To his Excellency Sir Charles Hardy, &c.

Tho’ the people of this province, claim not the honour, of a personal acquaintance with your Excellency; yet his Majesty’s advancing you to this exalted station, when the honour of his imperial crown, and the success of the British arms, so greatly depend upon the wisdom of your conduct, is an illustrious proof of your Excellency’s superior merit. At this important crisis, when an enemy equally aspiring and perfidious, is insolently meditating, to tarnish the lustre of his diadem; and trample on the dignity of the nation; it is to be presumed, that our august sovereign, in appointing a governor, for this part of the theatre of all their intended violence and insult, was peculiarly directed in his choice, by his princely wisdom and the maturest deliberation. From this obvious reflection, and the concurrent reports of your Excellency’s amiable character, the universal joy and acclamation upon your long-wished-for arrival, was a tribute of honour, not more due to your Excellency, than cordially offered by the people. ’Twas the natural expression of minds over-flowing with gratitude, for that paternal and royal bounty, which had provided them a ruler, with talents to plan; and resolution to execute.

This address, Sir, will perhaps appear, not more singular in the materials that compose, than in the motives which inspire it. The author is neither led by custom; nor urged by interest. He intends not to play the panegyrist; but to communicate the sentiments,—the genuine sentiments of his heart. Instead of congratulating your Excellency with the smoke of incense; he begs leave to approach you, with the more substantial sacrifice of sincerity and affection. An oblation this! of greater value with men of sense; and therefore, to you, Sir, more acceptable, than the solemn farce of ceremony, and the accustomed delusions of complement. He would, with the greatest humility, convey to your judicious ear, what those in your eminent station, seldom hear; and what it is the interest of many, they should never hear. He is prompted to do himself this honour, by an ardent affection for the prosperity of his country; and the warmest wishes for the glory and tranquility of your administration. In defence of the former, he has long toiled with indefatigable vigour; and to promote the latter, he would as chearfully lend his aid, by opening to your Excellency’s view, such interesting scenes, as the artful and designing, may endeavour to misrepresent, or conceal.

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Tho’ your Excellency has entered a tempestuous ocean; yet nothing is easier, than to out-ride the storm. It is, in short, only refusing the command, to those who will rather sink the vessel, than not govern the master.

Yes,—may it please your Excellency, I have known men who were foremost in resounding a governor’s fame; and having rendered him odious to the people, foremost in exciting a clamour against him. That we have still amongst us, such specious deceivers, I hope you, Sir, by a suitable precaution, may never experience.

To inspect into their own affairs, not blindly trusting to favourites, is the most durable security and renown, of those at the political helm. It was therefore a wise remark, and worthy the princely mouth that uttered it, which an Emperor of Persia made to a creature of his, who told him, that he degraded the royal majesty, by being seen too much by the people. “No, replied the monarch, it is owing to the tricks and frauds of flatterers, that a prince is shut up in solitude; whence they themselves may have the larger scope, to tyrannize in his name. He who would truly reign, must see all, and direct all.”

Against such men, and their insidious devices, your Excellency will, doubtless, be ever on your guard. They kiss only with a view to betray; and in the language of an inspired potentate, tho’ their words are smoother than oil, yet they be very swords: Sedulously disguising their own counsels; prone to blacken others; and alike imperious and fawning. To keep men of candour and sincerity at a distance, they will misrepresent, decry, and traduce them. The clamours too of the people, are often, by such crafty seducers, kept from a governor’s knowledge; and he is murmured at for measures, which he believes to be popular.

If they cannot lord it in the name of their master; they will strive to create faction against him: And if to them he resigns the sway; his will be the reproach of their wanton domination. But, thanks to heaven! their power of doing mischief, is decreased, in proportion as their mischievous designs, have been explored and divulged. To be deaf therefore to their wily blandishments, is certain security and fame; as a resignation to their misguidance, is inevitable infelicity and ruin.

Too often, has it been the misfortune of rulers, to repose an excessive confidence in pretended friends, who are the worst of enemies. Alas, how greatly exposed! surrounded as they are, by subtle and interested men; while the virtuous and modest, retire with commiseration and sorrow, because Edition: current; Page: [1546] they abhor flattery; and will not ensnare. They wait till they are sought, and seldom, very seldom, are they inquired after. Ill men on the contrary, are impudent and insinuating; dextrous at dissimulation; and to sooth the passions of those in power, ever ready to violate honour and conscience. How unhappy therefore is a governor, open to the artifices of such fallacious favourites, and neglecting to encourage men of veracity and a becoming freedom!

