The Rights of the British Colonies Asserted and Proved


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The Rights of the British Colonies Asserted and Proved 

By James Otis

1763

[Otis, James. The Rights of the British Colonies Asserted and Proved. Boston: Printed and sold by Edes and Gill. 1764. Accessed 31 March 2017. Evans Early American Imprint Collection. http://quod.lib.umich.edu/e/evans/N07655.0001.001?rgn=main;view=fulltext. In the Public Domain. Some lacunae in the text are supplied from James Otis, The Rights of the British Colonies Asserted and Proved (Boston & London: J. Almon. 1764.) Accessed 4 April 2017. Online Library of Liberty. http://oll.libertyfund.org/titles/2335.  In the Public Domain.]

Some spellings have been modernized for this website. Text within double brackets [[ ]] are insertions of the website’s editor. 



Introduction. Of the Origin of Government.

THE origin of government has in all ages no less perplexed the heads of lawyers and politicians, than the origin of evil has embarrassed divines and philosophers: And it is probable the world may receive a satisfactory solution on both those points of enquiry at the same time.

The various opinions on the origin of government have been reduced to four. 1. That dominion is founded in Grace. 2. On force or [mere] power. 3. On compact. 4. On property.

The first of these opinions is so absurd, and the world has paid so very dear for embracing it, especially under the administration of the roman pontiffs, that mankind seem at this day to be in a great measure cured of their madness in this particular; and the notion is pretty generally exploded, and hiss’d off the stage.

To those who lay the foundation of government in force and meer brutal power, it is objected; that, their system destroys all distinction between right and wrong; that it overturns all morality, and leaves it to every man to do what is right in his own eyes; that it leads directly to scepticism, and ends in atheism. When a man’s will and pleasure is his only rule and guide, what safety can there be either for him or against him, but in the point of a sword?

On the other hand the gentlemen in favor of the original compact have been often told that their system is chimerical and unsupported by reason or experience. Questions like the following have been frequently asked them, and may be again.

“When and where was the original compact for introducing government into any society, or for creating a society, made? Who were present and parties to such compact? Who acted for infants and women, or who appointed guardians for them? Had these guardians power to bind both infants and women during life, and their posterity after them? Is it in nature or reason that a guardian should by his own act perpetuate his power over his ward, and bind him, and his posterity in chains? Is not every man born as free by nature as his father? Has he not the same natural right to think and act and contract for himself? Is it possible for a man to have a natural right to make a slave of himself or of his posterity? Can a father supersede the laws of nature? What man is or ever was born free, if every man is not? What will there be to distinguish the next generation of men from their forefathers, that they should not have the same right to make original compacts as their ancestors had? If every man has such right, may there not be as many original compacts as there are men and women born or to be born? Are not women born as free as men? Would it not be infamous to assert that the ladies are all slaves by nature? If every man and woman born or to be born has, and will have, a right to be consulted, and must accede to the original compact before they can with any kind of justice be said to be bound by it, will not the compact be ever forming and never finished, ever making, but never done? Can it with propriety be called a compact original or derivative, that is ever in treaty but never concluded?”

When it has been said that each man is bound as soon as he accedes, and that the consent may be either express or tacit, it has been asked, “What is a tacit consent or compact? Does it not appear plain that those who refuse their assent can not be bound? If one is at liberty to accede or not, is he not also at liberty to recede on the discovery of some intolerable fraud and abuse that has been palm’d upon him by the rest of the high contracting parties? Will not natural equity in several special cases rescind the original compacts of great men as effectual[l]y as those of little men are rendered null and void in the ordinary course of a court of chancery?”

There are other questions which have been started, and a resolution of them demanded, which may perhaps be deemed indecent by those who hold the prerogatives of an earthly monarch, and even the power of a plantation government, so sacred as to think it little less than blasphemy to enquire into their origin and foundation: while the government of the supreme ruler of the universe is every day discussed with less ceremony and decency than the administration of a petty German prince. I hope the reader will consider that I am at present only mentioning such questions as have been put by high-flyers & others in church and state, who would exclude all compact between a Sovereign and his people, without offering my own sentiments upon them; this however I presume I may be allowed hereafter to do without offence. Those who want a full answer to them may consult Mr. Locke’s discourses on government, M. De Vattel’s law of nature and nations, and their own consciences.

“What state were Great-Britain, Ireland and the Plantations left in by the abdication of James II?[1] Was it a state of nature or of civil government? If a state of civil government, where were the supreme legislative and executive powers from the abdication to the election of William and Mary? Could the Lords and Commons be called a complete parliament or supreme power without a King to head them? Did any law of the land or any original compact previous to the abdication provide, that on such an event, the supreme power should devolve on the two houses? Were not both houses so manifestly with the novelty and strangeness of the event, and so far from finding any act of parliament, book-case, or precedent to help them, that they disputed in solemn conferrence by what name to call the action, and at last give it one, as new in our language and in that of parliament as the thing itself was in fact?”[2]

If on this memorable and very happy event the three kingdoms and the dominions fell back into a state of nature, it will be asked, “Whether every man and woman were not then equal? If so, has not every one of them a natural and equitable right to be consulted in the choice of a new king, or in the formation of a new original compact or government, if any new form had been made? Might not the nation at that time have rightfully changed the monarchy into a republic or any form, that might seem best? Could any change from a state of nature take place without universal consent, or at least without the consent of the majority of the individuals? Upon the principles of the original compact as commonly explained and understood, could a few hundred men who before the dissolution of the government had been called, and in fact were, lords, knights and gentlemen, have lawfully made that glorious deliverer and defender William III rightful king”? Such an one he certainly was, and such have been all his illustrious successors to the present happy times; when we have the joy to see the sceptre sway’d in justice, wisdom and mercy, by our lawful Sovereign George the Third; a prince who glories in being a Briton born, and whom may God long preserve and prosper.

“If upon the abdication all were reduced to a state of nature, had not apple women and orange girls as good a right to give their respectable suffrages for a new king as the philosopher, courtier, petit maitre and politician? Were these and ten millions of others such ever more consulted on that occasion, than the multitude now are in the adjustment of that real modern farce, an election of a king of the Romans; which serves as a contrast to the grandeur of the antient republics, and shows the littleness of the modern German and some other gothic constitutions in their present degenerate state?

“In the election of William III were the votes of Ireland and the plantations ever called for or once thought of till the affair was settled? Did the lords and commons who happened to be then in and about Westminster represent, and act, for the individuals, not only of the three kingdoms, but for all the freeborn and as yet unconquered possessors and proprietors of their own money-purchased, blood-purchased plantations, which, till lately, have been defended with little or no assistance from Great-Britain? Were not those who did not vote in or for the new model at liberty upon the principles of the compact to remain in what some call the delectable state of nature, to which by the hypothesis they were reduced, or to join themselves to any other state, whose solemn league and covenant they could subscribe? Is it not a first principle of the original compact, that all who are bound should bind themselves? Will not common sense without much learning or study dictate obvious answers to all the above questions?—and, say the opposers of the original compact and of the natural equality and liberty of mankind, will not those answers infallibly show that the doctrine is a piece of metaphysical jargon and systematical nonsense”? Perhaps not.

With regard to the fourth opinion, that dominion is founded in property, what is it but playing with words? Dominion in one sense of the term is synonimous with property, so one cannot be called the foundation of the other, but as one name may appear to be the foundation or cause of another.

Property cannot be the foundation of dominion as synonimous with government; for on the supposition that property has a precarious existence antecedent to government, and though it is also admitted that the security of property is one end of government, but that of little estimation even in the view of a miser when life and liberty of locomotion and further accumulation are placed in competition, it must be a very absurd way of speaking to assert that one end of government is the foundation of government. If the ends of government are to be considered as its foundation, it cannot with truth or propriety be said that government is founded on any one of those ends; and therefore government is not founded on property or its security alone, but at least on something else in conjunction. It is however true in fact and experience, as the great, the incomparable Harrington has most abundantly demonstrated in his Oceana, and other divine writings, that Empire follows the balance of property: It is also certain that property in fact generally confers power, though the possessor of it may not have much more wit than a mole or a musquash: And this is too often the cause, that riches are sought after, without the least concern about the right application of them. But is the fault in the riches, or the general law of nature, or the unworthy possessor? It will never follow from all this, that government is rightfully founded on property, alone. What shall we say then? Is not government founded on grace? No. Nor on force? No. Nor on compact? Nor property? Not altogether on either. Has it any solid foundation? any chief corner stone, but what accident, chance or confusion may lay one moment and destroy the next? I think it has an everlasting foundation in the unchangeable will of GOD, the author of nature, whose laws never vary. The same omniscient, omnipotent, infinitely good and gracious Creator of the universe, who has been pleased to make it necessary that what we call matter should gravitate, for the celestial bodies to roll round their axes, dance their orbits and perform their various revolutions in that beautiful order and concert, which we all admire, has made it equally necessary that from Adam and Eve to these degenerate days, the different sexes should sweetly attract each other, form societies of single families, of which larger bodies and communities are as naturally, mechanically, and necessarily combined, as the dew of Heaven and the soft distilling rain is collected by the all enliv’ning heat of the sun. Government is therefore most evidently founded on the necessities of our nature. It is by no means an arbitrary thing, depending merely on compact or human will for its existence.

