdom; and for the use and benefit thereof, and not with and for the king only.
These constitutions, are either the compacts of both the king and kingdom of Great-Britain with the colonies; entered into by the king for himself, and in behalf of his kingdom, or they are the compacts of the king only.
If the former, then the kingdom of Great-Britain, as well as the king, is a party to them, bound and concluded by them; and can have no greater authority over the colonies, than is therein expressly stipulated, and in no other manner than is therein provided. For if the kingdom will take the benefit of the king’s acts, it must in those respects, be likewise bound by them. And there is not the least colour of legislative authority in the colony constitutions, stipulated or reserved to the parliament, over the persons or properties of the Americans, except in one or two instances, which are altogether singular, and as absurd as singular, but full and compleat power of legislation is vested in the general assemblies of the several colonies—subject only in some, to the royal dissent within a limited time; and to have the colony assemblies, subject at the same time to the legislative power of Parliament, would be constituting an imperium in imperio, one supreme power within another, the height of political absurdity.
But if these constitutions, are the compacts of the king, only with the colonies, then the kingdom and parliament of Great-Britain have no power over them, more than they and their assemblies have over the kingdom and parliament, for they are distinct sister states, neither having any power or authority over the other. And that these constitutions, were entered into and granted by the king for himself only, is evident, in that, no mention is made in them of the parliament, except as above, and in them the reservation is void, being against Magna Charta: Or of their being made by the king, in behalf of himself and kingdom; and this most certainly the king is capable of doing; for the king considered in his natural capacity as a man, is subject to all the frailties of human nature, hath sensations of pleasure and pain, which are his own, and may make contracts and be bound by them, although in his political capacity he is by way of eminence stiled perfect, &c.
In his political capacity he also hath certain prerogatives, royal rights and interests, which are his own, and not the kingdom’s; and these he may alienate by gift or sale, &c.
Should France offer the king of Great-Britain the crown of that kingdom, and he accept it; could not France be subject to the king, without being subject to the kingdom of Great-Britain, and subordinate to the power of parliament? Upon these principles, should the king of England be elected emperor of Germany, the British parliament, would legislate for the whole Germanic body. And the case would not be otherwise, with a people in a state of nature, that should make choice of the king of Great-Britain for their king, and he accept thereof, they would not thereby, elect the kingdom for their masters nor be subjected to its parliament. Thus, whether these constitutions are considered as the compacts of the king and kingdom of Great Britain, or only of the king, the colonies are clearly out of the reach of the jurisdiction of parliament, and it is evident that they were originally intended so to be, and all the advantages expected from them by Great-Britain, were their trade, which has far exceeded their most sanguine expectations. For these constitutions were not entered into and granted by the king in virtue of his being the king of Great-Britain; the king of France or Prussia might have done the same; or any individual, the Americans should have elected for their king. The force and authority of these constitutions, is not derived from any antecedent right in the crown of Great-Britain to grant them; but from the mutual agreements and stipulations contained in them, between the crown of Great-Britain and the colonies.
Further, it is objected, that the settlement of the crown is by act of parliament; and the colonies do acknowledge him to be their king, on whom the crown is thus settled, consequently in this they do recognize the power of parliament.
The colonies do and ever did acknowledge the power of parliament to settle and determine who hath right, and who shall wear the crown of Great-Britain; but it is by force of the constitutions of the colonies only, that he, who is thus crowned king of Great-Britain, becomes king of the colonies. One designates the king of the colonies, and the other makes him so.
Lastly it is objected, that in all civil states it is necessary, there should some where be lodged a supreme power over the whole.
The truth of this objection will not be contested; but its application in the present argument is to be considered. If Great-Britain and America both constitute but one civil state, then it is necessary that there should be one supreme power, lodged either in Great-Britain or America, in such manner as is consistent with the liberties of the subjects. But if they are distinct states, then it is necessary, that there should be a supreme power lodged in each. The only thing then to be done is to prove, that Great-Britain and America are distinct states. And this point hath been already considered; so that little new can be said upon it. However it may be observed, that a civil state, is a country or body of people that are connected and united under one and the same constitution of civil government; by this the kingdoms and states in Germany and other parts of Europe are distinguished and known. Now there is no such civil constitution existing, as that of Great-Britain and America.
Great-Britain hath its civil constitution; the colonies have their’s; and though, the spirit and principles of them are similar, yet the constitutions of the two countries are entirely distinct and several: The constitution of Great-Britain is not the constitution of the colonies, nor vice versa. They are two countries, three thousand miles distant from each other, inhabited by different people, under distinct constitutions of government, with different customs, laws and interests, both having one king. Now, if any can believe that Great-Britain and America are but one civil state, they must overthrow the doctrine of identity and diversity, confound all distinctions in nature, and believe that two is one and one is two. Further, they are and must be distinct states from the nature of their situation, and in order to their enjoying the privileges of their respective governments. And the constitutions of civil government ought to be erected on the foundation of reason and be conformable to the nature of things; nor is it difficult to conceive of two distinct countries, independent of each other, each having its own civil constitutions, laws, parliaments, courts, commerce and interest, united under one sovereign prince. And would it be necessary that there should be in one of these states, a supreme power over the persons and properties of the other? If it would, then it follows, that it would be necessary in such case that the subjects of one should be slaves to the other, incapable of liberty or property. Are not Hanover and Saxony distinct states, both within the empire, and subordinate to the imperial crown of Germany? They are. And is not this the case of Great-Britain and America? Two distinct states, or countries under one sovereign prince, both equally his subjects and incapable of being slaves? Each invested with plenary powers of government, in their several countries? This is really the situation of the colonies; and not to admit of a system of civil government, adapted to their situation, or to insist on the exercise of such powers over them, as are inconsistent with, and subversive of their natural and constitutional rights and liberties, is really pointing the controversy, not merely at the Americans, but at the great former and ruler of the universe, for making and situating them as they are. From all which it follows that the colonies are distinct states from that of Great-Britain; have and ought to have a supreme power of government lodged in them.
