UT to return to the fubject of taxation: I find that "the lords and commons cannot be charged with any thing for the defence of the realm, for the fafe-guard of the fea, &c. unlefs by their will in parliament."

Ld. Coke, on Magna Charta, Chap. 30. Impofitions neither in time of war, or other the greatest neceflity or occafion that may be, much lefs in time of peace, neither upon foreign or inland commodities, of what nature foever, be they never fo fuperfluous or unneceffary, neither upon merchants, hangers, or denizens, may be laid by the King's abfolute power, without alient of parliament, be it never fo short a time."

Viner Prerogative of the King, Ea. 1. cites 2 Molloy. 320 Cap. 12. iec. 1. "In the reign of Edward III. the Black Prince of Wales having Aquitain granted to him, did lay an impotition of fuage or tocage a foco, upon his fubjects of that dukedom, viz. a fhilling for every fire, called hearth filver, which was of fo great difcontentment and odious to them, that it made them revolt. And nothing fince this time has been impofed by pretext of any prerogative, upon merchandizes, imported into or exported out of this rean, until Queen Mary's time."

2 Inft. 61. Nor has any thing of that kind taken place fince the revolution. King Charles I. his fhipmoney every one has heard

of.

It may be faid that thefe authorities will not ferve the colonists, because the duties laid on them are by parliament. I acknowledge the difference of fact; but cannot ice the great difference in equity, while the colonifts are not reprefented in the houfe of commons: And therefore with all humble deference I apprehend, that till the colonists are fo reprefented, the spirit of all these authoritics will argue Arongly in their favour. When the parlament fhall think fit to allow the colo

nifts a reprefentation in the house of commons, the equity of their taxing the colonies will be as clear as their power is at prefent of doing it without, if they pleafe. When Mr. Dummer wrote his defence of the charters, there was a talk of taking them away, by act of parliament. This defence is dedicated to the right honourable the Lord Carteret, then one of his Majefty's principal fecretaries of state, fince Earl of Granville. His third propofition is, that " it is not for the intereft of the crown to refume the charters, if forfeited." This he proves; as alfo that it would be more for the intereft of Great-Britain to enlarge, rather than diminith, the privilege of all the colonists. His last propofition is, that it "feems inconfiftent with juftice to disfranchise the charter colonies by an act of parliament."

"It seems therefore, fays he, a feverity without a precedent, that a people, who have the misfortune of being a thousand leagues diftant from their fovereign, a misfortune great enough in itself, thould, untummoned, unheard, in one day, be deprived of their valuable privileges, which they and their fathers have enjoyed for near a hundred years." It is true, as he obferves, "the legiflative power is abfolute and unaccountable, and King, lords and commons, may do what they pleafe; but the question here is not about power, but right" (or rather equity) "and fhall not the fupreme judicature of all the nation do right? "One may say, that what the parliament cannot do justly, they cannot do at all. In maximis minima eft licentia. The higher the power is, the greater caution is to be ufed in the execution of it; because the fofferer is helpless and without refort." I never heard that this reafoning gave any offence. Why should it? Is it not exactly agreeable to the decifions of parliament and the determinations of the highest executive courts? (See the Appendix.) But if it was thought hard that charter privileges fhould be taken away by act of parliament, is it not much harder to be in part, or in whole, disfranchifed of rights, that have been always thought inherent to a British fubject, namely, to be free from all taxes, but what he confents to in perfon, or by his reprefentatives? This right, if it could be traced no higher than Magna Charta, is part of the common law, part of a British fubjects birthright, and

as

as inherent and perpetual, as the duty of allegiance; both which have been brought to thefe colonies, and have been hitherto heid facred and inviolable, and I hope and truft ever will. It is humbly conceived, that the British colonifts (except only the conquered, if any) are, by Magna Charta, as well entitled to have a voice in their taxes, as the fubjects within the realm. Are we not as really deprived of that right, by the parliament affeffing us before we are reprefented in the houfe of commons, as if the King fhould do it by his prerogative? Can it be faid with any colour of truth or juftice, that we are reprefented in parliament?

As to the colonists being reprefented by the provincial agents, I know of no power ever given them, but to appear before his Majesty, and his ministry. Sometimes they have been directed to petition the parliament: But none of them have, and I hope never will have, a power given them, by the colonists, to act as reprefentatives, and to confent to taxes; and if they fhould make any conceflions to the miniftry, especially without order, the provinces could not by that be confidered as reprefented in parliament.