We come into the world forlorn and helpless; and if left alone and to ourselves at any one period of our lives, we should soon die in want despair or distraction. So kind is that hand, though little known or regarded, which feeds the rich and the poor, the blind and the naked; and provides for the safety of infants by the principle of parental love, and for that of men by Government! We have a King, who neither slumbers nor sleeps, but eternally watches for our good; whose rain falls on the just and on the unjust: yet while they live, move, and have their being in him, and cannot account for either, or for any thing else, so stupid and wicked are some men, as to deny his existence, blaspheme his most evident government, and disgrace their nature.

Let no Man think I am about to commence advocate for despotism, because I affirm that government is founded on the necessity of our natures; and that an original supreme Sovereign, absolute, and uncontroulable, earthly power must exist in and preside over every society; from whose final decisions there can be no appeal but directly to Heaven. It is therefore originally and ultimately in the people. I say this supreme absolute power is originally and ultimately in the people; and they never did in fact freely, nor can they rightfully make an absolute, unlimited renunciation of this divine right.[3] It is ever in the nature of the thing given in trust, and on a condition, the performance of which no mortal can dispence with; namely, that the person or persons on whom the sovereignty is conferred by the people, shall incessantly consult their good. Tyranny of all kinds is to be abhorred, whether it be in the hands of one, or of the few, or of the many.—And though “in the last age a generation of men sprung up that would flatter Princes with an opinion that they have a divine right to absolute power”; yet “slavery is so vile and miserable an estate of man, and so directly opposite to the generous temper and courage of our nation, that it is hard to be conceived that an englishman, much less a gentleman, should plead for it:[4] Especially at a time when the finest writers of the most polite nations on the continent of Europe, are enraptured with the beauties of the civil constitution of Great-Britain; and envy her, no less for the freedom of her sons, than for her immense wealth and military glory.

But let the origin of government be placed where it may, the end of it is manifestly the good of the whole. Salus populi suprema lex esto [[“Let the welfare of the people be the supreme law,” cf. Cicero, De Legibus (On the Laws), III.III.8]], is of the law of nature, and part of that grand charter given the human race, (though too many of them are afraid to assert it,) by the only monarch in the universe, who has a clear and indisputable right to absolute power; because he is the only ONE who is omniscient as well as omnipotent.

It is evidently contrary to the first principles of reason, that supreme unlimited power should be in the hands of one man. It is the greatest “idolatry, begotten by flattery, on the body of pride,” that could induce one to think that a single mortal should be able to hold so great a power, if ever so well inclined. Hence the origin of deifying princes: It was from the trick of gulling the vulgar into a belief that their tyrants were omniscient; and that it was therefore right, that they should be considered as omnipotent. Hence the Dii majorum et minorum gentium; the great, the monarchical, the little, Provincial subordinate and subaltern gods, demi-gods, and semidemi-gods, ancient and modern. Thus deities of all kinds were multiplied and increased in abundance; for every devil incarnate, who could enslave a people, acquired a title to divinity; and thus the “rabble of the skies” was made up of locusts and catterpillars; lions, t[i]gers and harpies; and other devourers translated from plaguing the earth![5]

The end of government being the good of mankind, points out its great duties: It is above all things to provide for the security, the quiet, and happy enjoyment of life, liberty, and property. There is no one act which a government can have a right to make, that does not tend to the advancement of the security, tranquility and prosperity of the people. If life, liberty and property could be enjoyed in as great perfection in solitude, as in society, there would be no need of government. But the experience of ages has proved that such is the nature of man, a weak, imperfect being; that the valuable ends of life cannot be obtained, without the union and assistance of many. Hence it is clear that men cannot live apart or independent of each other: In solitude men would perish; and yet they cannot live together without contests. These contests require some arbitrator to determine them. The necessity of a common, indifferent and impartial judge, makes all men seek one; though few find him in the sovereign power, of their respective states or any where else in subordination to it.

Government is founded immediately on the necessities of human nature, and ultimately on the will of God, the author of nature; who has not left it to men in general to choose, whether they will be members of society or not, but at the hazard of their senses if not of their lives. Yet it is left to every man as he comes of age to ch[oo]se what society he will continue to belong to. Nay if one has a mind to turn Hermit, and after he has been born, nursed, and brought up in the arms of society, and acquired the habits and passions of social life, is willing to run the risque of starving alone, which is generally most unavoidable in a state of hermitage, who shall hinder him? I know of no human law, founded on the law of nature, to restrain him from separating himself from all the species, if he can find it in his heart to leave them; unless it should be said, it is against the great law of self-preservation: But of this every man will think himself his own judge.

The few Hermits and Misanthropes that have ever existed, show that those states are unnatural. If we were to take out from them, those who have made great worldly gain of their godly hermitage, and those who have been under the madness of enthusiasm, or disappointed hopes in their ambitious projects, for the detriment of mankind: perhaps there might not be left ten from Adam to this day.

The form of government is by nature and by right so far left to the individuals of each society, that they may alter it from a simple democracy, or government of all over all, to any other form they please. Such alteration may and ought to be made by express compact: But how seldom this right has been asserted, history will abundantly show. For once that it has been fairly settled by compact; fraud, force or accident have determined it an hundred times. As the people have gained upon tyrants, these have been obliged to relax, only till a fairer opportunity has put it in their power to encroach again.

But if every prince since Nimrod had been a tyrant, it would not prove a right to tyra[n]nize. There can be no prescription old enough to supersede the law of nature, and the grant of GOD almighty; who has given to all men a natural right to be free, and they have it ordinarily in their power to make themselves so, if they please.

Government having been proved to be necessary by the law of nature, it makes no difference in the thing to call it from a certain period, civil. This term can only relate to form, to additions to, or deviations from, the substance of government: This being founded in nature, the superstructures and the whole administration should be conformed to the law of universal reason. A supreme legislative and a supreme executive power, must be placed somewhere in every common-wealth: Where there is no other positive provision or compact to the contrary, those powers remain in the whole body of the people. It is also evident there can be but one best way of depositing those powers; but what that way is, mankind have been disputing in peace and in war more than five thousand years. If we could suppose the individuals of a community met to deliberate, whether it were best to keep those powers in their own hands, or dispose of them in trust, the following questions would occur—Whether those two great powers of Legislation and Execution should remain united? If so, whether in the hands of the many, or jointly or severally in the hands of a few, or jointly in some one individual? If both those powers are retained in the hands of the many, where nature seems to have placed them originally, the government is a simple democracy, or a government of all over all. This can be administered, only by establishing it as a first principle, that the votes of the majority shall be taken as the voice of the whole. If those powers are lodged in the hands of a few, the government is an Aristocracy or Oligarchy.[6] Here too the first principles of a practicable administration is that the majority rules the whole. If those great powers are both lodged in the hands of one man, the government is a simple Monarchy, commonly, though falsly called absolute, if by that term is meant a right to do as one pleases.—Sic volo, sic jubeo, stet pro ratione voluntas [[“As I will, so I command: let [my] will stand in place of reason”]], belongs not of right to any mortal man.

The same law of nature and of reason is equally obligatory on a democracy, an aristocracy, and a monarchy: Whenever the administrators, in any of those forms, deviate from truth, justice and equity, they verge towards tyranny, and are to be opposed; and if they prove incorrigible, they will be deposed by the people, if the people are not rendered too abject. Deposing the administrators of a simple democracy may sound oddly, but it is done every day, and in almost every vote. A. B. & C. for example, make a democracy. Today A & B are for so vile a measure as a standing army. Tomorrow B & C vote it out. This is as really deposing the former administrators, as setting up and making a new king is deposing the old one. Democracy in the one case, and monarchy in the other, still remain; all that is done is to change the administration.

The first principle and great end of government being to provide for the best good of all the people, this can be done only by a supreme legislative and executive ultimately in the people, or whole community, where GOD has placed it; but the inconveniencies, not to say impossibility, attending the consultations and operations of a large body of people, have made it necessary to transfer the power of the whole to a few: This necessity gave rise to deputation, proxy or a right of representation.

A Power of legislation, without a power of execution in the same or other hands, would be futile and vain: On the other hand, a power of execution, supreme or subordinate, without an independent legislature, would be perfect despotism.