Thus, the question is reduced to a single point, either the parliament hath no such power over the persons and properties of the Americans as is claimed, or the Americans are all slaves. Slavery consists in being wholly under the power and controul of another, as to our actions and properties: And he that hath authority to restrain and controul my conduct in any instance, without my consent, hath in all. And he that hath right to take one penny of my property, without my consent, hath right to take all. For, deprive us of this barrier of our liberties and properties, our own consent; and there remains no security against tyranny and absolute despotism on one hand, and total abject, miserable slavery on the other. For power is entire and indivisible; and property is single and pointed as an atom. All is our’s, and nothing can be taken from us, but by our consent; or nothing is our’s, and all may be taken, without our consent. The right of dominion over the persons and properties of others, is not natural, but derived; and there are but two sources from whence it can be derived; from the almighty, who is the absolute proprietor of all, and from our own free consent. Why then wrangle we so long about a question so short and easy of decision? Why this mighty din of war, and garments roll’d in blood; the seas covered with fleets, the land with armies, and the nation rushing on swift destruction? Let the parliament shew their warrant, the diploma and patent of their power to rule over America, derived from either of the above fountains, and we will not contend; but if they cannot, wherefore do they contend with us? For even a culprit has right to challenge of the executioner, the warrant of his power, or refuse submission.
The question is not whether the king is to be obeyed or not; for the Americans, have ever recognized his authority as their rightful sovereign, and liege lord; have ever been ready, with their lives and fortunes, to support his crown and government, according to the constitutions of the nation, and now call upon him as their liege lord (whom he is bound to protect) for protection, on pain of their allegiance, against the army, levied by the British parliament, against his loyal and dutiful subjects in America.
Nor is the question Whether the Americans would be independent or not, unless the state they have ever enjoyed hath been such; for they ever have acknowledged themselves to be subjects of the king, subordinate to, and dependent on the crown, but not on the parliament of Great-Britain, unless any should think there is no medium between submission to parliament, and perfect independance. But the question is, Whether the parliament of Great-Britain hath power over the persons and properties of the Americans, to bind the one, and dispose of the other at their pleasure? Hear the language of parliament in their acts disposing of the property of the Americans: “We, your majesty’s dutiful subjects, the Commons of Great-Britain, in parliament assembled, have therefore resolved to give and grant unto your majesty, the several rates and duties hereinafter mentioned, &c. in America.” Here the Commons in England are pluming themselves on their great liberality to their sovereign, with the property of the Americans, as though it was all their own. If the parliament have no such power as is claimed, their invading our rights, and in them the rights of the constitution, under pretence of authority; besieging and desolating our sea ports, employing dirty tools, whose sordid souls, like vermin, delight to riot on filth; to practice every artifice to seduce, that they may the easier destroy; with money tempting, with arms terrifying the inhabitants, to induce and compel a servile submission; is treason against the kingdom, of the deepest die, and blackest complexion: whereby the constitution, that firm foundation of the nation’s peace, and pillar of government that supports the throne, is shaken to its very basis; the kingdom rent, and devided against itself; and those sons of thunder that should be the protectors of its rights, are become its destroyers. Nor will American freedom fall alone; Great-Britain’s shakes, totters, and must tumble likewise, nor long survive the catastrophe: And the Americans resisting the measures, and defending against the force used to accomplish these dreadful events, and precipitate the nation into total, irreparable ruin and destruction, are deeds of the greatest loyalty to their king, and the constitution that supports him on the throne, and of fidelity to his government. For subjects to levy war against their king, is treason, but the king’s levying war against his subjects, is a crime of royal magnitude, and wants a name. Should the king of France join with the enemies of his kingdom, and levy war against his subjects, would he notwithstanding, retain his royal authority over them, and they be incapable of defence against such an unnatural attack, without incurring the crime of treason and rebellion? If so, wo! to the inhabitants of kingdoms, for, by reason of their kings, the earth would be made desolate.
Let none be dismayed at the strength and power of our oppressors; nor at the horrors of war into which we are compelled, for the necessary defence of our rights. Can we expect the laurels, without entering the list? To be crowned without being tried? The fairest fruits are always most obnoxious to the birds of prey: English liberties, the boast and glory of the nation, the admiration of its friends, and envy of its foes; were obtained, sword in hand, from king John, by his free and spirited barons; and what rivers of blood have been shed, to maintain and defend them, against the encroachments of succeeding kings, to the time of the glorious revolution, is well known to all, acquainted with the English history. Such is the state of the world, that the way to freedom and glory, is a way of danger and conflict. The road to Canaan was through the desert and the deep; and the grave is the subterranean path to celestial bliss. And let it not be forgotten that those of Israel whose hearts failed them through fear of being destroyed by their enemies, and discouraged their brethren, were destroyed of their maker. Nor ought any to think, by joining themselves to the enemies of their country, they shall escape, however fair the promises, or great the reward; and though they should not meet with their deserts, from the hands of their injured countrymen: for the minister, wants your assistance to destroy your fellows, only, that yourselves may be the easier destroyed; and when you have done his drudgery, you will become his prey. Divide & impera, divide & distrue, divide & command, divide and destroy, are maxims of deep policy, fabricated in a very old cabinet.
