Appendix 3:
“A Dialogue between an American and European Englishman”
[1768]
Introduced, Transcribed, Annotated by Bernard Bailyn
Somewhere in the process of writing the “Draft Treatise,” or just after he had abandoned it, it apparently occurred to Hutchinson that his purpose could best be served by a dialectical presentation—a dialogue—in which he could speak directly on both sides of the issues, presenting as an American the opposition’s position fairly and fully before analyzing its weaknesses. A dialogue, he must have realized, would be more interesting to read than a treatise; the persuasiveness of its conclusions, reached through debate, might be greater than those of an argument spoken with only one voice, especially since his own loyalties were in fact divided; and the conversational mode fitted the discursiveness of his thought.
So he made a fresh start on what became the “Dialogue,” putting the “Draft Treatise” aside to refer to it from time to time and to lift ideas and phrases from it as he went along. He must have worked hard on the new manuscript.
The manuscript of Hutchinson’s “Dialogue” consists of twenty sheets, most of them written closely on both sides, bound, in groups of two or three, between pages 102 and 109 of volume 28 of the Massachusetts Archives. In the text as it appears below, these manuscript pages are designated by the Archives’ volume page before which they are bound plus alphabetical indicators of sequences within these groups of pages. Thus 103A and 103B are the recto and verso of the first of the sheets that are bound before page 103; 107F is the verso of the third sheet bound into the volume before page 107. The entire manuscript runs from 102A to 109E.
The following rules have governed the presentation of the text. Hutchinson’s spellings, which are quite standard, have been followed except in the rare cases where his rendering of names or titles might lead to misunderstanding. (Thus Hutchinson’s Annibal appears as Hannibal.) His capitalization and punctuation are less standard and where they are distracting they have been modernized and regularized. This has meant for the most part reducing the use of commas and standardizing the termination of sentences. In no case have words or the sequence of words been altered,
Advantage has been taken of the existence of Hutchinson’s extensive revisions and excisions. Where his interlineated or marginal additions appear to be significant as indications of his thought, they have been identified by carets, ‹thus›. Where these additions are simply mechanical changes or do not seem revealing in any way, they have been silently incorporated into the text. Words that Hutchinson crossed out but that seem interesting as first approximations of his thought or as ideas that he rejected appear also within carets, but in italic type, ‹thus›. ‹An excised phrase› followed by ‹an inserted phrase› means that Hutchinson crossed out the first phrase and inserted the second in its place. Editorial comments inserted in the text appear within square brackets in italic type, [thus]. Conjectural readings where the manuscript is torn or illegible are also enclosed within square brackets but being parts of the text they appear in Roman type, and when the reading is doubtful the words are followed by a question mark.
Hutchinson’s original footnotes are transcribed as written and are denoted by traditional note indicators in regular flights (* † ‡ § ¶); editorial notes have been given numerical indicators.
The “Dialogue” is a carefully crafted piece of writing. In addition to the [Statement on Trade] and the “Draft Treatise,” it went through at least two drafts. The first draft (to judge by what appears to be a fragment of it that has survived) was heavily revised, then recast altogether.1 The second draft, which is the version published here, seems almost a mosaic of pieces of the first: Hutchinson plucked from the original draft not only groups of lines but phrases and even single words that he wanted to retain. At least half of the lines that appear on the pages of the surviving fragment of the first draft reappear in one form or another in the “Dialogue,” often in remarkably intricate recombinations of phrases and words. Yet he was not satisfied with it, the later version either, and covered the pages with a swarm of further revisions—individual word changes, interpolated passages written almost indecipherably in the margins, erasures, excisions, and interlineations. The result, when all these revisions are incorporated into the text as they are in the present publication, is an exceedingly complex and closely wrought discussion of the problems of Anglo-American relations and, more than that, of the universal problems of order and civil disobedience and of the relationship between law and morality in a revolutionary situation.
Hutchinson’s “Dialogue” may be divided into four main sections. In the first (pp, 102A–102C), the central question is whether Parliament can exercise any authority over America without abridging the natural rights of Americans.2 After preliminary sparring, American concedes that both taxation and legislation abridge the liberties of subjects but insists that the difference in degree between the abridgments in the two cases is crucial and that therefore while taxation is unacceptable, legislative regulation is acceptable. European insists that if protests against the right of taxation are honored, there will eventually be protests against any British legislation, and the result will ultimately be independence. American’s final position is that he will accept all parliamentary authority consistent with natural rights and the constitution, and to his antagonist’s reply that this is to accept precisely nothing, he answers that England should accept what it can get and not insist on more than that—and there the issue is dropped.
The main issue in the second section (pp, 102C–106A) is the nature of the British empire. What unifies it? What binds its parts together? The discussion here is especially complex. American insists that because representation in Parliament is impossible for the colonists, they share with Great Britain not a legislative government (necessarily representative) but only a crown, sovereign. That is why the colonial charters granted the colonies their own legislative bodies. The relationship must therefore be what would later be called dominion status. European insists that Parliament never gave up its right to control the colonies. What had happened was simply that the settlers had voluntarily abridged some of their rights in order to have all the others guaranteed by the British constitution and in addition the protection of British arms. There follows a long and intricate historical argument, whose source seems to be in a brief, scarcely intelligible passage in the “Draft Treatise,” centering on the question of whether or not the relationship between Crown and Parliament in ruling exterior territories had shifted in the course of the seventeenth century. American stresses the difference between, in the early years of the century, Charles I’s unchallenged grant of part of Nova Scotia to the French, and in the later years, Parliament’s unchallenged enactment of the Navigation Laws. European questions the historical accuracy and the cogency of this whole line of argument and turns the discussion to the more fundamental, trans-historical issue of the nature of allegiance and subjectship in the British constitution.
Allegiance in the British world, he writes in words that are almost identical to those of modern scholars on the subject, is absolute and perpetual, and it applies as much to Americans, who pass freely to and from Britain with no loss or accretion of privileges, as it does to Englishmen.3 A more accurate account of the early history of Parliament’s rule in America, European argues, reveals not two but four distinct periods covering a full century from the chartering of the Virginia Company to the early eighteenth century, and in all of these periods Parliament’s suzerainty, he explains, was acknowledged and exercised, either explicitly or implicitly. The reason it is so difficult to establish this important fact from the historical record, European concludes, is that English colonization did not develop according to a uniform plan by which the status of law in overseas territory could be clearly known. To this, American replies by a deeper historical probe. In a typical eighteenth-century “argument by analogy”—a form of reasoning by depicting the similarity of things in different planes: “taking a known fact or situation in one plane of being and inferring that a corresponding fact or situation existed in another plane”4—he introduces the long passages from Livy that he had first copied out in the “Draft Treatise.” The Roman Senate, he points out in this argument by analogy, for all its authority, was exceedingly cautious in abridging colonial privileges, and had taxed its provinces only by requisition unless or until the provinces’ responses proved to be “unreasonable”—a criterion, European replies, that cannot be usefully defined.
This effort to describe the limits and obligations of the British empire, with its lengthy historical digressions, is the longest section of the “Dialogue,” and it contains some closely reasoned arguments. But it is in the next section (pp. 106A–109B) that Hutchinson penetrated most deeply. Here American broaches the question of the right of individuals to disobey unjust laws. The point is simple, European says: if every individual is free to select what laws he will or will not obey, all government, all civil order, is gone. But surely, American replies, no one would join a government for the protection of his property knowing that that government was free to do anything it liked with his property: there must be limits. Both speakers cite Locke (accurately) to defend their positions, and the question turns from the right of the individual to disobey unjust laws to the obligation of judges to refuse to enforce such laws. European insists, in an implicit refutation of Otis’s argument in the writs of assistance case, that it cannot be left to judges any more than to individuals to discriminate between laws worthy of enforcement and laws unworthy of enforcement. The courts were never appointed to review the “constitutionality” of legislation; they have always been executive bodies created to enforce the law, and they have never had the right to pass on the justness of legislative enactments. Nor have they had any need to: it was simply unreasonable to think that Parliament would ever pass unjust laws or expect judges to enforce them. But what, American asks, if Parliament did do just those unreasonable things: what then? Then, European replies, the judge should resign.
Once launched, this discussion of the right to resist unjust enactments moves around and around, back and forth, going deeper and deeper into the fundamental issues of law and civil disobedience. The courts and the executive must enforce all laws, European repeats. All laws? All laws “not inherently immoral,” he allows, but then he waters away the qualification by insisting that no one can judge inherent immorality in any objective way. Let American examine his own conscience. Would he refuse to enforce Parliament’s punitive legislation against Catholics? Surely those famous penal laws severely abridge the rights of Catholics, and surely these laws were passed without the slightest consent of the Catholics; yet would not American agree that the threat that Catholics posed to the nation’s political stability overrode the value of their civil rights? There are no absolute values in such matters. Does American believe he would be justified in refusing to pay taxes to support what he happened to think was an immoral war? To judge by the colonists’ own treatment of the Quakers, who think all wars are immoral, he would not. The basic point, European concludes after a digression on judges as moral umpires, is that it cannot possibly be left to the individual to opt in or out of allegiance on moral grounds; government in that case “would be a rope of sand.” Nor are there such unalterable principles of justice, morality, and nature as American thinks. Governments are forever revising their fundamentals, the British government no less than others, and governments differ radically in what they consider to be fundamental.