The difficulties attending an universal congress, especially when society became large, have brought men to consent to a delegation of the power of all: The weak and the wicked have too often been found in the same interest, and in most nations have not only brought these powers jointly, into the hands of one, or some few, of their number; but made them hereditary, in the families of despotic nobles & princes.

The wiser and more virtuous states, have always provided that the representation of the people should be numerous. Nothing but life and liberty are naturally hereditable: this has never been considered by those, who have tamely given up both into the hands of a tyrannical Oligarchy or despotic Monarchy.

The analogy between the natural, or material, as it is called, and the moral world is very obvious; GOD himself appears to us at some times to cause the intervention or combination of a number of simple principles, though never when one will answer the end; gravitation and attraction have place in the revolution of the planets, because the one would fix them to a centre, and the other would carry them off indefinitely; so in the moral world, the first simple principle is equality and the power of the whole. This will answer in small numbers; so will a tolerably virtuous Oligarchy or a Monarchy. But when the society grows in bulk, none of them will answer well singly, and none worse than absolute monarchy. It becomes necessary therefore as numbers increase, to have those several powers properly combined; so as from the whole to produce that harmony of government so often talked of and wished for, but too seldom found in ancient or modern states. The grand political problem in all ages has been to invent the best combination or distribution of the supreme powers of legislation and execution. Those states have ever made the greatest figure, and have been most durable, in which those powers have not only been separated from each other, but placed each in more hands than one, or a few. The Romans are the most shining example; but they never had a balance between the senate and the people, and the want of this, is generally agreed by the few who know any thing of the matter, to have been the cause of their fall. The British constitution in theory and in the present administration of it, in general comes nearest the idea of perfection, of any that has been reduced to practice; and if the principles of it are adhered to, it will according to the infallible prediction of Harrington, always keep the Britons uppermost in Europe, ‘till their only rival nation shall either embrace that perfect model of a common wealth given us by that author, or come as near it as Great Britain is. Then indeed and not till then, will that rival & our nation either be eternal confederates, or contend in greater earnest than they have ever yet done, till one of them shall sink under the power of the other, and rise no more.

Great-Britain has at present, most evidently the advantage, and such opportunities of honest wealth and grandeur, as perhaps no state ever had before, at least not since the days of Julius Caesar, the destroyer of the Roman glory and grandeur; at a time when but for him and his adherents both might have been rendered immortal.

We have said that the form and mode of government is to be settled by compact, as it was rightfully done by the convention after the abdication of James II, and assented to by the first representative of the nation chosen afterwards, and by every parliament, and by almost every man ever since, but the bigots, to the indefeasible power of tyrants civil and ecclesiastic. There was neither time for, nor occasion to call the whole people together: If they had not liked the proceedings it was in their power to controul them; as it would be should the supreme legislative or executive powers ever again attempt to enslave them. The people will bear a great deal, before they will even murmur against their rulers: But when once they are thoroughly roused, and in earnest, against those who would be glad to enslave them, their power is irresistible.[7]

At the abdication of King James, every step was taken that natural justice and equity could require; and all was done that was possible, at least in the wretched state in which he left the nation. Those very noble and worthy patriots, the lords spiritual and temporal of that day, and the principal persons of the commons, advised the prince, who in consequence thereof caused letters to be “written to the lords spiritual and temporal, being protestants, and other letters to the several counties, cities, universities, boroughs and cinque ports, for the choosing such persons to represent them as were of right to be sent to parliament, to meet at Westminster upon the 22d of January 1688, in order to such an establishment, as that their religion, laws and liberties might not again be in danger of being subver[t]ed.” (See William & Mary sess, 1. C. 1.)

Upon this elections were made, and thereupon the said lords spiritual and temporal and commons met, and proceeded to assert their rights and liberties, and to the election of the Prince and Princess of Orange to be King and Queen of England, France and Ireland, and the dominions thereto belonging. The kingdom of Scotland agreed in the same choice: These proceedings were drawn into the form of acts of parliament, and are the basis of the acts of union and succession since made, and which all together are the sure foundation of that indisputable right which his present Majesty has to the Crown of Great-Britain and the dominions thereto belonging; which right it is the greatest folly to doubt of, as well as the blackest treason to deny. The present establishment founded on the law of God, and of nature, was began by the convention, with a professed and real view, in all parts of the British empire, to put the liberties of the people out of the reach of arbitrary power in all times to come.

. . .

[Here Otis inserts in its entirety the English Bill of Rights by which the English Parliament asserted its rights, limited those of the monarch, and swore loyalty to William, Prince of Orange, and his wife, Mary, daughter of the previous King James II, as the rightful, joint monarchs of England. Click here to view that document in its entirety.]

. . .

I shall close this introduction with a passage from Mr. Locke.

“Though,” says he, “in a constituted common wealth, standing upon its own basis, and acting according to its own nature, that is, acting for the preservation of the community, there can be but one supreme power which is the legislative, to which all the rest are and must be subordinate; yet the legislative being only a fiduciary power, to act for certain ends, there remains still, ‘in the people, a supreme power to remove, or alter, the legislative when they find the legislative act contrary to the trust reposed in them.’ For all power given, with trust for the attaining an end, being limited by that end, whenever that end is manifestly neglected, or opposed, the trust must necessarily be forfeited, and the power devolve into the hands of those who gave it, who may place it anew where they shall think best, for their safety and security. And thus the community perpetually retains a supreme power of saving themselves from the attempts and designs of any body, even of their legislators whenever they shall be so foolish, or so wicked, as to lay and carry on designs, against the liberties and properties of the subject. For no man or society of men having a power to deliver up their preservation or consequently the means of it to the absolute will and arbitrary dominion of another; whenever any one shall go about to bring them into such a slavish condition, they will always have a right to preserve what they have not a power to part with; and to rid themselves of those who invade this fundamental, sacred and unalterable law of self preservation, for which they entered into society.

“And thus the community may be said in this respect to be always the supreme power, but not as considered under any form of government, because this power of the people can never take place, till the government be dissolved.”

(Locke, Treatise on Government, Book 2, Chapter 13)

This he says may be done, “from without by conquest; from within, 1st. When the legislative is altered. Which is often by the prince, but sometimes by the whole legislative. As by invading the property of the subject, and making themselves arbitrary disposers of the lives, liberties and fortunes of the people; reducing them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any further obedience, and are left to the common refuge which GOD hath provided for all men, against force and violence. Whensoever therefore, the legislative shall transgress this fundamental rule of society; and either by ambition, fear, folly or corruption, endeavour to gain themselves, or put into the hands of any other an absolute power over the lives, liberties and estates of the people, by this breach of trust, they forfeit the power the people had put into their hands for quite contrary ends, and it devolves to the people, who have a right to resume their original liberty, and by the establishment of a new legislative (such as they shall think fit) provide for their own safety and security, which is the end for which they are in society,” (Idem, Chapter 9).

 

Of Colonies in general.

. . .

A plantation or colony, is a settlement of subjects in a territory disjoined or remove from the mother country, and may be made by private adventurers or the public; but in both cases the Colonists are entitled to as ample rights, liberties and priviledges as the subjects of the mother country are, and in some respects to more.

 

Of the natural Rights of Colonists.

THOSE who expect to find any thing very satisfactory on this subject in particular, or with regard to the law of nature in general, in the writings of such authors as [Hugo] Grotius and [Samuel von] Pufendorf, will find themselves much mistaken. It is their constant practice to establish the matter of right on the matter of fact: This the celebrated Rousseau expres[s]ly says of Grotius, and with the same reason be might have added an hundred others. “The learned researches into the laws of nature and nations are often nothing more than the history of ancient abuses, so that it is a ridiculous infatuation to be too fond of studying them.”[8] “This was exactly the case with Grotius[9] The sentiments on this subject have therefore been chiefly drawn from the purer fountains of one or two of our English writers, particularly from Mr. Locke, to whom might be added a few of other nations; for I have seen but a few of any country, and of all I have seen, there are not ten worth reading.

Grotius discoursing of confederates on unequal terms according to his manner says, “to the inequality in question may be referred some of those rights which are now called right of protection, right of patronage, and a right termed mundiburgium; as also that which mother cities had over their colonies among the Grecians. For as Thucydides says, those colonies enjoyed the same rights of liberty with the other cities, but they owed a reverence to the city whence they derived their origin, and were obliged to render her respect and certain expressions of honor, so long as the colony was well treated” (Grotius, De Jure Belli, &c. Book 1, Chapter 3, Section 21).

