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tesatoa is a false one.
I have mentioned the enstoms and the post tax. | Masaniello was mad. Nobody doubts it; yeu, The distine
This leads me to answer another dis- for all that, he overturned the government of lion of externa tinction, as false as the above; the Naples. Madness is catching in all popular and
distinction of internal and external assemblies and upon all popular matters. The
taxes, The noble Lord who quoted book is full of wildness. I never read it till a so much law, and denied upon those grounds the few days ago, for I seldom look into such things. right of the Parliament of Great Britain to lay I never was actually acquainted with the coninternal taxes upon the colonies, allowed at the tents of the Stamp Act, till I sent for it on pur. same time that restrictions upon trade, and du- pose to read it before the debate was expected. lies upon the ports, were legal. But I can not With respect to authorities in another House, I seo a real difference in this distinction ; for I know nothing of them. I believe that I have hold it to be true, that a tax laid in any place is not been in that House more than once since ] like a pebble falling into and making a circle in had the honor to be called up to this; and, if I a lake, till one circle produces and gives motion did know any thing that passed in the other to another, and the whole circumference is agi- House, I could not, and would not, mention it as tated from the center. For nothing can be more an authority here. I ought not to mention any clear than that a tax of ten or twenty per cent. such authority. I should think it beneath my laid upon tobacco, either in the ports of Virginia own and your Lordships' dignity to speak of it. or London, is a duty laid upon the inland plant- I am far from bearing any ill will to the Amer. ations of Virginia, a hundred miles from the sea, icans ; they are a very good people, and I have wheresoever the tobacco grows.
long known them. I began life with them, and I do not deny but that a tax may be laid in- owe much to them, having been much concerned judiciously and injuriously, and that people in in the plantation causes before the privy counsuch a case may have a right to complain. But cil; and so I became a good deal acquainted the nature of the tax is not now the question; with American affairs and people. I dare say, whenever it comes to be one, I am for lenity. their heat will soon be over, when they come to I would bave no blood drawn. There is, I am feel a little the consequences of their opposition satisfied, no occasion for any to be drawn. A to the Legislature. Anarchy always cures itlittle time and experience of the inconveniences self; but the ferment will continue so much the and miseries of anarchy, may bring people to longer, while hot-headed men there find that their senses.
there are persons of weight and character to With respect to what has been said or written support and justify them here. Mr. Ous's book. upon this subject, I differ from the
Indeed, if the disturbances should continue for noble Lord, who spoke of Mr. Otis a great length of time, force must be force must be and his book with contempt, though he maintain- the consequence, an application ad- uuedanielse disa ed the same doctrine in some points, while in equate to the mischief, and arising tinue. others he carried it farther than Otis himself, out of the necessity of the case; for force is only who allows every where the supremacy of the the difference between a superior and subordinCrown over the colonies. No man, on such a ate jurisdiction. In the former, the whole force subject, is contemptible. Otis is a man of con. of the Legislature resides collectively, and when sequence among the people there. They have ceases to reside, the whole connection is dischosen him for one of their deputies at the Con- solved. It will, indeed, be to very little purpose gress and general meeting from the respective that we sit here enacting laws, and making resgovernments. It was said, the man is mad.olutions, if the inferior will not obey them, or if What then? One madman often makes many. we neither can nor dare enforce them; for then,
and then, I say, of necessity, the matter comes The celebrated James Otis is here referred to, to the sword. If the offspring are grown too whu in 1764 pablished a pamphlet, which was re. big and too resolute to obey the parent, you must printed in England, entitled The Rights of the Brit. try which is the strongest, and exert all the powish Colonies. In this pamphlet, while be admitted ers of the mother country to decide the contest. the supremacy of the Crown over the colonies, he
I am satisfied, notwithstanding, that time and strenuously maintained, with Lord Chatham, that
a wise and steady conduct may pre- Examples of as long as America remained unrepresented in the House of Commons, Parliament had no right to tax be fatal to both. I remember well er subjects.
vent those extremities which would mpular dis the colonies.
