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Having, therefore, an entire confidence that the Crown of Great Britain will preserve them from the violation of their rights, which they have here assertedand from all other attempts upon their rights and libertiesthe said people of America by their deputies aforesaid, do resolve: 1. That they do of right owe, and will loyally maintain to the Crown of Great Britain, like faith and allegiance as the people of England, from whose ancestors they are descended. 2. That the Americans will grant general aid to the British Crown, upon the same principles of requisition and grant, that aids are constitutionally required of and granted in the Parliament of Great Britain. 3. That all general aide from America to the Crown, and laws binding the whole continent of North America, shall from time to time, according to Parliamentary proceedings, be granted, enacted, and received in a High Court of Assembly of North America, convened by the King's writs to the two Houses of Assembly of each colony respectively, to choose an equal number of persons in each House, as their and each of their Representatives in the high Court of Assembly. 4. That the Act of the high court of Assembly, having specified to the colonies their respective proportions and quotas of an American general aid, the said quotas shall be raised in the respective colonies, by their respective Legislatures, and paid within a limited time to be expressed, and under certain penalties to be specified in the Act of general aid. 5. That the high court of assembly, shall not however, be deemed or construed to possess any right or power, but of a general natureas, that all penalties and Acts of Legislation to be enacted in it, shall in the same degree, bind all and each of the colonies. Each colony regulating her internal policy as heretofore, by her own internal legislature. Such seem to be the grievances and claims of America, and the form of Legislature laid down in the Resolves, seems to be drawn up upon constitutional principles of English legislation. Some such system of government seems absolutely necessary. And, without a system of a general nature, the colonies acting independently of each other, they will scarce agree upon their proportionable quotas of a general aid to the Crown. Each will plead her own inability, and magnify the wealth of her neighbor. But this policy could not be adopted with the least success in a high court of assembly, where each member would be well acquainted with the real estate and ability of each colony. Indeed, this would be an absolutely necessary study, lest by the ignorance or laches of any member, his colony, and consequently his estate, should bear a greater proportion of the aid, than otherwise would be rated. And if the whole continent should be thought too extensive under one Legislature, that impropriety could be easily remedied, by dividing the whole into two Districts as nearly equal as may bea division naturally pointed out by every principle of true policy. Without doubt it may be said, nothing is easier than to draw up a catalogue of assertions, and to term one part grievances, and the other part rights. I admit the propriety of such an observation, and therefore I will attempt to shew that the present state of American grievances are too well founded in fact, and her claims too just to be speciously contradicted. The subject of the American taxation has been treated of in so great a variety of manner, within these late years, that scarce anything new is now left to be said on a point of so great importance. However, passing over the general arguments which have been so lately formed, I will step back one hundred years, and with a late great Commoner, I will consider the subject, illuminated by the ideas of the illustrious dead. Ideas so far of importance that they are of the highest authority, being no less than those of a high court of Parliament. The Preamble to the Act allowing to the county of Durham an actual representation in Parliament, gives the ideas of the Legislature, on the subjects of taxation and actual representation, in the clearest terms. "Whereas the inhabitants of the County Palatine of Durham, have not hitherto had the liberty and privilege of electing and sending any Knights and Burgesses to the High Court of Parliament, although the inhabitants of the said County Palatine are liable to all payments, rates, and subsidies granted by Parliament, equally with the inhabitants of other counties, cities and boroughs in this Kingdom, and are therefore concerned equally with others, the inhabitants of this Kingdom, to have Knights and Burgesses in the said High Court of Parliament of their own election," &c. Hence, it is clear, there cannot be a constitutional taxation, without an actual representation; or, why an actual representation now allowed to the county of Durham? This happened in the year 1672, and to all intents and purposes, must be considered as an adjudged case on the point. Wherefore, then, has the case been over-ruled in our day, and America taxed without representation in Parliament? I am answered, America is virtually represented. But was not Durham as virtually represented? Is there any other difference than that the fiction of virtual representation is much easier comprehended with respect to Durham than America? However, that species of representation was not thought to be a constitutional warrant to tax a small county, not equal to one-half part of one of the smallest of our colonies; but now, after a century, it is thought to be a species of representation suitable to the meridian of America! The original establishment of councils in the royal governments on this continent consisted principally, and in a manner, to all intents and purposes, of men of property established in the colony. Such