|
I cannot but now return to consider an object I held as of an inferior nature when despotism was in view. It is the privilege granted to persons charged with murder in the colony of Massachusetts Bay, to apply for the Governor's mittimus to take their trials in any other colony, or in Great Britain! It is nothing less than enabling the accused to stand trial in a country, where by a thousand accidents or stratagems, the enormity of the crime may not be known. Upon which proceeding an elegant writer furnishes me with a most just idea. "No oppression is so heavy as that which is inflicted by the perversion and exorbitance of legal authority, as when plunder bears the name of impost," and murder being perpetrated by authority of law, the villain escapes conviction, flying the country by the secure conveyance of a mittimus from the magistrate. This policy is new in the English jurisprudence, for it is not to be assimilated to the act for trial of the rebels of 1745 in London. They were carried to London for their surer conviction; besides, they were taken in arms, in open rebellion. And, I dare venture to say, whoever drew the act in question, took the policy from antiquity, at the time of the first Roman Emperors; for Tacitus somewhere said that when the legions, being encamped, were oppressed by their centurions, and in a clamorous manner demanded justice of the generals, to save the accused from the vengeance of the injured, they at once ordered them to prison, under pretence of future punishment, but in truth only to screen them from the popular fury, and to enable them to escape the doom due to their crimes. When the first Charles billeted soldiers upon his subjects, the commons of England presented to the King, a petition for redress of that grievance. In it they asserted, "that, whereas, by the fundamental laws of this realm, every freeman hath, and of right ought to have, a full and absolute property in his goods and estate; and that, therefore, the billeting and placing soldiers in the house of any such freeman against his will, is directly contrary to the said laws." An assertion which the Americans may use with equal propriety, against the quartering soldiers among them by authority of Parliament. The arguments relative to Durham, have fully proved, that to be constitutionally bound by Parliament, the people to be so bound, must constitutionally give their consent in Parliament; by representation of their own election, as other counties have. And, as this kind of consent is necessary to taxation, so, when the property of a freeman is to be legally submitted to the quartering and billeting soldiers, the above assertion of our honest forefathers teaches us to say, the consent of the freeman is indispensably necessary. A consent that we know can be constitutionally given only in Parliament, by representation of his own election. A representation which the Americans have at no time ever had in the High Court of Parliament, and therefore they are not constitutionally bound to pay taxes, or to provide quarters for soldiers, by authority of Parliament. But soldiers are nevertheless to be quartered in the houses of American freemen, even against their consent. Similar causes generally produce similar effects; and what a train of mischiefs have had birth from such a measure in England! The above petition to Charles presented to his view a most fearful arrangement. 1. "The service of Almighty God is hereby greatly hindered, the people in many places not daring to repair to the church, lest in the mean time the soldiers should rifle their houses. 2. The ancient and good government of the country is hereby neglected, and almost contemned. 3. Your officers of justice in performance of their duties have been resisted and endangered. 4. The rents and revenues of your gentry, greatly and generally diminished; farmers to secure themselves from the soldiers' insolence, being by the clamor and solicitation of their fearful and injured wives and children, enforced to give up their wonted dwellings, and to retire themselves into places of more secure habitation. 5. Husbandmen, that are as it were the hands of the country, corrupted by ill-example of the soldiers, and encouraged to idle life, give over work, and rather seek to live idly, at another man's charge, than by their own labor. 6. Tradesmen and artificers almost discouraged, by being forced to leave their trades, and to employ their time in preserving themselves and their families from violence and cruelty. 7. Markets unfrequented, and our ways grown so dangerous that the people dare not pass to and fro upon their usual occasions. 8. Frequent robberies, assaults, batteries, burglaries, rapes rapines, murders, barbarous cruelties, and other most abominable vices and outrages are generally complained of, from all parts where these companies have been and have their abodefew of which insolences have been so much as questioned, and fewer, according to their demerit, punished." Without doubt, it will be said, the excellent discipline at present established among the British soldiery will effectually secure the Americans from such horrid mischiefs. But I cannot be persuaded from an opinion, that when soldiers have a good opportunity, they will rifle in the absence of their landlords; that drunk, they sometimes will be, and then, nay even when sober, they may be induced to obstruct the officers of justice, as in the case of General Gansel; that wives and children cannot but be under terrors and fears of a soldiery, quartered among them, to awe society into slavery; that the lower rank of people is apt to be corrupted by the residence of a soldiery, and thereby easily encouraged to leave their trades, and to "live idly at another man's charge;" that ways will be dangerous, and robberies, batteries, burglaries, rapes, and seductions will be unavoidable, even under the discipline established among British troops, quartered