So the discussion in this third portion of the “Dialogue” flows back and forth, rising to and ebbing away from the basic problem of justified resistance to constituted authority. Finally the exchange climaxes in a series of truly notable statements. Enlarging upon a point touched on in the “Draft Treatise,” European concedes that civil disobedience may be justified morally—but only morally. In a moral sense, he says, the individual may be entitled to resist the constituted authority of government. He may be right—morally—to rebel against his government; but that moral basis of his actions can never be accepted by the courts, whose sphere of action must be bound by the provisions of positive law. If the revolutionary succeeds in destroying the government and instituting another, the moral grounds of his rebellion become part of the new regime; but if he fails, no matter how pure, innocent, or justified he may be in point of morality, the courts will still declare him criminally guilty. They must do so; if they did not, there would be no government.
This is a remarkable passage, one of the most insightful utterances in the pre-Revolutionary literature. Hutchinson’s exact words, and their evolution, should be noted:
. . . every individual must take the consequence of a mistake if he attempts to stir up the body of a people to a revolt and should be disappointed. In a moral view he may perhaps be innocent whether his attempt succeeds or not, but consider him as a member of the political body and he must be pronounced guilty by the judiciary powers of that society if he fails of success. This is a principle essential to the nature of government and to the English constitution as well as all others.
The words had been chosen carefully. It is clear from the emendations in the manuscript that Hutchinson’s thought had originally been looser. The key sentence had originally read: “In a moral view he may perhaps be innocent, but consider him as a member of the political body and his guilt or innocence will depend upon his success.” Hutchinson had then struck out the italicized words and finished the sentence in the way it now stands (“. . . he must be pronounced guilty by the judiciary powers of that society if he fails of success”), thus defining legal or political guilt as something formally “pronounced . . . by the judiciary powers.” At the same time he had gone back to the beginning of the sentence to add to his assertion of the would-be revolutionary’s moral innocence the words “whether his attempt succeeds or not,” thus strengthening the absolutism of the revolutionary’s purely moral innocence.5
This notable passage occurs toward the end of the manuscript. The remaining portion (pp. 109B–109E) deals largely with views of possible solutions to the immediate problems. American’s general solution to the Anglo-American conflict is simply that taxing be left to the colonial legislatures but that commercial regulation remain the jurisdiction of Parliament, a concession on the part of the colonies in exchange for Britain’s military protection. Impossible, says European—not because it is not a reasonable balance but because there is no way of maintaining such a balance. No such theoretical restrictions on sovereign power could ever be maintained in the real world of politics: “Admit that you are not subject to all the laws and you will presently be subject to none.” Just as Dickinson had discovered (what Hutchinson had known from the start) that there were no viable distinctions within categories of taxation, so others would discover that restraints of trade were only a special way of depriving people of property and they would stir up agitation against commercial regulation just as they had against taxation. Indeed, the current violent abuse of the American Board of Customs Commissioners and the persistence of smuggling suggested that this step was already being taken. Then European stakes out his own solution: “I would not give up the least iota of our right, but I would exercise this right with discretion, with equity, and even with a degree of partiality, but when I had once determined how far I would exercise it, at all events such determination should never be departed from.” When English colonists in America—who like all Englishmen are quick to explode but equally quick to return to their senses—see that England is in earnest and means to enforce the law, they will turn upon “the heads of the faction in each colony who have been stirring up sedition” and suppress them. For the present disorders were all the work of “a few desperate men” whose squalid fortunes could only rise if the world came tumbling down and had to be rebuilt. Most of the people in the colonies, however, “are in easy circumstances,” and rather than jeopardize their estates and the happiness of their families “they will willingly sacrifice those desperadoes to provide for their own future security.”6
Perhaps, says American; but these leaders of the American opposition, call them what you will, saved the colonies from slavery in the Stamp Act crisis, and they will save America again by forcing repeal of the new duties. The present disorders—which, to be sure, if sustained would lead a rational man to prefer absolutist France or Spain to America as a place to live—will pass: the colonists were “submitting to a very great temporary evil in order to obtain a lasting good.” Nonimportation is “our dernier resort,” and it is legal and constitutional.7
Ignorance, replies European, which is inexcusable in American lawyers and judges, alone can explain such defiance of the law as nonimportation. If the law is inexpedient, it will in due course be repealed, but crimes cannot be excused by the hope of that eventuality. Yes, the present revenue act should be repealed: it is clearly inexpedient; but let Parliament’s authority be strengthened “in all cases wherein it has been or may be judged proper to exercise it, that the colonies may see their opposition to the authority of Parliament had not the least tendency to bring about the repeal.” Ultimately all laws that are “against the general bent of the people” will be repealed, but laws that offend particular interest groups often are, and often must be, enforced by the nation as a whole.8
And with that the manuscript ends—unconcluded, still evolving, still probing the issues of law and civil disobedience that lay behind the Anglo-American controversy.
Much of what Hutchinson wrote in the “Dialogue” can be found elsewhere in his voluminous writings, though in less readable form. But some of the formulations—especially the distinction between moral and legal guilt in revolutionary situations—are unique in his writings, and unique too in the literature of the Revolution as a whole. The key passages of the “Dialogue” reveal a penetrating mind, turning, twisting, probing in an effort to find convincing ground to defend the world as it existed against the forceful, cogent propositions of the American Englishman. In the end Hutchinson is saying that no good can come from destroying law, which is the civilizing agency in British life, in the name of some abstract good; that law is not a moral code, the relation between law and morality being subtle and fluid; that there can be no compromising of absolute principle—all theoretical compromises will ultimately unravel under the pressure of events; but that within the realm of practical politics mutually agreeable limitations of action can be worked out pragmatically, so long as they represent true interests and not false theories. A purist in the realm of ideas—clear-minded, uncompromising, relentless, and driven by a passion to explain and convince—Hutchinson was also a willing and experienced manipulative politician, convinced that “we don’t live in Plato’s Commonwealth, and when we can’t have perfection we ought to comply with the measure that is least remote from it.”9 So he was willing to work for a pragmatic solution, but unlike Burke he insisted that the points of principle be clearly established first and agreed to all around.
Hutchinson would not—could not—leave theoretical matters to “the schools.” They counted too much for him. He feared too much the ultimate effect of the spread of false doctrines. And so he hammered away at points of principle, insisting that the true notion of sovereignty be understood and publicly acknowledged; that bad history used to defend a popular political cause he revealed for what it was; and that muddled thinking on fundamental issues be clarified once and for all. Nor was his thought as creative as Burke’s. When Hutchinson was drafting and redrafting the “Dialogue” to explain, rationalize, and defend the status quo, Burke was developing, out of the political weakness of the Rockingham Whigs, the view of political parties that he would publish in 1770 as “Thoughts on the Cause of the Present Discontents,” a formulation that challenged traditional British thinking on the nature of political parties and that would later be seen as a significant step toward a new world of political thought. The “Dialogue” reveals a mind as capable as Burke’s of understanding the boundaries and inner structure of traditional thought but disinclined or unable to transcend or transform that thought. Again and again Hutchinson approaches but does not perceive the importance of the role of the courts in judging the validity of law, for he could not disengage himself from the traditional notions that the constitution in its nature was unfixed and indistinguishable from law and that the courts were “executive” bodies without special status as arbiters of fundamental issues. So he gave a more correct historical reading than Otis had done to Coke’s dictum in Bonham’s Case, but he failed to see beyond the idea of a benevolent parliamentary absolutism to the necessity for establishing principles of law superior to government that would protect the individual against the misuse of power.
Why was the “Dialogue” not published? One can only guess. One would like to think that Hutchinson was himself disconcerted, in reading over what he had written, to discover the force of American’s arguments. Though he allocated to that spokesman for the colonies’ cause only half as much space as he did to the voice of the establishment, American’s speeches are cogent and they had the great appeal, which was the ultimate power of the American cause in general, of urging release rather than restraint, of veering in the direction of generosity rather than denial, of seeking to empower aspirations for individual human betterment rather than the enlargement of the force of the state. Perhaps Hutchinson sensed this ultimate strength of American’s arguments and felt confounded in his purpose in writing the “Dialogue.” More likely is the possibility that others to whom he showed the manuscript urged him to avoid the public controversy that would inevitably follow such a publication. But the most likely explanation of all is that his plans for succeeding Francis Bernard in the governorship were advancing—slowly, erratically, at times mysteriously, but nevertheless advancing—and he wished to do nothing that might in any way lead to public embarrassment. Caution had always been his watchword, but now he was more cautious than ever before, determined not to upset the delicate maneuvers he knew were underway in London to secure for him the appointment he so much desired.
Hutchinson’s “Dialogue” bears no title, but since in the manuscript the speakers are designated at the start “Europ—” and “Americn” (thereafter “E” and “A”) the simplest assumption is that Hutchinson intended the piece to be called “A Dialogue between Europe and America,” or “. . . between a European and an American,” and I referred to it in the first of these forms in The Ordeal of Thomas Hutchinson. But Professor Robert Calhoon has correctly pointed out to me that in eighteenth-century America Britons were very rarely referred to as Europeans, and that in the “Draft Treatise” Hutchinson had used the phrase “an American as well as an European Englishman.” He suggests that because of that phrase in the “Draft Treatise” and because of the appropriateness of such a title to Hutchinson’s way of thinking, the piece should be called “A Dialogue between an American and a European Englishman.” Professor Calhoon’s suggestion, for which I am most grateful, seems to me to be persuasive, and, acknowledging his original perception of its aptness, I have adopted this title in publishing the document
“A Dialogue between an American and European Englishman”
European
America is in a very different state from, what it was when I saw you last in England.
