SOME FUGITIVE THOUGHTS ON A LETTER SIGNED FREEMAN, ADDRESSED TO THE DEPUTIES, ASSEMBLED AT The High Court of CONGRESS in PHILADELPHIA.
By A BACK SETTLER.
SOUTH-CAROLINA. Printed in the Year M DCC LXXIV.
TO THE IMPARTIAL PUBLICK.
FULLY convinced of the Necessity which exists, that a strict Union between the Head and Members of the British Empire should take Place, no Person can harbour a sincerer Veneration for every Branch of it, or would more cordially rejoice in every Incident which had a Tendency to promote the Honour and Happiness of the Whole. Problematical as this Language may appear, in such as are disposed to offer modern publick Opinions, I can with Truth aver, that it is in Conformity to this Veneration, and that Conviction, I now attempt to expose the Imbecility of a Pamphlet signed Freeman, which lately made its Appearance, and point out a few of the many Absurdities with which it teems.
Men, who, to humour unprovoked Resentment on the one Hand, or to serve unjustifiable Purposes on the other, would invert the Order of Things, as well as the Grounds of established Policy, should be deemed Enemies to Society; but when this Principle of Corruption is extended, and Persons of distinguished Characters and upright Lives are singled [Page 2] out as Objects for Envy and Disappointment to wreck their Effects on, we may, without hesitating, proceed a Step further and venture to pronounce such, the Author of Calomnies, and destitute of every Species of honourable Feeling.
I must freely confess my present Difficulty. In this little Pamphlet, I could wish to give some exact Portrait of Freeman, but am at a Loss in the Choice of Colours. Whether I should consider him as patriotick or ministerial, heterodox, or orthodox, simplex vel unus, compositus vel idem, or both, or either, or neither, I cannot with Candour determine? But as it is not in the least my Intention to censure a Man who, in a personal Capacity, cannot much obstruct the publick Good, I will only confine myself to such Arguments as tend to illustrate the relative Connexion which subsists between Great-Britain and her Colonies.
I am well aware of the many Disadvantages which accompany an Attempt of this Nature. The best of Men are at Times liable to receive wrong Impressions, under the Influence of which many are apt to consider Objects only in that Point of View which favours the natural Bias of the Mind. An Habit of thinking thus acquired is not readily erased; indeed with Time it collects a Strength in the Fancy frequently too solid for the forcible Appearance of Reason or Argument to subdue. It is not to be then wondered that many Persons should be dazzled by those false Lights which are often displayed for sinister Purposes, though in other Respects possessed of a good Share of Understanding, as well as Integrity, Qualities which, in general, characterize Americans.
[Page 3] As I solemnly declare that I do not wear the Features of any Party, the impartial Publick may safely rely on the Candour of such Reasons as will be used in investigating the Nature of that Right of Dominion which Great-Britain claims over the Colonies of North-America. It is the immediate Inheritance of every Man born free, to give his Opinion on publick Affairs with Truth; as an Individual I claim that Right. My Opinion, however, shall be free, it must; for certainly it will be the Language of my Heart, unstudied, uncorrected.
The Sovereignty of a British Parliament over all the Dominions belonging to Great-Britain is so essential a Part of the Constitution, that the Right cannot be renounced without a Confusion of Ideas, or a treasonable Surrender. Notwithstanding that internal Evidence which arises in the Mind of a thinking Man to support the Truth of this Maxim, from a Survey of those Principles on which parliamentary Power is grounded, a Pamphlet, signed Freeman, was published a few Days since, replete with the most gross Strictures on the Conduct of his Majesty, his Ministers, his Parliament, with many others of his Majesty's Servants;—a Pamphlet, which, if accompanied with Grammar-Coherence, some Appearance of Decency, or shew of Reasoning, would evidently tend in its Consequences to subvert the Constitution, overturn a settled System of sub-ordination, and blot out that Ear-mark by which legal Dominion is distinguished.
The Arguments advanced by Freeman to sustain Positions in direct Contradiction to the inherent Rights of a State, are as incongruous as the Positions [Page 4] themselves are absurd. Since the first Establishment of Mankind into separate Societies, there was a supreme Power centered in some Part of the State or Society, for the Purpose of forming necessary Regulations for the Good of the Whole. It was justly presumed, that such Regulations, though essential for the Preservation of the Society, would not prove equally agreeable to each Individual, who might be left at Liberty to judge them a heavy Restraint on the Laws of Nature, there was a coercive Power, ex necessitate, established, which enjoined an implicit Obedience to such Laws as the Wisdom of the legislative Body judged proper to enact. The unequal Dictates of natural Law being thus wisely restrained, for the general Benefit of the Community, and reduced to a subordinate Limitation, no Arguments, on the supposed Impropriety of such Measures as were adopted by the acknowledged legislative Power could be admitted, being in their Nature opposed to those Principles on which the constitutional Power of the State or Society was founded.
On this Ground I will meet Freeman's Opinion, and demonstrate its Incoherency: That Gentleman may, if he pleases, use the Dialect of metaphysical Jargon, I will confine myself to those plain Reasons which arise from a Contemplation of that constitutional Authority which is established in Great-Britain. His Opinion might possibly carry some Weight in Foro Coeli, but I strenuously deny that a Retrospect to the first Principles of our Constitution will render his Plea in Behalf of American Independence admissible at the Bar of an earthly Tribunal, guided by Wisdom or sound Policy. The Colonies [Page 5] were peopled and planted by British Subjects; at their Departure for America, they brought with them their Allegiance, an indelible Mark of their Subjection to a British Parliament; a Token of Obedience derived from their Ancestors, who were coeval with the Origin of the State, which no Change of Climate, no after-Act of theirs, could erase from their Persons. Thus circumstanced, the first Emigrants reached the western Continent, which had been previously declared to be subjected to the English State by the Discoverers thereof, agreeable to their Principles of Duty and Allegiance. The Proprietorship of those new Territories was granted by the executive Magistrate to the Plymouth Company, with Intent of promoting their Colonization; an Ability of forming such municipal Regulations for their Government, as were consistent with the relative Tie of Subjection they were under to the State, was also confirmed to the Company. They regularly exercised their Right of Power until their Priviledge ceased▪ Whatever local Regulations were made, were instituted in England. In like Manner the other Provinces of America were granted to different Persons, with Power of supreme Jurisdiction, though subservient to the Controul of Parliament: And no later than 1732, half a Dozen English Gentlemen regularly assembled at a Tavern in London, and there framed Laws for the Province of Georgia, for the Purpose of collecting a Revenue, &c. without the smallest Altercation held by the Inhabitants of that Province, concerning the Right of their Proprietors so to do. It must have required a wonderful Accession of Knowledge since the above Period, [Page 6] to discover; that a British Parliament, assembled in Westminster-Hall, cannot legally assume a Power which, when vested in Five or Six British Gentlemen, enjoying themselves over a Bottle at the Crown-and-Anchor, they held sacred, and with a placid Composure submitted to.