a council could not but be well acquainted with the interests of the country, and be no less ready and zealous to promote them, at the hazard of their seats. Such men stood in no awe of a minister, yet they rendered the most essential services to the crown, as well as to the people. But now, the system of appointment is reversed; we see in council more strangers from England than men of rank in the colonycounsellors, because they are sent over to fill offices of £200 or £300 per annum, as their only subsistance in life. Thus, strangers, not to be supposed very solicitous about the prosperity of the colony, in which they have no interest but their commissions, are, as legislators, to determine upon the res ardua of the State; and, ignorant of our law, and too often unexpectedly so of the English law, they are, as Chancellors, to decree in cases of the most important value to the colonist. Unfortunate colonist! by the minister abroad, thus are you delivered over, a sacrifice at home, to the ignorance and necessities of a stranger, by the hand of power imposed upon you as a judge. The unconstitutional formation of the Courts of Ordinary and of Chancery in America, and the jurisdiction of the King and Privy Council over appeals from this continent, I shall wave, with intention to take up those subjects in a subsequent part of this letter; and, as the dependence of the judges upon the crown for their daily subsistence seems to have been the cause of general writs of assistance having been issued, I shall class those subjects together, and likewise the opposite conduct of two sets of judges, learned in the lawsthe one, men of propertythe other, men without the visible shadow of independencehence the only apparent motive for a contrariety of conduct on the same question. A few years ago, the bench of justice in this colony was filled with men of property; and, if all of them were not learned in the law, there were some among them who taught their brethren to administer justice with public approbation; and one [Rawlins Lowndes, Esq.] of them in particular, had so well digested his reading, although he had never eat commons at the Temple, that he was, without dispute, at least equal to the law learning of the present bench. To this independent and well-informed Bench of Judges, the Attorney General, ex-officio, on the part of the customs, from time to time, during several years, made application to obtain writs of assistanceof a more pernicious nature than general warrants. The demand, even under the direction of an act of Parliament, was constantly refused. The judges knew it trenched too severely and unnecessarily upon the safety of the subject, secured by Magna Charta, who the great Sir Edward Coke declared, "is such a fellow that he will have no sovereign." Hence, the judges knew the statute could not legally operate, and, therefore, that it was absolutely void in law. At length one of them, privately, and with such sound reasoning, delivered his sentiments on the subject to the Attorney General, that he replied, he was not desirous to enter into the merits of the application, and, therefore, should forbear making any others upon the subject; and thus were the houses, the castles of English subjects, preserved inviolate, when the bench was filled by men of independence, as well as of knowledge. But, no sooner was the bench filled by men who depended upon the smiles of the crown for their daily bread, than the Attorney General, ex-officio, returned to the attack, and carried the point even by a coup d' essai. There was no investigation of the meritsthe general writ, or rather the general warrant for breaking open doors, at the pleasure of a petty officer, was granted, as a matter of course, and without any hesitation. The contrast and the causes are striking, and need no comments. Equally unnecessary is it for me to say anything to shew the oppression to which the subject is exposed in being dragged into the Admiralty Courts in America. And such are the grievances under which the Americans have long labored. We expected nothing in addition but to be drained of our gold and silver by taxes, against our consent, and to be over-run by troops of hungry placemen. But, how short-sighted is man. The old grievances of America were no more than harbingers of a more formidable band of oppressive measures. A very few months ago we should have thought a man mad, who, under the spirit of prophecy, should have presented America with a view of only a part of the seventh paragraph of grievances. But, not allowing myself now to be detained in my advance by any reflections upon the Americans being divested of the value of their property; the annulling lawful contracts in trade; the obliging judges to take bail in cases of murder; the enabling persons charged with murder in Massachusetts Bay to fly the colony; I hold on my way, to fly at objects of more importanceof greater grievancethe increase for royal power by annihilation of popular rights in Massachusetts Baya despotism over English people, by act of Parliament, established in Quebec. To consider these objects with propriety, it is necessary to take the subject up ab origine; and, in that point of view to examine the King's legal power in Massachusetts Bay and in Quebec, when the crown first acquired civil dominion in those countries. It may be said, that as Quebec is a country obtained by arms, and the colony of Massachusetts Bay was founded without violence, therefore, there is a wide distinction between them, and the King may legally form laws to bind the conquered and his natural subjects settled among them, although he cannot exercise such a power over the colony founded without violence. But, in truth, the English law considers the colony of Massachusetts Bay and the province of Quebec by one and the same principle, and the late