by Nathan Allen
I have waited years in hopes to see some one friend of the colonies pleading in publick for them. I have waited in vain. One priviledge is taken away after another, and where we shall be landed, God knows, and I trust will protect and provide for us even should we be driven and persecuted into a more western wilderness, on the score of liberty, civil and religious, as many of our ancestors were, to these once inhospitable shores of America. I had formed great expectations from a gentleman, who published his first volume in quarto on the rights of the colonies two years since; but, as he foresaw, the state of his health and affairs have prevented his further progress. The misfortune is, gentlemen in America, the best qualified in every respect to state the rights of the colonists, have reasons that prevent them from engaging: Some of them have good ones. There are many infinitely better able to serve this cause than I pretend to be; but from indolence, from timidity, or by necessary engagements, they are prevented. There has been a most profound, and I think shameful silence, till it seems almost too late to assert our indisputable rights as men and as citizens. What must posterity think of us. The trade of the whole continent taxed by parliament, stamps and other internal duties and taxes as they are called, talked of, and not one petition to the King and Parliament for relief.
I cannot but observe here, that if the parliament have an equitable right to tax our trade, ‘tis indisputable that they have as good an one to tax the lands, and every thing else. The taxing trade furnishes one reason why the other should be taxed, or else the burdens of the province will be unequally born, upon a supposition that a tax on trade is not a tax on the whole. But take it either way, there is no foundation for the distinction some make in England, between an internal and an external tax on the colonies. By the first is meant a tax on trade, by the latter a tax on land, and the things on it. A tax on trade is either a tax of every man in the province, or ‘tis not. If ‘tis not a tax on the whole, ‘tis unequal and unjust, that a heavy burden should be laid on the trade of the colonies, to maintain an army of soldiers, custom-house officers, and fleets of guard-ships; all which, the incomes of both trade and land would not furnish means to support so lately as the last war, when all was at stake, and the colonies were reimbursed in part by parliament. How can it be supposed that all of a sudden the trade of the colonies alone can bear all this terrible burden. The late acquisitions in America, as glorious as they have been, and as beneficial as they are to Great-Britain, are only a security to these colonies against the ravages of the French and Indians. Our trade upon the whole is not, I believe, benefited by them one groat. All the time the French Islands were in our hands, the fine sugars, &c. were all shipped home. None as I have been informed were allowed to be bro’t to the colonies. They were too delicious a morsel for a North American palate. If it be said that a tax on the trade of the colonies is an equal and just tax on the whole of the inhabitants: What then becomes of the notable distinction between external and internal taxes? Why may not the parliament lay stamps, land taxes, establish tythes to the church of England, and so indefinitely. I know of no bounds. I do not mention the tythes out of any disrespect to the church of England, which I esteem by far the best national church, and to have had as ornaments of it many of the greatest and best men in the world. But to those colonies who in general dissent from a principle of conscience, it would seem a little hard to pay towards the support of a worship, whose modes they cannot conform to.
If an army must be kept in America, at the expence of the colonies, it would not seem quite so hard if after the parliament had determined the sum to be raised, and apportioned it, to have allowed each colony to assess its quota, and raise it as easily to themselves as might be. But to have the whole levied and collected without our consent is extraordinary. ‘Tis allowed even to tributaries, and those laid under military contribution, to assess and collect the sums demanded. The case of the provinces is certainly likely to be the hardest that can be instanced in story. Will it not equal any thing but down right military execution? Was there ever a tribute imposed even on the conquered? A fleet, an army of soldiers, and another of taxgatherers kept up, and not a single office either for securing or collecting the duty in the gift of the tributary state.
I am aware it will be objected, that the parliament of England, and of Great Britain, since the union, have from early days to this time, made acts to bind if not to tax Ireland: I answer, Ireland is a conquered country. I do not, however, lay so much stress on this; for it is my opinion, that a conquered country has, upon submission and good behaviour, the same right to be free, under a conqueror, as the rest of his subjects. But the old notion of the right of conquest, has been, in most nations, the cause of many severities and heinous breaches of the law of nature: If any such have taken place with regard to Ireland, they should form no precedent for the colonies. The subordination and dependency of Ireland to Great Britain, is expresly declared by act of parliament, in the reign of G. 1st. The subordination of the Colonies to Great Britain, never was doubted, by a Lawyer, if at all; unless perhaps by the author of the administration of the colonies: He indeed seems to make a moot point of it, whether the colony legislative power is as independent “as the legislative Great Britain holds by its constitution, and under the great charter.” —The people hold under the great charter, as ‘tis vulgarly expressed from our law-books: But that the King and parliament should be said to hold under Magna Charta, is as new to me, as it is to question whether the colonies are subordinate to Great Britain. The provincial legislative is unquestionably subordinate to that of Great Britain. I shall endeavour more fully to explain the nature of that subordination, which has puzzled so many in their enquiries. It is often very difficult for great lovers of power and great lovers of liberty, neither of whom may have been used to the study of law, in any of its branches, to see the difference between subordination, absolute slavery and subjection, on one side; and liberty, independence and licenciousness, on the other. We should endeavour to find the middle road, and confine ourselves to it. The laws, the proceedings of parliament, and the decisions of the judges, relating to Ireland, will reflect light on this subject, rendered intricate only by art.