The author of this address, has made it an invariable rule, to flatter no man. He has unfolded the pernicious schemes of designing politicians, without passion or prejudice. He never pursued any interest, but that of the common weal; and thence the malice of those, whose views were inconsistent with the public good. For this he hath been threatned and defamed:—For this, been flattered and cajoled. But as he neither courts the favour, nor dreads the frowns, of the great; he has been alike uninfluenced by hope or fear; and equally despised their vengeance, or applause.

Instead therefore of imitating, the pompous adulation and parade, of common addresses; he humbly begs leave to testify his high respect for your Excellency, by laying before you a general account of our political state.

This would probably, to the superficial and empty, appear less courtly and polite: But will, I am confident, by a gentleman of your Excellency’s judgment, be esteemed more useful and sincere.

I shall therefore, Sir, without farther apology, beg leave to acquaint you, that the greatest number of our inhabitants, are descended either from those, who with a brave and invincible spirit, repelled the spanish tyranny in the Netherlands; or from those, who for their ever-memorable opposition, to the arbitrary measures of King Charles Ist, were constrained to seek a refuge, from the relentless sword of persecution, in the then inhospitable wilds of America.

From such ancestors, we inherit the highest relish, for civil and religious Liberty. A patrimony, more permanent and invaluable, than the most affluent riches, or extensive possessions! Inamoured as we are with freedom, we are at the same time, too incurious, minutely to examine our happy constitution. Hence we are easily captivated, with appearances, instead of realities. This fatal inattention is incouraged, by some, who under the gilded title of patriots, are daily forging chains for their fellow subjects. And indeed, while the popular pulse beats high for privileges, but incompetently understood, it is easy for a man of fortune, and influence, to raise numbers Edition: current; Page: [1547] at his call. Such a temper in our inhabitants, joined to so inglorious a negligence, gives ample scope, to the restless and insatiate spirit of ambition. And when the mock-patriot, thinks fit to sound the alarm, the administration is tumbled into anarchy; and the province thrown into convulsions: Or is he not indulged with an immoderate share of power, his disappointment swells into indignation and revenge. And thus falls the public peace, a dreadful sacrifice to private pique and resentment.

With too much of this spirit, have our most important concerns, for many years past, been conducted. We have seen a late administration, tho’ far from unexceptionable, frequently embarrassed, and opposed, thro’ a pretended zeal for the public: And a mighty faction erected, upon the sordid foundation, of a personal quarrel. The smallest oversights in government, were then represented, as premeditated encroachments on the rights of the subject; and errors, to the best of men unavoidably incident, aggravated into crimes, inexpiable, and enormous. Instead of the cool deliberate voice of reason, matters of the utmost moment, were managed by the virulence of party-rage. On the pile of vulgar error, they mounted their glory; and spread artificial mists, before the eyes of credulous simplicity. To display their consequence, they created monsters only to quell them; as Hercules demanded a Hydra, for the illustration of his valour. The bulk of the people, the mean while, were unhappily divided, as he who bore the sway, or they who, aimed at usurping it, could gain the ascendant. Thus were we rendered the pliant tools of those, whose invariable principle is, absolutely to rule, or absolutely to oppose a governor. To point out persons, would be a task, both unnecessary and invidious. Your Excellency’s superior penetration, will soon discover, those men of dark intrigues. And by holding the reins of government with an equal and steady hand, you will infallibly disappoint their designs, whether they aim at governing, or confounding the province.

Apt as we are, to split into parties, thro’ a zeal for liberty and our misconception, in many cases, of the true interest of the province; we are, however, when united, an easy and a generous people: Easy in our submission to a wise and prudent administration; and generous—in supporting, with a voluntary and unsparing hand, the true dignity and lustre of government. The only requisite therefore, to render a gentleman of your Excellency’s distinguished station; as happy, as eminent, is an equal distribution of good offices, to persons of every denomination. The seditious and aspiring, who Edition: current; Page: [1548] would swell their importance, by means of a slavish faction, and a misrepresentation of men of virtue and independence, will undoubtedly meet with your contempt and abhorrence.