American
I am sensible of it, and the worst circumstance is that there seems to be no prospect of recovering our former state.
European
Whose fault is that?
American
You will say it is our fault, we think it is yours. You assumed and exercised an authority over us which we thought you had no right to do. We asserted our rights and sent our humble remonstrances, but you would not receive them. We refused to submit to your act, obliged the officers you had appointed to carry it into execution to resign their trusts; we threatened to break off all commerce with you and to live upon our own produce and manufactures; you were alarmed and thought it prudent to repeal the act which was so grievous to us. It seems some of our patriots unwarily complained of the grievance as being an internal tax and therefore the more unconstitutional. You took the advantage of this distinction and passed another act imposing what you call external taxes. We are now convinced that our rights are equally affected by the one and the other. We are Englishmen, and the property of Englishmen is not to be taken from them without their consent. We never gave our consent to these acts neither in person nor by our representatives. In short, if the Parliament [have] this authority over us, we are no better than [102A–102B] slaves.
European
Hold, my friend, be calm. This dispute, like all other party disputes in affairs of government ‹as well as religion›, has been carried on with great zeal and warmth of temper. This temper must subside before there can be any room to hope for an accommodation.
You complained first of internal taxes, now of external. Give me leave to ask you whether you think that the Parliament may exercise any authority whatsoever over the colonies without an abridgment of their natural rights.
The colonists have always allowed that it is no violation of their rights to have such regulations made in their trade as shall prevent foreign nations receiving benefit from them to the prejudice of Great Britain.*
European
Consider a little before you make this concession. Do not you rather mean that you are willing ‹to come to terms and› to submit to regulations in your trade, provided you may be exempt from all obligation to submit to other acts of Parliament? Is not every law a restraint upon your natural liberty, and is it not as much a part of the English constitution to be governed by laws in general made by ourselves or our representatives as to be taxed by ourselves or our representatives?
American
Admit that all legislation in which we have not a share is an abridgment of our rights, yet taxation is more peculiarly so. There is an absurdity in the very form of it. We the Commons of Great Britain give . . . what and why the money of the people of America, which does not belong to us.1
European
‹I know where you learned that distinction.› We will not dwell upon form. Let this exemption from taxes be your right in a more eminent degree. Still, the other, viz., a general exemption from all [laws] ‹in which you have no voice you will challenge› as your right also in a less degree. Now what security have we that as soon as you are relieved from external taxes you will not alter your mind and not incline any longer to submit to regulations of your trade? If you deal ingenuously you must acknowledge that you intend a perfect independence upon the Parliament of Great Britain.
American
We admit “the authority of Parliament in all cases which can consist with the fundamental rights of nature and the constitution.”†
European ‹We [think you are?] saying just nothing at all›
‹I expected it would come to this.› By the fundamental [102B–102C] rights of nature and of the constitution you are exempt from Parliamentary authority; however, you are willing to admit that authority as far as can consist with those rights. This is submitting to just nothing.
American
If you do not incline to accept of the concessions we make we cannot help it.4
European
We must come closer to the point. What sort of connection do you imagine there is between Great Britain and her colonies? Are you and we parts of one and the same empire or are we not?
American
We are certainly under one and the same sovereign.
European
So are Great Britain and Hanover. But how happens it that we are under the same sovereign?
American
Before our ancestors left England they acknowledged the King of England for their sovereign; they came away with his permission and under his protection, and to him they ‹promised and we still› owe allegiance.
European
Your ancestors ‹while they were in England› acknowledged the Parliament to be the supreme legislative power of the realm as well as the King to be the supreme executive power. How came the executive power to continue and not the legislative?
American
The King might retain the executive power and also his share in the legislative ‹in each colony› without any abridgment of our ‹ancestors’› rights as Englishmen; the Parliament could not retain their legislative power without depriving ‹us› ‹them› of those rights, for after their removal they could no longer be represented, and their sovereign, sensible of this, by charter or commissions made provision in every colony for legislatures within themselves.
Your ancestors, you allow, until their embarkation were subject to Parliamentary authority, and I am willing further to allow that by removing from one part of the empire where they always had been represented in Parliament to another part where they could not be represented, they must be abridged of some of the rights of Englishmen if Parliament still exercised its authority, but5 you are to remember that this was the voluntary act of your ancestors for their own benefit. They were at full liberty either to stay and enjoy this privilege or to go and he deprived of it, but the Parliament did nothing which your ancestors [102C–102D] could urge as a relinquishing of any part of their right, and if the King intended to grant an independent legislative authority in each colony, which I shall convince you by and by he did not, such grant would have been absolutely void. Which, under these circumstances, is more reasonable: that you should lose some part of the rights which you might have enjoyed if you would have remained, or that Parliament should lose all the authority it had over you?
American
We do not rest altogether upon our rights as Englishmen. We go farther and challenge the rights of nature, for which we have a charter from the great author of our beings and which the mere accident of being born under a government of one form or another cannot deprive us of, not that I ‹think› ‹am yet convinced› that we cannot support our claim upon the mere rights of Englishmen and the principles of the English constitution. Therefore I will first consider our rights as Englishmen. It is now near 150 years since the first colonists left ‹Great Britain› ‹England›. I mean the first who could be supposed to have any sensible thoughts of the relation they should stand in to England after their settlement in America; for all the attempts to settle Virginia which preceded I consider as out of the question, the persons sent over for that purpose being the servants of a company remaining in England. Now to have a fair view of the controversy, we must take the constitution of England not as you have—it may be—refined it since, but as it really was at that day.
From the latter part of the reign of King James the First down to this day, the prerogative of the sovereign has in many instances been lessened. If you say it has only been brought to its just limits upon the true principles of the English constitution, I answer that you have no certain rule to determine what these limits are ‹and that all you can say of original compact›. They have varied in every age according to the different circumstances the kingdom has been in, but I think it is enough to support my argument if I show what was the received opinion at that day of the rights of the sovereign. ‹6In all the monarchical governments in Europe the disposal of new discovered countries hath been left to the prince. This seems to have been an universal law of which it may no more be necessary to show the rise than of many other laws which are acquiesced in. By virtue thereof the Kings of England and Scotland have disposed of the plantations as having been discovered for their use by their subjects, and this law for two centuries has been tacitly acknowledged, and I have no doubt that› both James and Charles the First supposed they had a right to the part of America which had been discovered under commissions from preceding princes [102D–103A] without any control from Parliament. James we know made a grant of Arcady to his Scotch subjects and Sir William Alexander began a settlement there about the year 1620.7 If the settlement had gone on, must the colony have been bound by acts of the Parliament of England? No, the Parliament would have given themselves no more concern about them than about the French in Canada. We see that Charles the First soon after gave this country of Arcady to the French. He might as well have given Massachusetts Bay which joins to it, the French having the same claim to both, and if he had done it there is no doubt the English Parliament would have been as silent in the last case as they were in the first. It is not, therefore, the country or territory where we are settled which give the Parliament authority over us, it must be because ‹we were once English› ‹our ancestors, whilst in England, were› subjects to this authority, and we their posterity, let us be born in any part of the globe whatsoever, ‹you will pretend› must always remain so. Subjects we are and ever shall be to the King of England. This was the contract our ancestors made for themselves and their posterity, from him they expected protection, to him they owed allegiance, but no such contract was made expressly or by implication with the Parliament. ‹What odds, then, does it make to us who are now upon the stage . . . going to America since our ancestors removed from England and we after four or five decades being . . .› ‹If our ancestors had removed to Tartary, the Parliament would have had no authority over us. Why should they claim it more in America than Tartary?› And the conduct of Parliament for many years after the colonies were planted shows that they had no apprehensions of such an authority. New Plymouth began in 1620, Barbados and the Leeward Islands in 1625, Massachusetts in 1628, and several other colonies soon after; but the first act of Parliament that is in force respecting the trade of the colonies was made in 1660. As soon as the nation began to taste the sweets of commerce with the colonies, the Parliament was for engrossing the [103A–103B] whole. The colonies were great sufferers by this restraint. The regulations, however, were submitted [to] and by length of time they are so established as [to b]ecome part of our constitution, but [we] have never been required to submit to acts imposing taxes or duties for the purposes of revenue until within these few years, and to such acts I think neither we nor our posterity ever shall submit, and if they are carried into execution it must be by means of the superiority of the strength of the nation to that of the colonies.