“Ireland being of itself a distinct dominion, and no part of the kingdom of England (as directly appeareth by many authorities in Calvin’s case) was to have Parliaments holden there as in England.”
4 Inst. 349.
Why should not the colonies have, why are they not entitled to their assemblies, or parliaments, at least, as well as a conquered dominion?
“Wales, after the conquest of it, by Edward, the first, was annexed to England, jure proprietatis, 12 Ed. 1. by the statute of Rutland only, and after, more really by 27 H. 8. and 34, but at first received laws from England, as Ireland did; but writs proceeded not out of the English chancery, but they had a Chancery of their own, as Ireland hath; was not bound by the laws of England, unnamed until 27 H. 8. no more than Ireland is.
Ireland in nothing differs from it, but having a parliament gratia Regis (i.e. upon the old notion of conquest) subject (truly however) to the parliament of England. None doubts Ireland as much conquered as it; and as much subject to the parliament of England, if it please.”
Vaughan. 300.
A very strong argument arises from this authority, in favour of the unconquered plantations. If since Wales was annexed to England, they have had a representation in parliament, as they have to this day; and if the parliament of England does not tax Ireland, can it be right they should tax us, who have never been conquered, but came from England to colonize, and have always remained good subjects to this day?
I cannot find any instance of a tax laid by the English parliament on Ireland. “Sometimes the King of England called his Nobles of Ireland, to come to his parliament of England, &c. and by special words, the parliament of England may bind the subjects of Ireland”—3 Inst. 350—.
The following makes it clear to me, the parliament of Great Britain do not tax Ireland, “The parliament o
f Ireland having been prorogued to the month of August next, before they had provided for the maintenance of the government in that kingdom, a project was set on foot here to supply that defect, by retrenching the drawbacks upon goods exported thither from England. According to this scheme, the 22d, the house in a grand committee, considered the present laws with respect to drawbacks upon tobaccoes, muslins, and East India silks, carried to Ireland; and came to two resolutions, which were reported the next day, and with an amendment to one of them agreed to by the house, as follows, Viz. 1. That three pence pr pound, part of the drawback on tobacco to be exported from Great Britain for Ireland, be taken off.
2. That the said diminution of the drawback do take effect upon all tobacco exported for Ireland, after the 24 of March 1713, and continue until the additional duty of three pence half penny per pound upon tobacco in Ireland, expiring on the said 24th of March, be regranted: And ordered a bill to be brought in, upon the said resolutions.”
Proceedings of House of Commons, Vol. 5. 72.
This was constitutional; there is an infinite difference between taking off British drawbacks, and imposing Irish or other Provincial duties.
“Ireland is considered as a provincial government, subordinate to, but no part of the Realm of England,” Mich. 11. G. 2. in case of Otway and Ramsay—”Acts of parliament made here, (i.e. in England) extend not to Ireland, unless particularly named; much less judgments obtained in the courts here; nor is it possible they should, because we have no officers to carry them into execution there.” ib.
The first part seems to be applicable to the plantations in general, the latter is not; for by reason of charter reservations and particular acts of parliament, some judgments in England may be executed here, as final judgments, before his Majesty in council on a plantation appeal, and so from the admiralty.
It seems to have been disputed in Ireland, so lately as the 6 Geo. 1. Whether any act of the British parliament bound Ireland; or at least it was apprehended, that the undoubted right of the British parliament to bind Ireland, was in danger of being shaken: This, I presume, occasioned the act of that year, which declares, that “the kingdom of Ireland ought to be subordinate unto and dependent upon the Imperial Crown of Great Britain, as being inseparably united thereto. And the King’s Majesty, with the consent of the lords and commons of Great Britain in parliament, hath power to make laws to bind the people of Ireland.”—This parliamentary power must have some bounds, even as to Ireland, as well as the colonies who are admitted to be subordinate ab initio to Great Britain; not as conquered, but as emigrant subjects. If this act should be said to be a declaration not only of the general, but of the universal power of parliament, and that they may tax Ireland, I ask, Why it has never been done? If it had been done a thousand times, it would be a contradiction to the principles of a free government; and what is worse, destroy all subordination consistent with freedom, and reduce the people to slavery.
