Appendix 2:

    “Draft Treatise”

    Introduced by Bernard Bailyn

    Transcribed and Annotated by John W. Tyler

    Hutchinson’s first task, in this “Draft Treatise,” was to summarize the position of the colonies, and that he did in a brisk paragraph on the British constitution’s protection of natural rights, especially the right of the individual to consent to enactments that deprived him of property. He then proceeded to expose the error of applying that right to limiting the powers of Parliament. Everyone—even Dickinson, whom he quoted—admitted, Hutchinson wrote, that there must be some final and absolute authority somewhere in every political state. Was the right to protect private property grounds for legitimate resistance to that absolute power? No, he replied: the right to protect individual property is total and unqualified only in a state of nature. In organized political states it can only exist in qualified form. Every government that has ever existed has imposed on private property in one way or another, and these impositions are as various as the governments that enact them. There is no one way in which individuals “consent” to the enactments that affect them. In no government on earth, are subjects represented in just the way they are in England, yet are those other governments less entitled to tax than England’s? “Is there any certain proportion which nature has pointed out to be the representatives of the rest? . . .” If any one form of government is closer to the laws of nature than another, is it not strange that in every government a majority of the people are in fact more attached to their own particular form than to any other? The governments of Connecticut, Rhode Island, New York, Denmark, Sweden, France—all are different, yet all represent their people legitimately, and they are all preferred by those people over other forms of government. Thus Englishmen who travel in France sympathize deeply with the miseries of the French peasants, but “tell one of these peasants of the blessed state of the English and he laughs at you and cries, Liberté—Liberté, as if it was a mere sound or imaginary good.”1

    So Hutchinson began the “Draft Treatise,” attacking the idea that there was something absolute, timeless, and universally explicable in the peculiar relationship between taxation and representation that happened to exist in England. The manuscript is imperfect; missing pages create gaps in continuity. But it is clear that he proceeded to apply this general proposition to the colonies, arguing on the one hand that Parliament could never agree that it had no right to tax the colonies but on the other that it was reasonable to expect that when it is seen that

    this authority cannot be exercised without depriving the colonists of a right which the other parts of the empire enjoy, it will be exercised with the greatest caution and tenderness, in but a few cases, perhaps no further than will be necessary to preserve and maintain the subjection of all parts of the empire to the supreme authority of the whole.

    The controversy between England and America, he admitted, would be difficult to resolve: the conflicting views appeared to be irreconcilable. The only hope lay in each side seeing clearly the nature of its own true interests. England cannot expect to reduce the colonies to subjection and at the same time benefit economically from them; nor can the colonists expect to enjoy the benefits of the English connection while “preserving . . . every right which is enjoyed by their fellow subjects in Britain.” These things are incompatible. And England need have no fear that continued growth would cause America to prefer independence. The tie between the two people was not moral but pragmatic: “ties from moral considerations have no place in political bodies,” Hutchinson wrote; “a sense of their interest only must be the cause of continuing the connection,” and that identity of real interests, he believed, would persist.2

    But he knew that assertions alone, no matter how reasonable, would be ineffective. The opposition’s arguments must be explicitly refuted, and above all others, those of Dickinson in his Farmer’s Letters. Repetitiously, then, his treatise rapidly losing shape and focus, Hutchinson returned to those arguments “now in the mouth of every American from Labrador to Florida,” and in the subsequent, rambling pages attempted to deal with them.