“Hitherto also (says he) may be referred that separation which is made when people by one consent, go to form colonies. For this is the original of a new and independent state. They are not content to be slaves, but to enjoy equal privileges and freedom says Thucydides. And King Tullius in Dion, Hali, says, we look upon it to be neither truth nor justice, that mother cities ought of necessity and by the law of nature to rule over their colonies.” ([Ibid.], Book 2, Chapter 9, section 9)

“Colonies,” says Pufendorf, “are settled in different methods. For either the colony continues a part of the common-wealth it was sent out from, or else is obliged to pay a dutiful respect to the mother common-wealth, and to be in readiness to defend and vindicate its honor, and so is united to it by a sort of unequal confederacy, or lastly is erected into a separate commonwealth, and assumes the same rights with the state it is descended from.” (Pufendorf, Of the Law of Nature and Nations, Book 8, Chapter 11, Section 6.)

“Different common wealths may be formed out of one by common consent, by sending out colonies in the manner usual in old Greece. For the Romans afterwards when they sent a colony abroad, continued it under the jurisdiction of the mother commonwealth, or greater country. But the colonies planted by the Greeks, and after their method, constituted particular commonwealths, which were obliged only to pay a kind of deference and dutiful submission to the mother commonwealth.” ([Ibid.], Book 8, Chapter 12, Section 5)

From which passages tis manifest that these two great men only state facts, and the opinions of others, without giving their own upon the subject: And all that can be collected from those facts or opinions, is, that Greece was more generous, and a better mother to her colonies than Rome. The conduct of Rome towards her colonies and the corruptions and oppressions tolerated in her provincial officers of all denominations, was one great cause of the downfall of that proud republic.

. . .

In order to form an idea of the natural rights of the Colonists, I presume it will be granted that they are men, the common children of the same Creator with their brethren of Great-Britain. Nature has placed all such in a state of equality and perfect freedom, to act within the bounds of the laws of nature and reason, without consulting the will or regarding the humor, the passions or whims of any other man, unless they are formed into a society or body politic. This it must be confessed is rather an abstract way of considering men than agreeable to the real and general course of nature. The truth is, as has been shown, men come into the world and into society at the same instant. But this hinders not but that the natural and original rights of each individual may be illustrated and explained in this way better than in any other. We see here by the way a probability, that this abstract consideration of men, which has its use in reasoning on the principles of government, has insensibly led some of the greatest men to imagine, some real general state of nature, agreeable to this abstract conception, antecedent to and independent of society. This is certainly not the case in general, for most men become members of society from their birth, though separate independent states are really in the condition of perfect freedom and equality with regard to each other; and so are any number of individuals who separate themselves from a society of which they have formerly been members, for ill treatment, or other good cause, with express design to found another. If in such case, there is a real interval, between the separation and the new conjunction, during such interval, the individuals are as much detached, and under the law of nature only, as would be two men who should chance to meet on a desolate island.

The Colonists are by the law of nature free born, as indeed all men are, white or black. No better reasons can be given, for enslaving those of any color than such as baron Montesquieu has humorously given; as the foundation of that cruel slavery exercised over the poor Ethiopians; which threatens one day to reduce both Europe and America to the ignorance and barbarity of the darkest ages. Does it follow that it is right to enslave a man because he is black? Will short curled hair like wool, instead of Christian hair, as it is called by those, whose hearts, are as hard as the nether millstone, help the argument? Can any logical inference in favour of slavery, be drawn from a flat nose, a long or a short face. Nothing better can be said in favor of a trade, that is the most shocking violation of the law of nature, has a direct tendency to diminish the idea of the inestimable value of liberty, and makes every dealer in it a tyrant, from the director of an African company to the petty chapman in needles and pins on the unhappy coast. It is a clear truth, that those who every day barter away other men’s liberty, will soon care little for their own. To this cause must be imputed that ferocity, cruelty, and brutal barbarity that has long marked the general character of the sugar-islanders. They can in general form no idea of government but that which in person, or by an overseer, the joint and several proper representative of a Creole,[10] and of the D—l [[presumably “Devil”]], is exercised over ten thousands of their fellow men, born with the same right to freedom, and the sweet enjoyments of liberty and life, as their unrelenting task-masters, the overseers and planters.

Is it to be wondered at, if, when people of the stamp of a Creolian planter get into power, they will not stick for a little present gain, at making their own posterity, white as well as black, worse slaves if possible than those already mentioned.

There is nothing more evident says Mr. Locke, than “that creatures of the same species and rank promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one among another, without subordination and subjection, unless the master of them all should by any manifest declaration of his will set one above another, and confer on him by an evident and clear appointment, an undoubted right to dominion and sovereignty.” “The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but only to have the law of nature for his rule”. This is the liberty of independent states; this is the liberty of every man out of society, and who has a mind to live so; which liberty is only abridged in certain instances, not lost to those who are born in or voluntarily enter into society; this gift of God cannot be annihilated.

The Colonists being men, have a right to be considered as equally entitled to all the rights of nature with the Europeans, and they are not to be restrained, in the exercise of any of these rights, but for the evident good of the whole community.

By being or becoming members of society, they have not renounced their natural liberty in any greater degree than other good citizens, and if it is taken from them without their consent, they are so far enslaved.

They have an undoubted right to expect, that their best good will ever be consulted by their rulers, supreme and subordinate, without any partial views confined to the particular interest of one island or another. Neither the riches of Jamaica, nor the luxury of a metropolis, should ever have weight enough to break the balance of truth and justice. Truth and faith belong to men as men, from men, and if they are disappointed in their just expectations of them in one society, they will at least wish for them in another. If the love of truth and justice, the only spring of sound policy in any state, is not strong enough to prevent certain causes from taking place, the arts of fraud and force will not prevent the most fatal effects.

In the long run, those who fall on arbitrary measures, will meet with their deserved fate. The law of nature, was not of man’s making, nor is it in his power to mend it, or alter its course. He can only perform and keep, or disobey and break it. The last is never done with impunity, even in this life, if it is any punishment for a man to feel himself depraved; to find himself degraded by his own folly and wickedness from the rank of a virtuous and good man, to that of a brute; or to be transformed from the friend, perhaps father of his country, to a devouring Lion or T[i]ger.

The unhappy revolutions which for ages have distressed the human race, have been all owing to the want of a little wisdom, common sense and integrity, in the administration of those, whom by their stations, God had in kindness to the world, rendered able to do a great deal, for the benefit of mankind, with the exertion of a small portion of private and public virtue.

 

Of the Political and Civil Rights of the British Colonists.

Here indeed opens to view a large field; but I must study brevity—Few people have extended their enquiries after the foundation of any of their rights, beyond a charter from the crown. There are others who think when they have got back to old Magna Carta, that they are at the beginning of all things. They imagine themselves on the borders of Chaos (and so indeed in some respects they are) and see creation rising out of the unformed mass, or from nothing. Hence, say they, spring all the rights of men and of citizens.――But liberty was better understood, and more fully enjoyed by our ancestors, before the coming in of the first Norman Tyrants than ever after, ‘till it was found necessary, for the salvation of the kingdom, to combat the arbitrary and wicked proceedings of the Stuarts.

The present happy and most righteous establishment is justly built on the ruins, which those Princes brought on their Family; and two of them on their own heads—The last of the name[11] sacrificed three of the finest kingdoms in Europe, to the councils of bigotted old women, priests and more weak and wicked ministers of state: He afterward went a grazing in the fields of St. Germains, and there died in disgrace and poverty, a terrible example of God’s vengeance on arbitrary princes!

The deliverance under God wrought by the prince of Orange, afterwards deservedly made King William III was as joyful an event to the colonies as to Great-Britain: In some of them steps were taken in his favour as soon as in England.

They all immediately acknowledged King William and Queen Mary as their lawful Sovereign. And such has been the zeal and loyalty of the colonies ever since for that establishment, and for the protestant succession in his Majesty’s illustrious family, that I believe there is not one man in an hundred (except in Canada) who does not think himself under the best national civil constitution in the world.

Their loyalty has been abundantly proved, especially in the late war. Their affection and reverence for their mother country is unquestionable. They yield the most chearful and ready obedience to her laws, particularly to the power of that august body the parliament of Great-Britain, the supreme legislative of the kingdom and in dominions. These I declare are my own sentiments of duty and loyalty. I also hold it clear that the act of Queen Anne, which makes it high treason to deny “that the King with and by the authority of parliament, is able to make laws and statutes of sufficient force and validity to limit and bind the crown, and the descent, limitation, inheritance and government thereof” is founded on the principles of liberty and the British constitution: And he that would palm the doctrine of unlimited passive obedience and non-resistance upon mankind, and thereby or by any other means serve the cause of the Pretender, is not only a fool and a knave, but a rebel against common sense, as well as the laws of God, of Nature, and his Country.