Hibernia habet Parliamenta & faciunt leges et noftra ftatuta non ligant eos, quia non mittant milites ad Parliamentum, fed perfona eorum funt subjecti Regis, ficut inbabitantes Calina Gajconia & Guiena.

12 Rep. 111. cites R. 3. 12"Ireland hath parliaments, and make laws, and our ftatutes do not bind them, because they fend no knights to parliament; but their perfons are fubjects of the King, as the inhabitants of Guiene, Galcony, &c."

Yet, if fpecially named, or by general words included as within any of the King's dominions, Ireland, fays Ld. Coke, might be bound.

4 Inft. 351. From all which, it feems plain, that the reason why Ireland and the plantations are not bound, unlefs named by an act of parliament, is, because they are not reprefented in the British parliament. Yet, in fpecial cafes, the British parliament has an undoubted right, as well as power, to bind both by their acts. But whether this can be extended to an indefinite taxation of both, is the great question. I conceive the fpirit of the British conftitution must make an exception of all taxes, until it is thought fit to unite a domi

nion to the realm. Such taxation must be confidered either as uniting the dominions to the realm, or disfranchiting them. If they are united, they will be intitled to a reprefentation, as well as Wales; if they are fo taxed without a union, or reprefentation, they are fo far disfranchifed.

I do not find any thing that looks like a duty on the colonies before the 25th of C. II. c. 7. impoling a duty on innumerated commodities. The liberty of the fubject was little attended to in that reign. If the nation could not fully affert their rights till the revolution, the colonies could not expect to be heard. I look upon this act rather as a precedent of power, than of right and equity; if it is such, it will not affect my argument. The act appointing a tax on all mariners, of a certain fum per month, to be deducted out of their wages is not to be compared with this. Mariners are not inhabitants of any part of the dominions; the fea is their clement, till they are decripit, and then the hofpital is open for all mariners who are British fubjects without exception. The general poft-office eftablished through the dominions, is for the convenience of trade and commerce: it is not laying any burthen upon it; for befides that it is upon the whole cheaper to correfpond in this way than any other, every one is at liberty to fend his own letters by a friend. The act of the 6th of his late Majefty, though it impofes a duty in terms, has been laid to be defigned for a prohibition; which is probable from the fums impofed; and it is a pity it had not been to expreffed, as there is not the leaft doubt of the juft and equitable right of the parliament to lay prohibitions through the dominions, when they think the good of the whole requires it. But as has been faid, there is an infinite difference between that and the excrcife of unlimited power of " taxation, over the dominions, without allowing them a reprefentation:"It is faid that the duties impofed by the new act will amount to a prohibition: Time only can afcertain this. The utility of this act is fo fully examined in the appendix, that I fhall add nothing on that head here. It may be faid that the colonies ought to bear their proportion of the national burdens: It is just they should, and I think I have proved they have always done it freely and chearfully, and I know no reafon to doubt but they ever will.

Sometimes

Sometimes we have been confidered only as the corporations in England: And it may be urged that it is no harder upon us to be taxed by parliament for the general caufe than for them, who befides are at the expence of their corporate fubordinate government*. I answer, 1. Thofe corporations are reprefented in parliament. 2. The colonies are and have been at a great expence in raifing men, building forts, and fupporting the King's civil government here. Now I read of no governors and other officers of his Majefty's nomination, that the city of London taxes its inhabitants to fupport; I know of no forts and garrisons that the city of London has lately built at its own expence, or of any annual levies that they have rated for the King's fervice and the common caufe. There are things very fitting and proper to be done by a fubordinate dominion, and it is their duty to do all they are able; but it feems but equal they fhould be allowed to affefs the charges of it themselves. The rules of equity and the principles of the conftitution feem to require this. Thofe who judge of the reciprocal rights that fubift between a fupreme and fubordinate state or dominion, by no higher rules than are applied to a corporation of button-makers, will never have a very comprehenfive view of them. Yet, forry am I to fay it, many elaborate writers on the administration of the colonies, seem to me never to rife higher in their notions, than what might be expected from his fecretary to one of the quorum. If I should be ranked among this number, I fhall have this confolation, that I have fallen into what is called very good company, and among fome who have feen very high life below Itairs. I agree with the Administrator, that of whatever revenues aned in the colonies, if they must be railed without our confent," the firft and special appropriation of them ought to be to the paying the Governors, and all the other Crown officers;" for it would be hard for the Colonilts to be obliged to pay them after this. It was on this principle that at the last assembly of this province, I moved to stop every grant to the officers of the Crown; more especially as I know foine who have built very much upon the fine falaries they fhall receive from the plantation branch of the revenue. Nor can I