    To urge, as Dickinson did, that it was absurd for Parliament to grant to the English government American property to which it had no title was to claim too much, for it was certainly “the birthright of an American as well as an European Englishman” to be governed as well as to be taxed by enactments of his own elected representatives. Therefore to claim exemption from taxation would ultimately, if not immediately, prove to be a declaration of independence from all British governance. The difference between taxation and regulation was a matter of degree, not of kind. There was no clear line between the two. Certain non-taxing regulations affected property as much as taxation; both legislation and taxation imposed restraints. The repeal of the Stamp Act was not an admission by Parliament that it had no right to tax: the accompanying Declaratory Act made that perfectly clear. Nor do Magna Carta or the Bill of Rights, so commonly appealed to by opposition writers, sanction disobedience to law. True, Hutchinson contended, “there is a superior law to the laws of any power upon earth,” and men may indeed choose to obey it in defiance of earthly powers, but then they must be willing to pay the penalty and either flee the country or “submit to the penalty which the law establishes for the non-observance.” None of this justifies an individual’s refusing to obey a law whenever he believes his rights are abridged. “Nor may the judiciary and executive powers determine an act of Parliament to be void because it appears to them to be contrary to their lights. This would be jus dare instead of jus dicere”—the creation of law instead of the expression and enforcement of law—he wrote, applying correctly a famous pronouncement that James Otis had earlier used to limit the power of Parliament, “and more justly to be excepted to in the executive court than the great court of Parliament.”3

    By now Hutchinson’s “Draft Treatise” had wandered far from its starting point. The arrangement of his thought had become shapeless as he pursued the points that interested him. Otis having been referred to, he turned to that adversary’s citation of Lord Coke’s opinion in Bonham’s Case (1610) to substantiate his claim that “the common law shall sometimes judge acts of Parliament to be void.” Coke’s meaning, Hutchinson wrote, had been misunderstood by Otis. What the great jurist had meant was that ordinary courts had the authority to nullify laws not when they thought them “unconstitutional” but only when “they who made them would not put them in execution.” In other words, Coke’s dictum meant that if Parliament itself declined or neglected to enforce its own acts taxing the colonies, the courts would be justified in declaring them void, otherwise not.4

    Nor, Hutchinson wrote, were the other arguments the opposition had used to justify resistance to parliamentary enactments valid. Contrary to their claim, the charters and commissions issued to the colonies had not exempted them from parliamentary taxation, and if there had been such exemptions they would be “absolutely void.” As to the argument that the Crown alone, as opposed to the English nation collectively, hence Parliament, held suzerainty over America, it simply was not true; the Crown and Parliament had always been inextricable (though Hutchinson’s historical argument here is extremely sketchy and densely tangled), and it was certainly clear at least since 1660 that Parliament had commonly passed laws regulating the colonies. If it had not taxed America before the present era, that earlier indulgence “ought not to be urged as an argument against the right.” And in addition, the colonies had always claimed and always received the military protection of England against their enemies: “and it is a well known maxim, that when protection is claimed and granted, subjection is due.”5

    Finally, Hutchinson felt obliged to deal with the almost ritualistic appeal that had been made to the example of classical antiquity. Roman history had been cited by pamphleteers to show that the imperial Roman Senate had granted the Roman colonists all the privileges of citizens and had not taxed them. But examination of the 27th and 29th books of Livy, Hutchinson wrote, proves exactly the opposite; and in quotations of great length (and accuracy) from Livy’s account of an episode in the first Punic War, he documented his belief that the Roman Senate in fact “exercised their superior authority over the colonies and compelled them to contribute to the wars.”6 And at that point, after the lengthy digression on Roman history, Hutchinson broke off.

    The “Draft Treatise”—or the portion of it that has survived—discusses in its 5,500 words a variety of subtle historical problems; it states in a few words a sophisticated view of the relationship between law and morality; and it includes in laconic sentences a number of awkwardly worded but original arguments on the central constitutional issues. All of this is scattered about in the “Draft Treatise”; the composition seems hit or miss, the sequences almost random. After the opening paragraphs the essay seems to develop by free association as Hutchinson picks up one argument after another without bothering with transitions and without attempting to shape the various parts into a coherent whole. It was a very rough draft indeed, and it is scarcely surprising that he broke off completely without attempting to perfect it.