—I also lay it down as one of the first principles from whence I intend to deduce the civil rights of the British colonies, that all of them are subject to, and dependent on Great-Britain; and that therefore as over subordinate governments, the parliament of Great-Britain has an undoubted power and lawful authority to make acts for the general good, that by naming them, shall and ought to be equally binding, as upon the subjects of Great-Britain within the realm. This principle, I presume will be readily granted on the other side of the Atlantic. It has been practiced upon for twenty years to my knowledge, in the province of the Massachusetts-Bay; and I have ever received it, that it has been so from the beginning, in this and the sister provinces, through the continent.[12]

I am aware, some will think it is time for me to retreat, after having expressed the power of the British parliament in quite so strong terms. But it is from and under this very power and its acts, and from the common law, that the political and civil rights of the Colonists are derived: And upon those grand pillars of liberty shall my defence be rested. At present therefore, the reader may suppose, that there is not one provincial charter on the continent; he may, if he pleases, imagine all taken away, without fault, without forfeiture, without tr[i]al or notice. All this really happened to some of them in the last century. I would have the reader carry his imagination still further, and suppose a time may come, when instead of a process at common law, the parliament shall give a decisive blow to every charter in America, and declare them all void. Nay it shall also be granted, that it is barely possible, the time may come, when the real interest of the whole may require an act of parliament to annihilate all those charters. What could follow from all this, that would shake one of the essential, natural, civil or religious rights of the Colonists? Nothing. They would be men, citizens and British subjects after all. No act of parliament can deprive them of the liberties of such, unless any will contend that an act of parliament can make slaves not only of one, but of two millions of the commonwealth. And if so, why not of the whole? I freely own, that I can find nothing in the laws of my country, that would justify the parliament in making one slave, nor did they ever professedly undertake to make one.

Two or three innocent colony charters have been threatened with destruction an hundred and forty years past. I wish the present enemies of those harmless charters would reflect a moment, and be convinced that an act of parliament that should demolish those bugbears to the foes of liberty, would not reduce the Colonists to a state of absolute slavery. The worst enemies of the charter governments are by no means to be found in England. It is a piece of justice due to Great-Britain to own, they are and have ever been natives of or residents in the colonies. A set of men in America, without honour or love to their country, have been long grasping at powers, which they think unattainable while these charters stand in the way. But they will meet with insurmountable obstacles to their project for enslaving the British colonies, should those, arising from provincial charters be removed. It would indeed seem very hard and severe, for those of the colonists, who have charters, with peculiar privileges, to lose them. They were given to their ancestors, in consideration of their sufferings and merit, in discovering and settling America. Our fore-fathers were soon worn away in the toils of hard labour on their little plantations, and in war with the Savages. They thought they were earning a sure inheritance for their posterity. Could they imagine it would ever be thought just to deprive them or theirs of their charter privileges! Should this ever be the case, there are, thank God, natural, inherent and inseparable rights as men, and as citizens, that would remain after the so much wished for catastrophe, and which, whatever became of charters, can never be abolished de jure, if de facto, till the general conflagration.[13] Our rights as men and free born British subjects, give all the Colonists enough to make them very happy in comparison with the subjects of any other prince in the world.

Every British subject born on the continent of America, or in any other of the British dominions, is by the law of God and nature, by the common law, and by act of parliament, (exclusive of all charters from the Crown) entitled to all the natural, essential, inherent and inseparable rights of our fellow subjects in Great Britain. Among those rights are the following, which it is humbly conceived no man or body of men, not excepting the parliament, justly equitably and consistently with their own rights and the constitution, can take away.

1st. That the supreme and subordinate powers of the legislation should be free and sacred in the hands where the community have once rightfully placed them.

2[n]dly. The supreme national legislative cannot be altered justly ‘till the commonwealth is dissolved, nor a subordinate legislative taken away without forfeiture or other good cause. Nor then can the subjects in the subordinate government be reduced to a state of slavery, and subject to the despotic rule of others. A state has no right to make slaves of the conquered. Even when the subordinate right of legislature is forfeited, and so declared, this cannot affect the natural persons either of those who were invested with it, or the inhabitants,[14] so far as to deprive them of the rights of subjects and of men—The colonists will have an equitable right notwithstanding any such forfeiture of charter, to be represented in Parliament, or to have some new subordinate legislature among themselves. It would be best if they had both. Deprived however of their common rights as subjects, they cannot lawfully be, while they remain such. A representation in Parliament from the several Colonies, since they are become so large and numerous, as to be called on not to maintain provincial government, civil and military among themselves, for this they have chearfully done, but to contribute towards the support of a national standing army, by reason of the heavy national debt, when they themselves owe a large one, contracted in the common cause, can’t be thought an unreasonable thing, nor if asked, could it be called an immodest request. Qui senti[t] commodum sentire debet et onus [[“He who feels the benefit should also feel the burden”]], has been thought a maxim of equity. But that a man should bear a burthen for other people, as well as himself, without a return, never long found a place in any law-book or decrees, but those of the most despotic princes. Besides the equity of an American representation in parliament, a thousand advantages would result from it. It would be the most effectual means of giving those of both countries a thorough knowledge of each other[’]s interests; as well as that of the whole, which are inseparable.

Were this representation allowed; instead of the scandalous memorials and depositions that have been sometimes, in days of old, privately cooked up in an inquisitorial manner, by persons of bad minds and wicked views, and sent from America to the several boards, persons of the first reputation among their countrymen, might be on the spot, from the several colonies, truly to represent them. Future ministers need not, like some of their predecessors, have recourse for information in American affairs, to every vagabond stroller, that has run or rid post through America, from his creditors, or to people of no kind of reputation from the colonies; some of whom, at the time of administ[e]ring their sage advice, have been as ignorant of the state of the country, as of the regions in Jupiter and Saturn.

No representation of the Colonies in parliament alone, would however be equivalent to a subordinate legislative among themselves; nor so well answer the ends of increasing their prosperity and the commerce of Great-Britain. It would be impossible for the parliament to judge so well, of their abilities to bear taxes, impositions on trade, and other duties and burthens, or of the local laws that might be really needful, as a legislative here.

3dly. No legislative, supreme or subordinate, has a right to make itself arbitrary.

It would be a most manifest contradiction, for a free legislative, like that of Great-Britain, to make itself arbitrary.

4thly. The supreme legislative cannot justly assume a power of ruling by extempore arbitrary decrees, but is bound to dispense justice by known settled rules, and by duly authorized independent judges.

5thly. The supreme power cannot take from any man any part of his property, without his consent in person, or by representation.

6thly. The legislature cannot transfer the power of making laws to any other hands.

These are their bounds, which by God and nature are fixed, hitherto have they a right to come, and no further.

1. To govern by stated laws.

2. Those laws should have no other end ultimately, but the good of the people.

3. Taxes are not to be laid on the people, but by their consent in person, or by deputation.

4. Their whole power is not transferable.[15]

These are the first principles of law and justice, and the great barriers of a free state, and of the British constitution in particular. I ask, I want no more —Now let it be shown how it is reconcile[]able with these principles, or to many other fundamental maxims of the British constitution, as well as the natural and civil rights, which by the laws of their country, all British subjects are entitled to, as their best inheritance and birth-right, that all the northern colonies, who are without one representative in the house of Commons, should be taxed by the British parliament.

That the colonists, black and white, born here, are free[-]born British subjects, and entitled to all the essential civil rights of such, is a truth not only manifest from the provincial charters, from the principles of the common law, and acts of parliament; but from the British constitution, which was reestablished at the revolution, with a professed design to secure the liberties of all the subjects to all generations.[16]

In the 12 and 13 of William III cited above, the liberties of the subject are spoken of as their best birth-rights—No one ever dreamt, surely, that these liberties were confined to the realm. At that rate, no British subjects in the dominions could, without a manifest contradiction, be declared entitled to all the privileges of subjects born within the realm, to all intents and purposes, which are rightly given foreigners, by parliament, after residing seven years. These expressions of parliament, as well as of the charters, must be vain and empty sounds, unless we are allowed the essential rights of our fellow-subjects in Great-Britain.

Now can there be any liberty, where property is taken away without consent? Can it with any colour of truth, justice or equity, be affirmed, that the northern colonies are represented in parliament? Has this whole continent of near three thousand miles in length, and in which and his other American dominions, his Majesty has, or very soon will have, some millions of as good, loyal and useful subjects, white and black, as any in the three kingdoms, the election of one member of the house of commons?

Is there the least difference, as to the consent of the Colonists, whether taxes and impositions are laid on their trade, and other property, by the crown alone, or by the parliament? As it is agreed on all hands, the Crown alone cannot impose them. We should be justifiable in refusing to pay them, but must and ought to yield obedience to an act of parliament, though erroneous, ‘till repealed.