America is not a Part of the King's hereditary Estates; it constitutes a Share of the British Empire. The Dominion of the King in America arises from Parliament, which hath appointed him supreme Governor over all the Dominions of the State; and here I cannot sufficiently admire the Sophistry of Persons who affect Obedience to a Magistrate, and renounce at the same Time Subjection to that paramount Authority from which the Magistrate derives his Power. It is a unlucky Circumstance, that Partizans for that Doctrine of Independence lately broached by Freeman, under a new political Phiz, cannot avoid the sad Alternative of either maintaining, that they are not Subjects to the King of England, or, if that be granted, of confessing their Dependence on a British Parliament, to the constituted chief Magistrate of which they humbly condescend to submit.
Parliament, foreseeing that the Crown might claim an exclusive Dominion over the Colonies, took an early Opportunity of asserting its Right. This Precaution in Parliament was very necessary. We find, that on a Complaint exhibited by the NewEngland, Settlers to King James the First, against those who, under the Countenance of Parliament, carried on a Fishery on the Coasts, that many Outrages had been committed by Persons employed in [Page 7] that Business, on their Persons and Property, by cutting down Wood in their Enclosures, &c. James was glad of this Pretext, thinking it would furnish him with a proper Excuse for usurping a sole and exclusive Right of Power. He therefore issued a Proclamation, not only for the Purpose of redressing Grievances complained of by the infant Settlers, but plainly importing the Idea of absolute Dominion, which in his regal Capacity he claimed. The British Senate now judged it high Time to interpose, and curb this gigantick Stride of Prerogative. The Affair being introduced into Parliament, James sent his Secretary with a Message desiring they may desist, as having no Authority over the Colonies *; but Parliament sensible of its Right, was not to be intimidated so far as to neglect a Matter of such Importance to the State, it resumed the Debates on that Subject, and expedited a Bill clearly thwarting the Assertions contained in the Royal Proclamation. Though this Bill miscarried in the Upper House, through the Machinations of the Duke of Buckingham, the Unanimity with which it passed the House of Commons, (there being only two dissenting Voices †) will remain a lasting Monument how conscious the Nation was of possessing a paramount Right over all the new Settlements and Territories acquired conquered or colonized, by its Subjects.
Parliament could not condescend to surrender into the Hands of the Crown a Right of so weighty a Concern. We accordingly find this Business taken up the Year following, in the House of Commons, [Page 8] and pursued with such Ardency Dagger, that the King's Secretary gave up the Point. The supreme Jurisdiction of Parliament over the Colonies being thus established and acknowledged, by a Prince flushed with Ideas of divine Right, it cannot be doubted, that if its Competency was disputed, of exercising plenary Dominion over other Colonies, as well as New-Plymouth, it would have stept forth with the same Zeal, and incontrovertibly have determined its Right. Thus we see, that notwithstanding the Opinions Individuals now adays adopt, the Language of Parliament continues the same, with only this Difference, that the Struggle in the Reign of James the First was with the Crown, which attempted to oust it of its supreme Jurisdiction, and that in the Reign of George the Third was with the Colonies, which contended for a Latitude of Independence inconsistent with every Idea of Subordination.
There is not the least Similitude between the two Periods of Charles the First and George the Third; nor would any Person draw the Portrait who had the smallest Particle of Respect for his Sovereign. Unhappy Charles became Heir to his Father's Follies as well as his Crown; taught from his Infancy to consider Parliaments as formal Expletives in the State, he judged them unnecessary when once they had ceased to echo the Will of the Sovereign, and determined to rule without them. In consequence of this fatal Resolution, arbitrary Exertions of the Prerogative grew into Use. Those were the Ills from which the Troubles of that Reign sprung. The House of Commons could no longer endure the continual [Page 9] Attacks which were made on its Privileges: It therefore, (not the People, as Freeman observes) arose in its Might, and established its undoubted Right. This was not a Contest between the Prince and a particular Body of his Subjects; it was strictly a Case in which the Sovereign was Plaintiff and Parliament Defendant: The Claim of the Crown was absolute and sole Dominion: Parliament demurred; and since no other Court of Judicature could determine this important Cause, the Appeal, from Necessity, lay to the God of Hosts. What a soul and ungenerous Misrepresentation! to combine the Events of two Princes Reigns, and assimilate them, where there is not the most distant Parity to justify the Observation; the one having usurped the Authority of Parliament, and substituted his will for Law; the other so tender of the Rights of this People, as not to proceed in the smallest Affairs without collecting the Sense of his Senate.
I will now consider the Weight of those Reasons which Freeman urges, to exempt America from Taxation by a British Parliament.
1. ‘That the Americans being descended from the same Ancestors with the People of England, and owing Fealty to the same Crown, are therefore equally with them entitled to the common Law of England, formed by their common Ancestors; and to all and singular the Benefits, Rights, Liberties and Claims, specified in Magna Charta, in the Petition of Rights, in the Bill of Rights, and in the Act of Settlement. They being no more than principally declaratory of the Grounds of the fundamental Laws of England.’