To say the parliament is absolute and arbitrary, is a contradiction. The parliament cannot make 2 and 2, 5; Omnipotency cannot do it. The supreme power in a state, is jus dicere only;—jus dare, strictly speaking, belongs alone to God. Parliaments are in all cases to declare what is parliament that makes it so: There must be in every instance, a higher authority, viz. GOD. Should an act of parliament be against any of his natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void: and so it would be adjudged by the parliament itself, when convinced of their mistake. Upon this great principle, parliaments repeal such acts, as soon as they find they have been mistaken, in having declared them to be for the public good, when in fact they were not so. When such mistake is evident and palpable, as in the instances in the appendix, the judges of the executive courts have declared the act “of a whole parliament void.” See here the grandeur of the British constitution! See the wisdom of our ancestors! The supreme legislative, and the supreme executive, are a perpetual check and balance to each other. If the supreme executive errs, it is informed by the supreme legislative in parliament: If the supreme legislative errs, it is informed by the supreme executive in the King’s courts of law. —Here, the King appears, as represented by his judges, in the highest lustre and majesty, as supreme executor of the commonwealth; and he never shines brighter, but on his Throne, at the head of the supreme legislative. This is government! This, is a constitution! to preserve which, either from foreign or domestic foes, has cost oceans of blood and treasure in every age; and the blood and the treasure have upon the whole been well spent. British America, hath been bleeding in this cause from its settlement: We have spent all we could raise, and more; for notwithstanding the parliamentary reimbursement of part, we still remain much in debt. The province of the Massachusetts, I believe, has expended more men and money in war since the year 1620, when a few families first landed at Plymouth, in proportion to their ability, than the three Kingdoms together. The same, I believe, may be truly affirmed, of many of the other colonies; tho’ the Massachusetts has undoubtedly had the heaviest burthen. This may be thought incredible: but materials are collecting; and tho’ some are lost, enough may remain, to demonstrate it to the world. I have reason to hope at least, that the public will soon see such proofs exhibited, as will show, that I do not speak quite at random.
Why then is it thought so heinous by the author of the administration of the colonies, and others, that the colonists should aspire after “a one whole legislative power” not independent of, but subordinate to the laws and parliament of Great-Britain? . . . It is a mistake in this author, to bring so heavy a charge as high treason against some of the colonists, which he does in effect in this place, by representing them as “claiming in fact or indeed, the same full free independent unrestrained power and legislative will, in their several corporations, and under the King’s commission, and their respective charters, as the government and legislature of Great-Britain holds by its constitution and under the great charter.” No such claim was ever tho’t of by any of the colonists. They are all better men and better subjects; and many of them too well versed in the laws of nature and nations, and the law and constitution of Great-Britain, to think they have a right to more than a provincial subordinate legislative. All power is of GOD. Next and only subordinate to him, in the present state of the well-formed, beautifully constructed British monarchy, standing where I hope it ever will stand, for the pillars are fixed in judgment, righteousness and truth, is the King and Parliament. Under these, it seems easy to conceive subordinate powers in gradation, till we descend to the legislative of a town council, or even a private social club. These have each “a one whole legislative” subordinate, which, when it don’t conteract the laws of any of its superiors, is to be indulged. Even when the laws of subordination are transgressed, the superior does not destroy the subordinate, but will negative its acts, as it may in all cases when disapproved. This right of negative is essential, and may be inforced: But in no case are the essential rights of the subjects, inhabiting the subordinate dominions, to be destroyed. This would put it in the power of the superior to reduce the inferior to a state of slavery; which cannot be rightfully done, even with conquered enemies and rebels. After satisfaction and security is obtained of the former, and examples are made of so many of the latter, as the ends of government require, the rest are to be restored to all the essential rights of men and of citizens. This is the great law of nature: and agreeable to this law, is the constant practice of all good and mild governments. This lenity and humanity has no where been carried further than in Great Britain. The Colonies have been so remarkable for loyalty, that there never has been any instance of rebellion or treason in them. This loyalty is in very handsome terms acknowledged by the author of the administration of the colonies. “It has been often suggested that care should be taken in the administration of the plantations, lest, in some future time, these colonies should become independent of the mother country. But perhaps it may be proper on
this occasion, and, it is justice to say it, that if, by becoming independent, is meant a revolt, nothing is further from their nature, their interest, their thoughts. If a defection from the alliance of the mother country be suggested, it ought to be, and can be truly said, that their spirit abhors the sense of such; their attachment to the protestant succession in the house of Hanover, will ever stand unshaken; and nothing can eradicate from their hearts their natural and almost mechanical, affection to Great Britain, which they conceive under no other sense nor call by any other name than that of home. Any such suggestion, therefore, is a false and unjust aspersion on their principles and affections; and can arise from nothing but an intire ignorance of their circumstances.” After all this loyalty, it is a little hard to be charged with claiming, and represented as aspiring after, independency. The inconsistency of this I leave. We have said that the loyalty of the colonies has never been suspected; this must be restricted to a just suspicion. For it seems there have long been groundless suspicions of us in the minds of individuals. And there have always been those who have endeavoured to magnify these chimerical fears. I find Mr. Dummer complaining of this many years since.