I can see no reason to doubt, but that the imposition of taxes, whether on trade, or on land, or houses, or ships, on real or personal, fixed or floating property, in the colonies, is absolutely irreconcilable with the rights of the Colonists, as British subjects, and as men. I say men, for in a state of nature, no man can take my property from me, without my consent: If he does, he deprives me of my liberty, and makes me a slave. If such a proceeding is a breach of the law of nature, no law of society can make it just—The very act of taxing, exercised over those who are not represented, appears to me to be depriving them of one of their most essential rights, as freemen; and if continued, seems to be in effect an entire disfranchisement of every civil right. For what one civil right is worth a rush, after a man’s property is subject to be taken from him at pleasure, without his consent? If a man is not his own assessor in person, or by deputy, his liberty is gone, or lays [e]ntirely at the mercy of others.

I think I have heard it said, that when the Dutch are asked why they enslave their colonies, their answer is, that the liberty of Dutchmen is confined to Holland; and that it was never intended for Provincials in America, or anywhere else. A sentiment this, very worthy of modern Dutchmen; but if their brave and worthy ancestors had entertained such narrow ideas of liberty, seven poor and distressed provinces would never have asserted their rights against the whole Spanish monarchy, of which the present is but a shadow. It is to be hoped, none of our fellow subjects of Britain, great or small, have borrowed this Dutch maxim of plantation politics; if they have, they had better return it from whence it came; indeed they had. Modern Dutch or French maxims of state, never will suit with a British constitution. It is a maxim, that the King can do no wrong; and every good subject is bound to believe his King is not inclined to do any. We are blessed with a prince who has given abundant demonstrations, that in all his actions, he studies the good of his people, and the true glory of his crown, which are inseparable. It would therefore, be the highest degree of impudence and disloyalty to imagine that the King, at the head of his parliament, could have any, but the most pure and perfect intentions of justice, goodness and truth, that human nature is capable of. All this I say and believe of the King and parliament, in all their acts; even in that which so nearly affects the interest of the colonists; and that a most perfect and ready obedience is to be yielded to it, while it remains in force. I will go further, and readily admit, that the intention of the ministry was not only to promote the public good, by this act; but that Mr. Chancellor of the Exchequer had therein a particular view to the “ease, the quiet, and the good will of the Colonies,” he having made this declaration more than once. Yet I hold that it is possible he may have erred in his kind intentions towards the Colonies, and taken away our fish and given us a stone. With regard to the parliament, as infal[l]ibility belongs not to mortals, it is possible they may have been misinformed and deceived. The power of parliament is uncontroulable, but by themselves, and we must obey. They only can repeal their own acts. There would be an end of all government, if one or a number of subjects or subordinate provinces should take upon them so far to judge of the justice of an act of parliament, as to refuse obedience to it. If there was nothing else to restrain such a step, prudence ought to do it, for forcibly resisting the parliament and the King’s laws, is high treason. Therefore let the parliament lay what burthens they please on us, we must, it is our duty to submit and patiently bear them, till they will be pleased to relieve us. And it is to be presumed, the wisdom and justice of that august assembly, always will afford us relief by repealing such acts, as through mistake, or other human infirmities, have been suffered to pass, if they can be convinced that their proceedings are not constitutional, or not for the common good.

The parliament may be deceived, they may have been misinformed of facts, and the colonies may in many respects be misrepresented to the King, his parliament, and his ministry. In some instances, I am well assured the colonies have been very strangely misrepresented in England. I have now before me a pamphlet, called “The Administration of the Colonies,” said to be written by a gentleman who formerly commanded in chief in one of them. I suppose this book was designed for public information and use. There are in it many good regulations proposed, which no power can enforce but the parliament. From all which I infer, that if our hands are tied by the passing of an act of parliament, our mouths are not stopped, provided we speak of that transcendent body with decency, as I have endeavoured always to do; and should any thing have escaped me, or hereafter fall from my pen, that bears the least aspect but that of obedience, duty and loyalty to the King and parliament, and the highest respect for the ministry, the candid will impute it to the agony of my heart, rather than to the pravity of my will. If I have one ambitious wish, it is to see Great-Britain at the head of the world, and to see my King, under God, the father of mankind. I pretend neither to the spirit of prophecy, nor any uncommon skill in predicting a Crisis, much less to tell when it begins to be “nascent” or is fairly midwiv’d into the world. But if I were to fix a meaning to the two first paragraphs of the Administrations of the Colonies, though I do not collect it from them, I should say the world was at the eve of the highest scene of earthly power and grandeur that has been ever yet displayed to the view of mankind. The cards are shuffling fast through all Europe. Who will win the prize is with God. This however I know, detur digniori [[“Let it be given to a worthier man”]]. The next universal monarchy will be favourable to the human race, for it must be founded on the principles of equity, moderation and justice. No country has been more distinguished for these principles than Great-Britain, since the revolution. I take it, every subject has a right to give his sentiments to the public, of the utility or inutility of any act whatsoever, even after it is passed, as well as while it is pending.—The equity and justice of a bill may be questioned, with perfect submission to the legislature. Reasons may be given, why an act ought to be repealed, and yet obedience must be yielded to it till that repeal takes place. If the reasons that can be given against an act, are such as plainly demonstrate that it is against natural equity, the executive courts will adjudge such acts void. It may be questioned by some, though I make no doubt of it, whether they are not obliged by their oaths to adjudge such acts void. If there is not a right of private judgement to be exercised, so far at least as to petition for a repeal, or to determine the expediency of risking a trial at law, the parliament might make itself arbitrary, which it is conceived it can not by the constitution.—I think every man has a right to examine as freely into the origin, spring and foundation of every power and measure in a commonwealth, as into a piece of curious machinery, or a remarkable phenomenon in nature; and that it ought to give no more offence to say, the parliament have erred, or are mistaken, in a matter of fact, or of right, than to say it of a private man, if it is true of both. If the assertion can be proved with regard to either, it is a kindness done them to show them the truth. With regard to the public, it is the duty of every good citizen to point out what he thinks erroneous in the commonwealth.

I have waited years in hopes to see some one friend of the colonies pleading in publick for them. I have waited in vain. One privilege is taken away after another, and where we shall be landed, God knows, and I trust will protect and provide for us even should we be driven and persecuted into a more western wilderness, on the score of liberty, civil and religious, as many of our ancestors were, to these once inhospitable shores of America. I had formed great expectations from a gentleman, who published his first volume in quarto on the rights of the colonies two years since; but, as he foresaw, the state of his health and affairs have prevented his further progress. The misfortune is, gentlemen in America, the best qualified in every respect to state the rights of the colonists, have reasons that prevent them from engaging: Some of them have good ones. There are many infinitely better able to serve this cause than I pretend to be; but from indolence, from timidity, or by necessary engagements, they are prevented. There has been a most profound, and I think shameful silence, till it seems almost too late to assert our indisputable rights as men and as citizens. What must posterity think of us. The trade of the whole continent taxed by parliament, stamps and other internal duties and taxes as they are called, talked of, and not one petition to the King and Parliament for relief.

I cannot but observe here, that if the parliament have an equitable right to tax our trade, it is indisputable that they have as good an one to tax the lands, and every thing else. The taxing trade furnishes one reason why the other should be taxed, or else the burdens of the province will be unequally born, upon a supposition that a tax on trade is not a tax on the whole. But take it either way, there is no foundation for the distinction some make in England, between an internal and an external tax on the colonies. By the first is meant a tax on trade, by the latter a tax on land, and the things on it. A tax on trade is either a tax of every man in the province, or it is not. If it is not a tax on the whole, it is unequal and unjust, that a heavy burden should be laid on the trade of the colonies, to maintain an army of soldiers, custom-house officers, and fleets of guard-ships; all which, the incomes of both trade and land would not furnish means to support so lately as the last war, when all was at stake, and the colonies were reimbursed in part by parliament. How can it be supposed that all of a sudden the trade of the colonies alone can bear all this terrible burden. The late acquisitions in America, as glorious as they have been, and as beneficial as they are to Great-Britain, are only a security to these colonies against the ravages of the French and Indians. Our trade upon the whole is not, I believe, benefited by them one groat. All the time the French Islands were in our hands, the fine sugars, &c. were all shipped home. None as I have been informed were allowed to be brought to the colonies. They were too delicious a morsel for a North American palate. If it be said that a tax on the trade of the colonies is an equal and just tax on the whole of the inhabitants: What then becomes of the notable distinction between external and internal taxes? Why may not the parliament lay stamps, land taxes, establish tythes to the church of England, and so indefinitely. I know of no bounds. I do not mention the tythes out of any disrespect to the church of England, which I esteem by far the best national church, and to have had as ornaments of it many of the greatest and best men in the world. But to those colonies who in general dissent from a principle of conscience, it would seem a little hard to pay towards the support of a worship, whose modes they cannot conform to.