    “The Draft Treatise”

    [late spring–early fall 1768]

    Near four years have passed since the Colonies first claimed an exemption from Taxes ^imposed^ by any other Authority than their respective Legislatures. Whether this Claim can be supported ^or not^ is still as much a question as when it was first made. The numerous publications on one side of the question ^and^ on the other Rather tend to increase the breach which has been caused by this Controversy and to alienate the Affections of the Nation and its Colonies each from the other. The Publications in England ^in general^ are calculated ^either^ to expose to censure, or to vindicate the measures taken by the Ministry just, as the Authors happen to be attached to one Party or the other rather than to reconcile the Nation and the Colonies by convincing both of their Respective duties. The publications in the Colonies, except at the beginning of the Controversy have generally been on one side of the question only, too many of them calculated to inflame the minds of the People there against the Nation, and the Servants of the Crown in the Colonies, rather than to support the Claim of the Colonies from the Principles of the Constitution or from Reason and the Nature of things. In the mean ^All this^ time both the Nation and the Colonies are great Sufferers. ^In the Nation^ This Controversy furnishes fewel to keep up the Flame kindled by the Spirit of Party and has often clogged or impeded measures for promoting ^the^ National Interest. In the Colonies all subordination seems to be at an end, the most enormous breaches of Law have been committed, with Impunity, under pretence of defence against ^resistance to^ the exercise of unconstitutional authority, and ^the^ Law ^itself^ is Rendered vague and uncertain.

    I propose to consider the Arguments on both sides calmly and without prejudice. I have no private Interest to serve. I am attached to no Party. I mean well. If I can contribute to the general Interest both of the Nation and the Colonies by this Attempt the Satisfaction pleasure resulting from the Success will be an ample Reward. If I fail I shall be in the case of many others who with an honest intention attempt more than they are able to perform.

    I will ^consider^ the Claims made by the Colonies and consider how far they are to be supported. ^and the facts brought to support them^.

    The Advocates for the Colonies say that there are certain Rights founded in Nature and acknowledged by the English Constitution of the English Government which as Men and peculiarly as English Men they are intitled to, which are not confined to place but they follow Englishmen them whereever they go especially whilst they are part of ^within^ the English Dominions:—that the most valuable of these Rights is an exemption from being governed by Laws made or subjected to Taxes imposed without their consent signified in person or by their Representative—that with all the Colonists there has been a Contract that they should enjoy those Rights notwithstanding their Removal out of the Realm, the promise having been express to a great part of the Colonies and plainly implied to all the rest, the whole Nation having at the time of their Removal and for many years after this general ^such^ a conception of their Rights ^which^ appears from or may be inferred from the Acts and doings both of the Nation and the Colonies—that although in legislation without taxation for a Revenue or for any other purpose than for Regulating trade the Colonists from an equitable consideration have in many instances departed from their Rights and submitted to Laws in the enacting whereof they had no Voice but ^yet^ to Taxation for a Revenue they never voluntarily submitted and that when such Taxes are imposed they are to be justified in refusing to submit as being contrary to the Rights of English Men and even contrary to Natural Justice.

    These Principles are either expressly avowed or they may all be plainly deduced from the Argument brought by the Assemblies of the Colonies as well as by the Writers who espouse their Cause. Some of these Writers are more explicit than others and acknowledge ^assert^ that the Colonies have as good as [claim] ought to insist upon their Right to an exemption from Legislation in general as well as from Taxation.

    I will take for granted that the Colonists admit that in every Government there must be a supreme Legislative Authority and that the Parliament is the Supreme Authority of the British Dominions. I know of none who have yet ventured to assert that the Colonies are not a part of the British Dominions. Some have admitted that they are but with some qualifications which I shall consider by and by. One of their most applauded writers after acknowledging “that they are parts of a whole and that there must exist a power somewhere to preside and preserve the connection of these parts and that this power is lodged in the Parliament,” adds “that the Colonies are as much dependant on Great Britain as a perfectly free people can be on another.”1 This is very cautious, to say no more. I do not say that by this admission the Colonists are concluded. The Supreme Authority may do what they have ^it hath^ no Right to do. It certainly has no Right to make Laws contrary to the Divine Law. Whether any ^Still there may be no^ power to controul it is another question. What methods are to be taken for Relief, how far or whether any Resistance is to be made to the Execution of Laws which the Supreme Authority hath no Right to make shall be considered hereafter. That some means are to be used will readily be admitted. It cannot, therefore, be said to be to no purpose to examine the Right in the present Controversy.