[Page 10] ‘Therefore, that the British Parliament ought not to have, and cannot of Right possess any Power to tax, or in any Shape to bind American Freeholders of the British Crown, seeing it is against the Franchises of the Land, because their Consent is not signified in Parliament, by a Representation of their own Election.’ The other principal Objection is, I think, the adjudged Case in Point of Durham.
Having already admitted the Americans (though not descended from the same Ancestors with the People of England, being a Compound of English, Scots, Irish, French, Dutch, &c. New-York in particular, was a Dutch Settlement until the Reign of Charles the Second, and was subject to the States of Holland, which gave Law and collected a Revenue therein) to be entitled to such Rights as Englishmen legally should enjoy, I cannot see a single Inference that arises from the Concession, to justify Americans in withdrawing an Obedience to such Laws as the Wisdom of the English State judges convenient to enact. It is the heavy Misfortune of Freeman, to quote Cases which, if properly considered, overthrow the Principles he would wish to establish. I must confess his Case is desperate; having impatiently solicited the Touch of Corruption for long Series of Years, and meeting with only contemptuous Repulses, a lamentable Circumstance, which, when coupled with a total and merited Disregard of his Countrymen, and an entire Shipwreck of private Fortune, in the Reduction of which, alas! the Nicks of Seven and Eleven bore no inconsiderable Share. I say, to remedy those Calamities. Prudence must necessarily [Page 11] dictate some Measures proper to be pursued; and in this Pursuit, what Choice could be so happily adopted as that which bore the Aspect of Popularity, and offered an Occassion of revenging himself on an unfeeling Ministry, unfeeling, alas! to the earnest and repeated Solicitations of Freeman. I hope this will prove a sufficient Answer to such as may be led to inquire with Hudibras,
The first Reason assigned by the Author of the Letter to the general Congress, is so unguardedly couched that it may be retorted, I fear, with too much Success. Exempli gratia; the Americans are formed of different People, Dutch, French, Swedes, Germans, Scots, Irish and English.
Each Individual brought with him those unalienable Rights which were his Inheritance in the Country from whence he emigrated.
Therefore each of those Persons is entitled to all and singular the Rights, Privileges and Benefits, which they legally could enjoy in their several Countries from which they extracted their Origin.
To prevent, however, the Absurdity and Confusion which take birth from the Jumble of Matter contained in the first Position of Freeman's Letter, I have taken Care to secure, by legal Demonstration, to the Americans the Rights of Englishmen, in a former Part of this short Treatise.
Magna Charta comes next in Order, which is "such a Fellow that he will have no Sovereign." If [Page 12] he is "such a Fellow," he must be formidable indeed; but that he is "no such Fellow," will, I think, incontestibly appear.
The first and principal Care of the Barons who obtained that memorable Charter, was to secure the Roman Catholick Religion: Their second Precaution was to lop off the luxuriant Branches of Norman Hardships. That which was granted to the Barons at Runnemede, and which Freeman hath so highly extolled, I account of little Weight, and this for two Reasons; the first, as not sufficient for redressing the Oppressions which the People then groaned under; the second, because the Acquisition of the Charter did not carry a legal Complexion, being obtained from a Prince in Duress. But that Charter of Immunities, which was confirmed by King Henry the Third to his Barons, with Amendments in Favour of the Subject, which is properly stiled Magna Charta, may deserve the Eulogium of Freeman. I will now clearly demonstrate, that Magna Charta hath been, and still is, subject to the Controul of Parliament; first, in the Article of Religion, which is totally changed from that Form which the Barons contended for in Blood, and indeed established. Here mark. This Alteration in Religion was adopted by Parliament, which did not presume Magna Charta to be a "Fellow superior" to its enacting Power.
The second Instance of doing away the Substance of the great Charter is evident from every day's Practice. Whereas the twenty-ninth Chapter of Magna Charta expresses, that no free Man shall be disseized of his Lands or Tenements, or banished, or imprisoned, unless by the Judgment of his Peers; [Page 13] we notwithstanding see a Writ issues in the first Instance from the Courts, which requires special Bail, or in Default thereof an Imprisonment of the person ensues before the Cause comes to a Trial, or a Judgment of his Peers can be obtained. Least this Custom should be deemed an Abuse, and uncountenanced by Parliament, we have only to refer to to those various Acts of Insolvency made for the Relief of the Unhappy. Although those humane Laws free many Objects from the Claws of merciless Creditors, is it not clearly apparent, that by a [...] Wind they support, a Custom expressed in Cap. 29th of Magna Charta to be oppressive and unwarrantable? Indeed the Wisdom of that Body which enacted a Law in the Reign of Edward the Third, that Magna Charta should be deemed and considered as the common Law of England was not very conspicuous; for if it was the common Law of the Realm, or lex non scripta, and stood unrepealed by any Statute, it imported such absolute Authority and Verity in itself, as not to require the Aid of Parliament to sustain it. But when an Act had been passed for that Purpose, so far from confirming the Substance of the Charter for common Law, that every immemorial Custom or municipal Usage contained therein must immediately lose its Habit of Action, and assume the Name of lex scripta, thro' the legal Operation of that Statute. Even this Law, tho' not penned with a superabundant Share of Wisdom, is an incontestible Proof that Parliament only considered the great Charter as the best Confirmation of the Subjects Rights that could then be obtained, and by no Means fastened on it an Idea of an exclusive paramount Controul over subsequent [Page 14] Parliaments, which in Truth have repealed, explained or rescinded, almost every Article in this celebrated Charter, notwithstanding the blind Assertion, "that he is such a Fellow, that he will have no Sovereign." I will now proceed and speak on the Petition of Rights, which is the next in Order of Succession.
