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 4
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THE AMERICAN REVOLUTION.
irans froma 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 solliery, and thereby casily en- couraged to leave their trades, and to "live idly at another min's charge ;" that ways will be dangerous, and robberies, batteries, bur- glaries, rapes, and seductions will be unavoidable, even under the disei- pline established among British troops, quartered as curbs upon the Americans. For to make the Americans feel the curb, they will be de- cently turbulent, even by private allowance
Thus, it is as clear as the sun at noon, that the taxation of America ; the constitution of couneils 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 assistauce to the customs ; the oppressive powers vested in the courts of admi- ralty ; the British Parliament exercising a power to bind the colonics, in all cases whatsoever, from the violation of private property eren up to the establishment of a despotism in America ; and in the billeting soldiers in America, are all unconstitutional illegal, and oppressive-grievances crying aloud for redress, and heightened by a keenly affecting sensa- tion, arising from the appearance of the British arms by land and sea, now threateningly advanced, to continue and to enforce such oppressions and to eompel 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 unalien- able rights and liberties, by Magna Charta, and by the petition of right- liberties recognized anew by the bill of rights, and by the Act of Settle- ment. 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 freedom-a title of infinitely more importance, than the colonial charters from the Crown.
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Therefore, like the people of Durham, the Americans being freeholders of the British Crown, these cannot constitutionally be taxed by Parlia- ment, 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 Datham had such a representation in Parliament, of their own election as other counties have there-that 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 countries 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 lim- ited 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 taxation-and vet. 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 men 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 ask- ing iny 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 con- sent. 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
* Locke on Civil Government, 205-Eccl. Pol. 1. 1 sect. 10.
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time ever given any such consent ; and therefore, any taxation or legis- lation by the British Parliament over America against her consent. "is no better than a more 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 dukedoms-but we have an equi- table 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 constitu- tion. 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 desti -. tute of property and natural alliance in the colonies. Thus. fron 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 peo- ple of England hold the King's Privy Council, if a majority of it con- sisted of unstarts 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, fall judicial power whatever in the King and Privy council; so, for the same reason it is necessary that judicial powers 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 influ- ence 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 constitu- tion. than uniting the provinces of a Judge and Minister of State :+ fortiori a Governor, who is the executive power-" which union might soon be an overbalance for the legislative."'s
Heuce 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
# 1 Blackstone, 269. + 16 Car. 1 e. 10. ± 1 Blackstone, 269. 2 Ibid.
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shall proceed to demonstrate, that such a dangerous junction of power, is lirectly 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, prerog- atives, 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 laws of the Kingdomit Hence it is clear, the King cannot delegate t : 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, good. hoc, cannot be any more than the reservoir from whence right and equity are conducted, "by the Judges of his several Courts," to every indi- vidual.3
'Thus disponsorant 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 sub- ject. 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 enor- mous, 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 inen, 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 unde- niable manner -- but, I connot condescend to hang up particular charac- ters to the contempt of America-my letter is of too important a nature-I owe a propriety of conduct to my own character. I therefore
# 2 Inst. 136.
12 Hawk. P. C. 2.
± 2 Inst. 136. 21 Blackstone, 266.
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resunie 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 ; but 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 unavoid- ably 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 sonte ade- quate relief in a grievance arising from local situation ? Whence came the institution of Circuits, but from such an equity ! And surely Amer- ira ! 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, it 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.
Having thus supported the equity of appeals to Tribunals in the Colonies, it is our next step, to support the propriety of appeals from thence to the House of Lords in England.
There is a position in law, that whenever a question concerning property arises in America; as the dernier resort, the King in his Council exercises original jurisdiction therein, upon principles of feodal sovereignty .; And upon this doctrine it is, that our appeals have not yet reached the House of Lords. To oppose this position, I shall make use of two others; the one ancient, the other very modern. It is laid down as common law, by Sir Edward Coke, that the King cannot per- sonally distribute justice, having delegated his whole judicial power to the judges of his several Courts. Hence it must follow that the King
* That a dernier resort cannot be lodged in a dependent state, because the law ap- pointed 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 superiority. VACGH. 402.
+ 1 Blackstone, 231.
.
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in his person, cannot exercise an original judicial power upon the prin- ciples of feodal sovereignty, over the property of a country having the benefit of the common law. The question therefore is. whether or not America is such a country ?