IV. I shall now proceed in the last place to consider this question in another light, viz. the equity of the demand made upon the colonies, and of the manner in which it is made. The ill policy of such measures, having in a most inimitable manner, been considered and exposed by those illustrious patriots, the earl of Chatham, Burke, Barre, the bishop of Asaph, &c. (whose names and memories no distance of place or time, will be able to obliterate from the grateful minds of the Americans) with such dignity of sentiment, energy and perspecuity of reason, such rectitude of intention, uncorruptness and candor of disposition, and with such force of elocution, as must have rendered them irresistable, only by the omnipotence of parliament.
Great-Britain can have no demands upon the old colonies, except for assistance afforded them against their enemies in war, and protection to their trade at sea; for the lands were neither acquired or settled at the expence of the crown. New-York, indeed, was obtained by conquest from the Dutch, without much risk or loss; and was afterwards in the treaty at Breda, A. D. 1667, confirmed to the English in exchange for Surinam. Nor have those colonies since, been any expence to the crown, either for support of their governments, or inhabitants: And the Americans have had no enemies but what were equally the enemies of Great-Britain; nor been engaged in any wars, but what the nation was equally engaged in, except the wars with the Indians; which they carried on and maintained themselves. It will be necessary to state the advantages the Americans have been to Great-Britain, as well as those they have derived from thence, by assistance afforded in the wars, and by comparing, strike the ballance.
From the first settlement of the colonies, they have been almost continually engaged in a bloody and expensive, tho’ successful war with the French and Indians, on their frontiers, until the reduction of Canada; whereby their settlements were extended; and by a rapid population, the number of inhabitants have been greatly encreased; and the trade to England proportionably augmented. In A. D. 1690, Sir William Phips raised an army in New-England, took Port Royal, or Annapolis, in Nova-Scotia, from the French; and reduced another settlement of considerable consequence, at the mouth of the river St. John’s, on the Bay of Fundy, both which, king William ceded to the French at the peace of Riswick, A. D. 1697; and received an equivalent for them. In A. D. 1703, the beginning of Queen Ann’s war, Annapolis was retaken, by the New-England people. Afterwards Sir William Phips, with the New-England people, attempted the reduction of Canada, and was obliged to return, not by the arms of the enemy, but by the severity of the season coming on earlier than usual: However, he built a fort on the mouth of Pemaquid on the frontiers of the country, which reduced all the Indians, north west of Merimac river, under the crown of England. By these successes, Great-Britain was induced to engage in an expedition against Quebec. In A. D. 1711, Admiral Walker was sent to Boston, with a fleet, and some land forces; New-England furnished their quota of troops for the expedition; but by reason of the great fogs, and some mistake of the pilot’s, part of the fleet was stove upon the rocks; eight hundred of the men lost, and the expedition rendered abortive. Annapolis, and all Nova-Scotia was confirmed to Great-Britain, at the peace of Utrecht, A. D. 1713; whereby all that country, its valuable fisheries, and trade, were added to the crown of Great-Britain. Not to mention the ineffectual, but costly expedition, formed by the New-England people against Canada, in A. D. 1740; and that against the island of Cuba, at another time. On the 16th of June, A. D. 1745, the important fortress of Louisbourgh surrendered to Commodore Warren, and Mr. Pepperel; reduced by a long and perilous siege of forty-nine days (through the smiles of heaven) by the valour and intrepidity of American troops, assisted by Commodore Warren, with a small squadron in the harbour; by which, the command of the Newfoundland fishery, the gulph of St. Lawrence, the only pass by sea to Quebec, the capital of the French settlements in America, fell into the hands of the English, and which afterwards purchased the peace of Europe, and procured to the crown of England, in the peace of Aix Chappelle, sundry important places that had been taken. Thus, the Americans laboured, fought and toiled; and the Britons reaped the advantage. The noble exertions of the Americans, and the part they took in the last war; their laudable emulation to be foremost, in complying with the requisitions of their sovereign; their troops contending for stations of danger, as posts of distinction; esteeming their lives and their properties, an inconsiderable sacrifice, for the glory of their king, and the renown of his arms; and the large levies of men and money made by them, are fresh in every one’s memory. The amazing advantages derived from the war in America, to the crown and kingdom of Great-Britain, is also well known. The whole eastern and northern country, the New-foundland fishery, trade, and navigation, a source of boundless wealth; the island of Cape-Breton, the extensive country of Canada and Louisiana, from the arctic pole, to the tropic of Cancer, with their train of fortresses, lakes, &c. the peltry and furr trade of that whole country, with the almost inexhaustable treasures of the Havanna; a harvest in which the Americans, with the Britons, bore the heat and burthen of the day; yet the Americans shared little or none of the fruit, except being delivered from troublesome neighbours, on their frontiers, and some individuals drawing a share in the plunder, at the Havanna. And what a mighty accession of weight and importance was this, to the crown of Great-Britain, in the scale of power, among the European states and princes! But why need I dwell upon these? At the conclusion of the last war, justice swayed the sceptre; and a righteous minister had the royal ear; the Americans were considered as creditors to the nation; and thousands of pounds were sent over to reimburse them. But Oh! the sad reverse of times, ministers and of measures!