Properly to describe our unshaken loyalty, and indissoluble attachment, to his Majesty’s most sacred person, and illustrious house, should be the task of a prompter genius, and a more accomplished pen. So universal a warmth, for the glorious revolution, and its more glorious consequences, animates every breast, that the least disaffaction, to the protestant descent, in the imperial house of Hanover, is a blemish, from which we can boast, a total exemption. Nor to be admired at indeed, is this our exemplary allegiance; It is a virtue naturally resulting, from an unbounded love of English-liberty, which to our august sovereign, and his royal father, has ever been an object, of the most diligent attention. Such unparalleled fidelity, to the best of Kings, must necessarily ensure to his representative, an obedience the most chearful, and undissembled. And while your Excellency, continues deaf, to the evil insinuations of those, who aim at inordinate power, our submission to your pleasure, will be as unlimited, as we have reason to hope, your administration will be just.

Our religious character, is as multiform, as our origin is various. Popery however, is not to be enumerated, among our several professions. We equally detest the doctrines, and the interests of Rome. With the same passion for Freedom, so strongly apparent, in our secular concerns, are we also inspired, in matters of religion. And different as our sentiments are on that momentous subject, (bating a few, whose fondness for the English hierarchy, inclines them to wish for what they would perhaps, be the first to deplore,) we universally concur, in an aversion to ecclesiastical establishments. This leveling principle, as some are pleased most improperly to stile it, is no innovation, in our colony constitution; but rather, one of its original and fundamental ingredients. It is a principle, to which we owe our numbers,—our prosperity,—our opulence. A principle indispensibly requisite, in the formation of every infant state: A principle in fine, chiefly adverted to, in the capitulation and surrender of this province, by the Dutch; and in the conditions upon which it was settled, by the Duke of York: The latter, expressly declaring, “that every township, shall pay their own minister, according to such agreement, as they shall make with him; the ministers being elected, by the major part, of the housholders and inhabitants of the town.” And let me humbly presume, to assure your Excellency, that Edition: current; Page: [1549] nothing is more odious to the people, who have the honour to be governed by you, than religious tests, and discriminations, for civil purposes. Jests and discriminations, so expressly repugnant, to the very genius of our provincial constitution. Distinctions of this kind, are indeed artfully set up by some, with whom divide et impera,1 is a never-failing maxim. They industriously administer fuel for contention, between those, who are weak enough to submit to their guidance; and such, as resolutely refuse the same implicite subjection. By giving a preference to the former, they necessarily excite the resentment of the latter. Thus are we divided, that we may be weakened; and consequently more easily subdued.

This important scene, in our political drama, ’tis presumed will no sooner open to your Excellency’s view, than be wisely closed, by your vigilant circumspection: Your happy arrival, forbodes the speedy abolition, of so obnoxious a distinction: and encourages every honest man, of whatever profession, to hope for that protection and confidence, which real merit, seldom fails to receive, from gentlemen of your benevolent disposition, and courtly refinement.

To conclude this address, without some account of our college, which has long been the subject of animated debate, would, considering the importance of the dispute, be an unpardonable omission. It is universally esteemed, an affair deserving the utmost attention, as its defeat or success, must eventually issue, either in the corroboration or destruction, of our sacred and political privileges. I cannot, for this reason, think it a matter, altogether unworthy your Excellency’s notice. Every good magistrate, will make the care of his people, in some degree, his own care. Nor would any wise ruler, in a mixt government at least, chuse to be unacquainted, with the inclinations of his inferiors; or the principles, and motives, that actuate the contending parties. The body politic, as well as the natural body, cannot be preserved in its bloom and vigour, without a competent knowledge, of its constitution, and frame. These considerations embolden me, to implore your Excellency’s patience, while I exhibit a summary sketch, of the rise, progress, and present state of our college. Aware of the flatness, inevitably attending historical narrations, I shall confine myself to all possible brevity. Your Excellency may perhaps condescend, after the present hurry, Edition: current; Page: [1550] occasioned by your joyful accession; to peruse some late papers, in which this interesting topic, hath been more diffusely canvassed.

