USA > South Carolina > Documentary history of the American revolution: consisting of letters and papers relating to the contest for liberty, chiefly in South Carolina, from originals in the possession of the editor, and other sources, V.1 > Part 3
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5. That equally as the people of England are interested in the inde. pendence of their Judges, so are we interested in the independence of our Judges; and upon principles of common and impartial justice, lain that their commissions should run, quam diu se bene gesserint.
6. That no writs of assistance ought to be issued to the Customs. but in the nature of writs or warrants to search for goods stolen-general writs or warrants being illegal.
7. That the powers of the American Courts of Admiralty, unnecessa- rily and oppressively trenching upon the property and liberty of the subject, therefore they ought to be modelled more agreeable to the gen- uine principle of the common law.
8. That the King's prerogative ought not, and cannot of right. he more extensive in America, than it is by law limited in England
9. That the Americans, are of natural right entitled to all and singn- lar, those inherent, though latent. powers of society, necessary for the safety, preservation, and defence of their just clairos, rights and litertics
* 7 Parliamentary History 371 .- Year Books, 20 HI. 6 : 3 .- 2 R. 3: 12 .- 25 Car. 2 : 2. 9 CI
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herein specified, which no contract, no constitution, no time, no climate can destroy or diminish .*
"And they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties; and that no declara- tions, judgments, doings, or proceedings, to the prejudice of the people in any 'of the said premises, ought in any wise to be drawn hereafter into consequence or example."+
To which demand of their rights, they are particularly encouraged by a reliance on the virtues of their sovereign Lord George; convinced that this their demand, is the most peaccable means they have to obtain a full redress and remedy therein, on which the good intelligence, between his most sacred majesty and his oppressed people of America, doth much depend.
Having. therefore, an entire confidence that the Crown of Great Britain will preserve them from the violation of their rights, which they have here asserted-and from all other attempts upon their rights and liberties-the said people of America by their deputies afuresaid, do resolve :1
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 consti- tutionally required of and granted in the Parliament of Great Britain.
3. That all general aide from America to the Crown, and laws bind- ing 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 respec- tively, 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.
* 1 Blackstone, 245.
+ Bill of Rights, I. W. & M. t Ibid.
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5. That the high court of assembly, shall not however, be deemed or construed to possess any right or power, but of a general nature-as, that all penalties and Acts of Legislation to be enacted in it, shall in the stune degree, bind all and cach 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 wpm 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 cach 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 state 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 ald, than otherwise would be rated. And if the whole continent should be thought too extensive under one Legisl :- ture, that impropriety could be easily remedied, by dividing the whole into two Districts as nearly equal as may be -- a 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 there- 1 fore I will attempt to shew that the present state of American griev- ances are too well founded in fact, and her claims too just to be speci- ously 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 greut Commoner, I will consider the subject, illuminated by the ideas of the illustriutti 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, ou the subjects of taxation and actual representation, in the clearest
* 25 Car. 2.
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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 there- fore 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 constitu- tional taxation, without an actual representation : or, why an actual re- presentation 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 dif- ference 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 colony-counsellors, because they are sent over to fill offices of €200 or 2300 per annum, as their only subsistance in life. Thus, strangers, not to be supposed very so- licitous abont the prosperity of the colony, in which they have no in- terest but their commissions, are, as legislators, to determine upon the res ardua of the State; and, ignorant of our law, and too often unex- pectedly so of the English law, they are, as Chancellors, to decree in cases of the most important value to the colonist. Unfortunate colo- nist ! 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.
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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 sub. sistence 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 laws -- the one, men of property-the other, men without the visible shadow of independence-hence the only apparent motive for a contrariety of con- duct 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 ono * 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. er-omcio, on the part of the customs, from time to time, during several years, made application to obtain writs of assistance-of a more pernicious nature than general warrants. The demand, even under the direction of an act of Parliament. was constantly refused. The judges know 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 ou 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 cr rn for their daily bread, than the Attorney General, ex-officio, returned o the attack, and carried the point even by a coup d' essai. Then was no investigation of the merits-the general writ, or rather the central warrant for breaking open doors, at the pleasure of a petty officer, was
* Rawlins Lowndes, Esq.
, 5 Parl. Hist., 119.
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granted, as a matter of course, and without any hesitation. The con- trast and the causes are striking, and need no comments. Equally un- necessary 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 for- midable 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 ouly 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 en- abling persons charged with murder in Massachusetts Bay to Hy the colony ; I hold on my way, to fly at objects of more importance-of greater grievance-the increase for royal power by annibilation of popu- lar rights in Massachusetts Bay-a 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 Massachu- setts Bay was founded without violence, therefore, there is a wide dis- tinecion 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 vio- lence. But, in truth, the English law considers the colony of Massa- chusetts Bay and the province of Quebec by one and the same prin- ciple, 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 despotie power totally different from, and for- ever 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
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America; since the law considers them all but in one and the same light.
It is laid down that. "in conquered or celled countries that have al- ready 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 even desired more in point to shew that Quebec, Massachusetts Bay, Virginin and Carolina are exactly in one and the same situation ? . Which .. f 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. de- structive of those rights which are peculiar to the blood-rights evi- denced 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 bows heterogeneous to the purposes of their own creation and existence. 1. 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 to it any appearance heterogeneous to the parent tree ; so the American plint. being animated with the same species of sap with the English trec. the plant, however connected with the parent tree, cannot naturally pro- duce any heterogeneous appearance. Thus, even allowing the courtin- tional power of Parliament to pervade the English States in America, it can naturally produce those effects only of which the colonies area. pable, and cannot legally produce in their legislatures any appastine heterogeneous to its own nature and capability of action. Thus, it has not any legal or natural power to make the British crown aholare 10 Quebec, because it cannot make the crown absolute in Great Britain;
* 7 Rep., 17 Calvin's case. Show. Parl. C. 31.
+ 1 Blackstone, 107.
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neither can Parliament vest in the crown more power in the legislature of Massachusetts Bay than it is capable of exercising in the Emperial 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 t.) rest, or to the nature of the other to admit. The prerogative of Parlia- ment, 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 inju- rious 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 Bay-by incapacitating subjects of English blood in Quebec from enjoying the benefits of re- presentation there-and 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 Parlia- ment 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 Cæsar, un- constitutional 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 through- out the whole Empire !
I cannot but now return to consider an object I beld as of an inferior
៛ Finch L. 34, 25.
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nature when despotism was in view. It is the privilege granted to per- sons 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 proceedings, 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 con- viction, 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 ; ba- sides, 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 says, that when the legions, being encamped. were oppressed by their con- turions, and in a clamorous manner demanded justice of the generais. 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 com- mons 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 quarter- ing 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
* Rambler. No. 145.
f Anno 162S.
+ 7 Parliamentary History, 447.
.
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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 indispensibly 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 con- stitutionally bound to pay taxes, or to provide quarters for soldiers, by authority of Parliament.
Bat soldiers are nevertheless to be quartered in the houses of Ameri- can 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 pre- sented 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 riffe 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.
1. 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, cor- rupted 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 out- rages are generally complained of, from all parts where these companies have been and have their abode-few 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 Amer-
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