    In the first place I shall enquire whether it be contrary to the natural Rights of Mankind for the Parliament to tax the Colonies. To maintain the Affairs [illegible]2 It is said “that whatever is a man’s own is absolutely his own, and no man hath a right to take it from him without his consent either expressed by himself or his Representative. Whoever does it commits a Robbery. Taxation and Representation are inseparable. This position is founded on the laws of nature. It is more it is it self an eternal law of nature.”3 And a very great Authority is produced Mr. Locke who asks “what property have they in that which another may by right take when he pleases to himself?”4

    I am struck with these strong expressions when I apply them to the state men in a state of nature, but when applied to men in a state of government they lose ^abate^ their force. Government, ^[grant]^ was instituted to remedy the Inconveniencies of a State of Nature and therefore we are not to suppose Men will voluntarily remain in ^enter into^ such a state of Government as shall be more grievous than a State of Nature5 but we know of no form of Government founded in Nature and adapted to the state and circumstances of Men in all Countries and all Ages. We see no two Countries under exactly the same form of Government. We know of no Government where the Subjects are represented just in the same manner they are in England. Have not all Men a good natural Right to establish what form of Government they think proper? Is every form which Men agree upon to be pronounced unnatural because they have not provided for a general convention of all the Individuals or for a frequent Election of a Representative body? When the Seven Provinces broke off from Spain they might have moulded themselves into any form of Government they thought proper.6 If their first Legislators were elected by the body of the people they perhaps might be called the Representatives in the sense now contended for but the present Legislative Body of the States is no more the Representative of the People now upon the Stage,7 than the French King is the Representative of the People of France. Is there any certain proportion which nature has pointed out to be the Representatives of the rest? Is there any particular period for their continuance in authority or have the people a natural Right to assemble for a new Election at any one certain period rather than another? May not the Legislative power of every Government, which the people have constituted or acquiesced in, be called with propriety their Representative? If any one form of Government is so much more natural than another is not it strange that in most every Government we find a great part of the people more attached to their own form than to any other. I have been in several of the Colonies Connecticut and Rhode Island are of the most popular form both Governor Council and Assembly annually (the Assembly I think twice in a year) elected by the people. Massachusets have an annual Assembly elected by the people and an annual Council elected by the Assembly and a Governor appointed by the Crown. New York elect an Assembly but once in three years and both Governor and Council are appointed by the Crown. I observed less attachment to their own form in Rhode Island though of the most popular sort but I never met with a Massachusets man who wished to change with Connecticut or Rhode Island nor with a New Yorker where the people have the least share in government who would speak a favourable word of the Massachusets Constitution. View the Governments in Europe. The Danes are as contented as the Swedes. An English man cannot Read the description of the State of the French Peasants attributed to the nature of the Government by Burnet and other Travellers without a feeling sense of their Misery8. Tell one of these Peasants of the blessed state of the English and he laughs at you and cries Liberté—Liberté as if it was a meer sound or imaginary good.