See Administration of the Colonies.

think it" injuftice to the frame of human nature," to fuppofe, if I did not know it, that with fimilar views feveral officers of the Crown in fome of the colonies have been pushing for fuch an act for many years. They have obtained their with, and much good it will do them: but I would not give much for all that will center net in the Exchequer, after deducting the cofts attending the execution of it, and the appropriations to the feveral officers propofed by the Adminiftrator. What will be the unavoidable confequence of all this, fuppofe another war fhould happen, and it should be neceffary to employ as many provincials in America as in the laft? Would it be poffible for the colonies, after being burthened in their trade, perhaps after it is ruined, to raise men? Is it probable that they would have fpirit enough to exert themselves? If it is faid the French will never try for America, or if they should, regular troops are only to be employed. I grant our regular troops are the best in the world, and that the experience of the prefent officers fhews that they are capable of every species of American fervice; yet we should guard against the worst. If another trial for Canada fhould take place, which from the known temper of France, we may judge fhe will bring on the first fair opportunity, it might require 30 or 40,000 regulars to fecure his Majefty's juft rights. If it fhould be faid, that other American duties must then be levied, befides the impoffibility of our being able to pay them, the danger recurs of a large ftanding army fo remote from home. Whereas a good provincial militia, with fuch occafional fuccours from the mother country, as exigencies may require, never was, and never will be attended with hazard. The experience of paft times will fhew, that an army of 20 or 30,000 veterans, half 3000 miles from Rome, were very apt to proclaim Cæfars. The first of the name, the affaffin of his country owed his falle glory, to stealing the affections of an army from a commonwealth. I hope thefe hints will not be taken amifs; they feem to occur from the nature of the fubject I am upon: they are delivered in pure affection to my King and country, and amount to no reflection on any man. The beft army, and the best men, we may hereafter

* Adm. p. 57.

have, may be led into temptation; all I think, is, that a prevention of evil is much eafier than a deliverance from it.

The fum of my argument is, that civil government is of God: that the adminitrators of it were originally the whole people that they might have devolved it on whom they pleased: that this devolution is fiduciary, for the good of the whole that by the British conftitution, this devolution is on the King, lords and commons, the fupreme, facred and un

controulable legislative power, not only

in the realm, but through the dominions: that by the abdication, the original compact was broken to pieces: that by the revolution, it was renewed, and more firmly established, and the rights and liberties of the subject in all parts of the dominions, more fully explained and confirmed: that in confequence of this eftablishment and the acts of fucceffion and union, his Majefty GEORGE III. is rightful king and fovereign, and with his parliament, the fupreme legislative of Great Britain, France and Ireland, and the dominions thereunto belonging: that this conftitution is the most free one, and by far the beft, now exifting on earth: that by this conftitution, every man in the dominions is a free man: that no parts of his Majef ty's dominions can be taxed without their confent: that every part has a right to be reprefented in the fupreme or fome fubordinate legislature; that the refufal of this, would feem to be a contradiction in practice to the theory of the conftitution: that the colonies are fubordinate dominions, and are now in fuch a state, as to make it beft for the good of the whole, that they should not only be continued in the enjoyment of fubordinate legiflation, but be alfo reprefented in tome proportion to their number and eftates in the grand legiflation of the nation: that this would firmly unite all parts of the British em pire, in the greatest peace and profperity; and render it invulnerable and perpe tual.

APPENDIX.

The City of Boflon, at their annual meeting in May, 1764, made choice of Richard Dana, Jofeph Green, Nathaniel Bethune, John Ruddock, Efqrs; and Mr. Samuel Adams, to prepare INJanuary, 1765,

STRUCTIONS for their REPRESENTATIVES.

The following Inftructions were reported by faid Committee, and unanimously Voted.

To Royal Tyler, James Otis, Thomas Cufbing, and Oxenbridge Thacher, Ejqrs.