European
I am glad to find you will allow acts for regulating your trade by force of long usage are become part of your constitution. This is gaining something, ‹if we can but fix you there.› But I am not content with this, I must examine the principles you rely upon and the historical facts urged in your favour. There is no inferring from the acts of such princes as James or Charles what was the constitution of England. There was no ‹new› constitution settled at the [Glorious] Revolution. The Bill of Rights was declaratory. In former reigns there had been a deviation. Whatever King James might imagine, I cannot be convinced that a grant of Nova Scotia made by him under the Great Seal of Scotland was worth one farthing, but a grant from the King of Spain would have been every whit as good, nor am I sure that the cession of Acadia to the French, if it had not been a contested country of which the French had very early possession, would have been acquiesced in. ‹8What you say of the universal law of the several monarchical states in Europe can have no great force, seeing not more than four or five [of] them can be considered as discoverers of new countries. This doctrine was advanced by Jeffries in the great case of monopolies,9 but his authority where prerogative is concerned has but little weight.› At present we are arguing from the principles of the English constitution. Now allegiance ‹in an English subject› is not local but perpetual.10 The contract you pretend your ancestors made with their prince can do you neither good nor harm. You would have been just as much held to your allegiance without it as with it, and as far as you owe allegiance to the King so far you owe it to the King in Parliament, your posterity within the English dominions will always owe the same allegiance ‹and I know not how the King could discharge them from it›. The question is not about Tartary. That never was English territory. Had your ancestors removed there, you, their posterity, ‹if born there› might have been subject to the Great Cham, and England would have had no claim to your allegiance,
American
Why, America had its princes as well as Tartary.
I do not think it necessary for support of my [103B–103C] argument to show that the several states in Europe had an equitable title to all the countries in America to which they laid claim. It seems enough for my purpose to show that your ancestors ‹acknowledged the right of England to› ‹entered upon› the territory of which they took possession ‹as a part of the dominions of the crown of England›. Why else did they seek for grants from the crown before they left England? Why did they not upon their arrival become subjects to the Indian princes? Instead of that, they took a formal possession for and in behalf of the government of England by virtue of charters and commissions from the crown, and this possession has been continued to this day, and the whole territory so possessed has been ‹de facto› for more than a century the dominions of England, and I know of no one circumstance that can give a claim to an inhabitant of those dominions to an exemption from the supreme authority any more than if their ancestors had remained in England and you their posterity had been born there. Has not there been a continual passing and repassing ever since just the same as from London to Wales and Wales to London? Have not many of you, born in America, been Members of Parliament in England, and were not many of your present members of the legislatures in the colonies born in England? You and we have always been considered as parts of the same government. ‹11If you refuse your subjection to the authority of England, what right have you to protection from England? If you consider America only under the same sovereign with England, all who are born in America are aliens. By what right then from time to time have you taken estates in England by descent when by the laws of England you are aliens and incapable of inheriting?›
American
The Parliament, it is certain, have not exercised their legislative authority over us in the same manner as they have done over England, and except in a few instances you will not pretend yourself that their acts ‹are bind› have any respect to us.
European
‹I had not done.› I will consider that presently, but I must first show you that you are erroneous in your facts relative to the first settlement of the colonies and the attention of Parliament upon that occasion. Nothing appears to have been done in consequence of Cabot’s discovery until the reign of Queen Elizabeth. The American voyages or expeditions were generally at first with a view to make captures from other nations, especially the Spaniards, for which a royal commission or license without any aid from the Parliament was the usual authority. Gilbert, I suppose, under such a commission laid the foundation of the English fishery at Newfoundland. Raleigh’s voyage to Virginia and North Carolina occasioned the first serious thoughts of plantations. A company was formed in England [103C–103D] for carrying on a trade there with the natives by agents or factors and servants and this company were incorporated in like manner as other corporations in England had usually been, by grant from the crown. This was the beginning of Virginia, the first colony. A division of this company in England into North and South Virginia and their being made two corporations instead of one, gave rise to the New England colonies. From one or other of these companies all the plantations from North Carolina to Nova Scotia ‹New York excepted› derived their settlement. Massachusetts Bay, after purchasing the rights to the soil from the North Virginia Company, obtained a charter from King Charles the First for part of the same territory which was included in the charter to the company of whom they purchased. But even this Massachusetts charter never was intended to erect a government in America. The corporation was designed always to remain in England and every colonist who went to America was to be under the direction and government of this corporation in England, and I believe you will allow that this corporation would have been subject to acts of the English Parliament. And in fact the Parliament did very openly interpose ‹about this time› ‹from the beginning›. Sir Ferdinando Gorges, the most active member of the corporation for North Virginia, says that, before the grant to the Council of Plymouth in 1620, their opposers intended to bring the matter into Parliament considering it as a monopoly, that both parties were heard not only by the Lords of the Council but by Parliament, and that the business by them was so ordered that the petitioners were directed to proceed and to have their grant agreeable to the liberty of the Virginia Company, the form of their government only excepted.
After this, until the year 1629 and 30 when the great embarkations began for Massachusetts Bay, everything relative to colonies had been at a stand or going backward. Then from 1629 to 1640 there was no Parliament held. The first two years after 1640 were spent in making the breach and separation between the King and Parliament. In 1642 we find the House of Commons passed a memorable vote in favour of the then most flourishing colony, the Massachusetts Bay, exempting the inhabitants from taxes and duties as well in the colony as in England. Now I think a power of exemption must imply a power of imposition, and besides, this very colony thanked the House of Commons for this favour granted them—a strong instance of the early sense the ‹nation› ‹Parliament and› colonies had [103D—104A] of the connection which continued between them. You will find in Scobell’s Statutes12 the Parliament in the years 1650 and 1656 exercising its authority over the trade of the colonies. ‹13I know that it has been said that these proceedings of Parliament may be considered as the acts of the sovereign rather than the legislature, but I see no room for this distinction, the acts or ordinances differing neither in form nor in their operation from other acts or ordinances made by the same Parliament, which were designed as statutes for a rule of government for the subjects within the realm. The first ordinance was in 1642, just after the break. And in 1656 Cromwell was Protector and may as well be considered as ‹sovereign› ‹having the same legal authority› with regard to the colonies as to any other parts of the dominion.› As soon as the nation was restored to its constitutional form of government, acts of Parliament were passed in the 12–14–15–22 and 23rd and 25th of King Charles the 2d asserting the Parliamentary right over the colonies. If any of the colonies disobeyed these acts they never denied the authority which made them. Some flattered themselves they were procul a fulmine14 but they found themselves mistaken, and made a very humble acknowledgment. In the short session in King James the 2d’s reign I remember nothing relative to the colonies. The prince was aiming at divesting the Parliament of its authority over the nation as well as the colonies. But upon the Revolution even in the Convention a bill passed the House of Commons for restoring plantation charters which had been surrendered, which bill was earnestly solicited by the agents of one of the colonies. And has not the Parliament ever since been frequently exercising its authority by general regulations or by acts respecting particular colonies—nay, private acts, which respect individuals or particular companies? Witness an act for reversing the attainder of Nicholas Bayard, another for reversing the attainder of Leisler, both these in the colony of New York, an act for dissolving the land bank project in Massachusetts Bay, and others I might mention.15 In short, when you can make the authority of Parliament serve for your protection or benefit in any respect, you have been ready to own and even seek it; when any burden is to be laid upon you, however equitable, you shun it and refuse submission to it. It is true indeed that the Parliament in scarce any instance has thought fit to lay any taxes upon the colonies. Perhaps their infant state and inability to do anything more than support themselves might be the reason; but this reason now ceases. Indulgence showed in delaying to exercise the right ought not to be urged against the right itself.
Having thus shown that the Parliament cannot be said to have ‹neglected the exercise of› ‹given up› their authority over the colonies by neglecting the exercise of it, I will endeavour to show why they have not been in the constant use and exercise of it in the same manner they have over subjects in England. The settlement of the colonies was not made in consequence of any preconcerted plan. It seems to be owing to mere chance or accident rather than design. After many attempts for more [104A–104B] than 50 years by particular undertakers to make a settlement in Virginia there seems to have been no prospect of success when all at once the world was surprised with the great and populous colonies of New England which in 8 or 10 years from their beginning were become so considerable as to leave no room to doubt of their permanence. Their charter from the crown being, as I before observed, intended only for a corporation in England like other corporations, they had the power granted of making bylaws which were not to be repugnant to the laws of the realm. The laws of the realm were the laws for this corporation as much as for any other corporation in England, but where any special rules or laws were necessary for the carrying on their particular affairs, such rules to bind their own members, they had power to establish. When the principal settlers removed, they carried their charter with them, set up that corporation in America which was designed to remain in England, made a body of laws for their government, certainly very different from the laws of England. The ‹full› ‹least› force of the expression not repugnant to the laws of England ‹in a charter for a corporation without the realm must be as much as this, viz.,› that no laws of the corporation can be of any validity which are contrary to the laws of England made immediately to respect such corporation. This mode of expression was observed in the charters and commissions to the colonies which sprang from or were settled after this first colony in New England, and every colony from this pattern formed a system of colonial laws, not all alike, departing from the law of England but all in a greater or less degree, so that [space in original] of the [space in original] century in the case of [space in original] Lord Holt gave his opinion [space left for full paragraph in original] [104B–104C] Now if the colonies had been settled upon a projected plan I think the laws of England would have continued the general rule of law for all the colonies, and all acts of Parliament subsequent to the settlement would have been understood to extend to the whole dominions unless from the nature or subject matter of them or an express exception in them they could not be understood to have this general extent. The several colonies by their legislatures might have been empowered to make local laws or orders not inconsistent with the general rule of law and always subject to the supreme legislative authority. The administration of justice could not have been the same as in England but perhaps there might have been no more material difference than between the courts for Wales and those for the rest of England. I fancy if you had been settled upon this plan, besides avoiding the great uncertainty which most colonies are now under, sometimes adopting the law of England and sometimes not in similar cases (which I [trust] by the by) we should have had no dispute at this day whether the authority of Parliament ‹were in force in› ‹extended to› America or not.