    It cannot however be denied that such a form of Government as preserves to the Members of it the greatest share of Natural freedom and at the same time provides a stable Remedy for the Inconveniencies of a State of Nature must be most agreeable to Nature. I say provides a stable Remedy for a form of Government so near to a state of Nature as to be liable to a frequent return to it is really worse than no Government. Man in a natural state will be always upon his guard. In a weak and fluctuating state of Government he is never secure and yet off his guard and always in danger of surprize. It is said “every man’s property is absolutely his own” the expression [most] to [illegible] to remain in a state of government, “and no man can take it from him without his consent signified by himself or his Representative.”9 To apply this to a State of Government in general is one thing to apply it to a Democracy is another. The utmost length to which this principle can be extended ^in a Democracy^ is that no mans property shall be taken from him unless he has a voice in the Election of some one or more of the Persons with whom by the Constitution the disposition of the property of the Subjects is entrusted. To suppose that every time the exigencies of Government call for the property of the Subject is entrusted every Individual must give his voice and the majority of voices determine would be absurd.10

     

    colonies, or the dimunition of commercial advantages which will be the consequence of a continued disaffection, although we cannot expect the Parliament should concede that it has no authority ^to tax the colonies^, yet we may hope that when it shall be considered this authority cannot be exercised without depriving the colonists of a right which the other parts of the Empire ^enjoy^ it will be exercised with the greatest caution and tenderness, in but few cases, perhaps no further than will be necessary to preserve and maintain the subjection of all parts of the Empire to the supreme authority of the whole.

    We often hear it said in the colonies that this controversy will not be finished in our day and I must own I see no prospect of the colonists acknowledging that they enjoy all the rights of English men whilst they remain liable to be taxed by a Parliament where they have no representation, nor do I imagine the Parliament will give up any part of its authority; still I do not ^however^ think the case desperate. If we could see our respective interests in a true light the controversy would subside, rather than be determined; we might return to the happy condition we had been in for more than a century preceding the year 1765 and perhaps continue in it for near a century to come. This is long enough to look forward. A plan to perpetuate the subjection of the colonies and to make them at the same time beneficial to the mother country would be as incompatible in the several parts of it as maintaining the supreme authority of Parliament and preserving to the colonists every right which is enjoyed by their fellow subjects in Britain. Their growth and flourishing a state adds to the advantages you receive and at the same time causes them to approach nearer to a capacity of being independent. If they ever arrive to such capacity a sense of their interest only must be the cause of continuing the connexion. Ties from moral considerations have no place in political bodies. A capacity of independence with a sense of interest would dissolve the union of the parts of Britain.

    I am not attempting to give you any information of facts or to assist you in reasoning upon them. I only desire you to satisfy you that I have not formed an opinion at random and with this design I will lay before you first the arguments brought by the colonists to shew that as colonists they ought ^not^ be subject to the authority of Parliament in matters of taxation and the reasons which prevail with me to think them insufficient, and then I will attempt [illegible] you submit to you my reasons for the non exercise of this right or the exercise of it very seldom and only upon extraordinary occasions.

    The grand argument first started by an American writer is taken from the absurdity of one person or political body giving away the property of another.11 This is now in the mouth of every American from Labrador to Florida. We the Knights Commons of Great Britain give your Majesty the property of your Subjects in America. At the first mention of this argument it appeared to me to prove too much, if not for our American writers, yet certainly for those who have adopted it in Britain I have never since met with sufficient arguments to induce me to change my opinion. It is as much a part of the fundamentals of the English constitution and so, it will be said, the birthright of an American as well as an European Englishman that he should be governed by laws, in general, made by his representative ^only^ as that he should be taxed by his representative only. Other laws if we consider meerly the nature of things may be equally hard and absurd if not made by our representative as laws for taxation. What odds does it make to me whether a law takes my money out of my purse or renders my money useless by obliging me to restrain my trade and manufactures? My property will be affected by one as well as the other. If they differ it can be only in degree. In short every law so far as it enjoins my submission to it is a restraint of my natural liberty that liberty which we are sometimes told is dearer to us than our property or even our lives and which surely we are not to be deprived of without our own consent.12