GENTLEMEN,

YOUR being chofen by the freehol

ders and inhabitants of the town of Bofan, to reprefent them in the general affembly the ensuing year, affords you the ftrongeit teftimony of that confidence which they place in your integrity and capacity. By this choice they have delegated to you the power of acting in their public concerns in general, as your own prudence fhall direct you; always referving to themfelves the conftitutional right of expreffing their mind, and giving you fuch instruction upon particular matters, as they at any time fhall judge proper,

We therefore, your conftituents, take this opportunity to declare our jutt expectations from you,

That you will conftantly use your power and influence in maintaining the invaJuable rights and privileges of the province, of which this town is fo great a part: As well thofe rights which are derived to us by the royal charter, as thofe which being prior to and independent on it, we hold effentially as freeborn fubjects of Great Britain;

That you will endeavour, as far as you fhall be able, to preferve that independence in the houfe of reprefentatives, which characterises a free people; and the want of which may in a great measure prevent the happy effects of a free government: cultivating as you fhall have opportunity, that harmony and union there, which is ever defirable to good men, when founded on principles of virtue and public fpirit; and guarding against any undue weight which may tend to difadjust that critical balance upon which our happy conftitution, and the bleffings of it do depend. And for this purpofe, we particularly recommend it to you to ufe your endeavours to have a law palled, whereby the feats of fuch gentle men as fhall accept of pots of profit from the crown, or the governor, while they

D

arc,

Sometimes we have been confidered only as the corporations in England: And it may be urged that it is no harder upon us to be taxed by parliament for the general caufe than for them, who befides are at the expence of their corporate fubordinate government. I answer, 1. Thofe corporations are reprefented in parliament. 2. The colonies are and have been at a

great expence in raifing men, building forts, and fupporting the King's civil government here. Now I read of no governors and other officers of his Majesty's nomination, that the city of London taxes its inhabitants to fupport; I know of no forts and garrisons that the city of London has lately built at its own expence, or of any annual levies that they have rafed for the King's fervice and the common caufe. There are things very fitting and proper to be done by a fubordinate dominion, and it is their duty to do all they are able; but it feems but equal they fhould be allowed to affefs the charges of it themselves. The rules of equity and the principles of the conftitution feem to require this. Thofe who judge of the reciprocal rights that fublift between a fupreme and fubordinate state or dominion, by no higher rules than are applied to a corporation of button-makers, will never have a very comprehenfive view of them. Yet, forry am I to fay it, many elaborate writers on the administration of the colonies, seem to me never to rife higher in their notions, than what might be expected from his fecretary to one of the quorum. If I thould be ranked among this number, I fhall have this confolation, that I have fallen into what is called very good company, and among fome who have feen very high life below Itairs. I agree with the Ádministrator, that of whatever revenues rained in the colonies, if they must be railed without our content," the firft and Special appropriation of them ought to be to the paying the Governors, and all the other Crown officers;" for it would be hard for the Coloniits to be obliged to pay them after this. It was on this principle that at the lat affembly of this province, I moyed to stop every grant to the officers of the Crown; more especially as I know fome who have built very much upon the fine falaries they fhall receive from the plantation branch of the revenue. Nor can I

See Administration of the Colonies.

think it injuftice to the frame of human nature*,* to fuppofe, if I did not know it, that with fimilar views feveral officers of the Crown in fome of the colonies have been pushing for fuch an act for many years. They have obtained their with, and much good it will do them: but I would not give much for all that will center net in the Exchequer, after deducting the cofts attending the execution of it, and the appropriations to the feveral officers propofed by the Adminiftrator. What will be the unavoidable confequence of all this, fuppose another war fhould happen, and it should be neceffary to employ as many provincials in America as in the laft? Would it be poffible for the colonies, after being burthened in their trade, perhaps after it is ruined, to raise men? Is it probable that they would have fpirit enough to exert themselves? If it is faid the French will never try for America, or if they fhould, regular troops are only to be employed. I grant our regular troops are the best in the world, and that the experience of the prefent officers fhews that they are capable of every fpecies of American fervice; yet we fhould guard against the worst. If another trial for Canada fhould take place, which from the known temper of France, we may judge the will bring on the first fair opportunity, it might require 30 or 40,000 regulars to fecure his Majefty's juft rights. If it fhould be faid, that other American duties muft then be levied, befides the impossibility of our being able to pay them, the danger recurs of a large standing army fo remote from home. Whereas a good provincial militia, with fuch occafional fuccours from the mother country, as exigencies may require, never was, and never will be attended with hazard. The experience of past times will shew, that an army of 20 or 30,000 veterans, half 3000 miles from Rome, were very apt to proclaim Cæfars. The firft of the name, the affaffin of his country owed his falle glory, to stealing the affections of an army from a commonwealth. I hope there hints will not be taken amifs; they feem to occur from the nature of the fubject I am upon: they are delivered in pure affection to my King and country, and amount to no reflection on any man. The beft army, and the beft men, we may hereafter

Adm. p. 57.