American
I can’t conceive why this should necessarily be the plan if one had been projected. I should rather think the example of the Grecians and Romans worthy the imitation of Englishmen. They follow them in the love of liberty for themselves, why should not they be as willing their fellow citizens should continue to enjoy it?
European
We are left much in the dark about the connection between the ancient commonwealths and their appendages. The Romans, who were the most powerful and of whose affairs we have rather more transmitted, I know made a distinction between their provinciæ, their municipia, and their coloniæ. The last I know were the most favoured, but I dare say neither of them were exempt from the authority of the Senate.
American
I know there were the several orders you mention and that the coloniæ were the most favoured, but then you must remember we are in the case of the coloniæ not only such of us whose ancestors were the first Europeans who came into the colony but even such of us as live in colonies conquered from other European states, Canada only excepted, for Jamaica ‹and New York› is wholly settled by English-born subjects having but few traces left of the Spaniards, and although at New York many of the posterity of the Dutch are remaining, yet at the surrender, besides an allowance to retain some of their particular customs, they had assurance given them of enjoying the privileges of English colonists. Now I think it appears very probable that the Romans left their distant colonies to be governed within themselves as independent of the Senate as we desire to be of the Parliament, nay in some respects their privileges seem to have been greater than those of the English colonies, Connecticut and Rhode Island excepted. The one and the other may be called the little images of the state from which they issued. We have our governor, Council, and House of Representatives, our legislative, and our judges, sheriffs, etc., and our executive; they had their decemviri‡ or consuls and their decuriones or senators, as also their prætors, lictors, etc. But then in general our governors and our Councils are not of our own election, whereas the Roman colonies, at least whilst Rome was free, seem to have elected their own magistrates. Caesar took upon him to appoint them after he had [contained] Rome itself. A colony so near to Rome as to be able to give their suffrages there, from time to time enjoyed this privilege. Remote colonies were not capable of it. Now I dare say you can show me no instance, during the free state of the commonwealth, of the Roman colonies being taxed by the Senate. Whatever was done in the colonies in aid of the commonwealth either by men or money seems to have been by their own free And deliberate acts and not in consequence of the acts of the supreme authority of the Roman Commonwealth.
European
I don’t see, admitting all you say of the Roman colonies to be true, how it will conduce to your purpose. The Roman colonies had their internal government; why, so have the English colonies. The supreme authority of Rome was paramount to the internal authority of its colonies; so it is in Britain [104D–105 A] The Roman colonies were not taxed. ‹Nor was› ‹We do not know in what manner› Rome itself ‹was› taxed. ‹but› ‹We know› the people of England are taxed, so upon some occasions may the people of the colonies be taxed also. In the flourishing state of Rome the public revenue arose from the provinces and conquered countries. There were imposts, land taxes, cattle and corn taxes, etc. according to the different circumstances of the provinces, but when levies of men were wanted the colonies were called upon for their proportion. I remember a notable instance recorded by Livy, ‹who being my favourite› ‹an› author I have at hand, and by that you will judge how far the Roman colonies were subject to the Roman Senate. The case was this, as we find it in his 27th and 29th books.17 In the first Carthaginian War the Romans were in great distress, and every part of the empire was called upon to furnish men and money. Livy mentions thirty Roman colonies at that time. Twelve, he says, by their agents who were then at Rome, declared to the consuls that they were unable to contribute either men or money. The consuls were greatly surprised at so extraordinary an affair. Reproofs and rebukes they thought more proper for these colonies and more likely to succeed than mild entreaties. They told the agents it could never be imagined that such an answer was given with design that it should be communicated to the Senate—it was not a mere declining of military duty, it was a right down [sic] revolt from the Roman people—they had better make haste home and consult with their principals without the least notice of this answer, as if it had been mere words and so bad a thing was really never intended—they would do well to remember they were not Campanians nor Tarentines but Romans—from Romans they sprang, by them they were sent into colonies and into countries conquered in war for the sake of increasing the Roman race—unless they had lost all sense of filial duty, all remembrance of their ancient country, they must be convinced that they owed to the Romans all that children owe to their parents—they ought to think no more of what they had so rashly advanced, for persisting in it would in the event be a betraying the Roman empire and rendering Hannibal victorious.
The consuls spent much time in repeatedly urging these things, [105A–105B] but the agents were immovable. What could they say to their constituents if they returned home? There was nothing new to consult their Senates about. Men they had not, to be enlisted for soldiers, nor money to be collected for taxes. When the consuls saw that the agents were determined, they laid the affair before the Roman Senate. The Senate was struck with amazement. Many cried out that it was all over with the Roman empire, this example would be followed by the other colonies, their allies too would join, and there was a general confederacy to betray the city of Rome to Hannibal.
The consuls comforted and encouraged the Senate by telling them the other colonies, no doubt, would remain loyal and dutiful, and if commissioners should be sent to those who were refractory, not to entreat but to rebuke them, they would not have the face to refuse to submit to the supreme authority. The Senate left it to the consuls to take such measures as they should judge best. Having first ‹sounded the agents of the› discovered how the other colonies stood affected, they sent for their agents and demanded whether their respective principals had ready their proportion, of men. M. Sextilius Fregellanus undertook for 18 of the colonies that their several quotas of men should be ready, and if more should be wanted they should raise more, and whatsoever else the Roman people commanded or desired they should do their utmost endeavours to comply with it; they were both able and willing to bear the expense.
The consuls replied that applause from them would be no reward for so great merit. The body of the patricians in open Senate should give them thanks. The consuls went immediately to the Senate and the agents followed. After the Senate had expressed their sense of this loyal behaviour in the most honourable terms and caused the agents to be acquainted with it, the consuls were directed to present them, to the people and to relate this fresh instance of merit in addition to the many other great services performed for the commonwealth by those people and their ancestors. The Senate ordered that no notice should be then taken [105B–105C] of the ten18 colonies who had refused to obey. The agents 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.
We will now sec what Livy says in his 29th book. Five or six years after, when the war was over, the behaviour of these ten colonies was taken into consideration by the Senate. Their magistrates and principal inhabitants were required to come to Rome. Each colony was required to raise a large number of men and a large sum of money equivalent to their past deficiencies, and there was no admission to the Senate by petition or other application until they had complied with the whole which was required of them. The magistrates and chief men appeared at Rome according to order. The consuls acquainted them with the decree of the Senate and what men and money they were required to raise. They all refused, and all more or less exclaimed against this severity. It was not possible for them to raise so great a number of soldiers—even their proportion to the ordinary census would lay them under great difficulties—they begged and prayed that they might lay their case before the Senate and implore a reconsideration of this decree—what had they done which could deserve so severe a punishment as their total ruin?—nay, tho’ the decree might prove their ruin, though their guilt had been ever so great, still even the wrath of the Roman people could not make them raise a greater number of men than they had. All was to no purpose. The consuls were inflexible. They ordered the agents of the colonies to remain in the city and the magistrates to go home and raise the levies, and refused all access to the Senate until the full number of men ordered should be sent to Rome.
Being in despair of any favour, they all went home and raised the levies assigned them without any great difficulty, for having been exempted from the burden of the war for divers years when their fellow subjects had been burdened, the number of their young men was greatly increased.
These passages in Livy I think plainly [105C–105D] show that the Senate exercised as full power and authority over the colonies as over any part of the commonwealth. In what manner the Senate would have proceeded to enforce an observance of their decree if the colonies had not complied we are not able to say, but I think no doubt can be made that they would have persevered until it was effected.
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American
‹You have made it evident› ‹These are strong passages› I acknowledge to show that the Roman colonists remained subject to the authority of the Roman Senate, but you could not have produced an historical fact which would more fully have evidenced that the Roman Senate was extremely cautious of abridging the colonial Senates of the legislative power which they had a right to exercise. Was there any decree of the Senate of Rome that this and that colony should raise a certain number of men and a certain sum of money by this or that mode of taxation and that such and such and such officers should have power and authority to carry the decree into execution? No, they took the same method which many of the English colonists think would be no more than reasonable with respect to them. The consuls in whom the executive power of the commonwealth was vested they thought the aid of the colonies was necessary and recommended to each of the colonial Senates the exertion of the strength of the colony upon this extraordinary occasion. Just so, the King during the late war recommended raising men and money to the several Assemblies in the colonies. Most of them cheerfully complied and some beyond what was required or expected from them, and if any of them who refused or declined had not had sufficient cause for their justification or excuse and the Parliament had then employed their authority, the whole case would have been very similar to what you have brought from old Rome.
European
Would not you have complained as much of the exertion of the power of Parliament in this way as in the other?
American
Not if there had been an unreasonable refusal on the part of any colony.
European
But who is to be the judge?
American
I am not willing to suppose the Parliament would require anything unjust and unreasonable.
European
Nor I, but the same thing may appear to the Parliament to be reasonable and just ‹to some of the colonies it may appear so also›, and to ‹others› it may appear just the contrary. ‹We see in fact in the late war Maryland for a frivolous reason refused any aid, and others afforded a very small one.19› Our main fort [sic] is in the principles I set out upon.