From the first settlement of this province, to the year 1746, the education of youth, however advancive of its prosperity, was shamefully, and almost totally neglected. A jealousy of our neighbours, whose attention to the progress of science, was nearly coeval with the birth of their colonies, at length gave a spring to our ambition. Measures were not concerted, for the cultivation of literature, and the glorious introduction of light, and knowledge. As we are divided, into a great variety of protestant denominations, who all participated in the expence of this noble design, reason dictated, justice demanded, and policy required, the most liberal constitution. Sensible of this,—let the authors of the scheme, with confusion hear the story! sensible of this; and fearful of a disappointment, party-spirit concealed its malignant purpose, of ingrossing the government of the intended seminary; and contracting its basis, to subserve the narrow aims of a faction. Concealed it,—till several thousand pounds were raised by public lottery, for its erection. To their own perpetual infamy, and the general, tho’ unmerited dishonour of their persuasion, a small juncto2 of the church, hatched this baneful cokatrice. To carry the project into execution, before the public had the least intimation of their latent designs, they privately conspired an establishment by charter, in which they reserved to themselves, the power, the exorbitant power, of ruling the college, according to their sovereign, uncontrolable pleasure. The subversion of this fastidious babel, was owing to his late excellency governor Clinton; who boldly refused a patent, for so odious a monopoly. The evidence of this transaction, accidentally reached the ear of a late writer, who foreseeing the meditated mischief, exposed it to the world, in a course of papers then publishing, under the title of the Independent Reflector.

Unaw’d and unabash’d, they still prosecuted their measures, with unremitted assiduity. Measures, peculiarly detrimental to their country; and adapted to subjugate the whole province, to their boundless dominion. The detection of these subdolous machinations, at once inflamed the resentment of the contrivers; and inspirited them with fresh ardor, for its speedy accomplishment. Their conduct, blended with fraud and imposition, became in the year 1753, so shameless and rampant, that instead of entering upon a detail of particulars, tenderness to their reputations, enjoins me to throw Edition: current; Page: [1551] over it the veil of silence. The discovery of that, and several other gradations, towards the mark of their ambitious views, will doubtless be made by your Excellency, upon a farther acquaintance with your province.

Permit me then, Sir, to inform you, that tho’ the several branches of the legislature, had, by the sanction of a law, reserved solely to themselves, the disposition of the sums raised for a college; and deposited them in the hands of trustees, impowered to set them at interest; and made accountable to the legislative body; yet without their consent or approbation, those very trustees on the 20th of May, 1754, petitioned his honour the lieutenant governor, for a charter. A charter, clogged with discriminating tests, and formed to gratify the ambition and arrogance of an aspiring party! The injustice and impolicy, of incumbering a new colony of protestant refugees, of various persuasions, with an ecclesiastical test, tho’ strongly insisted upon, in a protest of one of their own members, were arguments insufficient to dissuade them, from so partial and unrighteous a scheme. A scheme unnaturally calculated, to exclude from the President’s Chair, every man in the province, not in communion with an episcopal church; however distinguished for his merit, his genius, his erudition, or his loyalty.

The people, who have long felt the benign influences of his most gracious Majesty’s auspicious reign, were naturally incensed at an innovation, which obliquely impeached, their loyalty to their Sovereign, and their affection for the illustrious house of Hanover. That such would be the effect, of this extraordinary procedure, was obvious to two gentlemen of the board of council, who protested against granting the petition. Its tendency to foment feuds and animosities, amongst his majesty’s subjects, at this critical juncture, is particularly alledged, among other irrefragable reasons, assigned for their dissent. These appear on the minutes of council, which your Excellency hath a right, at all times to consult. Tho’ a majority of the committee of that honourable board (two of whom, [surprising to relate] were among the petitioning trustees) advised his honour in favour of the petition: Yet, so far were the people from being satisfied, that the current of all public and private conversation, ran violently, not only against the exclusive clauses, but any kind of charter constitution. Your Excellency will reasonably expect, that the sense of the community, discovered itself in the grand assembly of their representatives. It did so. The flame which had long been enkindling, in the great mass of the people, impatient of further restraint, at length, broke out in the house; and the trustees were Edition: current; Page: [1552] ordered, to give an account of their proceedings. At this juncture (on the 31st of October) his honour, after five months consideration of the charter, gave his fiat for its passing the seals: And in a few days after, the assembly resolved, to apply the money to no other college, than such, as should be incorporated and established, by legislative act. A bill for that purpose, was accordingly brought in, read and committed; and afterwards printed, for the public animadversion. When the Dutch, the most numerous of our inhabitants, had embarked in the affair, by petitioning the house, for a clause in the act, establishing a theological professor of their communion; and the popular voice, was loud against the charter, it was reasonably hoped, that its partizans would have dropped the project. A project, that without the approbation of the people, could never attain, the true ends of an institution, for the education of youth. But instead of a cordial concurrence in the bill, it was by the authors of the charter, vehemently opposed. They vainly relied on their imaginary power, to vanquish their adversaries; and wheedle the Dutch, into an acquiescence in their measures, by obtaining a new charter, which only in part conferred, what the latter had by their petition, requested of the assembly. Flushed with these sanguine prospects, the majority of the governors, appointed by the first charter, procured without the consent of the Dutch, a supplemental patent for a professor. Soon after, on the 12th of June, just before your Excellency’s expected arrival, they petitioned the house (in the absence of several of the members averse to the scheme) for a confirmation of both the charters; and their investure with the monies, set a part for the use of a college. But agreeable to the general spirit of sundry petitions from the counties, to their respective representatives, the consideration of this extraordinary request, was postponed till after September next.