The Nature of this Petition is so unconnected with the Purpose it was intended to second, that the Author of the Letter to the Delegates must certainly have imagined no Person properly informed of our History would have ever perused it. Supplemental Acts of State to supply the Defect of Laws, Tonnage and Poundage, and a Collection of other Duties upon Merchandises of all Kinds, all which had been positively refused to be granted by Act of Parliament, with many other Impositions on Trade, formed the Basis on which the Superstructure of this Petition was raised. This also was a Contest between the King and his Parliament, and not in any Degree analagous to the Case of the Americans. I could say more on this Head: but behold the Bill of Rights, which claims some little Attention.
What new and curious Alliances are hourly forming! Freeman is become a Supporter of the Bill of Rights. How? From Habit of Body or Conviction of Mind? From neither! Having exhausted his Stock of ministerial Expectation, and soured by Disappointment, he hath publickly avowed his Apostacy, and prophecied the Approach of the final Ruin of American Freedom, with nearly as much Zeal as George Fox did the Destruction of the English Monarchy in 1660. However, it is Time to use a [Page 15] serious Dialect. The Bill of Rights hath not the smallest Tendency to support the Opinion of Freeman. This Bulwark of Freedom was erected for another Purpose: It was a positive Declaration made by Parliament, of those Conditions by which a Tenure of the British Crown could be held. The supreme Authority of Parliament, not only over all the British Dominions, but also over the Crown, was rendered manifest at this memorable Period; and the Subjection of the Colonies to Parliament cannot be more strongly featured than in that Resolve of the Assembly of Virginia, which unanimously agreed, That if ‘the Parliament had constituted the Prince of Orange King, we, who are subject to Parliament, must acknowledge him likewise.’ The fifth Position now only remains to be considered, which is the Act of Settlement; an Act equally fatal to the Designs Freeman would wish to inculcate as any of the preceding.
Surely the Planet which presided over this Gentleman's Nativity must have been of a very inauspicious Nature, and given early Omens of the left-handed Singularity of Fortune which was to accompany him in his political Walk of Life. That a Man, procausis, may be an Enemy to others is not very uncommon; but when a Person becomes the bitterest Enemy of the Cause he intended to establish, it is a convincing Proof that he hath attained the Summit of Folly. The smallest Attention to those Principles on which the Act of Settlement was founded, will render the Truth of this Assertion incontrovertibly clear.
The Heart of Man could not devise an Expedient, or produce a Case wherein the unbounded Power [Page 16] of Parliament could appear in that Plenitude of legal Lustre with which it did in the Act of Settlement. The Ordinance formed for the Trial of Charles the First, was neither constitutional or parliamentary: The Grant of the Crown to King William, on the Abdication, wanted something of Form, and can only be justified on Principles of Necessity; by such as would draw Conclusions from abstracted Principles of Government; tho', as Blackstone observes, the safest Way for the Subject is to consider that Transaction on the Footing of solid Authority: But in the Act of Settlement Parliament actually appeared in the Zenith of its legal Omnipotence. By this Act we see Parliament modelling the Crown, and limiting it to Persons not in a regular but a parliamentary Order of Succession. And farther; the Issue of King William, by any other Queen except Mary, excluded from the Inheritance of their Father's Crown, to make Way for the Accession of the Princess Anne and her Issue to the Throne; on Failure of which, the Crown was to revert to the Issue of King William, if in esse; or, in Default thereof, the lineal Descendants of King James the First were to inherit; under which last Clause King George First was called to the Empire, Great Grandfather to our present most gracious Sovereign, whose Life may God long Perpetuate.
The Case of Durham is by no Means applicable to the Colonies: It is a Country situated in England, and paid Taxes equally with the represented Places of that Kingdom before it obtained the Privilege of Representation. This Country was ordered to send two Knights to represent it, at the first Parliament [Page 17] of Edward the Third: Its Inhabitants presented Petition to Mortimer signifying their Poverty, and could not well disburse Money for the Knights Attendance, but that, as heretofore, they would contribute their Proportion of all general Assessments. We accordingly find, specified in Doomesday-Book, the different Levies collected in Durroman, or Durham, as it is now called, when general Aids were required. The two cities in England most famed for Manufactures are now unrepresented, viz. Bermingham and Manchester. A single Doubt is not to be started, that had they desired a Representation it would have been allowed them. Indeed the former had the Offer of Privilege made it in [...]66, by the Marquis of Rockingham, but it was declined: The Inhabitants of those Towns are a wise and loyal People, satisfied with the Blessings arising from the auspicious Reign of the most humane Prince that ever graced a Throne. They look nothing more on that Head, but bestow their whole Attention on the Acquisition of Riches and Greatness.
When the Affair of Durham was agitated in the Reign of Charles the Second, the Reasons quickly appeared for introducing the Motion in Behalf of its Representation. This was a ministerial Manoeuvre, to give Sir John Willoughby, a warm Espouser of the Doctrine of passive Obedience, a Seat in the House of Commons. The popular Party, headed by Sir John Coventry, distinguished themselves in Opposition, in the Lower House: As did the Earl of Shaftsbury in the Upper. It was, however, agreed to, and a Right of Representation confirmed to Durham. [Page 18] By what strange Fatality hath the Author of the Letter to the Delegates been induced to furnish his Adversaries with such a Number of unsurmountable Arguments against himself? The most learned of Men may at Times inattentively stumble into an Error; but such a Catalogue of Absurdities is somewhat uncommon, and must oust of him of all Benefit of Clergy in the argumentative World.
Indeed the first Position laid down by this Gentleman, "That the Americans being descended from the same Ancestors with the People of England," would imply a dangerous Tendency, to deprive one Moiety of Americans of those specified Rights which, as English Subjects, they have a just Right to exercise: For by this Method of Reasoning it would follow, that no Americans but such as were descended from the same Ancestors with the People of England, could with Propriety become Candidates for the chartered Rights of Englishmen. The Americans, however, are entitled in general to every legal Right a Subject can demand: Not on the Principle of "being descended from the same Ancestors with the People of England;" but for this Reason, that on their Arrival in America, they settled in a Colony, the Territory of which, with the whole Country, adjoining, was declared by Cabot, who was authorised by Henry VII. to make Discoveries, to be subject to the English State, and to constitute a Part of its Dominions.