American
I cannot think that the people under any government can be obliged to submit to what is in its nature unjust. ‹Let us reassume the argument from which we digressed.› All government is or ought to have been instituted for the ‹good› ‹sake› of the people. There are certain natural rights which as men we are entitled to and [106A–106B] which we can never be supposed to give up to any authority whatsoever. There are certain fundamental principles of the English constitution, and to any act contrary to those fundamentals the people are not obliged to submit. I think every man has a natural right to dispose of his own property. It is a fundamental of the English constitution, a part of Magna Charta, that all supplies be made by the Commons, in other words by the people. The very term [“]give and grant[”] must intend that it comes from the owner. These fundamentals set bounds to Parliamentary power, and the great oracle of the English law, Lord Coke, says in his Reports that acts made against the fundamental principles of the constitution are void.20 If void, certainly there is no obligation to submit to them. Nay, by the constitution it may well be questioned whether the Parliament of England can be considered as the Parliament for the colonies. We know the sense the Parliament itself has had of itself. In a statute of 1 of King James the First21 a Parliament is said to be when all the whole body of the realm and every particular member thereof either in person or by representation upon their own free election are by the laws of the realm deemed to be personally present in Parliament. You have not given me a sufficient answer upon these points, but if you had been able to do it I have a farther argument. Admitting the power, which I never shall do, yet it has not been thought equitable to exercise it for more than a century past, and there is no more pretence from equity now than there has been in any former time.
European
I am willing to consider every point as fully as you please and we will now take them in the order you have advanced them ‹and no longer ramble from one thing to another›. I agree with you that government is to be considered as instituted for the sake of the people, but that every individual has a right to judge when the acts of government are just and unjust and to submit or not submit accordingly I can’t so readily concede. Only think a little and you must be convinced that this is a doctrine repugnant to ‹the very idea of› government, ‹We shall dwell some time upon this before you are satisfied, if you are so finally.› I have no idea but this of the difference between a state of nature and a state of government. In a state of nature ‹no one man has a right to› I am in no case subject to the controul ‹the actions› of any other person [106B–106C] except to redress or repel a wrong done or intended to be done him. ‹In a› ‹By entering into› [a] state of government I subject myself to a power constituted over a society of which I become a member. It is immaterial in whom this power is lodged. Such power must he lodged somewhere or there is no government. You say, such submission must be intended only in matters that are just. I say, this is no submission at all, for if every man is at liberty to judge what is just and what is unjust and submit or not submit accordingly, he is free, as far as he pleases, from that power to which he professes himself to be a subject, which is a contradiction in terms. Just the same may be said of those natural rights which you say every man retains notwithstanding his being in a state of government. If I am at liberty to judge what is my natural right, which I have thus reserved, and what not, I may exempt myself from every act of government, for every act lays me under some restraint which I have a natural right to be free from. But pray tell me ‹what are those› ‹which of our› natural rights in a state of government must he supposed to be reserved?
American
‹To instance in one of many, because most to our purpose,› I retain my natural right of disposing of my property either by my own consent or by my representative.
European
You are not the first American who has confounded the general principles of government with the principles of the particular constitution of the English government, which we shall consider presently. But what is there which makes it more reasonable in the nature of the thing for you to retain a right of disposing of your property than of your liberty? Certainly the latter ‹is› ‹may be› more valuable to you than the former. To answer the ends of government it may be more necessary that the former should he at the disposal of the supreme authority than the latter, and in many cases which may happen, it is equally necessary that both should be so.
American
A line must be drawn somewhere ‹both as to liberty and property.› It may be difficult perhaps to determine by any general rules where the line shall be. It may depend upon particular cases, but it can never he supposed that a man who enters into a state of government merely for his own benefit may have all his property taken from him and he himself be bought and sold at the will and pleasure of the supreme authority. He certainly had better have remained in his natural state. This doctrine of Passive Obedience and Non-[106C–106D]resistance never had any advocates among us ‹Americans›.
The question now is not which is best, a state of nature or a state of government and civil society. Indeed22 nothing can make me doubt which is best. Such disorders and confusions as of late have prevailed not in the colonies only but in the ‹government› ‹kingdom› from whence they sprang ‹perhaps are necessary to convince men of the deplorable state they would be in without government and to reconcile them to the restraint of their natural liberties›. We are considering what degree of submission is due from persons who have brought themselves into a state of government. Now if individuals or any particular parts of a government may resist whensoever they shall apprehend themselves aggrieved, instead of order, ‹peace,› and a state of general security—the great ends of government—we may well expect tumults, wars, and a state of general danger. You have been taught by some of your writers to use the terms Passive Obedience and Non-resistance, which are deservedly odious as they were applied by the sycophants of the court in the last century when kings were said to be jure divino, and let their government be ever so arbitrary and tyrannical and the whole body of the people be ever so much dissatisfied, no redress was to be had, their commands were to be obeyed or the penalty of the breach of them patiently submitted to.
American
I am willing to carry my principles of submission as far as the great Mr. Locke did his ‹and no farther. He says,› “the supreme power cannot take from any man part of his property without his own consent; for the preservation of property being the end of government and that for which men enter into society, it necessarily supposes and requires that the people should have property without which they must be supposed to lose that by entering into society which was the end for which they entered into it, too gross an absurdity for any man to own.”§ He afterwards goes on, “It is [106D–107C]23 true, governments cannot he supported without great charge and it is fit everyone who enjoys his share of the protection should pay out of his estate his proportion for the maintainance of it. But still, it must be with his own consent, i.e., the consent of the majority, giving it either by themselves or their representatives chosen by them. For if anyone shall claim a power to lay and levy taxes upon the people by his own authority and without such consent of the people, he thereby invades the fundamental law of property and subverts the end of government. For what property have I in that which another may by right take when he pleases to himself?”¶
European
I reverence Mr. Locke as much as you can. I think I have advanced nothing which is not supported by his authority. You will find him saying in another place that “every man, by consenting with others to make one body politic under one government, puts himself under an obligation to every one of that society to submit to the determination of the majority and to he concluded by it, or else the original compact whereby he with others incorporated into one society would signify nothing and be no compact if he be left free and under no other ties than he was [in] before in the state of nature. For what appearance would there be of any compact? What new engagement if he were no further tied by any decrees of the society than he himself thought fit and did actually consent to? This would be still as great a liberty as he himself had before his compact, or any one else in the state of nature hath who may submit himself and consent to any acts of it if he thinks fit?”* He adds, “Whosoever out of a state of nature unites into a community must be understood to give up all the power necessary to the ends for which they unite into than the majority.”† These ends he tells us are the preservation of their lives, liberties, and society to the majority of the community, unless they expressly agreed in any number greater estates which he calls by the general name property‡ ‹“No man in civil society can be exempted from the laws of it, for if any man may do what he thinks fit and there be no appeal on earth for redress or security against any harm he shall do, I ask whether he be not perfectly still in the state of nature and so can be no part or member of that civil society, unless anyone will say the state of nature and civil society are one and the same thing?”§› [107C–107A]
When I consider these other parts of Mr. Locke’s treatise I never can believe that in those which you refer to be ‹supposed› ‹could intend› that it ‹could be› ‹is› a principle in government that any individual or any number of individuals short of the majority may refuse submission to every act of government which he or they determine in their own minds abridge them of more of their natural rights than the ends for which such government was instituted, make necessary. If individuals have good right to refuse submission I think upon the same reason the executive and judiciary powers of such government ought to refuse to cause any laws to be executed against a subject who thinks them unnecessary to such ends, the absurdity of which doctrine I fancy you readily conceive of.
American
‹Why you do not pretend› ‹I will not allow› that courts and judges in any government are to observe laws that are contrary to the ‹fundamentals of the constitution› ends for which such government was instituted.
European
If I was a judge I should not think myself at liberty to determine whether an act of Parliament is or is not expedient for the community; it’s enough for me that the act is part of the law which I have sworn I will make the rule of my judgment, and although I may be of opinion that such act ‹may› ‹will› affect the property of particular subjects unequally, yet I consider that the property of these subjects from the very nature of government is at the disposal of the supreme authority for the good of the whole not in such easy and just proportions only as those subjects themselves shall judge necessary to promote his good but as the supreme authority shall judge it so. ‹26Besides, if I should agree with you, what will you get by it? If you once allow courts and juries to observe the laws or not according to their discretion, instead of being governed by known, established laws you are subjected to an arbitrary government by making the legislative and executive powers one and the same.› If you will suppose an act of Parliament may require a judge to do anything in its nature immoral or contrary to his duty to the supreme legislator of the world, in this case I would quit my post and subject myself [107A–107B] to any penalty rather than obey it. But if you had not interrupted me, I should have further observed to you that if you take the whole of Mr. Locke’s work together you will find he intends no more by the passage you think so favorable to your cause than this, viz., that when the ‹legislative and executive› powers ‹of government› shall cease to make the ends for which government is instituted the rule of government, the people are under no moral obligation to continue subject to them but may revolt and remove their governors or mold themselves into any other form of government they think proper.
If the body of the people are under no moral obligation to continue subject, I do not see why individuals or any lesser part of the people should be obliged from a moral consideration.
European
Admitting what you say, yet it’s enough for my purpose that the judiciary and executive powers of any government are obliged to carry the laws of it ‹which are not in their nature immoral› into execution as long as it continues to exist.