In the next place, let me enquire, in respect to the protection afforded our trade at sea. Our trade, from inclination and choice, hath been principally with Great-Britain and the British isles, and like the trade in all cases, carried on between an infant country, in want of all kinds of manufactures, and an old, wealthy, manufacturing kingdom. Our’s was of necessity and for consumption; their’s for profit and advantage. They purchased of us our raw materials, and sold to us their wrought manufactures; both at their own price, and at their own ports. In this view of the matter, must it not be supposed, that the advantages of this trade to that kingdom, amply paid for its protection; and their motives to protect it were their own emolument and profit? But this will be more fully illustrated, when we consider, that the amount of the trade between Great-Britain, and the colonies, at a medium for three years, before it was interrupted by these unhappy disputes, is computed at about three millions, three hundred and eighty-five thousand pounds per annum: From which deduct a certain proportion, for raw materials, that are imported into England, which is comparatively inconsiderable; the remainder is a clear profit and gain to Great-Britain; and is divided between the public exchequer, and private coffers—for the whole cost of the raw materials, the duties on the importation of them, the manufacturer’s labour, his living and his family’s, his taxes upon his house, windows, salt, soap, candles, coal, &c. &c. &c. upon his eatables, his drinkables, and cloathing; those of his family, his apprentices and journeymen; and not only so, but also the taxes his shoemaker, weaver, and taylor paid, when working for him; the merchants profits, the charges of bailage, truckage, freight, insurance; and the duties upon the articles themselves, all go in to make up the price, and are paid by the American consumer. In this view of the matter, I believe I am within bounds to suppose, that the direct trade (leaving out of the question the cercuitous trade by way of the West-Indies and other parts), neats a profit of three millions to Great-Britain: And near one half of that sum, is made up of taxes and duties, which are paid in England; whereby the public revenue is so much increased & eventually is actually paid by the Americans.
Can any suppose, that this is not an ample compensation, for all the protection afforded our trade at sea? What nation in Europe would not rejoice to receive our trade on these terms, and give us thousands for its purchase? But, upon supposition it is not sufficient, and that the colonies are indebted to them; ought they not to state the account, that the balance might be seen; and to make a demand of payment? And not without doing either, thrust their hands into our pockets; and rend from thence, not only what we owe them, but what they please: Not only what we ought to pay, but our whole property; nor that only, but our liberties too. And if asked wherefore this? the answer is, that the nation is in debt, and that we owe them. If we owe them, let them make it appear, and the colonies will pay them; that the nation is in debt, needs no proof; but for what? For expence in war, and for charges of government in time of peace? Could these have accumulated—the enormous sum of 145,000,000, the national debt in A. D. 1766? Bribery and corruption, luxury and exorbitant pensions multiplied, might.
But it is time to close these enquiries; and what may we not expect, from what is threatened and already done, that is in the power of parliament to do?
Is not the king of Great-Britain, the visible head of the christian church in England? and by the Quebec bill, is he not, as amply constituted the head of the romish church in Canada? Have not the Americans, by the constitution of nature, as men, by the constitution of England, as Englishmen, and by the constitutions in America, as colonists, a right of exemption from all laws, that are made, and taxes that are imposed, without their voice and consent? and from other mode[s] of trial, than by their peers of the vicinity?
And by the late acts of parliament, are not taxes and duties imposed, and laws enacted to bind them, not only without, but in which, they neither had nor could have any voice? And is not the whole government, of that ancient province of the Massachusetts, demolished at a blow, by an engine of tyranny, without being summoned, heard or tried? Are not strange and unusual methods for imprisonment, transportation and trial, introduced? arbitrary tribunals erected, to decide in matters most interesting, without the intervention of a jury? In a word, are not all our rights and liberties, natural, religious and civil, made a mark for their arrows, and threatened to be laid in the dust? And to compleat our ruin, are not our harbours blocked up? our coasts lined with fleets? our country filled with armed troops? our towns sacked? inhabitants plundered? friends slaughtered? our pleasant places desolated with fire and sword? all announced rebels? our estates declared forfeit, and our blood eagerly panted for? When I think of Boston, that unhappy capital; what she once was, and the miserable captive state, to which she is now reduced, I am almost ready to adopt the plaintive strains of captive Israel concerning her:
By the rivers of Babylon there we set down, yea, we wept when we remembered Zion; we hanged our harps upon the willows, in the midst thereof, for there they that carried us captive and wasted us, required of us a song and mirth, saying, sing us one of the songs of Zion. How shall we sing the Lord’s song in a strange land? if I forget thee Oh Jerusalem! let my right hand forget her cunning, if I do not remember thee, let my tongue cleave to the roof of my mouth; if I prefer not Jerusalem, above my chief joy. Remember O Lord! the children of Edom, in the day of Jerusalem, who said rase it, rase it, even to the foundation thereof.