It is a Truth to which all Men have assented; that the Swedes were the first People who colonized both Sides of the River Delaware. They called this [Page 19] Settlement New-Sweden. They fortified it in several Places, and erected a Fort in particular, which they named Elsenburgh, a Name it still preserves, The Dutch laid a Claim to this Country, pretending that an Englishman, which they had appointed for the Purpose, was the first Discoverer thereof in 1609. They formed a Colony at the Mouth of Hudson's River, which they named New-Amsterdam (now New-York) and the Country adjoining was called New-Netherland. They extended those Settlements as far as Fort Orange (now Forty Abany) which is a Distance of forty Leagues up the River. They also established a Colony on the Banks of Connecticut River. The prodigious Increase of the, Dutch in those Parts rendered them formidable to the Swedes, who apprehending least their more powerful Neighbours should wrest their Possessions from them, agreed to throw themselves under the Protection of the States of Holland; and accordingly made a formal Surrender of that Country to the Dutch Governor. Parliament considered those Dutch Settlements as bold Usurpations on a British Territory; a Conclusion which flowed from the Principle of Cabot's Discovery. Therefore, in the Reign of Charles the Second, the House of Commons voted a large Sum for sitting out a Fleet for the Reduction of New-Netherland; which was accordingly effected, and the whole Country reduced to the Obedience of the English State.
As the Proprietory of Maryland had been granted by the Crown to Lord Baltimore, a Roman Catholick, that Nobleman's Son brought over a great Number of respectable Popish Families from Ireland: These [Page 20] were the actual and primary Settlers of that Province. Therefore, agreeable to Freeman's Logick, we must Reason thus:
The Inhabitants of Maryland being descended from the same Ancestors with the Papists of Ireland, have a Right, and ought to enjoy all and singular the Privileges and Immunities which Papists enjoy in Ireland.
But the Papists in Ireland being declared by Law incapable of exercising any of those Rights or Immunities which Protestants in that Kingdom hold and enjoy.
Therefore the Inhabitabitants of Maryland, &c.
The manifest Absurdity of such Logick is evidently conspicuous. Were I not well satisfied that Feeman's Appetite for ministerial Goods was truly sickened, I would have concluded his Performance a high finished Stroke in Politicks, to subject threefourths of Americans to the State of Aliens or Papists, under the outward Cloak of Patriotism. I have only continued that invidious Distinction between English and Irish which characterizes the Writer of the Letter to the Deputies, with a View of exposing the Fallacy of that Principle the Distinction was created to sustain.
I believe now I may venture to affirm, that Magna Charta, the Petition of Rights, the Bill of Rights, and the Act of Settlement, serve but to shew the unmeasurable Power of Parliament over the Crown and Dominions of the State. So distant are they from generating an Incapacity in the British Senate, that they confirm its imperial Authority, I cannot sufficiently wonder that Freeman should [Page 21] overlook the two principal Laws now extant, which establish the Subject's Right, viz, the 12th Charles the Second, and the Habeas Corpus Act. The former removed every Oppression affecting Property, by reducing the Lands of the Kingdom to free, or soccage Tenure: The latter effectually secured the Person of the Subject from every Attack that Tyranny could devise. It is therefore well observed by a learned Judge, that Magna Charta, and Charta de Foresta, only pruned off some of the out-shooting Branches of Norman Tyranny: But those two Acts of Charles the Second's Reign plucked up every Root from which Oppression could by any Possibility take Birth. How those two only Monuments of British Freedom should escape the Notice of the learned Author of the Letter to the Delegates is inconceiveable to me: But, when we see a String of Laws appealed to, Laws, which, on a proper Information of their Tendency, incontrovertibly damn tha Assertions of the Appealer, can we possibly prevent that risible Ton which every Muscle of the Face will naturally assume?
Seeing, therefore, that the various Arguments deduced to limit the taxing Attribute of Parliament have not only failed, but fatally operated to demonstrate its perfect Ability, I will now consider the Principles of feodal Power, on which the Sovereignty of the British State is founded. ‘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 Forefathers of the Americans, and admitted as often by the Kings of [Page 22] England? To expect this, is to think the Americans have no reasoning Faculties.’ Thus far Freeman.
It is evident, that a very reasoning Faculty is here required, to form even a distant Idea of what this loose and ungrammatical Jumble of Words would import; yet, lest it should appear to be the Production of a Mind totally lost in the wide Expanse of Space, I will beg leave to explain its Tendency: Which is, that there does not exist a legislative Power on Earth warranted with sufficient Authority to deprive a Man of any one original or natural Right which in a State of Nature he is entitled to. Wonderful Reasoning!—has this Phaenomenon been sent on Earth to recall the original Jurisdiction of Societies? By a talismanick Wave to remit into the Hands of the People, those Powers delegated by their Ancestors for the Purpose of correcting the savage Abuse of natural Law! Has this speculum Justitiae perfectly forgot the first Principles of common Law, which Lord Coke hath laid down, that no absolute Property is vested in a Subject; that every Idea of allodial Right ceased on the Introduction of the feudal System—a System on which the King's Right to collect Quit-rent and Crown-rent is founded? and indeed, until the Appearance of this celebrated Letter to the Delegates, was never contested. It may not be improper to observe, that Ideas of feodal Sovereignty were actually supported by the common Law, "not annihilated," as Freeman asserts; and in all Cases where the Terrors of this lordly Dominion, are now suspended; with Thankfulness we must attribute it to the Wisdom of that Parliament [Page 23] which passed the Soccage-Act, in the 12th Year of Charles the Second's Reign. By this excellent Law the Lands of the Kingdom were ascertained to their Proprietors; and Tenants were freed from the vexatious and galling Oppressions which took Rise from the slavish Tenures their feodal Tyrants subjected them to, and were only liable to those Assessments which Parliament at different Times would judge proper to lay on.