    But it will be said Taxation and Legislation are considered in the English constitution as distinct things, the one the Act of the Commons alone the other of King Lords and Commons, there must indeed be the consent of the King and Lords to the first but it is only form. We can see, in America, that the exclusive power of originating Acts carries weight with it but that the power of approving or disapproving an Act which, unless it be approved of, can have no force, is meer form is beyond our ken to apprehend. Admit that Americans are short sighted still I must ask to what purpose this distinction is advanced if the colonists can not as they say or will not be represented. Now the declaration to this purpose made by the Deputies from the several Houses of Assembly at New York was well known in England before this distinction was urged in their favour13 and if it had been from this principle ^distinction^ that the Stamp act was repealed I think it would have strengthened the colonists claim of right and been a disclaiming on the part of the Parliament so much of their supreme authority over the colonies as respects Taxation. All that could have been said to the contrary must have been that the Parliament would admit a representation from the colonies if they thought proper and if they refused, they would have no reason to complain, but this would hardly have been sufficient if what the ^colonies^ say is just viz. that such representation would be of no advantage the interest of the nation and the interest of the colonies being different and distinct every point would be ruled in Parliament against the colonies just ^the same^ as if they had no representation there at all.

    But it was not upon this distinction that the Stamp act was repealed there was the voice of a very great majority of both Houses to the contrary in the Act which passed at the same time asserting this supreme authority without any limitation or distinction.14

    Maxims in law and fundamental points in the constitution have been improperly ^misunderstood or^ misapplied to support this argument. We are some times told it ^that such Taxation^ is against Magna charta and the Bill of Rights and it is at least insinuated that Acts of Parliament contrary to these do not bind the Subject or are void. It certainly is a very dangerous thing to any Government, be the form what it will to infuse into the minds of the Subjects a notion that they are at liberty to obey or not obey the supreme authority. That there is a superior law to the laws of any power upon earth is allowed and all other legislatures may be considered as subordinate to the great Governor of the world. Every good man rather than break the laws of God will quit the state where he is a subject or submit to the penalty which the law establishes for the non observance of it, but it does not follow from hence that rather than suffer an abridgment of what appear to him to be his rights he may be justified in forceably resisting the execution of law, nor may the judiciary and executive powers determine an Act of Parliament to be void because it is ^appears to them to be^ contrary to these rights: This would be jus dare instead of jus dicere15 and more justly to be excepted to in the executive courts than the great court of Parliament although one of our American writers chuses to use the same expression as applicable to the Parliament.16 Lord Coke’s authority is often abused to serve particular purposes and when he says in Bonham’s case that the Common law shall sometimes judge Acts of Parliament to be void it should [illegible] add, ^no notice is taken of what he says in the same case^ that they who made them would not put them in execution.17 When this is the case with respect to ^shall be the sense of those who make^ Acts of Parliament for taxing the colonists, Lord Cokes authority may more properly, than at present, be adduced to justify courts of judicature and private subjects in the non observance of those Acts. This is so tender a point that the most ^a very^ sensible of the American writer acknowledges the difficulty of carrying into practice what might be admitted in Theory.