as curbs upon the Americans. For to make the Americans feel the curb, they will be decently turbulent, even by private allowance. Thus, it is as clear as the sun at noon, that the taxation of America; the constitution of councils by mandamus, and the manner of filling them; the want of constitutional Courts of Ordinary, and of Chancery, and Appeals being under the jurisdiction of the King in council; the dependence of judges upon the crown; the granting writs of assistance to the customs; the oppressive powers vested in the courts of admiralty; the British Parliament exercising a power to bind the colonies, in all cases whatsoever, from the violation of private property even up to the establishment of a despotism in America; and in the billeting soldiers in America, are all unconstitutional, illegal, and oppressivegrievances crying aloud for redress, and heightened by a keenly affecting sensation, arising from the appearance of the British arms by land and sea, now threateningly advanced, to continue and to enforce such oppressions and to compel America to bow the neck to slavery! Having thus seriously viewed and ascertained a state of grievances pregnant with horrible uproar and wild confusion, we will now no less minutely view the foundations from which the Americans build their claim of rights and liberties. In the same degree with the people of England, are the Americans of the lawful posterity of those freemen, who enjoyed the benefits of the common law of England, and who ascertained their ancient and unalienable rights and liberties, by Magna Charta, and by the petition of rightliberties recognized anew by the bill of rights, and by the Act of Settlement. And therefore are the Americans, equally with the people of England, entitled to those liberties which are emphatically termed the unalienable liberties of an Englishman. And from such a title does America derive her freedoma title of infinitely more importance, than the colonial charters from the Crown. Therefore, like the people of Durham, the Americans being freeholders of the British Crown, these cannot constitutionally be taxed by Parliament, without their consent signified by a representation there of their own election, as the people of Durham being other freeholders of the British Crown have there. And this precedent of Durham, at once flies at the novel doctrine, distinguishing between taxation and legislation. We have already found, that to be constitutionally taxed, the people of Durham had such a representation in Parliament, of their own election as other counties have therethat is a representation endowed with such powers, being of such a nature, and for such ends as other counties have in Parliament. In short, the acquiring a representation for the purpose of taxation, ipso facto, works a representation at once complete for every legislative purpose; otherwise the representation allowed the county of Durham would not be such a one as other counties have in Parliament. Hence, we cannot see that there is any distinction, in the nature of a representation for the purpose of taxation or of legislation. And I must confess, that it seems astonishing, at least to my very limited understanding, that any man should say, it is absolutely necessary to obtain the American's consent, implied by actual representation in Parliament, or, it is not lawful to take one shilling out of his pocket by taxationand yet, without his consent, it is lawful to divest him of the value of his whole property, and eventually take his life by legislation! For my part, I cannot unravel the apparent absurdity of the position; I must leave that work to more comprehensive understandings, and I will continue to think, that there is much less ceremony necessary to take a shilling belonging to me, than my whole estate or my life. If a man has a legal right to take the two latter against my consent, I cannot see any reason why he cannot as legally take the first without even asking my pleasure. But the favorers of this apparent absurdity seem to have forgot a first principle in government, which effectually destroys their position. They say, that although consent by representation is absolutely necessary to the taxation of America, yet, British legislation may legally operate over America, without, and even against her consent. But the great Locke and Hooker, are of a contrary opinion, and in the most explicit terms. As a first principle of lawful legislation, they lay down, that the consent of the society over which the legislation is to be exercised, is absolutely, indispensibly necessary; either to be expressed by themselves, or, by authority from them; otherwise the legislation "is no better than a mere tyranny." America has at no time ever given any such consent; and therefore, any taxation or legislation by the British Parliament over America against her consent, "is no better than a mere tyranny." The claim of a second or middle branch of legislature in the colonies, to be permanent and not subject to removal by the Crown, and to be called out of American families, is certainly unexceptionable. We do not yet desire dignities, lordships, and dukedomsbut we have an equitable right to the benefit of the English constitution, formed by the courage and wisdom of our ancestors, for the equal benefit of all their posterity. A second branch of legislature, permanent and not subject to removal by the Crown or people, is an essential part of that constitution, and, therefore, we equitably claim such an independent branch of legislature. We, likewise, with the utmost propriety, claim that this branch shall be formed out of American families, as men so interested will be more zealous for the interests of America, than strangers destitute of property and natural alliance in the colonies. Thus, from the same principle it is likewise obvious, that the majority of the Council of State to the Governor, ought of right and of equity, to