If an army must be kept in America, at the expence of the colonies, it would not seem quite so hard if after the parliament had determined the sum to be raised, and apportioned it, to have allowed each colony to assess its quota, and raise it as easily to themselves as might be. But to have the whole levied and collected without our consent is extraordinary. It is allowed even to tributaries, and those laid under military contribution, to assess and collect the sums demanded. The case of the provinces is certainly likely to be the hardest that can be instanced in story. Will it not equal any thing but down right military execution? Was there ever a tribute imposed even on the conquered? A fleet, an army of soldiers, and another of tax-gatherers kept up, and not a single office either for securing or collecting the duty in the gift of the tributary state.

I am aware it will be objected, that the parliament of England, and of Great Britain, since the union, have from early days to this time, made acts to bind if not to tax Ireland: I answer, Ireland is a conquered country. I do not, however, lay so much stress on this; for it is my opinion, that a conquered country has, upon submission and good behaviour, the same right to be free, under a conqueror, as the rest of his subjects. But the old notion of the right of conquest, has been, in most nations, the cause of many severities and heinous breaches of the law of nature: If any such have taken place with regard to Ireland, they should form no precedent for the colonies. . . .

. . .

 

To say the parliament is absolute and arbitrary, is a contradiction. The parliament cannot make 2 and 2, 5; Omnipotency cannot do it. The supreme power in a state, is jus dicere [[“to say what is right”]] only;—jus dare [[“to establish (literally ‘give’) what is right”]], strictly speaking, belongs alone to God. Parliaments are in all cases to declare what is parliament that makes it so: There must be in every instance, a higher authority, viz. GOD. Should an act of parliament be against any of his natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void: and so it would be adjudged by the parliament itself, when convinced of their mistake. Upon this great principle, parliaments repeal such acts, as soon as they find they have been mistaken, in having declared them to be for the public good, when in fact they were not so. When such mistake is evident and palpable, . . . the judges of the executive courts have declared the act “of a whole parliament void.” See here the grandeur of the British constitution! See the wisdom of our ancestors! The supreme legislative, and the supreme executive, are a perpetual check and balance to each other. If the supreme executive errs, it is informed by the supreme legislative in parliament: If the supreme legislative errs, it is informed by the supreme executive in the King’s courts of law. —Here, the King appears, as represented by his judges, in the highest lustre and majesty, as supreme executor of the commonwealth; and he never shines brighter, but on his Throne, at the head of the supreme legislative. This is government! This, is a constitution! to preserve which, either from foreign or domestic foes, has cost oceans of blood and treasure in every age; and the blood and the treasure have upon the whole been well spent. British America, hath been bleeding in this cause from its settlement: We have spent all we could raise, and more; for notwithstanding the parliamentary reimbursement of part, we still remain much in debt. The province of the Massachusetts, I believe, has expended more men and money in war since the year 1620, when a few families first landed at Plymouth, in proportion to their ability, than the three Kingdoms together. . . .

Why then is it thought so heinous by the author of the Administration of the Colonies, and others, that the colonists should aspire after “a one whole legislative power” not independent of, but subordinate to the laws and parliament of Great-Britain?――It is a mistake in this author, to bring so heavy a charge as high treason against some of the colonists, which he does in effect in this place,[17] by representing them as “claiming in fact or indeed, the same full free independent unrestrained power and legislative will, in their several corporations, and under the King’s commission, and their respective charters, as the government and legislature of Great-Britain holds by its constitution and under the great charter.” No such claim was ever thought of by any of the colonists. They are all better men and better subjects; and many of them too well versed in the laws of nature and nations, and the law and constitution of Great-Britain, to think they have a right to more than a provincial subordinate legislative. All power is of GOD. Next and only subordinate to him, in the present state of the well-formed, beautifully constructed British monarchy, standing where I hope it ever will stand, for the pillars are fixed in judgment, righteousness and truth, is the King and Parliament. Under these, it seems easy to conceive subordinate powers in gradation, till we descend to the legislative of a town council, or even a private social club. These have each “a one whole legislative” subordinate, which, when it don’t counteract the laws of any of its superiors, is to be indulged. Even when the laws of subordination are transgressed, the superior does not destroy the subordinate, but will negative its acts, as it may in all cases when disapproved. This right of negative is essential, and may be [e]nforced: But in no case are the essential rights of the subjects, inhabiting the subordinate dominions, to be destroyed. This would put it in the power of the superior to reduce the inferior to a state of slavery; which cannot be rightfully done, even with conquered enemies and rebels. After satisfaction and security is obtained of the former, and examples are made of so many of the latter, as the ends of government require, the rest are to be restored to all the essential rights of men and of citizens. This is the great law of nature: and agreeable to this law, is the constant practice of all good and mild governments. This lenity and humanity has no where been carried further than in Great Britain. The Colonies have been so remarkable for loyalty, that there never has been any instance of rebellion or treason in them. This loyalty is in very handsome terms acknowledged by the author of the Administration of the Colonies.

“It has been often suggested that care should be taken in the administration of the plantations, lest, in some future time, these colonies should become independent of the mother country. But perhaps it may be proper on this occasion, and, it is justice to say it, that if, by becoming independent, is meant a revolt, nothing is further from their nature, their interest, their thoughts. If a defection from the alliance of the mother country be suggested, it ought to be, and can be truly said, that their spirit abhors the sense of such; their attachment to the protestant succession in the house of Hanover, will ever stand unshaken; and nothing can eradicate from their hearts their natural and almost mechanical, affection to Great Britain, which they conceive under no other sense nor call by any other name than that of home. Any such suggestion, therefore, is a false and unjust aspersion on their principles and affections; and can arise from nothing but an [e]ntire ignorance of their circumstances.”[18]

After all this loyalty, it is a little hard to be charged with claiming, and represented as aspiring after, independency. The inconsistency of this I leave. We have said that the loyalty of the colonies has never been suspected; this must be restricted to a just suspicion. For it seems there have long been groundless suspicions of us in the minds of individuals. And there have always been those who have endeavoured to magnify these chimerical fears. I find Mr. Dummer complaining of this many years since.

“There is, says he, one thing more I have heard often urged against the charter colonies, and indeed it is what one meets with from people of all conditions and qualities, though with due respect to their better judgments, I can see neither reason nor colour for it. It is said that their increasing numbers and wealth, joined to their great distance from Britain, will give them an opportunity, in the course of some years, to throw off their dependence on the nation, and declare themselves a free state, if not curbed in time, by being made entirely subject to the crown.”[19]

This jealousy has been so long talked of, that many seems to believe it really well grounded. Not that there is danger of a “revolt,” even in the opinion of the author of the Administration, but that the colonists will by fraud or force avail themselves, in “fact or in deed,” of an independent legislature. This, I think, would be a revolting with a vengeance. What higher revolt can there be, than for a province to assume the right of an independent legislative, or state? I must therefore think this a greater aspersion on the Colonists, than to charge them with a design to revolt, in the sense in which the Gentleman allows they have been abused: It is a more artful and dangerous way of attacking our liberties, than to charge us with being in open rebellion. That could be confuted instantly: but this seeming indirect way of charging the colonies, with a desire of throwing off their dependency, requires more pains to confute it than the other, therefore it has been recurred to. The truth is, Gentlemen have had departments in America, the functions of which they have not been fortunate in executing. The people have by these means been rendered uneasy, at bad Provincial measures. They have been represented as factious, seditious, and inclined to democracy whenever they have refused passive obedience to provincial mandates, as arbitrary as those of a Turkish Bashaw: I say, Provincial mandates; for to the King and Parliament they have been ever submissive and obedient.

These representations of us, many of the good people of England swallow with as much ease, as they would a bottle-bubble, or any other story of a cock and a bull; and the worst of it is, among some of the most credulous, have been found Stars and Garters.[20] However, they may all rest assured, the Colonists, who do not pretend to understand themselves so well as the people of England; though the author of the Administration makes them the fine compliment, to say, they “know their business much better,” yet, will never think of independency. Were they inclined to it, they know the blood and the treasure it would cost, if ever effected; and when done, it would be a thousand to one if their liberties did not fall a sacrifice to the victor.

We all think ourselves happy under Great-Britain. We love, esteem and reverence our mother country, and adore our King. And could the choice of independency be offered the colonies, or subjection to Great-Britain upon any terms above absolute slavery, I am convinced they would accept the latter. The ministry, in all future generations may rely on it, that British America will never prove undutiful, till driven to it, as the last fatal resort against ministerial oppression, which will make the wisest mad, and the weakest strong.