What shall we say, is there any force in sacred compacts and national constitutions? any honour in crowned heads? any faith to be put in ministers, the nobles and great men of the nation? In a word, is there any such thing as truth and justice? Is there not a power above us? and that there is all nature declares; the vindicator of right and avenger of wrong. To him therefore we make our last appeal; and to the impartial world, to judge between Great-Britain and America.
These unheard of intolerable calamities, spring not of the dust, come not causeless, nor will they end fruitless. They call on the Americans for repentance towards their maker, and vengeance on their adversaries. And can it be a crime to resist? Is it not a duty we owe to our maker, to our country, to ourselves and to posterity? Does not the principle of self-preservation, which is implanted by the author of nature in the human breast (to operate instantaneous as the lightning, resistless as the shafts of war, to ward off impending danger), urge us to the conflict; add wings to our feet, firmness and unanimity to our hearts, impenatrability to our battalions, and under the influence of its mighty author, will it not render successful and glorious American arms? But it may be said that the Americans have destroyed the tea of the East-India company, at Boston, which was a violation of private property, & ought to be paid for. That tea was sent on the same errand that Gage and his troops are; to effect by artifice what they are now attempting by force. I mention not Thomas Hutchinson, for his crimes here, and condign punishment hereafter, without repentance, must exceed all conception or description. Should the British parliament cause cargoes of wine, impregnated with poison, to be sent to America, with orders to have them dispersed amongst the inhabitants: and their servants, the miscreants of their power, should obstinately insist on doing it, the Americans must destroy the wines, which, by their baneful mixture would be justly obnoxious to destruction, or be destroyed by their poison.
My countrymen, we have every thing to fear, from the malignity, power and cunning of our adversaries. Yet, from the justness of our cause, the greatness of our numbers and resources, the unanimity of our hearts, cemented by interest and by perils; the bravery, and what’s more, the desperateness of our spirits; who think not life worth saving, when all that is dear in life is gone, we have reason to be afraid of nothing. For your animation, hear the advice and lamentation of a French gentleman, Monsieur Mezeray, over the lost liberties of his country, to an English subject:
We had once in France, the same happiness and the same privileges, which you now have. Our laws were made by representatives of our own choosing; therefore our money was not taken from us, but granted by us. Our kings, were then subject to the rules of law and reason. Now alas! we are miserable and all is lost. Think nothing sir, too dear to maintain these precious advantages, if ever there should be occasion; venture your life and estate, rather than basely submit to that abject condition to which you see us reduced.
And for your encouragement, turn your eyes to the free states of Holland and Switzerland; and in them, as in a glass, see America struggling under intolerable oppressions; and with an intrepid, unconquerable spirit, overlooking all danger, bursting the bonds, and demolishing the engines of tyranny, emerging from a sea of calamities, rising superior to every obstacle; and overlooking in time the power and towering heights of their haughty oppressors.
Since then we are compelled to take up the sword, in the necessary defence of our country, our liberties and properties, ourselves and posterity: Let us gird on the harness, having our bosoms mailed, with firm defiance of every danger; and with fixed determined purpose, to part with our liberty only with our lives, engage in the conflict; and nobly play the man for our country, the cities and churches of him that transplanted and hitherto sustained them; thereby prove the truth of our descent, and demonstrate to the world, that the free irrepressable spirit, that inspired the breasts and animated the conduct of our brave fore-fathers; is not degenerated in us, their offspring. With fair pretences, they invite us to submit our necks to their yoke; but with unheard of cruelties and oppressions, they determine us, to prefer death to submission. Let none be disheartened from a prospect of the expence; though it should be to the half, or even the whole of our estates. Compared with the prize at stake, our liberty, the liberty of our country, of mankind, and of millions yet unborn, it would be lighter than the dust on the balance: For if we submit, adieu for ever; adieu to property, for liberty will be lost, our only capacity of acquiring and holding property.
And what shall I say, of the officers and soldiers of the British army, who are the appointed ministers of this vengeance on the Americans? against whom are they come forth, in hostile array? Strangers and foes to them and their nation? No, it is against their brethren, their fellows and companions, of their flesh and of their bone; members of the same nation, subjects of the same king; and entitled to the same or equal privileges; with kindred blood in their veins, and a pulse beating high for English liberties. And can their hearts be courageous, and their hands strong, when they level the shaft, or lift up the spear against those, with whom of late, side by side and shoulder to shoulder, in compacted battalions, they fought, bled, and conquered, in defence of the country, and the liberties, they are now sent to lay waste and destroy. I appeal to their sense of honour, their sentiments of justice, to their bowels of humanity, those tender feelings of sympathy, these social passions, that possess and warm the human heart, and are the spring of all social and public virtues, and let their tongues utter the sentiments of their souls, and America will be justified, they being the judges.