Mr. Otis, who was a man of fervid eloquence, ex. when it was the violent humor of the times to pressed himself so strongly respecting the rights of decry standing armies and garrisons as dangerAmerica, that some persons (as Lord Mansfield men. ous, and incompatible with the liberty of the subtions) treated him as a madman. There is a speech ject. Nothing would do but a regular militia. (to be found in most of our collections of eloquence) | The militia are embodied; they march ; and no which bears his name, and begins, “ England may sooner was the militia law thes put into execuas well dam up the waters of the Nile with bulrash tion, but it was then said to be an intolerable es, as fetter the step of freedom," &c. It first ap: burden upon the subject, and that it would fall
, peared in a work entitled The Rebels, writies by Mrs. Child, and was designed as a fancy sketch, like sooner or later, into the hands of the Crown. the speeches put by Mr. Webster int, the mouth of That was the language, and many counties pe. Adams and Hancock, in his oratiou ch the death of titioned against it. This may be the case with Jobp Adams and Thomas Jefferson.
the colonies. In many places they begin already
Notice of a manuscript of Lord Hale's,
quoted by Lord Camden.
io feel the effects of their resistance to govern- | writer refers never passed, and Lord Hale on's ment. Interest very soon divides mercantile said, that, if it had passed, the Parliament migbe people; and, although there may be some mad, have abdicated their right. enthusiastic, or ill-designing people in the colo- But, my Lords, I shall make this application nies, yet I am convinced that the greatest bulk, of it. You may abdicate your right over the who have understanding and property, are still colonies. Take care, my Lords, how you do so, well affected to the mother country. You have, for such an act will be irrevocable. Proceed, my Lords, many friends still in the colonies; then, my Lords, with spirit and firmness; and, and take care that you do not, by abdicating when you shall have established your authority, your own authority, desert them and yourselves, it will then be a time to show your lenity. The and lose them forever.
Americans, as I said before, are a very good peoIn all popular tumults, the worst men bear the ple, and I wish them exceedinglv well; but they sway at first. Moderate and good men are often are neated and inflamed The nopie Lord who silent for fear or modesty, who, in good time, spoke before ended with a prayer. I can not may declare themselves. Those who have any end better than by saying to it Amen; and in property to lose are sufficiently alarmed already the words of Maurice, prince of Orange, conat the progress of these public violences and viola- cerning the Hollanders, “ God bless this industions, to which every man's dwelling, person, and trious, frugal, and well-meaning, but easily-deproperty are hourly exposed. Numbers of such luded people." valuable men and good subjects are ready and willing to declare themselves for the support of government in due time, if government does not The Stamp Act was repealed, and the Do fling away its own authority
claratory Act, thus advocated by Lord Mans My Lords, ihe Parliament of Great Britain field, was also passed by a large majority. has its rights over the colonies; but it may abdicate its rights.
As Lord Campbell has pronounced the above There was a thing which I forgot to mention. argument unanswerable, it may interest the young
I mean, the manuscript quoted by reader to know how it was actually answered by
the noble Lord. He tells you that the Americans, and why they denied the right whoeba had been it is there said, that, if the act con- of Parliament to lay internal taxes upon them.
cerning Ireland had passed, the Par- 1. They owed their existence not to Parlia. liament might have abidicated its rights as to ment, but to the Crown. The King, in the ex. Ireland. In the first place, I heartily wish, my ercise of the high sovereignty then conceded to Lords, that Ireland had not been named, at a time him, had made them by charter complete civil when that country is of a temper and in a situ- communities, with Legislatures of their own havation so difficult to be governed ; and when we ing power to lay taxes and do all other acts which have already here so much weight upon our were necessary to their subsistence as distinct hands, encumbered with the extensiveness, va- governments. Hence, riety, and importance of so many objects in 2. They stood substantially on the same foolvast and too busy empire, and the national sys- ing as Scotland previous to the Union. Like her tem shattered and exhausted by a long, bloody, they were subject to the Navigation Act, and and expensive war, but more so by our divisions similar regulations touching the external relaat home, and a fluctuation of counsels. I wish tions of the empire ; and like her the ordinary Ireland, therefore, had never been named. legislation of England did not reach them, nor
I pay as much respect as any man to the did the common law any farther than they chose memory of Lord Chief Justice Hale; but I did to adopt it. Henco, not know that he had ever written upon the sub- 3. They held themselves amenable in their ject; and I differ very much from thinking with internal concerns, not to Parliament, but to the the noble Lord, that this manuscript ought to be Crown alone. It was to the King in council or to published. So far am I from it, that I wish the his courts, that they made those occasional refer. manuscript had never been named; for Ireland ences and appeals, which Lord Mansfield endeav. is too tender a subject to be touched. The case ors ta draw into precedents. So " the post tax'' of Ireland is as different as possible from that of spoken of above, did not originate in Parliament, vur colonies. Ireland was a conquered country; but in a charter to an individual which afterward it had its pacta conventa and its regalia. But reverted to the Crown, and it was in this way to what purpose is it to mention the manuscript? alone that the post-office in America became con. 