conduct of Parliament has confirmed this doctrine by giving to the King an absolute power in the one, and as great an increase in the other, as he now chose to exercise; and, if in States exactly similar in the eye of the law the crown can legally acquire and exercise over the one a despotic power totally different from, and forever heterogeneous to the genius of the natural and true powers of the English crown, what fiction of argument shall prevent the same power being exercised over the other, and, in short, over all the colonies in America; since the law considers them all but in one and the same light. It is laid down that, "in conquered or ceded countries that have already laws of their own, the King may indeed alter and change those laws, but until he does actually change them, the ancient laws of the country remain, unless such as are against the law of God, as in the case of an Infidel country." And that "our American plantations are principally of this sort, being obtained either by right of conquest, driving out the natives, or by treaties." What reading can be can be even desired more in point to shew that Quebec, Massachusetts Bay, Virginia and Carolina are exactly in one and the same situation? Which of the British colonies in America is it that the crown has not "obtained, either by right of conquest, driving out the natives, or by treaties" with them, or by conquest of, or by treaties with the French and Spaniards, who had first acquired the territory, in like manner, from the natives? Admitting that the crown may alter the ancient laws of the conquered, yet I cannot be of opinion that in those conquered or ceded States the crown can legally acquire a power over subjects of English blood, destructive of those rights which are peculiar to the bloodrights evidenced by Magna Charta, and defended by the fundamental laws of England. Rights, evidence, and laws which the prerogative of the crown cannot overthrow, nor the Parliament change to the prejudice of the people interested in their preservation. The Parliament have no such power delegated to them. They cannot legally form any laws heterogeneous to the purposes of their own creation and existence. As the sap peculiar to a tree must necessarily and invariably produce similar effect in a plant of the same species, as far as the infancy of the latter will admit, being at the same time incapable of producing in it any appearance heterogeneous to the parent tree; so the American plant, being animated with the same species of sap with the English tree, the plant, however connected with the parent tree, cannot naturally produce any heterogeneous appearance. Thus, even allowing the constitutional power of Parliament to pervade the English States in America, it can naturally produce those effects only of which the colonies are capable, and cannot legally produce in their legislatures any appearance heterogeneous to its own nature and capability of action. Thus, it has not any legal or natural power to make the British crown absolute in Quebec, because it cannot make the crown absolute in Great Britain; neither can Parliament vest in the crown more power in the legislature of Massachusetts Bay than it is capable of exercising in the Imperial Legislature. The genius of the English crown cannot naturally admit of, nay, it would be absolutely destroyed by a heterogeneous ability from Parliament, to exercise in England either of the species of power that it now exercises at Quebec or Massachusetts Bay. The people never delegated to Parliament any ability to aggrandize the crown with any such powers, which are heterogeneous to the ability of the one to vest, or to the nature of the other to admit. The prerogative of Parliament, although more exalted, yet is but of the same genus with that of the crown, which "hath a prerogative in all things that are not injurious to the subject; for, in them all, it must be remembered that the King's prerogative stretcheth not to the doing of any wrong." When did the people of England delegate to Parliament a power to injure the people of America, and do them wrong by, in effect, giving the crown two voices in the Legislature of Massachusetts Bayby incapacitating subjects of English blood in Quebec from enjoying the benefits of representation thereand by enabling the crown, through the channel of the Governor and Council, to prescribe law to those subjects, illustrious heirs of Magna Charta and the common law. Would not the people of England think themselves injured and wronged if the Parliament should vest similar powers in the crown to be exercised over them? Are the Americans less sensible of injuries and wrongs? Are they less able to discern them? I hope they will prove a genuine English descent by a display of that great, generous and free spirit which has hitherto charactered their illustrious ancestors. In short, I cannot see that the Parliament, at any rate, can legally exercise over the colonies any powers which it cannot exercise over Great Britain. The Parliament cannot there annihilate or constitute a sovereign to Magna Charta. The great Coke has said, "Magna Charta is such a fellow that he will have no sovereign." How, then, has the Parliament acquired a power, and how has it dared to constitute the King so despotic in any part of the British Empire, as there to aggrandize him a sovereign to this same Magna Charta. The Roman Legislature having vested in Caesar, unconstitutional authority in the provinces, he was at length enabled only by the means of this authority, to overthrow even the Roman liberties and constitution, and upon their ruins to establish a despotism throughout the whole Empire! (From Documentary History of the American Revolution, by Gibbes, Volume 1, pp. 11-39) Doc ID: Gibbes, v. 1, p. 011c Date: 8/10/1774 |
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