These colonies are and always have been, “entirely subject to the crown,” in the legal sense of the terms. But if any politician of “tampering activity, of wrongheaded inexperience, misled to be meddling,”[21] means, by “curbing the colonies in time,” and by “being made entirely subject to the crown;” that this subjection should be absolute, and confined to the crown, he had better have suppressed his wishes. This never will nor can be done, without making the colonists vassals of the crown. Subjects they are; their lands they hold of the crown, by common socage,[22] the freest feudal tenure, by which any hold their lands in England, or any where else. Would these gentlemen carry us back to the state of the Goths and Vandals, and revive all the military tenures and bondage which our fore-fathers could not bear? It may be worth nothing here, that few if any instances can be given, where colonies have been disposed to forsake or disobey a tender mother: But history is full of examples, that armies, stationed as guards over provinces, have seized the prey for their general, and given him a crown at the expence of his master. Are all ambitious generals dead? Will no more rise up hereafter? The danger of a standing army in remote provinces is much greater to the metropolis, than at home. Rome found the truth of this assertion, in her Sylla’s, her Pompey’s and Caesars; but she found it too late: Eighteen hundred years have rolled away since her ruin. A continuation of the same liberties that have been enjoyed by the colonists since the revolution, and the same moderation of government exercised towards them, will bind them in perpetual lawful and willing subjection, obedience and love to Great-Britain: She and her colonies will both prosper and flourish: The monarchy will remain in sound health and full vigor at that blessed period, when the proud arbitrary tyrants of the continent shall either unite in the deliverance of the human race, or resign their crowns. Rescued, human nature must and will be, from the general slavery that has so long triumphed over the species. Great-Britain has done much towards it: What a Glory will it be for her to complete the work throughout the world!

. . .

Ireland is a conquered kingdom; and yet have thought they received very hard measure in some of the prohibitions and restrictions of their trade. But were the colonies ever conquered? Have they not been subjects and obedient, and loyal from their settlement? Were not the settlements made under the British laws and constitution? But if the colonies were all to be considered as conquered, they are entitled to the essential rights of men and citizens. And therefore admitting the right of prohibition, in its utmost extent and latitude; a right of taxation can never be inferred from that. It may be for the good of the whole, that a certain commodity should be prohibited: But this power should be exercised, with great moderation and impartiality, over dominions, which are not represented, in the national parliament. I had however rather see this carried with a high hand, to the utmost rigor, than have a tax of one shilling taken from me without my consent. A people may be very happy; free and easy among themselves, without a particular branch of foreign trade: I am sure these colonies have the natural means of every manufacture in Europe, and some that are out of their power to make or produce. It will scarcely be believed a hundred years hence, that the American manufactures could have been brought to such perfection, as they will then probably be in, if the present measures are pushed. One single act of parliament, we find has set people a thinking, in six months, more than they had done in their whole lives before. It should be remembered, that the most famous and flourishing manufactures, of wool, in France, were begun by Louis XIV, not an hundred years ago; and they now bid fair to rival the English, in every port abroad. All the manufactures that Great-Britain could make, would be consumed in America, and in her own plantations, if put on a right footing; for which a greater profit in return would be made, than she will ever see again for woollen sent to any part of Europe.

But though it be allowed, that liberty may be enjoyed in a comfortable measure, where prohibitions are laid on the trade of a kingdom or province; yet if taxes are laid on either, without consent, they cannot be said to be free. This barrier of liberty being once broken down, all is lost. If a shilling in the pound may be taken from me against my will, why may not twenty shillings; and if so, why not my liberty or my life? . . .

. . .

. . . [The right] to be free from all taxes, but what [one] consents to in person, or by his representative, . . . if it could be traced no higher than Magna Charta, is part of the common law, part of a British subjects birthright, and as inherent and perpetual, as the duty of allegiance; both which have been brought to these colonies, and have been hitherto held sacred and inviolable, and I hope and trust ever will. It is humbly conceived, that the British colonists (except only the conquered, if any) are, by Magna Charta, as well entitled to have a voice in their taxes, as the subjects within the realm. Are we not as really deprived of that right, by the parliament assessing us before we are represented in the house of commons, as if the King should do it by his prerogative? Can it be said with any colour of truth or justice, that we are represented in parliament?

. . .

The sum of my argument is, That civil government is of God: That the administrators of it were originally the whole people: That they might have devolved it on whom they pleased: That this devolution is fiduciary, for the good of the whole; That by the British constitution, this devolution is on the King, lords and commons, the supreme, sacred and uncontroulable legislative power, not only in the realm, but through the dominions: That by the abdication, the original compact was broken to pieces: That by the revolution, it was renewed, and more firmly established, and the rights and liberties of the subject in all parts of the dominions, more fully explained and confirmed: That in consequence of this establishment, and the acts of succession and union his Majesty GEORGE III. is rightful king and sovereign, and with his parliament, the supreme legislative of Great Britain; France and Ireland, and the dominions thereto belonging: That this constitution is the most free one, and by far the best, now existing on earth: That by this constitution, every man in the dominion is a free man: That no parts of his Majesty’s dominions can be taxed without their consent: That every part has a right to be represented in the supreme or some subordinate legislature: That the refusal of this, would seem to be a contradiction in practice to the theory of the constitution: That the colonies are subordinate dominions, and are now in such a state, as to make it best for the good of the whole, that they should not only be continued in the enjoyment of subordinate legislation, but be also represented in some proportion to their number and estates, in the grand legislature of the nation: That this would firmly unite all parts of the British empire, in the greatest peace and prosperity; and render it invulnerable and perpetual.



[1] [[Otis refers to the so-called “Glorious Revolution” by which the last of the Stuart kings of England, James II, a Catholic, fled the country because of widespread, organized opposition to his rule from those who faulted him for the oppression of Protestantism and for authoritarianism in general. He was replaced by the Dutch nobleman William, Prince of Orange and husband to James II’s eldest daughter, Mary. William and Mary were confirmed as joint-monarchs of England at the same session of Parliament that asserted the rights of Parliament and of all British subjects, especially against royal abuses of power. This statement—a formal act of Parliament—became known as the English Bill of Rights. It was an important milestone in the long process by which the political authority of the English monarchy diminished to the point of becoming subordinate to that of Parliament. Otis rests much of his argument in The Rights of the British Colonies on that list of rights, as did many other advocates for the rights of the British colonies in America.]]

[2] On King James’s leaving the kingdom and abdicating the government, the lords would have the word desertion made use of, but the commons thought it was not comprehensive enough, for that the King might then have liberty of returning. The Scots rightly called it a forfeiture of the crown & this in plain english is the sense of the term abdication as by the convention and every parliament since applied. See the history and debates of the convention, and the acts then made.

[3] The power of GOD almighty is the only power that can properly and strictly be called supreme and absolute. In the order of nature immediately under him, comes the power of a simple democracy or the power of the whole over the whole. Subsequent to both these, are all other political powers, from that of the French Monarque, to a petty constable.

[5] Kingcraft and Priestcraft have fell out so often, that it is a wonder this grand and ancient alliance is not broken off for ever. Happy for mankind will it be, when such a separation shall take place.

[6] For the sake of the unlettered reader it is noted, that Monarchy means the power of one great man; Aristocracy and Oligarchy that of a few [[Aristocracy technically means “rule by the best.” Aristotle contrasts aristocracy with oligarchy as an ideal form of government to its corrupted form: although in both cases only a few rule, in an aristocracy the rulers pursue the genuine common good whereas in an oligarchy the rulers seek their own interest.]]; and Democracy that of all men.

[7] See Mr. [John] Locke on the Dissolution of Government.

[8] Marquis D’A.

[9] Rousseau.

[10] Those in England who borrow the terms of the Spaniards, as well as their nations of government, apply this term to all Americans of European Extract; but the Northern colonists apply it only to the Islanders and others of such extract, under the Torrid Zone.

[11] [[King James II, a Catholic]]

[12] This however was formally declared as to Ireland, but so lately as the reign of George I. Upon the old principles of conquest the Irish could not have so much to say for an exemption, as the unconquered Colonists.

[13] The fine defence of the provincial charters of Jeremy Dummer, Esq.; the late very able and learned agent for the province of the Massachusetts Bay, makes it needless to go into a particular consideration of charter priviledges. That piece is unanswerable, but by power and might, and other arguments of that kind.

[14] See Magna Charta, the [English] Bill of Rights. 3 Mod. 152 2. Salkeld 411. Vaughan 300.

[15] See Locke on Government, Book 2, Chapter 11.

[16] See the convention, and acts confirming it.

[17] Page 39 of the Administration.

[18] Administration, p. 25, 26.

[19] Defence, 60.

[20] [[“Stars and Garters”: Men of the highest prestige and nobility. The Order of the Garter is the oldest and most prestigious order of knights in Great Britain, and knights were usually decorated with star-shaped medals. See https://www.royal.uk/order-garter and http://www.worldwidewords.org/qa/qa-sta5.htm.]]

[21] Administration. 34.

[22] [[“socage”: the medieval English practice by which the tenants on the land of a noble lord owed the lord regular payments or other nonmilitary service in order to continue living there.]]