't is but the opinion of one man. When it was nected with that of England. It was thus that written, or for what particular object it was the Americans answered the first three of Lord written, does not appear. It might possibly be Mansfield's direct arguments (p. 149-50). Their only a work of youth, or an exercise of the un-charters made them dependent not on Parliamen, derstanding, in sounding and trying a question but on the Crown ; and their submission to Etc. problematically. All people, when they first glish authority, inuch as it involved their pecunienter professions, make their collections pretty ary interests, was rendered only to the latter. early in life; and the manuscript may be of that Weak as they were, the colonists had sometimes sort. However, be it what it may, the opinion to temporize, and endure an occasional over. is but problematical; for the act to which the reaching by Parliament. It was not always easy draw the line between the laws of trade, to this Lord Mansfield could only reply, as he does hich they held themselves subject, and the in his fourth direct argument (p. 150). Amerį geral legislation of Parliament. But they ica is virtually represented in the House of Com. aunsidered it clear that their charters exempted mons." But this, as Lord Campbell admits, is them from the latter, giving it to their own Leg. idle and false. A virtual representation there islatures. - See Massachusetts State Papers, p. may be of particular classes (as of minors and 3.1). On this ground, then, they denied the right females), who live intermingled in the same comof Parliament to tax them. It is a striking fact munity with those who vote; but a virtual rep in confirmation of these views, as mentioned by resentation of a whole people, three thousand Mr. Daniel Webster, that the American Decla- miles off, with no intermingling of society or inration of Independence does not once refer to the terests, is beyond all doubt "an absurdity in British Parliament. They owed it no allegiance, terms." The idea is contrary to all English their only obligations were to the King; and usage in such cases. When the Scotch were hence the causes which they assigned for
break. incorporated with the English in 1705, they were ing off from the British empire consisted in his not considered as “virtually represented” in the conduct alone, and in his confederating with oth- English Parliament, but were allowed to send ers in " pretended acts of legislation.”
representatives of their own. It was so, also, They had, however, a second argument, that with Wales, Chester, and Durham, at an earlier from long-continued usage. «Commencing their period. Nothing, in fact, could be more adverse existence as stated above, the British Parliament to the principles of the English Constitution than had never subjected them to internal taxation. the idea of the “virtual representation" of three When this was attempted, at the end of one hund- millions of people living at the distance of three red and fifty years, they used the argument of thousand miles from the body of English electors. Mr. Burke, “You were not wont to do these things But if not virtually represented, the Americans
from the beginning ;” and while his inference were not represented at all. A bill giving away was, “ Your taxes are inexpedient and unwise,” their property was, therefore, null and void-as theirs was, “ You have no right to lay them.” much so as a bill would be if passed by the House Long-continued usage forms part of the English of Lords, levying taxes on the Commons of En. Constitution. Many of the rights and privileges gland. Under the English Constitution, repre. of the people rest on no other foundation ; and a sentation of some kind is essential to taxation. usage of this kind, commencing with the very Lord Mansfield's last argument (p. 151) is, existence of the colonies, had given them the ex- that "the distinction between external and inclusive right of internal taxation through their ternal taxation is a false one." According to own Legislatures, since they maintained their in- him, as Parliament, in carrying out the Naviga stitutions at their own expense without aid from tion Act, laid external taxes affecting the colonies, the mother country. To give still greater force Parliament was likewise authorized to lay intern to this argument, the Americans appealed to the al taxes upon them. The answer is given by monstrous consequences of the contrary supposi- Mr. Burke. The duties referred to were simply tion. If, as colonies, after supporting their own incidental to the Navigation Act. They were governments, they were liable to give England used solely as instruments of carrying it out, of what part she chose of their earnings to support checking trade and directing its channels. They her government--one twentieth, one tenth, one had never from the first been regarded as a means half each year, at her bidding—they were no of revenue. They stood, therefore, on a footing longer Englishmea, they were vassals and slaves. entirely different from that of internal taxes, which When George the Third, therefore, undertook to were “the gift and grant of the Commons alone." lay taxes in Amorica and collect them at the The distinction between them was absolute and point of the bayonut, he invaded their privileges, entire; and any attempt to confound them, and he dissolved the cunnection of the colonies with to take money on this ground from those who are the mother country, and they were of right free. not represented in Parliament, was subversive of
A third argument was that of Lord Chatham. the English Constitution.' “Taxation,” said his Lordship, “is no part of the Such were the arguments of the Americans ; governing or legislative power.” A tax bill, and the world has generally considered them as from the very words in which it is framed, is "a forming a complete answer to the reasonings of gift and grant of the Commons alone," and the Lord Mansfield. concurrence of the Peers and Crown is only nec. essary to give it the form of law. “When, · The reader will find this distinction fully drawn therefore, in this House," said his Lordship, "we out in Mr. Burke's Speech on American Taxation, give and grant, we give and grant what is our page 249, 250. He there shows, that during the own. But in an American tax what do we do? whole operation of the Navigation Laws, down to We, your Majesty's Commons for Great Britain, 1764," a parliamentary revenue thence was never give and grant to your Majesty –What? Our tingaish revenue laws, specifically as such, were
once in contemplation; that “the words which dis. own property? Nɔ. We give and grant to your premeditatedly avoided;" and that all daties of thig Majesty the property of your Majesty's subjects kind previous to that period, stood on the ground of in America ! It is an absurdity in terms !" To mere "commerciol regulation anıl res: raint."