consist of men connected with the colonies by fortune. In what light would the people of England hold the King's Privy Council, if a majority of it consisted of upstarts in the society, destitute of the shadow of an estate, depending upon the pleasure of the Crown for their daily bread? And from the same causes that the people of England found it necessary, for the preservation of justice, to annihilate by an. express Statute, all judicial power whatever in the King and Privy council; so, for the same reason it is necessary that judicial powers in the in the Governors and Councils ought likewise to be annihilated, for the good of the people of America, since no man will contend that powers which by undue influence were dangerous in the hands of the King and his council, will be of public advantage, and not in the least exposed to undue influence, in the virtuous hands of needy Governors, and their hungry dependent councils. Nothing, therefore, is more to be avoided in a free constitution, than uniting the provinces of a Judge and Minister of State: a fortiori a Governor, who is the executive power"which union might soon be an overbalance for the legislative." Hence it is evident, that a Governor's exercising the functions of a Judge, threatens the very existence of the freedom of a State; and I shall proceed to demonstrate, that such a dangerous junction of power, is directly contrary to the common law. The Governor is the Executive power in the colony. But, although representing the sovereignty of the King, and wielding his Executive authority, he cannot possess or exercise any of the royal powers, prerogatives, and attributes, than such as are delegated to him in the royal commission. It is laid down, that the King cannot personally distribute justice, having delegated his whole judicial power to the judges of his several Courts, which are the grand depository of the fundamental law of the Kingdom. Hence it is clear, the King cannot delegate to his Governor, the representative of his sovereignty, any of the powers of the Ordinary or the Chancellor to be exercised by him, seeing he himself cannot in his own royal person exercise any judicial power whatsoever. No, he has not even the power of a common Magistrate to arrest any man for treason and felony. Thus, the Governor, like the King, quoad hoc, cannot be any more than the reservoir from whence right and equity are conducted, "by the Judges of his several Courts," to every individual. Thus disconsonant to the safety of a free Government, and to the principles of law, appears the formation of the American Courts of Ordinary and Chancery. And, therefore, there cannot be any thing unreasonable in our desiring Courts formed upon a basis by experience found to be most adequate to the sure distribution of justice to the subject. Neither is there any impropriety in desiring, that appeals may, in the first instance, go to a constitutional middle branch of legislature in the colonies. For the expense of making appeals to England is so enormous, and the manner of conducting them to the best advantage by the presence of the parties, so impracticable to most of the colonists, that being thus unable to make and plead to appeals in England, they have been, are and may be often obliged to submit to judgments and decrees in the colonies, deemed by the learned, illegally made by men, whom the royal appointment constitutes Judges, and which is but too often, the only honorable mark of their abilities in law. Here, I might by a number of instances, prove the propriety of this observation in an undeniable mannerbut, I cannot condescend to hang up particular characters to the contempt of Americamy letter is of too important a natureI owe a propriety of conduct to my own character. I therefore resume the subject of appeals to the middle branch of legislature in the colonies. But, can the Americans reasonably require this mode of appeal, when the Irish are obliged to pass by their House of Lords, and to carry their appeals to the House of Peers in England? Yes, their local situation entitles them to so equitable a distinction. The Irish are, comparatively, at the door of the Supreme Tribunal in England; the Americans are at a distance of 3,000 miles from that dernier resort. And, to attend appeals to the best advantage, the latter must unavoidably be exposed to a long absence, at a vast distance from their domestic affairs, to great charges of voyage, and to great risk at sea; whereas the Irish in a few hours sailing, and the absence, of a few days, can superintend their appeals in London, as well as their domestic affairs in Dublin. And is no mode of proceeding allowable, to give some adequate relief in a grievance arising from local situation? Whence came the institution of Circuits, but from such an equity! And surely America! three millions of people! are no less equitably entitled to a proper relief in a similar grievance. We do not claim a dernier resort among us, as the Irish House of Lords arrogated to themselves; therefore the principle of law* which made it necessary to deprive them of the power of hearing appeals, cannot be applied to America. No! America means loyally to preserve sacred, the superiority of the Imperial State, if the parental justice of the Imperial authority and power, will permit her to act thus, according to the filial dictates of her constitutional faith and allegiance. (Note: *That a dernier resort cannot be lodged in a dependent state, because the law appointed or permitted to such inferior dominion might be insensibly changed within itself, without the assent of the superior, to the disadvantage or diminution of the superiorty.) (From Documentary History of the American Revolution, by Gibbes, Volume 1, pp. 11-39) Doc ID: Gibbes, v. 1, p. 011d Date: 8/10/1774 |
Last modified:7/8/03/CLN.
URL: http://www.southcarolinahistoricalsociety.org/displays/RevWar/archives-online/Gibbes__v__1__p__011d.html