Methinks I hear the king, retired with his hand upon his breast, in pensive solliloquy, saying to himself, who, and what am I? A king, that wears the crown, and sways the scepter of Great-Britain and America; and though a king, robed in royalty, yet I am a man, my power finite, my body mortal, and myself accountable to him, who raised me to this dignity, that I might be his minister for the people’s good. But Oh! what tragic scenes do I behold? One part of my dominions aiming destruction against the other, plunging their swords in the bosoms, and imbruing their hands in the blood of their fellows and brethren. Is it possible, that Britons should become the foes and assassins of Britons, or their descendants? My throne totters, my loins tremble, my kingdom is divided and torn, my heart ready to fail, for the glory of my reign is departing. What can be the cause of these tremenduous convulsions, that threaten the dissolution of my kingdom? Do my subjects in America, refuse to resign their liberties and properties, to the disposal of my subjects in Great-Britain? And insist on holding and enjoying them as their unalienable rights? Well, what will be the mighty injury to my crown, or to the nation, in its wealth, strength, or honour, if America should enjoy its former freedom? What will be gained by reducing them to submission and slavery? lifeless carcases, a desolated country, millions in wealth, and millions in strength dashed at a blow. Mighty acquisition of loss. Should the attempt be pursued and fail, America will be lost, nay more, she will become Great-Britain’s determined enemy. Have not my subjects in Great-Britain rights that are sacred and inviolable, and which they would not resign but with their lives? They have. Have not my subjects in America rights equally sacred, and of which they are and ought to be equally tenacious? They have. And are not those rights, for which they now so earnestly contend, of that kind? Certainly there is much in favour of their claim. What if they are mistaken? Ought they to atone for their mistake by rivers of blood, and the sacrifice of themselves, their country and their posterity? but what, my mind shudders and recoils at the thought, what, if the Americans are right? Oh heaven forgive! And all this ghastly ruin, is owing to the blunder of a minister, and the fatal errors adopted by parliament. Of whom will these rivers of blood be required? What can expiate such accumulated wrongs? and atone for such amazing devastations? I am sorely distressed, civil war rages within, foreign enemies threaten without, the commerce of my kingdom languisheth, manufacturers famish and fail, and discontentment is almost universal. What shall I do for the dignity of my crown, the peace of my dominions, and the safety of the nation? All is at risk. I have been deceived by my informers, misguided by my ministers, and by my own inattention to the sufferings, and dutiful petitions of my subjects, reduced all to the most dreadful hazard. For British troops cease to be glorious, in so inglorious a cause. Should their sea-ports, from Georgia to Nova-Scotia, be desolated with fire and sword, it would only consolidate their union, and render more impregnable their resistance in the interior country. Could we dry up their harbours, and bar every out-let to the sea, unless we had power to restrain the showers and the shines of heaven; and the fertility of the earth, they will possess inexhaustable resources. America must and will be free, their ancestors acquired it for them, my royal predecessors guaranteed it to them; it is theirs by purchase, it is theirs by the plighted faith of kings; they are deserving of it; and with them it flourisheth, like a plant of generous kind, in its native soil, and the heavens are propitious to liberty. My legions must be recalled, the sword must be sheathed, the olive branch, the symbol of peace be held out; for it was never designed that Britons, invinsible by others, should contend with Britons or their descendants, in battle; and royal munificence be exerted, to alleviate the distresses, console the miseries, and repair the injuries, caused by the unhappy error, which let eternal darkness veil. Oh! may the future make reparation for the past, my crown flourish in the prosperity, liberty, and the happiness of all my dominions. Thus will my reign become glorious, my demise tranquil. But alas! where am I transported on the wings of groundless fancy? Repentance I fear is too late, for crimes so enormous; the injuries are irreparable, and America is irretrievably lost: the thunders I prepared, to lay her breathless at my feet, have discharged her of her allegiance, and driven her forever from my power.
The preceeding pamphlet was wrote some time past, and not published sooner for want of paper: The author hath subjoined an appendix, containing some thoughts on government, and American independance.
To consider things rightly, is to consider them truly as they are, with all their relations and attending circumstances; to investigate truth, is the highest atchievement of reason; and to follow nature, the perfection of art. That which is conformable to axioms of immutable truth, founded in reason, and productive of general security and happiness to mankind, must in every sense, be denominated good.
Civil society, is allowed by all to be the greatest temporal blessing; and civil government is absolutely necessary to its subsistence; it is a temporary remedy, against the ill effects of general depravity; and because the introduction of moral evil has made it necessary; it is not therefore a necessary evil.
Liberty consists in a power of acting under the guidance and controul of reason: Licentiousness in acting under the influence of sensual passions, contrary to the dictates of reason; whilst we contend for the former, we ought to bear testimony against the latter: And whilst we point out arguments against the errors and abuses of government, we ought cautiously to distinguish between government and its abuses; to amputate the latter, without injuring the former, and not indifferently charge both; lest we raise an army of rebel spirits more dangerous and difficult to reduce, than all the legions of Britain.
Government originates (under God) from the people; as from its native source; centers in them, their good is its ultimate object; and operates by securing to them, the enjoyment of their natural rights and civil privileges; and as the mode of doing this, hath no prescribed form in nature, or revelation; mankind, at their option, have endeavoured it variously; and thereby given rise to the various forms of government subsisting in the world, as monarchy, aristocracy, democracy, &c. each of these have failed in their turns, through want of integrity, or discernment, or both in the administration; and have been alternately preferred or discarded by writers, not so much on account of their own excellence or defects, as of those who administered them. That form of goverment that is adapted to the genius and circumstances of the governed, affords them the greatest security, and places the authority of the governing most out of the reach of the former, to violate and contemn, their corruptions and abuses most within, to prevent and redress, is the best. A perfect model of civil government perfectly administered and obeyed, cannot be expected, but in a state of perfection, where it would be perfectly unnecessary. That government in ordinary is the best that is best administered.