American
As a judge, you say yourself you would do nothing immoral but would sooner quit your post or subject yourself to any penalty. To carry acts of Parliament into execution which are contrary to natural justice is doing a thing immoral.
European
‹You may suppose such a law that a judge ought to quit his post rather than carry it into execution, but› a thing may be immoral or unjust under some circumstances, as particularly in a state of nature, and under other circumstances, as in a state of government, may be moral and just. By your submission to government, as I have already observed, you have given up your property to the disposal of the supreme authority which otherwise would have remained to your disposal, and a judge or court only holds you to your own agreement. [107B–107D] You are not the only British subjects who ‹think themselves subject› ‹are obliged to submit› to acts of Parliament which they conceive not agreeable to natural justice. Do not you imagine that the Roman Catholics think it unequal for them to pay taxes double to what Protestants of the same estates pay?27 ‹And don’t you think that one half the people of Ireland, I mean the Roman Catholics, who have no vote in the election of members of Parliament› I do not doubt if you was upon a jury for the trial of a Roman Catholic who rebelled and should plead in his excuse the injustice of this tax you would condemn him notwithstanding.
American
I hope you do not compare us to Roman Catholics. They have no reason to complain. The principles of their religion are repugnant to government. They hold that no faith is to be kept with heretics. They are such dangerous subjects that anything short of banishment is a favour shown them.
But few Roman Catholics at this day will own what you affirm to be a principle of their religion. Protestants will force that and many other tenets as absurd upon them let them disclaim them as much as they will. However, for argument sake, I will admit they hold this principle. ‹28If they do they will say it is a matter of conscience and it is contrary to justice to mulct a man for following the dictates of conscience, A Roman Catholic cannot sit in Parliament nor can he vote for anyone to represent him. Upon your principles he ought not to be taxed at all, but he is taxed double to other subjects of the same estates. The supreme authority acknowledge that it is a principle in the constitution that no man’s property shall be taken from him without his consent in person or by his representative, but they say there is a higher principle than this—Salus Populi, the great end of all government—that it is incompatible with this principle that Roman Catholics should share in the government of a Protestant nation, but that it is very agreeable to it and necessary to the ends of government that they should be taxed and double taxed to the support of the nation. But consider to what length this principle29 will carry you. Why may you not urge› that a war in which the state is [107D–107E] engaged is contrary to natural justice and refuse to pay any taxes to support it as that you are taxed by a power where you are not represented and refused to pay it on that account? The Quakers say that all war is unlawful and scruple paying to the support of it, but your legislatures in the colonies find a way to compel them by distressing, imprisoning, etc. Now I cannot see how you can justify exercising your authority to compel them to an act which they think contrary to natural justice and at the same time urge an exemption from acts of a power you acknowledge to be the supreme authority over you because such acts are contrary to natural justice. You justify yourselves by saying the Quakers are people under your authority and your legislatures have a right to judge when to apply their property to answer the great end of government and when not.
American
I think you offer an indignity to the colonies to insist so much upon the case of the Roman Catholics in England and to draw a parallel between them and His Majesty’s loyal subjects in the colonies. Notwithstanding all you have said, I can easily conceive that there may be certain fundamental principles of government and that the people of which such government is constituted are freed from all obligation to subjection when the supreme authority departs from these fundamentals, and as we know of no government which has constituted an umpire or judge to determine when these principles are departed from, every man’s own conscience must be the judge and he must follow the evidence of truth in his own mind and submit or not submit accordingly. He would not have been obliged to submit if such a constitution had not been formed. When the condition upon which he submitted is not performed he returns to the rights of his original state of nature and all obligation to submit ceases.
European
Such a compact as you suppose would be a mere rope of sand. I challenge you to give me an instance of any one government from the creation of the world established upon such fundamentals which have continued for a long series of time without alteration. On the other hand, look into the history [107E–107F] of any government you please and take it for granted that it was first formed by the mutual compact of every individual, you will find that in a course of years frequent material alterations have been made in fundamental points not by subsequent new agreements made by each individual but by acts of the supreme authority of such governments, and such alterations become to all intents and purposes parts of the constitution. After all you have said in defence of your tenet, it appears to me absurd to the greatest degree to suppose a government consisting of individuals each of whom may plead an exemption from all the laws of such government which appears [sic] to him to be contrary to his natural rights or to natural justice, and that such plea ought to prevail with the judiciary and executive powers,
American
All that you have said is far from convincing me that to take my property from me without my consent in person or by my representative is not contrary to natural justice, and although you seem to suppose all that is said of original contracts is merely ideal, yet it will amount to the same thing if it be contrary to the ends for which governments must have been instituted ‹if we could trace them back to their original formation› and if instead of having property secured it must be rendered more precarious than in a state of nature. Upon this natural principle the English constitution was first formed or, I care not which, from time immemorial has been established; from thence Englishmen derive a darling maxim that no charges shall he levied of the people but by authority of Parliament, not because the Parliament is the supreme authority of the English government but because in the supreme authority so constituted every man is or ought to be, not virtually, as you express yourselves without any meaning, but actually represented.
If you Americans have not preserved all the rights of Englishmen you certainly retain one of their distinguishing qualities. You are obstinately tenacious of what you have once, though upon mistaken grounds, conceived to be your rights. However, since we have begun I am willing to go through, and [107F–108A] will now proceed to examine your claim upon the principles of the English constitution. You say there are certain fundamentals in the English constitution and to an act contrary to them the subject is not held to submit. ‹You have [word illegible] taken from Magna Charta you deem sacred and inviolable. Why did not you mention› I readily admit it to be the happiness of the English constitution that there are certain fundamental principles, plain and intelligible, which in all judicatories are to be considered as the rule for construing law in all cases where there is room for doubt or uncertainty, but I should think it a great misfortune if when, in a long course of time and a total change of circumstances, the reason for establishing these principles ceased there should be no power subsisting to alter or repeal even these fundamentals. I will put you in mind of the very first in the list of fundamentals: Ecclesia Anglicana libera sit et habeat omnia jura sua integra, or in English, all ecclesiastical persons shall enjoy all their lawful jurisdictions inviolate.30 You are alarmed with a proposal of appointing a single bishop for America. What a deplorable condition would you be in if the Church should be restored to the same state it was in when Magna Charta was enacted or established or at any time between that and the reformation? How many other ‹fundamental› parts of Magna Charta are repealed by acts of Parliament or by changes in the state of the nation rendered null and altogether impossible to be executed. Indeed, I know of no principle in the English constitution more fundamental and which is more certain always to remain than this, viz., that no act can be made or passed in any Parliament which it shall not be in the power of a subsequent Parliament to alter and repeal. You will find this in the same author, Lord Coke, whom you cite to show that acts contrary to fundamentals are void. I am sensible that ‹this› ‹your favourite› doctrine is received in all parts of the colonies, and in some of your writers we find such positions as these; no act of Parliament can deprive us of the liberties of men, citizens, and British subjects; the supreme power cannot take from any man any part of his property without his consent in person or by representation. ‹The Parliament is to govern by stated laws.› It seems to have been the grand [108A–108B] point which some of these writers have had in view to captivate their readers with big sounding words. Examine these positions. Does not every change from a state of nature into government more or less deprive us of the rights we enjoyed as men? In Europe, governments in general breathe more of the spirit of liberty. In Asia the climate or some other cause inclines to despotism. No prince in Asia has a right to deprive me of my natural liberty by compelling me to become his subject, but if for the sake of his protection I become or continue his subject, I have as much submitted my ‹natural› rights to his government there although I have parted with more of them as I should have done in Europe in what we call free governments. What this writer means by the rights of citizens is very uncertain seeing you will scarce find any two cities where they are just the same, and the rights of British subjects vary in every age and perhaps every session of Parliament. And as to the second position, why should my property be exempt from the supreme power more than any other of my natural rights?
American
Before you proceed any farther I desire you to recollect that you are now to show that these are not the principles of the English constitution but you are going back to show that they have not their foundation in nature.
European
Your writers have so often blended them together or in their arguments run from one to the other that I hope it will be some excuse to continue myself as you would have me. ‹Excuse my repeating that› I have no idea of any government’s being unalterable. The power which established it may dissolve it. The King, nobles, and people of Britain we will suppose to have settled certain fundamental principles of government. You may suppose that the King has acquired by such settlement a prerogative which the other two branches may not deprive him of, and the nobles and people may acquire respective rights as unalterable, [108B–108C] but if King, nobles, and people agree to make an alteration in what were before fundamentals, who is there to complain?
American
Not the King nor the nobles because it is their own act, but the people may justly complain that their representatives have given up what they had no right to do, nay though such a departure from fundamental principles should not be disapproved by the major part of the people, yet the minor part who did disapprove it ought not to be held by it. No act contrary to these fundamentals should he binding because the representative has assumed a power which was never delegated to it.
You should consider how these fundamentals were settled at first.31 We will suppose that in the days of King John, the first Henrys, or Edwards the fundamental principles of government were settled; or go back if you will to any time since Julius Caesar landed and we have any knowledge of Britain: have the people ever assembled together in one body so as that we may suppose these fundamentals to have been settled by the majority of individuals? If not, as no doubt you will allow, it must have been done by a less number either elected to represent the whole or assuming such representation without any election. Why has not the representative as good right at this day to alter fundamentals as it had at that day to establish them? ‹They have not their› ‹Natural rights have all their› foundation in nature they might have agreed to ‹part with or retain› more or less when they first settled th‹is› [these?] ‹supposed fundamentals› ‹When any of them proved inconvenient› The same power may just as well alter them and in fact from time to time have been making continual alterations ever since we have any knowledge of the history of the constitution.