    The colonists further urge as another argument in their favour that their charters or the commissions from the crown which are considered as charters, for upon the encouragement that those commissions should be the rule of government the colonists transplanted themselves, exempt them from being taxed by Parliament. I know of no charters nor commissions which expressly exempt from Parliamentary taxes. Every colony by their own legislatures may tax their own inhabitants. This, it has been said, is no more than corporations in England are inabled to do and they make no pretences to such exemption. It is replied that great distinction ought to be made between the powers of legislature in a large remote colony and those of a corporation small and inconsiderable, a few only excepted, and in the body of the realm and ^of^ which corporations the Parliament or the legislative body of the whole realm is ^does^ in a great measure consist. I will consider more fully, before I finish this letter, the rise and constitution of the several colonies. The conclusive answer to this argument is that if it should be admitted the crown intended to grant to the several colonies an exemption from all or any part of the authority of Parliament such exemption would be absolutely void. I have heard it sometimes advanced that there was room to question whether the nation as a collective body could be considered as proprietor of America. As to the soil it is certain a very great part of it was purchased from the original natives by the English settlers and other parts have been ceded in treaties at the conclusion of wars carried on by the sole force and at the sole expence of the colonists. It is further said that admitting any sort of right to accrue from the discovery of a country full of people there is ^was^ nothing in the English constitution that intitled the nation as such to the advantages arising from such discovery any more than in the French or Spanish ^constitutions^ to intitle those nations respectively to their discoveries, that the [near conexion] Prince must be considered as the ^sole^ Sovereign and accordingly for more than a century the Parliament never inserted themselves in the discovery or the consequents of it. ^William the Conqueror if America had been then discovered^18 Every thing done in the reigns of Queen Elizabeth King James and Charles the first was by the Prince solely. King James as King of Scotland gave a large country, all that lies between the river St. Lawrence and New England, to his Scotch subjects and Charles afterwards gave the same country to the French King.19 ^But if the colonies may be supposed to be independent of the Parliament they may as well be supposed independent of the Crown of England and there may be a different succession in England from the colonies.^ ^It might have been the case after the reign of Charles the first and of James the second and this principle admitted all connexion might soon be lost between the nation and the colonies.20 What soever the succession has been or may be in England the same it has been and will be in the colonies and the Parliament have ever exercised their^21 authority ever since the colonies ^since they^ have been an object worthy of their notice. and the As early as 1646 an Act or Ordinance passed.22

    Immediately upon the Restoration and from time to time ever since Acts have been passed in Parliament for regulating the Colonies and the inhabitants there have been considered to all intents and purposes as fully subject to the controul of the supreme legislative authority of the Empire as the inhabitants of Wales or any part of Britain and no other distinction has been made except that Acts which do not expressly mention the colonies or plantations are not understood to extend to them, and the inhabitants there for a century past have acknowledged their subjection to such Acts. It is true the Parliament in scarce any instance has thought fit to lay any taxes upon the colonies, neither has it upon Ireland. Indulgence shewn in delaying or omitting to exercise this right ought not to be urged as an argument against the right. Besides, the colonists have always claimed and always enjoyed protection at the expence of the nation, for if any of the colonies have supported themselves in war against their inland enemies the french and indians yet without the protection of the fleets and armies of the nation in every foreign war with the European Powers the colonies must in all past times have been exposed to the prey of such powers and it is a well known maxim that when protection is claimed and granted subjection is due.

    Another argument has been brought from the practice of the ancients especially the Romans who it is alledged allowed their colonists to all all the Privileges of citizens. In the flourishing state of Rome I suppose the revenue of the Common wealth arose from the Taxes and Duties of various kinds upon the Provinces and conquered countries, and when a colony of citizens were led forth to take the possession of such Provinces it appears from divers passages in Cicero and other ancient authors that the revenue was so far lessened. If the revenue of Britain was raised in the same way this argument would have made ^more^ force. That the Senate exercised their supreme authority over the colonies and compelled them to contribute to the wars is evident from the remarkable passage in Livy in his 27th. and 29th. books.23 In the first Carthaginian war every part of the Empire was called upon to furnish men and money. There were then thirty colonies of the Roman people as Livy tells us. Twelve of them he says by their agents who were at Rome declared to the Consuls that they were not able to contribute either men or money. The names of these colonies were Ardea &c. The Consuls were much surprized at so extraordinary an affair and supposing they should be more likely to succeed by reproof and rebukes than by mild intreaty they told the agents they could not imagine that what had been thus said to the Consuls was with design that they should lay it before the Senate; that it was not a meer declining of military duty, it was a right down revolt from the Roman people. They had better therefore make haste home and consult with their principals without taking any notice of what had passed and as if it had been meer words and they had never really intended so bad a thing; they would do well to remember that they were neither Campanians nor Tarentines but Romans; from them they sprung, by them they were sent into colonies and a country conquered in war, for the sake of increasing the Roman race; the same duty which children owed to their parents, they themselves owed to the Romans unless they had lost all sense of filial duty all remembrance of their ancient country; it behoved them therefore intirely to forget what they had so rashly advanced which would in effect be the betraying of the Roman Empire and rendering Annibal victorious. Although the Consuls for a long time repeatedly urged these things the agents were immoveable, they said there was nothing for them to carry home, nor any thing new to consult the ^their^ Senates about seeing they had not men whom they could inlist for soldiers nor money which they could collect for taxes. When the Consuls saw that they were determined they laid the affair before the Senate who were put ^thrown^ into a perfect consternation and many said that it was all over with the Roman Empire; the same would be done by the other colonies, all their allies ^too^ had agreed upon the same thing, to deliver up ^betray^ the city of Rome to Annibal. The Consuls comforted and encouraged the Senate telling them that the other colonies would remain loyal and dutiful and for those who had been otherwise if commissioners should be sent among them not to intreat but to rebuke them they would not have the face to refuse to submit to the supreme authority.