SPEECH OF LORD MANSFIELD WHEN SURROUNDED BY A MOB IN THE COURT OF THE KING'S BENCII, UN
4. TRIAL RESPECTING THE OUTLAWRY OF JOHN WILKES, ESQ., DELIVERED JUNE & 1708.
INTRODUCTION. In 1764, Mr. Wilkes was prosecuted for a seditious libel opon the King, and for an obscene and impious publication entitled an Essay on Women. Verdicts were obtained against him under both these prose. cutions, and, as he had fled the country, and did not appear to receive sentence, he was outlawed in the sheriff's court for the county of Middlesex on the 12th of July, 1764. In 1768 he returned to England, and Applied to the Court of the King's Bench for a reversal of the outlawry; alleging, among other things, that the sheriff's writ of exegent was not technically correct in its wording, since be merely described the court as “my county court," whereas he ought to have added a description of the place, viz., "of Middleser." Vr. Wilkes was now the favorite of the populace. Tumultuous meetings were beld in his behalf in various parts of the metropolis; riots prevailed to an alarming extent; the Mansion House of the Lord Mayor was frequently assailed by mobs; members of Parliament were attacked or threatened in the streets ; and great fears were entertained for the safety of Lord Mansfield and the other judges of the Court of the King's Bench during the trial. On the 8th of June, 1768, the decision was given, the court being surrounded by an immense mob, waiting the result in a highly excited state. Under these circum stances, Lord Mansfield, after reading his decision for a time, broke off suddenly, and, turning from the case before him, addressed to all within the reach of his voice a few words of admonition, in which we can not admire too much the dignity and firmness with which he opposed himself to the popular rage, and the per fact willingness he showed to become a victim, if necessary, for the support of law.
SPEECH, &c.' But here let me pause.
for that prosecution. We did not advise or asIt is fit to take some notice of various terrors sist the defendant to fly from justice; it was his being out the numerous crowds which have at- own act, and he must take the consequences. tended and now attend in and about the hall, out None of us have been consulted or had any thing of all reach of hearing what passes in court, and to do with the present prosecution. It is not in the tumults which, in other places, have shame- our power to stop it; it was not in our power fully insulted all order and government. Auda- to bring it on. We can not pardon. We are to cious addresses in print dictate to us, from those say what we take the law to be. If we do not they call the people, the judgment to be given speak our real opinions, we prevaricate with now, and afterward upon the conviction. Rea- God and our own consciences. suns of policy are urged, from danger in the I pass over many anonymous letters I bave kingdom by commotions and general confusion. received. Those in print are public, and some
Give me leave to take the opportunity of this of them have been brought judicially before the great and respectable audience to let the whole court. Whoever the writers are, they take the world know all such attempts are vain. Unless wrong way! I will do my duty unawed. What we have been able to find an error which bears am I to fear? That "mendax insamia" (lying us out to reverse the ontlawry, it must be affirm- scandal] from the press, which daily coins false ed. The Constitution does not allow reasons of facts and false motives? The lies of calumny state to influence our judgments: God forbid it carry no terror to me. I trust that the temper should ! We must not regard political conse- of my mind, and the color and conduct of my quences, how formidable soever they might be. lise, have given me a suit of armor against these If rebellion was the certain consequence, we are arrows. If during this King's reign I have ever bound to say, "Fiat justitia, ruat cælum.'' The supported his government, and assisted his meas. Constitution trusts the King with reasons of state ures, I have done it without any other reward and policy. He may stop prosecutions; he may than the consciousness of doing what I thought pardon offenses ; it is his to judge whether the right. If I have ever opposed, I have done it law or the criminal shall yield. We have no upon the points themselves, without mixing in election. None of us encouraged or approved party or faction, and without any collateral the commission of either of the crimes of which views. I honor the King and respect the peothe defendant is convicted. None of us had any ple; but many things acquired by the favor of hand in his being prosecuted. As to myself, I either are, in my account, objects not worthy of took no part (in another place) in the addresses ambition. I wish popularity, but it is that pop
ularity which follows, not that which is run ait. From Burrow's Reports, iv., 2561.