The nature of the operation of the Common Law in establishments of natural English subjects in America, as it is a point that has been more minutely enquired into within these eight or ten years, than ever it was at any time before. so without doubt, that point of law is better under- stood at this day, than at any time preceding. Hence, notwithstanding it has been laid down, that the Common Law has no natural operation in the American colonies obtained by conquest or treaties .* yet the more modern and better position now established as a settled point is. that English subjects ewigrating from England to colonize America, carry with them, inherently in their persons, a title, which is unolien- able, and which no time or climate can invalidate, to enjoy the benefits of the common law in America; where, upon their arrival, it is en instanti of force. And such were the lares our forefathers religiously embarked with themselves, to protect them and their posterity in the wills of America! Thus undoubtedly possessed of the birthrights of Englishmen-rights evidenced by Magna Charta : shall we suffer them to be frittered away, or in any degree to be invalidated by a fiction, and artificial refinement of original judicial power, upon principles of feodal sovereignty? Shall an original sovereignty, long annihilated in the English Crown by common law, now be permitted to revive by a fiction, to destroy original rights. expressly and often ascertained by the fore- fathers of the Americans, and admitted as often by the Kings of Eng- land ? To expect this, is to think that the Americans have no reason- ing faculties. Bnt supposing the position to be true, that the common law not naturally operating in America, the Crown therefore possessed in appeals, an original jurisdiction, upon the principles of feodal sove- reiguty. Yet of what importance can this be in support of the jurisdic- tion, since it must cease when the common law operates, which it has long since done in America ; and besides the Crown, in the most express terms, has relinquished such a jurisdiction, if it could have had any sugh, by the charters granted to the American colonies? In these charters, the Crown has covenanted with the emigrants to America, that they and their descendants there to be born, shall be in all things held, treated, and reputed as the liege faithful people of us, our heirs and
*1 Blackstone, 107.
+ Carolina Charter, 17 Car. 2.
THE AMERICAN REVOLUTION.
successors born within this our kingdom, to have and enjoy all liberties, franchises and privileges of this our Kingdom of England. as our liege people born within the same .* Can words be more explicit ? Has not the Crown by this covenant relinquished the idea of feodal sovereignty ? Otherwise, how are the Americans to be deemed to have and enjoy all the liberties and franchises of England, as in like manner with the liege people born there ? And as we know the Crown has no feodal sove- reignty over them, and cannot exercise any original jurisdiction over their appeals, so neither can it legally arrogate a right to exercise an original jurisdiction over appeals from America, whose inhabitants the Crown has, by Charters, declared shall be held, and reputed to have and enjoy all the liberties and franchises of England, in like manner as the people of England themselves. At this period, the King's right to an appellate jurisdiction over disputes about American property, seems absolutely annihilated, to all intents and purposes to which arguments can operate. However, I shall continue the subject, in order to settle it by a point of law.
It is laid down that the powers which are vested in the Crown by the laws of England, are necessary for the support of society, and do not intrench any farther on our natural liberties, than is expedient for the maintenance of our civil.+ Nothing can be more equitable than such a principle of law. America joins issue upon it. She pleads that the civil liberties of Great Britain and of America cannot sustain any pre- judiee by American appeals being carried to the House of Lords, and produces that mode of proceeding from Ireland as evidence of the pro- priety of the plea. Bracton says, nihil aliud potest Rex, nisi id solum quod de jure potest. How then, by any fiction, can the prerogative withhold appeals from being carried to the House of Lords, when such a measure is not " expedient for the maintenance of our civil liberties ?" Or how can the prerogative militate, to the partial violation of an express Statutet enacting, that the King and Privy Council shall not "by English bill, petition, articles, libel, or any other arbitrary way whatsoever, examine or draw into question, determine or dispose of the lands, tenements, hereditaments, goods or chattels of any of the subjects of this Kingdom ?" Were not our forefathers Englishmen, and are not we, their descendants, subjects of England ? Yes, but the Statute does not respect Americans, no mention is made of them. Strange ! that it must be construed so very strictly, as not to admit the common import
# Carolina Charter, 17 Car. 2. * 1 Blackstone, 237. ± 16 Car. 1: c. 10. 3
vi
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of the words, "any of the subjects," nay, the commonly equitable con- struction of those words." Can it be imagined that the justice, and equitable policy of that Parliament, meant to subject the Americans of that period, to the judgment of a tribunal they themselves no longer dared to trust ? Would not such a sacrifice of the Americans, be the highest violation of justice ? The Parliament thought so, and included the Americans under the expression "any of the subjects of this King- dom," in like manner as Ireland is construed to be included under the general words "within any of the King's dominions .* Thus, I may safely lay it down, as a point of law not to be denied, that the Statute of' Charles, does incapacitate the King and Privy Council from exercising, over the property of Americans, subjects of the English Crown, any judicial power whatsoever, except in appeals from the Court of _Admi- ralty.+ And farther, that no Act of Assembly of a dependent colony, an inferior state, can vest in the English Crown, the imperial state, any power or jurisdiction to be exercised in the imperial state, or even to appertain to the Crown of England, which the law of the imperial dominion of England expressly says cannot vest in, or appertain to the Crown to be exercised over "any of the subjects of the Kingdom." I here rest the point relative to the King's appellate jurisdiction over American property. I shall however, continue the subject upon an entire new ground of argument. not with any design, more firmly to establish our claim of exemption from such a jurisdiction, but for the sole purpose of claiming objects, in their nature unlimited, and of the utmost importance to the liberties of America.