Principles of feodal Sovereignty being incorporated with, and supported by common Law; and the Hardships springing from such Principles being removed by Statute Law, does it not follow, that Freeman, not content with subjecting one Moiety of the Americans to the hard Condition of Aliens or Papists, would further deprive the Whole, of those Exemptions from feodal Dominion, which their English Brethren claim under Force of a Statute? Yet, lest I should be accused of Misrepresentation in a Matter of this Importance, I think it incumbent on me to quote the Gentleman's own Words.— ‘But supposing the Position to be true, that the common Law not natually operating in America, the Crown therefore possessed in Appeals, an original Jurisdiction, upon the Principles of feodal Sovereignty; yet of what Importance can this be in Support of the Jurisdiction, since it must cease when the common Law operates, which it has long since in America.’ This surely is the most unluckly Argument Freeman hath hitherto used: In whatever extreme of Opposition it is placed in, it will be still found to establish feodal Tyranny in America. If the common Law did not naturally operate in this Country, in such a [Page 24] Case the Americans would be subject to the Right of feodal Sovereignty claimed by a superior State. If the common Law did naturally operate, we have also seen it would not have exempted Americans from an Obedience with its harsh Dictates. Two Reasons which can be urged will free this Assertion from every Colour of Doubt. The first, because the Idea of feodal Jurisdiction was founded on, and supported by common Law. The second, that the Authenticity it had received, and still continues; to receive, in our Courts, in all Cases wherein it is not abolished by Statute, both was, and is, given upon the supposed Idea of being a municipal Usage of the Land. In this Light it operated to an extreme in England until the Reign of Charles the Second, when an Act passed which entirely discountenanced all its oppressive Severities. It is therefore evident, that the Writer of the Letter to the Delegates hath mistaken the Nature of the feodal System, or be could not have been guilty of such a criminal Want of both Accuracy and Attention to the American Interest in a Point of this high Moment.
The Americans cannot be Candidates for more Immunities than their Brethren in England claim by Law. Now, unless Freeman makes it appear that the Law made in the Reign of Charles the Second extends to all the Colonies of North-America, it must give an incurable Wound to the flattering Hopes I entertained, that the Americans were free Men, and entitled to every plenary Right of Exemption from feodal Hardship, a Subject residing in England actually enjoys.
[Page 25] It is not to be here understood, that the 12th of Char. II. had any farther Tendency than to remove the arbitrary Restraint under which the Subject's Property was held, from illegal Stretches of feodal Principles. The Idea was left untouched: It was only the frightful Edifice that was raised on this visionary Foundation. which tumbled beneath that invaluable Law. The Basis being of a magical Composition withstood the Shock, and indeed could not disappear without a Repeal of the whole Body of both Statute and Common Law; the great Outlines of which, in common with the Codes of every Nation in Europe, are founded on this visionary Principle. The Happiness of the Subject was not however compleated by this Law; it is true his Property was thereby secured; the Safety of his Person was not yet provided for: But the thirtieth Year of this Kings Reign produced another Law called the Habeas Corpus Act, which, in Conjunction with the former▪ effectuated the Redemption of the Subject's Property and Person from every Device of Tyranny. These two Laws are the Palladium of British Freedom.
Were Freeman's Principles adopted, and every genuine Right of Liberty which is established in England made attainable in America, it would complete the Ruin of many American Provinces, as well as the West-India Islands. A general Manumission of Negroes is a Doctrine badly calculated for the Meridian of either America or the Islands; yet it is one of those original Rights, the Exercise of which all human Forms immediately enjoy, by setting a Foot on that happy Territory where Slavery is forbidden to perch.
[Page 26] As the Compliance of the Judges with the Motion for issuing Writs of Assistance, hath been construed and Effect of their Dependance on the Crown; and as the Author of the Letter to the Delegates hath been induced on this Supposition to draw a Comparison between ‘two Sets of Judges learned in the Law, the one Men of Property—the other, Men without the visible Shadow of Independence,’ it may not be improper to consider at large those Reasons which determined the Judges to comply with the Motion.
But, before I enter into these Considerations, it will be necessary to take a Review of the superiour Courts of Judicature, established for the Benefit of the Community, and for the Support of our glorious and excellent Constitution, together with the indispensible Duty of Justices appointed by the Royal Order to preside in each.
These Courts are divided in two Parts, viz. Law and Equity: Judges in the former are sworn, in their Dispensation of Justice, to be guided by the Common and Statute Law of the Realm. Any wilful Appeal to private Opinion, in their solemn Determinations, where there is a Record which attests, or an Act that declares, how the Law in the particular Case stands, is a criminal Deviation from their Duty, and a flagrant Breach of Oath, for which they are liable to be prosecuted, and most severely punished.
However, least a rigorous Determination of a Court of Law should affect the Subject in Cases wherein he lay exposed to the Letter of the Law; and, as it was impossible for him to obtain Redress from Judges sworn to act according to Law; a Court [Page 27] of Equity was established, and endued with Powers to mitigate the Rigour of such Decisions as appeared not consistent with equitable Principles of Justice.
This short Review of the Duty of Judges being ended, I am now left at Liberty to consider the Propriety of the Conduct of that "Set" of Judges which unanimously agreed that Writs of Assistance should issue.
The Attorney-General moved the Court of Common-Pleas in February Term 1773, for a Writ of this Nature. A Gentleman who took Notes on that Day, hath done me to Favour of communicating to me the Substance of the Chief Justice's Argument; I will beg leave to insert it here.
"Tolls or Duties upon Merchandises, now called Customs, have been long payable to his Majesty's Predecessors, Kings and Queens of England; so long as to induce many to believe that they were the Inheritance of the King by immemorial Usage or common Law. But my Lord Coke, in his 2d Institute, Page 58, in his Exposition of Magna Charta, clearly demonstrates, that these Customs derived their Authority under the Sanction of an Act of Parliament, and were not allowable by common Law; but were first granted to the Crown, by the Statute of West. [...]st, in the Reign of Edw. I. so that by this we see King's Rights to Customs established by Authority of Parliament almost 500 Years since; and they now constitute a Part of the King's extraordinary Revenue. At first they were granted for only stated Terms of Years; and afterwards to the different Kings for Life, by different Acts of Parliament. I [Page 28] shall, however, go no farther back than the Reign of Charles II. when the Act of Tonnage and Poundage passed, among the first Laws made after the Restoration—in the 12th of Char. II. Cap. 4. By that Act a Subsidy of Tonnage and Poundage was given to his Majesty for Life, and the Rates of Merchandise were settled, as they were then agreed upon, by the Commons in Parliament, and signed by their Speaker.