It is that popularity which, sooner or later, : Be justice done, though heaven in ruir, fall. never fails to do justice to the pursuit of rinta
ends by noble means. I will not do that which nothing that can happen, wil weigh a feather my conscience tells me is wrong upon this occa- against allowing the defendant, upon this and sion, to gain the huzzas of thousands, or the every other question, not only the whole advant. daily praise of all the papers which come from age he is entitled to from substantial law and the press. I will not avoid doing what I think justice, but every benefit from the most critical is right, though it should draw on me the whole nicety of form which any other defendant could artillery of libels—all that falsehood and malice claim under the like objection. The only effect can invent, or the credulits of a deluded popu- I feel is an anxiety to be able to explain the lace can swallow. I can say with a great mag- grounds on which we proceed, so as to satisfy istrate, upon an occasion and under circumstan- all mankind "that a flaw of form given way to ces not unlike, “Ego hoc animo semper fui, ut in this case, could not have been got over in any invidiam virtute partam, gloriam non invidiam, other." putarem."
The threats go farther than abuse-personal violence is denounced. I do not believe it. It Lord Mansfield now resumed the discussiou is not the genius of the worst of men of this of the case, and stated in respect to the insercountry, in the worst of times. But I have set tion of the qualifying phrase "of Middlesex," my mind at rest. The last end that can happen mentioned above, that " a series of authorities, to any man never comes too soon, if he falls in unimpeached and uncontradicted, have said such support of the law and liberty of his country (for words are formally necessary; and such authorliberty is synonymous with law and government). ity, though begun without law, reason, or comSuch a shock, too, might be productive of pub- mon sense, ought to avail the defendant." He lic good. It might awake the better part of the therefore (with the concurrence of the other kingdom out of that lethargy which seems to judges) declared a reversal ; adding, "I beg to have benumbed them, and bring the mad part be understood, that I ground my opinion singly back to their senses, as men intoxicated are on the authority of the cases adjudged; which, sometimes stunned into sobriety.
as they are on the favorable side, in a criminal Once for all, let it be understood, that no en- case highly penal, I think ought not to be dedeavors of this kind will influence any man who parted from.' at present sits here. If they had any effect, This reversal, however, did not relieve Mr. it would be contrary to their intent; leaning Wilkes from the operations of the verdicts al against their impression might give a bias the ready mentioned. Ten days after, Mr. Justico other way. But I hope and I know that I have Yates pronounced the judgment of the court, senfortitude enough to resist even that weakness. tencing him to be imprisoned for twenty-two No libels, no threats, nothing that has happened, I months, and to pay a fine of one thousand pounds.
SPEECH Or LORD MANSFIELD IN THE CASE OF THE CHAMBERLAIN OF LONDON AGAINST ALLAN EVANS,
ESQ., DELIVERED IN THE HOUSE OF LORDS, FEBRUARY 4, 1767.
INTRODUCTION. This case affords a striking example of the abuses which spring up under a religious establishment.
The city of London was in want of a new mansion house for the Lord Mayor, and resolved to build one ma scale of becoming magnificence. But, as the expense would be great, some ingenious churchmen devised a plan for extorting a large part of the money out of the Dissenters, who had for a number of years been growing in business and property, under the protection of the Toleration Act. The mode was this. A by-law of the city was passed, imposing a fine of £600 on any person who should be elected as sheriff and decline to serve. Some wealthy individual was then taken from the dissenting body, and, by a con. cert among the initiated, was chosen to the office of sheriff. Of course he was not expected to serve, for the Test and Corporation Acts rendered him incapable. He was, therefore, compelled to decline ; and was then fined £600, under a by-law framed for the very purpose of extorting this money! Numerous appointments wore thus made, and £15,000 were actaally paid in; until it came to be a matter of mere sport to “ roast a Dissenter," and bring another £600 into the treasury toward the expenses of the mansion house.
At length Allan Evans, Esq., a man of spirit, who had been selected as a victim, resolved to try the question. He refused to pay the fine, and was sued in the Sheriff's Court. Here he pleaded his rights
* This is one of those sentences of Cicero, in his who are not familiar with the original, the following first oration against Catiline, which it is impossible may give a conception of the meaning: Such have to translate. Striking as the sentiment is, it owes always been my feelings, that I look upon odium in. moch of its force and beauty to the fine antithesis curred by the practice of virtue, not as odium, but as with which it flashes upon the mind, and even to
the hig! glory. the parodomasia on the word invidiam, while its no. · See Parliamentary History. ole rhythmus adds greatly to the effect. To those