Some begin their government with their political existence; it grows up with them; the great first principles thereof, are never altered while they continue a people, & become so incorporated with their being, that they have the force of natural, rather than political institutions. Others, after a century or two have occasion to alter and new model their old governments, or frame new ones: This is usually attended with much difficulty and great danger, requires an extensive knowledge of the genius, tempers, circumstances, situation, ancient customs, habits, laws and manners of the people; and great judgment and skill, to adapt new regulations to old usuages, so as to form a happy coalition. The British nation, at the time of forming their great charter (no matter how they became so) consisted of a king, nobility and commons: To connect the strength and wisdom of these, for the public weal, without infringing or endangering the rights of either, was their great object: And this was done in the constitution of parliament, so far as it concerned legislation and taxation. Its object therefore, was directly, political and civil liberty. All offices were in the gift of the crown; and the payment of them in the option of the people; the powers of government were so balanced, as to render all mutual restraints upon, and mutually restrained by each other. If the people have lost their liberties, suffered themselves to be bought and sold, like beasts of burden, the fault is theirs and their corrupters, and not the constitution’s, which put in their power to have preserved them.
Thus, the principles were excellent, altho’ the practice hath been most perverse. Amongst all the forms of civil government, none can be pronounced absolutely best, and only relatively so: For that which best suits one people would badly suit another, or the same, at a different period.
The strength and spring of every free government, is the virtue of the people; virtue grows on knowledge, and knowledge on education.
Most nations have established a falshood for their first principle, viz. that their kings are perfect; and the consequence of this, is a second, that gives them a licence to serve the devil with impunity, viz. that they can do no wrong: Then follows the most impious ascriptions of divine qualities and titles to him; and to compleat the image, the riches of the nation are lavished in the magnificence, costly equipage and dazzling splendors of their prince; thereby to build power on show; and like the formido avium, or scare crow, derive respect and obedience only from the passion of fear: A multitude of criminal laws, with severe penalties are necessary to support the authority of the rulers, and secure the obedience of the subjects; whilst the sovereign himself, is wholly insecure in the midst of his subjects, without a life guard. This is inverting the order of nature and civil government; and leaving the necessary means of rendering mankind wise, virtuous and good. Rulers ought to know, and be known to their subjects, to be but men; and the punishment of their crimes, to be in proportion to their elevation in power. Half the sum, employed to diffuse general knowledge; by erecting public seminaries, with masters well furnished to teach children, not only common learning, but to instruct and impress on their young and tender minds, the principles of virtue and the rudiments of government, which would grow up with their growth, and derive strength from age; would be more effectual than all the brilliancy of a crown, or tortures of a rack; this is the only permanent foundation of a free government; this is laying the foundation in a constitution, not without or over, but within the subjects; love and not fear will become the spring of their obedience: the ruler be distinguished, only by his distinguished virtues, and know no good, separate from that of his subjects; and his authority be supported, more by the virtue of the people, than by the terror of his power. The only way to make men good subjects of a rational and free government, is to make them wise and virtuous; but such a government as this is utterly incompatible with the idea of slavery, because incompatible with a state of ignorance.
It is with states as it is with men, they have their infancy, their manhood and their decline: Nature hath its course in all, and never works in vain; when a people are ripe for any mighty change, means wont be wanting to effect it. From what providence hath done and is doing for us, we must learn, what is our duty to do; for we may only follow, where nature leads, and in this is infinite safety; from small, we are become great, from a few, many, from feeble, powerful, from poor, rich; nature has stored our country with all necessaries for subsistence in peace, and for defence in war; it has united our hearts, our interests, and our councils, in the common cause.
Independance consists in being under obligation to acknowledge no superior power on earth: The king by withdrawing his protection and levying war upon us, has discharged us of our allegiance, and of all obligations to obedience: For protection and subjection are mutual, and cannot subsist apart: He having violated the compact on his part, we of course are released from ours; and on the same principles, if we owed any obedience to parliament (which we did not) we are wholly discharged of it. We are compelled to provide, not only for our own subsistence, but for defence against a powerful enemy: Our affections are weaned from Great-Britain, by similar means and almost as miraculously as the Israelites were from Egypt: These are facts, a surprising concurrence of incidents, equally out of our knowledge to have foreseen, or our power to have prevented, point us to some great event. Providence has furnished us with the means; the king, contrary to his design, hath discharged us of our allegiance and forced us from our dependance, and we are become necessarily independant, in order to preservation and subsistence, and this without our act or choice. And is it a crime to be, what we cant help but be? It is not from a rebellious spirit in the Americans, but unavoidable necessity, that we are become so: Like a timorous child that is able to walk but disinclined to attempt it, placed in the middle of a floor, must use his legs or fall; while the tender parent that placed him there, stands ready to save him, if likely to fall, nam qui transtulit sustinet, He that transplanted, upholds and sustains. All Europe, must gaze with wonder, approbation and applause; Great-Britain join in acquitting us; while the tyrant minister (Lord North) in his own bosom reads the sentence of his condemnation, for condemning us: to be where nature and providence hath placed us, is to be right, and to do what such a state points out and requires to be done, is duty. In this situation two objects of the greatest importance demand our attention, viz. defence and government; these we ought diligently to attend to and leave the event; and let those who begun the war, be first in the proposals of peace; those who have refused to hear others, when they prayed, pray without being heard. And since parliament will have our trade, only on terms incompatible with our liberty, permit them to have neither; welcome all nations to our ports and to a participation of our trade, and enter into alliance with none; thus, we may enjoy the commerce of all, without being concerned in the quarrels of any. Providence has furnished us with resources for defence; numbers to constitute armies, materials for constructing a navy, for making of powder, ball, cannon, mortars, arms, &c. and all kinds of ordnance and military stores. Our threatened situation demands, that we immediately take every precaution, and use all the means in our power for our preservation & defence, and with noble and valiant exertions, withstand and repel the attacks of tyranny. Nature hath placed the island of Great-Britain, and the continent of America so distant from each other, that it is impossible for them to be represented in one legislative body: The consequence is, that their distant situations are incompatible with their being subjects to one supreme legislature. Representation is the feet on which a free government stands, it ought therefore to be equal and full; maim and render partial the former, and it will infallibly mutilate the latter. The measures of government necessary to be adopted, at present, are the same, either for a temporary or a perpetual expedient.