American
I never supposed when I gave my voice for my representative in our provincial assembly that I gave him an unlimited power. We have a known constitution, and if the representative [108C–108D] of the people gives up the rights they are entitled to by that constitution he has assumed a power never delegated to him, and the act is void.
‹Or if› we return to Great Britain. I have often read and heard that when the Septennial Act was under consideration the opposers of the bill argued that it was unconstitutional that the people when they chose their representatives chose them for three years only, that continuing themselves four years longer was assuming a power which was not delegated, and such a bill if it should pass into an act would he void.32
European
The great caution you use in expressing your reasons to support your principles is of itself a sufficient answer to them. You choose to give the sentiments of those who were against the act while it was a bill but do not think proper to declare it to be your own sentiment that it is a void act now it is passed. You know it would be criminal in you to do it, and why? Because if individuals were at liberty to declare acts of the supreme authority to be void and refuse submission to them, the government would soon be dissolved. You disallow the Septennial Act, and may as well disallow all the acts passed by the first septennial Parliament if not by all the Parliaments since; another deems some other acts unconstitutional, and so on until perhaps few or none would be left approved by all. However, therefore, you may satisfy yourself that merely in a moral sense you are not bound to ‹obey› ‹conform to such› a law, you will never find a court of judicature which will think your sense of your obligations sufficient ‹excuse› ‹reason› to exempt you from the ‹penal consequences [108D–109A] of not conforming to› ‹operation of› the law. Their judgments must he determined by acts of Parliament. If later acts militate with former, how early soever—even those you call fundamental—the later must be the rule.
American
Surely we may suppose a government to have known established funda-mentals settled by agreement of the individuals at their first ‹entering into› formation into a government. Several of the colonies in America were first formed in that manner. Admit, for argument sake, that they had continued to this day in the same form without any commissions or charters from the crown or any authority in England, would the supreme authority of such government have a right at this day to pass acts contrary to these fundamentals? Would not such acts be utterly void?
European
We may suppose such a government as you mention not to be so numerous as to prevent its being an absolute democracy and the whole people may at stated times or occasions all be assembled for acts of government, or we may suppose it to be so increased as to render it impracticable for the people so to assemble and their voices to be collected, and they may call themselves a commonwealth and the people be represented in a senate, which in this case be the supreme authority; in the other case the supreme authority would remain in the body of the people.33 In either case the acts of this supreme authority would be binding though they altered the fundamentals. In the latter case, if the individuals remained the same as when they first combined, would not it be in their power to rescind their own act? If the first formers were extinct, their posterity surely would say, what right had our ancestors to bind us by any irrevocable act of theirs? If the supreme authority be in the senate, they are in the place of the body of the people. You will say, perhaps the people never delegated the power of departing from fundamentals: admit it and see what will be the consequence. Not that every man or every part of the community may refuse obedience to such acts, [109A–109B] for this, as I observed before, would be directly contrary to the fundamental principle in all government, but the body of the people may rise and change the rulers or change the very form of the government, and this they may do at all times and on all occasions, just when they please. But every individual must take the consequence of a mistake if he attempts to stir up the body of a people to a revolt and should be disappointed. In a moral view he may perhaps be innocent ‹whether his attempt succeeds or not›, but consider him as a member of the political body and ‹his guilt or innocence will depend upon his success› he must be pronounced guilty by the judiciary powers of that society if he fails of success. This is a principle essential to the nature of government and to the English constitution as well as all others.
American
Admit all you say to be true, and yet it does not touch our case. Suppose it reasonable and necessary that the lesser part of the whole should submit to the greater part of the whole, it does not follow that one-third part of the whole must submit to the major part of the other two-thirds, but this is the unfortunate case of us Americans.
European
How can it he otherwise? You say yourselves that your remote situation makes it impossible for you to be represented in Parliament to your advantage. What else would you propose?
American
We propose that no taxes should be laid upon us but by our own legislatures, that we should be governed ‹in general› by laws of our making, but in matters of commerce we are willing to be restrained by acts of the British Parliament, for as we depend upon you for protection against the other powers of Europe we do not think it reasonable that we should carry on trade beneficial to them and detrimental to you.
European
If we could be certain even of this it would be something. But what assurance have we that you will not very soon complain of this restraint upon your trade, which deprives you of the means of increasing your property, as much as you now do of the revenue acts, which take from you a part of your property? By your present conduct you give us all imaginable reason to expect it. What is [109B–109C] the cause of that enmity against the commissioners and other officers of the customs? No one instance has ever been shown of oppression or rigour in the execution of their office. You say it is laying unnecessary burdens upon your trade. We know that you are much less burdened than your fellow subjects in England. We know that notwithstanding all care and endeavours to prevent it, there is much more smuggling in the colonies in proportion to their trade than there is in England. If you are disposed to submit to acts of trade, why are informers against the breach of them treated in so barbarous and inhuman a manner as they have been in several of them, and why does the authority in some of them sit still and suffer this inhumanity, this defiance of government, to pass with impunity? In short, there is no need of proving that the principles I have advanced are just by any other instance than what has occurred among yourselves. Admit that you are not subject to all the laws and you will presently be subject to none. As we concede, so you advance. I would not give up the least iota of our right, but I would exercise this right with discretion, with equity, and even with a degree of partiality, but when I had once determined how far I would exercise it, at all events such determination should never be departed from.
American
You may find it more difficult than you imagine.
European
I would provide for the worst, though I am really of opinion when once you are convinced that we are in earnest that we shall have but little trouble with you. You have a few desperate men among you, some of them can never be in worse circumstances than they are at present, and if they could reduce all to a chaos upon a new creation they might have a chance of better, but the generality of your people who are in easy circumstances will not care to part with their estates and see their families miserable; they will willingly sacrifice those desperadoes to provide for their own future security. You are Englishmen, as I have had occasion to observe before. No people upon the globe have been oftener in a frenzy and none return sooner to their senses [109C–109D] than Englishmen. There are an hundred ways of restraining you in your trade and manufactures. One ship of war in each of your principal ports, with such powers as in your case would be no more than reasonable, would reduce every colony in a very few months. The rage of the people would break out not against us but against the heads of the faction in each colony who have been stirring up sedition and substituting a phantom, a mere imaginary good, in the room of the greatest blessing. Liberty in as great a degree as will consist with a state of government.
American
I am ready to acknowledge that the most considerate part of the people in America have no great opinion of the virtue of their present leaders. There are very few of them who will ever be left executors to any will or entrusted with the guardianship of any children or have the care of any private affairs, but let them act from what principles they may, they have certainly been the instruments of saving us from slavery; the tumults and riots which they stirred up after the Stamp Act were the cause of the repeal of it. The opposition they are now making to the importation of goods from Great Britain will distress your tradesmen so that you will not be able to avoid repealing the other revenue acts also. These measures, it cannot be denied, are distressing to ourselves and we are in a state of such disorder that if it was to be perpetual any rational man would choose to live in France or Spain or any other of the governments in Europe which are called absolute, but we are submitting to a very great temporary evil in order to obtain a lasting good.
European
I should not have forgot your confederacies for stopping importation from Great Britain. Pray, do you think such combinations are to be tolerated?
American
They are our dernier resort, and we are of opinion they are legal and constitutional.
[European]
For the ley gens34 I could wish their ignorance might be their excuse, but for professed lawyers, for members of your Councils and Houses of Burgesses or Representatives, for the judges and officers of your courts, their ignorance [109D–109E] shall not excuse them. I wish the laws may be carried into execution against them and, that none may plead ignorance, for the future I wish an act of Parliament may pass immediately subjecting all who shall thus combine or any ways abet or encourage such combinations to express and severe penalties, and that this act may be constantly read at the opening of every court where the offence shall be made cognizable in each of the colonies or plantations.
American
You know that in England there is no carrying an act of Parliament into execution against the opinion of the body of the people.
European
I know that when an act is made which is found by experience to be inexpedient, that it will be repealed, but you can show me no instance of an act repealed because one or more of the counties in England denied the authority of Parliament to pass the act, and if you can give no better reason than your opposing this authority, I think your revenue acts never ought to be repealed, but as I really think them inexpedient I wish all which are made for the purpose of a revenue may be repealed, but I would have effectual provision made in the same act for strengthening the authority of Parliament in all cases wherein it has been or may be judged proper to exercise it, that the colonists may see their opposition to the authority of Parliament had not the least tendency to bring about the repeal.
American
In despotic governments laws which are contrary to the general bent of the people may, for a long time, be executed, but in free governments, such as all parts of the English governments are or ought to be, this can never be the case. What judicial, what ministerial, officers will ever carry such laws into execution?
European
Laws against the general bent of the people, I agree with you, cannot long continue in the English constitution, but laws against the bent of particular parts of the people are and must oftentimes ‹in every constitution› be enforced by the authority of the whole
[The manuscript breaks off at this point. A few disconnected paragraphs follow in the pages of the Archives volume, but they seem not to have been written as part of the “Dialogue.”]