    The Senate left it to them to act and do as should appear to them for the interest of the Commonwealth. Having first sounded the minds of the other colonies of the other [nations] they sent for their agents and demanded whether they had their proportion of men ready. For eighteen of the colonies M. Sextilius Fregellanus answered that they were ready with their proportion of men and that if more should be wanted they would raise more and whatsoever else the Roman people commanded or desired they would exert themselves to perform, they were well able and very well disposed to bear the expence. The Consuls having promised, that applause from them would be no reward for such great merit, the body of the Patricians should thank them in the Senate, ordered the agents to follow them thither. The Senate, by their decree, did them the greatest honour possible and, having acquainted them with it, directed the Consuls to present them to the people and to relate this fresh instance of merit in addition to the many other great services for the government done by them and their ancestors. We should not do them justice if even now after so many ages we should ^do^ not name them with applause. They were the Signini Nolani &c. and from the other sea Pontiani Pæstani &c. and from of the mediterraneans Bene ventani [Arernini] &c. By the aid of these colonies the Roman Empire was then preserved and they had the thanks both of the Senate and people. The Senate would have no notice ordered that no mention should be made of the twelve colonies who had refused to obey, they should neither be dismissed nor detained nor so much as spoke to by the Consuls. This silent chastisement seemed most agreeable to the dignity of the Roman people.

    Livy in his 29th. book tells us that ^five or six years after^ when the war was over the Senate took into consideration this behaviour of the ten colonies, sent for their magistrates and chief men to Rome assigned to each city ^in extraordinary numbers of^ men and ^large sums of^ money to be raised ^to make up the part necessary^ and ordered that they should not be admitted to make application to the Senate until they had complied with what was ordered ^required^ of them and then adds, When in consequence of this desire of the Senate the magistrates and chief men of those colonies were sent for ^and came^ to Rome and the Consuls demanded ^Required^ the men and money to be raised they all in a greater or lesser degree refused and made exclamations. It was impossible for them to raise so great a number of soldiers. It would be very difficult for them to raise what was in proportion to the common census. They begged and prayed that they might lay their case before the Senate and implore a reconsideration of this Decree. They had done nothing which could deservedly incurr so severe a punishment as their total ruin, but if ^should^ they should be ruined yet neither their own guilt nor the wrath of the whole Roman people could make them raise more men than ^all the men^ they had among them. The Consuls were inflexible and ordered the Agents to remain in the City and the magistrates to go home and raise the Levies and unless the full number of Soldiers which had been ordered should be sent to Rome no access should be granted to the Senate.

    Being in this manner deprived of all hopes of applying to the Senate for favours they went home and, ^the number of^ their young men being greatly increased by their long exemption from the war, they raised the Levies assigned them without any great difficulty.

    Dft (Massachusetts Archives, SC1/series 45X, 25:121–35); “Letter relating to the taxing &c.” written upside down at the top of the first page, but not in TH’s handwriting.