It is laid down, that the fundamental right of Englishmen is that residuum of natural liberty, which is not required by the laws of society to be sacrificed to publie convenience. Hence, I may safely lay it down, that at any time when, the public convenience no longer requir- ing, the law of society remits a sacrifice of a particular natural lib- erty; then that natural liberty reverts en instanti to the residuum, for the benefit and advantage of the common and joint heirs of that resi- duum, to all intents and purposes, as if it had never at any time been separated from it, to be sacrificed to the public convenience. Thus, there cannot at any time be an increase of liberty to the English sub- ject, but what his ancestor coeval with the Constitution was absolutely possessed of, and then separated from the residuum, to be sacrificed as long as the public convenience should require it, with remainder-
* 1 Blackstone, 101.
+ 6 Anne: c. 37.
*1 Blackstone, 129.
1686598
THE AMERICAN REVOLUTION. · 35
over to revert to the residuum vesting in his heirs. The conclusion therefore must be, that whenever an Act of Parliament remits the sac- rifice of a natural liberty, and thereby, ipso facto, re-annexes it to the main stock of the residuum, it becomes a part of that residuum as if it had never been separated from it; and the Americans being with the people of England, equal heirs of this residuum, however increased by the remainders-over resulting to it, must at once enter into possession of this natural liberty, now again become a component part of the real- duum, without any necessity of their being mentioned in the public Art, signifying that the public convenience no longer requires a sacrifice of that particular natural liberty, or exemption from the jurisdiction of the Crown. Upon these principles, the Americans may justly claim to participate, in every restoration of natural right, liberty, or exemption in any shape, from the royal influence, power and jurisdiction, which the people of England shall at any time receive-by the independence of the Judges, assuring to the public a security against the influence of the Crown, as well as being delivered from the Royal power, by their properties being exempted from the jurisdiction of the King and Privy council. A tribunal, which, as it has been, so, it may again be thought, inclined to pronounce that for law, which may be most agreeable to themselves." And what just reason can there be, that the property of the Americans should be under the jurisdiction of a tribunal, which the people of England themselves dare no longer trust? Why this odiously unjust distinction between people of the same blood and allegiance? But this is not the only harsh partiality of the English domination. Why is it a principle of their law, that from all the dominions of the Crown, ex- cept Great Britain and Ireland, an appellate jurisdiction in the last resort, is vested in the King and Privy Council, upon the principles of feodal sovereignty ?; Upon what principle of law is this exception grounded in favor of Ireland ? Let us examine into the nature of her dependence upon the Crown of Great Britain, and let my purpose, to form a comparison between the liberties of Ireland and America, justify my continuing the subject of appeals. The original and true ground of this dependence is by conquest.[ So far then, the nature of the acqui- sition of the terra firma of Ireland and America, is in law considered alike; and, therefore, as the King may alter the original laws of the acquired Indian and French territories in America, so he may, in Like
* 2 Blackstone, 269.
+ 1 Blackstone, 269. * 1 Blackstone, 231.
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manner, alter at his will and pleasure, the laws of the acquired territory of Ireland, and by consequence, the Crown cannot but have an appel- late jurisdiction, in the last resort, over the Irish, Indians and French, equally conquered, and inhabiting countries equally acquired, by con- quest or by treaties and cession. As this must be granted, then, whence comes the exception in favor of Ireland? I cannot see that it has arisen any otherwise, than by a Statute there, confirming, as Sir Edward Coke* apprehends, the letters patent of King John, ordaining in right of the dominion by conquest, that Ireland should be governed by the laws of England-that is the common law, instead of the Brehon law of Ireland." If thus, the common law of England obtaining in Ire- land, emancipated, as it certainly did, the originally conquered inhabit- ants of the territory from the King's appellate jurisdiction upon princi- ples of feodal sovereignty, the English colonies and settlements in America must, a fortiori, be equally emancipated by the same operation of the Common Law, first established in most of them, by Acts of their Assemblies, and now in all, by the late doctrine, that the law is the inherent natural right of every English settlement in America. And. if notwithstanding the common law operating in America, equally as in Ireland, the King still exercises over the former, an original appellate jurisdiction in the last resort, upon principles of feodal sovereignty, by what law not applicable to the former, is the latter emancipated from that jurisdiction, originally applicable to each ? A Statutet of George the First annihilated the appellate jurisdiction of their House of Lords- there was no Statute directing that appeals from Ireland should go to the House of Lords in England, and therefore it is evident they found their way there, by the conveyance and mere operation of the Common Law. America, not having any appellate jurisdiction in the dernier resort within herself, was then, in that respect, in the same situation in which Ireland was reduced by the Act of George the First, and the common law being of force equally in the two colonies, why should not appeals from America as from Ireland, equally find their way to the House of Lords in England, by the same conveyance and mere opera- tion of the same common law? The Irish, Indians, and French were originally aliens, and it seems incomprehensible to me, that the English colonists in America, can, by any fiction of law, so lose their natural rights of inheritance under the English Crown, as to be reduced to the situation of aliens conquered, and therefore bound to admit the law of
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