The colonies have so long subsisted separate and independant of each other, enjoyed their particular forms of government, laws, customs and manners and particular rules for the regulation and distribution of property; that it will, doubtless, be thought expedient for each to retain its antient form of government, laws, &c. as far as possible; to have supreme legislative and executive powers of government over all causes, matters and things within its territorial limits, and to regulate its own internal police. Those whose governors, or other officers, are taken off by the crown, to have them elected by the freemen, or appointed by their several assemblies; for which purpose particular constitutions to be framed, as they shall elect. That a certain number of delegates be annually elected by the freemen in each colony, to form a general council or congress, whose power to extend over all matters of common and general concernment: Such as making war and peace, sending and receiving ambassadors, general regulations respecting trade and maritime affairs; to decide all matters of controversy between colony and colony, relative to bounds and limits, &c. &c. of whom one to be chosen president, and to continue in office until another be chosen and sworn. And in matters so interesting, as that of making war and peace, to be a majority of at least two thirds, computed by colonies; and for carrying on a war to have power to levy troops and provide for their subsistence, &c. to have an explicit constitution, ascertaining the number of members the congress shall consist of, and that each colony shall send; containing regulations for convening, proroguing and adjourning; also granting, defining, and limiting the powers they are to have, exercise, &c. which constitution to be laid before the several assemblies, and by them acceded to and confirmed. By some such method the colonies may retain their independance of each other; and all their former usuages, laws, &c. and the wisdom and strength of each, be connected in general congress, for the security and defence of the whole.
To be reconciled to Great-Britain upon unjust terms, is to be reconciled to injustice, ruin and slavery; until they shall have condemned the measures that have been pursued against America, recalled their fleets and armies, exposed to the public eye, and condign punishment, the authors and advisers of the present unjust and cruel war; and have repaired the damage and expence caused thereby in America, and given up the claim of power in parliament, to dominion over us, they cannot expect that we will treat with them, about future connections. They have endeavoured, by all the arts of seduction, and of power, to destroy and enslave us; and now they have sent commissioners, under pretence of treating with the Americans. Accomodation is their ostensible, but we have reason to fear that to divide, corrupt and destroy is their real object: For with whom are they to treat? With the general Congress? No; it is said, with the several governors; all of whom, except one or two, live, and breath, and have their being, in the minister, and are mov’d by him like the puppets in the show, by the hand that pulls the wire, to which they are hung. They might as well have stayed at home, and treated with the minister. But it is said they are to treat with the several colonies. But how is this? unless they acknowledge their independence of parliament? The supreme legislature of a country only, hath power to treat and be treated with respecting war and peace. The act, 6th Geo. III. declares that the parliament of Great-Britain hath supreme power of legislation over the colonies; and to establish such power, the parliament is in war with America: The commissioners therefore, cannot, consistent with their ideas of power, treat with any but the British parliament. By sending commissioners to treat with us, they would acknowledge our power to make a treaty; which is predicable only of independence. Query then whether those commissioners are coming to treat for peace, with a mighty armament for war? In fine, that government, in which the people are subject to no laws, or taxes, but by their voice or consent; condemned by no sentence but by the verdict of their equals; where property is near equally distributed; crimes clearly defined and distinguished; & punishments duly proportioned to their nature and magnitude; and where the rising generation are universally instructed in the principles of virtue, and the rudiments of government, there civil liberty & general public felicity, will flourish in the greatest perfection.
[* ]Exousia, in the original, which is translated power, signifies a rightful authority or moral power, and stands opposed to dunamis, a natural power or might.
[* ]I have not noticed the authority of parents over children, it not being to the argument, but remark, that the Creator, foreseeing the necessity of civil government, arising from the depravity of human nature, hath wisely formed our infancy, and childhood, feeble and dependent on the protection, and government of parents, thereby preparing us, in childhood, for dependence on, and subjection to civil government, in manhood.
[* ]By this is meant one that is a subject of the kingdom as well as of the king.
[* ]By selfish here is meant virtuous passions that prompt us to seek our own preservation &c. as self-love, &c.
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