"The same Duties were afterwards granted for Life to Jac. II. and W. III. And by three different Acts of Parliament made since, viz. 9th Anne, Cap. 6, the 1st Geo. I. Cap. 12, and the 3d Geo. I Cap. 7, they are made perpetual; so that the King's Right thereto appears to be clear and indisputable, under the several Acts of Parliament mentioned."
"Immediately after the Act of Tonnage and Poundage had passed, it became necessary to secure to the King the Payment of the parliamentary Revenue granted him by that Act, and to prevent him of being defrauded thereof.
"And accordingly, by the 12th of the same King, Cap. 19, it was enacted, That where Goods liable to Customs, Subsidy, or other Duties, by the Act of Tonnage and Poundage, shall be conveyed away without Entry or Agreement for the Customs; that on Oath thereof before the Lord Treasurer, or any of the Barons of the Exchequer, or the chief Magistrate of the Port or Place where the Offence was committed, or of the Place next adjoining thereto, it shall be lawful for the Lord Treasurer, &c. to issue Warrants to any Person, or Persons, enabling him or them, with Assistance of a Sheriff, Justice [Page 29] of Peace, or Constable, to enter any House by Day, where such Goods are suspected to be concealed; and in case of Resistance, to break open such Houses and seize, &c. and all Officers and Ministers of Justice are required to be aiding and assisting thereto.—No House to be entered except within a Month after the Offence is committed; and Damages may be recovered against a false Informer.
"The Remedy provided by this last mentioned Act was what was first suggested for securing the Payment of the King's Customs; but a very short Experience of it shewed that it was defective, and did not answer the intended Purpose; for after an Information received by the Officers of the Customs, the Time spent in taking the necessary Steps for obtaining the Warrant, generally gave the Offenders an Opportunity of privately conveying away the Goods. A further Act was therefore necessary; and we accordingly find, that in less than two Years after, an Act was passed, entitled, An Act for preventing Frauds and regulating Abuses in his Majesty's Customs. It is the 14th Char. II. Cap. II. the Preamble of which sets forth, that, ‘Forasmuch as it appears that several unlawful and indirect Means and Devices are daily put in Practice, to export and import Goods and Merchandises prohibited by the Laws and Statutes of this Kingdom, as also to defraud the King's most excellent Majesty of his Dues, Customs and Subsidies, as well by secret and deceitful Designs, as by open Force and Violence used against the King's Majesty's Officers employed in the Affairs of the Customs; for the better preventing of which Frauds and Violences [Page 30] in Time to come,’ by the said Act, it is among other Things enacted, ‘That it shall be lawful for any Person or Persons, authorized by Writ of Assistance under the Seal of the Court of Exchequer, to take a Constable, Headborough, or other publick Officer, being near the Place, and in the Day time to go and enter into any House, Shop, Cellar, Warehouse, Room or other Place; and in case of Resistance, to break open Doors, Chests, Trunks, or other Package, there to seize, &c. any Kinds of Goods or Merchandise prohibited and uncustomed.’
"By this Act the Remedy became as complete as possible; the Formality of making Oath before the Lord Treasurer, a Baron of the Exchequer, or a chief Magistrate, on every Information of uncustomed or prohibited Goods, is dispensed with, and no Time lost, and as little Opportunity as possible given to secrete the Goods. Under this Act of Parliament, the Officers of the Customs in England are constantly armed with a Writ of Assistance, which is issued by the Clerk of the Exchequer as a Thing of Course, without any particular Application to the Court. Thus the Power of the Custom-House Officer is given him by Act of Parliament, and the Writ facilitates the Execution thereof: It is a Notification to the Constable of the Character and Station of the Officer; and is at the same Time a Security to the Subject, against others who might pretend to that Character, without a Right to assume it. By the former Act, the Officer acted under the Authority of any inferior Magistrate; his Power now emanates from a higher and more solemn Authority; [Page 31] a Writ under the Seal of the Court of Exchequer—a Disobedience to which is a Contempt of the Court.
"It remains now to be considered, how these Powers came to be extended to the Officers of his Majesty's Revenue in America.
"The first Act of Parliament I shall take Notice of for this Purpose is the 7 & 8 of Will. III. Cap. 22. entitled, An Act for the more effectual preventing of Frauds, and regulating Abuses in the Plantation-Trade in America. By this Act, it is among other Things provided, ‘That the Officers for managing and collecting his Majesty's Revenue, and inspecting the Plantation-Trade in any of the Plantations in America, shall have the same Powers and Authority to visit and search Ships, &c. and to enter Houses or Warehouses, to search for, and seize, prohibited or uncustomed Goods; and, that the like Assistance shall be given to the said Officers, in the Execution of their Office, as by the 14th Char. II. is provided for the Officers in England.’
"By this Act, it is evident the Intention of the Legislature was to cloath the Custom-House Officers in America with the same Powers as those in England. But as the 14 Char. II. directs the Writs of Assistance to issue from the Court of Exchequer, and as such Courts are not generally established in America, for that Reason it became a Doubt whether any other Court could legally issue such Writs.
"This made a further Act of Parliament necessary. Accordingly, by the 7th Geo. III. Cap. 46, after reciting the 14th Char. II. the 7 & 8 Will. III. and then reciting, That no Authority being expressly [Page 32] given by the Act of King William, to any particular Court to grant such Writs of Assistance for the Officers in the Plantations, it is doubted, whether such Officers can legally enter Houses, and other Places on Land, to search for the seize Goods in the Manner directed by the said recited Acts. ‘To obviate such Doubts for the future, and in order to carry the Intention of the said recited Acts into efffectual Execution, it is enacted by the 7th Geo. III. That from and after the 20th of November 1767, such Writs of Assistance, to authorize and empower the Officers of his Majesty's Customs, to enter, and go into any House, Warehouse, Shop, Cellar, or other Place, in the British Colonies or Plantations in America, to search for, and seize, prohibited and uncustomed Goods, in the Manner directed by the said recited Acts, shall, and may be granted by the superior or supreme Court of Justice, having Jurisdiction within such Colony or Plantation respectively.’
This last Act, therefore, places the Matter beyond all Doubt. It is a polar Star by which, agreeable to their Oath of Office, the Opinion of Law-Judges must be guided, and their Determination concluded. It leaves not the smallest Opening for a shuffling Disposition to run with the Hare, and hunt with the Hound. A positive Refusal of a Judge to comply with an Act of Parliament, is a violent Breach of the Trust reposed in him, and includes a Prosecution for high and mighty Crimes and Misdemeanours.
These were the Reasons which influenced the Chief Justice to comply with the Motion. An extensive [Page 33] Acquaintance with the various Laws relating to the Customs, from the earliest Period to the present Time, informed this Ornament of the Bench how the Law stood; and a Conscience not ungrateful to the Remembrance of a solemn Oath, constrained him to determine according to Law. The three Assistant-Judges, Messrs. Savage, Coslett, and Murray, concurred unanimously in this Decision, and gave weighty and substantial Reasons for coinciding with the Chief Justice's Opinion. Even Mr. Justice Fewtrell (whose Conduct is misrepresented by Freeman on this Occasion) entertained no Doubt of the Legality of issuing Writs of Assistance; and only hesitated in concurring with the other Judges from an Uncertainty which was the superior Court of Justice, the Court of Chancery or the Court of Common-Pleas; a Doubt which would have been entirely removed, by an Appeal to the Decision of all the Judges in England, on a Question proposed by the Lord Chancellor Talbot, Anno 1735, which was the supreme Court of Justice in the Kingdom. The House of Lords and the King's Bench were declared to be the two supreme Courts of Justice *
Having taken a comprehensive View of the Arguments which constrained one "Set" of Judges, "Men without the visible Shadow of Independence" to grant those Writs, it will be only fair to consider what Motives could restrain another "Set" of Judges, Men of Property, from issuing such Writs. But, before I proceed further, it will not be amiss to observe, that Freeman might have been contented with holding up his own Conduct to publick Ridicule, [Page 34] without introducing the Names of other Gentlemen to share a Part of his Calamity. It is with Regret I answer this Passage in his Letter, as I am necessitated to analyze somewhat unfavourably thereon; yet, perhaps, my Method of censuring may do the Gentlemen at least as much Honour, as the ill-favoured Eulogiums bestowed on them by the Author of the Letter to the Delegates.
The first Motive, therefore, which naturally occurs, why Judges, Men of Property, in a mercantile Colony like this, should determine contrary to written Law, might arise from a partial Adherence to Self-Interest. The best of Men, as Times now run, are induced to take every Step of aggrandizing their Fortunes. The Spirit of accumulating Dollars, when added to that dissolving Satisfaction of Mind which a free born Subject of America tastes in seeing a stately Slave stand on every Perch of his extensive Plantation, is somewhat allayed by the bitter Remembrance of paying Tribute to Caesar. I may with Truth here add, that our Brethren in England would heartily concur with Americans, in the Doctrine of paying neither Taxes or Customs (with which it must be allowed they are heavily laden) were they not compelled by the positive Injunction of a superior Power, and with which, as inferiors, they are bound to comply.
The second Reason, why they refused to grant those Writs, is humourously related by Freeman; because the Opinion of the Bench was guided by Rawlins Lowndes, Esq who, Freeman asserts, was not bred regularly to the Profession of the Law; and the other Judges went to School to Mr. Lowndes, [Page 35] who taught them to quaff such large Draughts of Law, as quickly enabled them to administer Justice with publick Approbation. This is, I think, the richest and most expressive Description of Quackery that ever caught my Attention. Indeed Empyrism is displayed with such Pathos, that I would have considered it in no other Light than of a Burlesque on the "Set" of learned Judges referred to, was I not sensible that the ingenious Author of the Letter to the to the Delegates, intended, sub ficto nomine, to be the Herald of his own Fame, and by the Side-Wind of his Eulogium on the great Abilities of Mr. Lowndes, "who had never eat Commons at the Temple," formed a Design to establish an Idea of his own uncommon Powers, by the sole Strength of which he hath been enabled to make such a rapid Progress in Law-Story, without the vulgar Aid of a Temple- Erudition.
I can now sincerely aver, that nothing but a warm Wish of promoting an Union between the Mother-Country and her Colonies, induced me to answer the mad Arguments of a Man, who, soured by Disappointment, would widen the Breach of Discontent: But, Americans! resume your Understanding, and discountenance every Design of Faction. Famed as you are for Justice, Humanity and Honour; it would ill become Men, justly celebrated for such godlike Virtues, to submit their Judgment as a Prey for Artifice to sport with; or to suffer their Attention to be diverted into any Channel but that which alone can render them a great and flourishing People.
Imperial Rome, which once gave Law to the World, fell by publick Discontents, as much as by [Page 36] Debauchery. Whilst the Romans continued a firm united People, they extended their Conquests over the Earth; but when Faction reared its Head, and Persons thought it their Interest to embrace Extremes, ambitious Men were not wanting to keep these Breaches open: It was then the ancient Roman Virtue began to decline. Publick Offices, which were in the Gift of the People, were generally filled by their designing Leaders; indeed the most flagrant and turbulent Characters were commonly preferred. The guilty Custom drawing into an Establishment, soon rendered the Air of Italy too polluted for Freedom or Order to dwell in; they therefore winged their Way: By which Flight the Romans lost themselves and the Empire of the World together.
I will conclude this Pamphlet with an Advice to Freeman.