Loud and universal, was the joy of the public; who in this interval, impatiently waited your Excellency’s appearance, to give a favourable turn to so important an affair. Whether this will best be effected by a dissolution (the customary complement on the arrival of a new governor, scarce ever omitted; and strongly commended in the first address of the general assembly to Mr. Clinton) or any other measures, is not mine, but your Excellency’s, to determine.

From this simple relation of facts, might be deduced several observations, to display in a stronger light, the peculiar genius and temper of a province, which not more joyfully hails, your Excellency’s safe arrival; than it congratulates itself, on the delightful prospect, of your appeasing Edition: current; Page: [1553] our commotions, by a righteous administration. But as I have already, Sir, too long trespassed on your patience, I shall only take the liberty to say, that as the inhabitants of this colony, are equally protestants, they expect an equal indulgence from the government. As they are alike loyal subjects, they hope for the same privilege and protection: To secure this priceless jewel, their ancestors abandoned their native soil; crossed the perilous ocean; and settled a howling wilderness. No wonder then, if to their posterity, this remains ever dear, and beyond all estimation precious. No wonder, if a partial distribution of honours, is ey’d with jealousy; and produces disaffection, and clamour. Less marvel still, if a governor, for distinguishing one persuasion, and depressing the rest, should, instead of glory and applause, earn only insecurity, and reproach.

Besides these unquestioned privileges of Englishmen, I claim no higher boon, than the unmolested immunity, of treating public men, and measures, with the freedom and impartiality, always indulged by the best administrations, nor even restrained but by the worst. To me, utterly unintelligible is the pernicious doctrine, that the people have no right, to inspect into, or animadvert upon, the actions of their superiors. A doctrine, fit only for a tyrant to enjoyn, and slaves to obey. A doctrine, invented by wicked men, to screen their flagitious deeds, from public cognizance, and public censure. Truth, and rectitude, dread not the closest inquiry: And guilt, and iniquity, ought to be detected, arraigned, and condemned, however gorgeously apparelled, or highly exalted. In these sentiments, I am sure of being joined, by every man, whose personal merit, (like that of your Excellency’s) amidst the greatest external splendor, constitutes his real,—his substantial dignity.

With singular delight, Sir, we anticipate the superior blessings, to arise from the elevation, of so humane and beneficient a gentleman, to the seat of government. A station, that will enable him, to exercise diffusive and god-like benevolence—to be the patron of the oppressed,—the scourge of the oppressor,—to administer relief to the necessitous—and by his powerful authority and example, at once to encourage, and to embellish, virtue. By virtue here, I mean not, a superstitious devotion, an implicit faith, or a bigotted attachment to those solemn fooleries, too often miscalled, by that venerable name; but an habitual disposition of doing good to all; of injuring none; and of promoting the happiness of human kind.

This is glory, solid, intrinsic, and undecaying! Undecaying indeed!—for such is the effulgence of genuine worth; and such the transcendent dignity, Edition: current; Page: [1554] that beams from patriotism and public-spirit, that the trophies thence acquired, will triumph over all the monuments, erected to exterior and advantitious grandeur. And while the rich, and the fortunate, are had in momentary remembrance by portraits and statues; the hero and the patriot, will survive in the affections of posterity; and disseminate their actions, thro’ distant ages.

That your Excellency may long deserve, and as long enjoy, the smiles of your royal master; the love of a happy people; and the benediction of the King of Kings.—That you may constantly be illuminated, by the boundless source of light; and having closed this mortal scene, with great renown and length of days, be finally advanced, to the supreme honours of immortality,—is the fervent prayer of him, who desires to be ever esteemed, what he sincerely is, with the profoundest submission,

A Total Eclipse of Liberty.

On the 24th of October 1754, while at Dinner, I was apprehended by an Order from the Lower House of Assembly sign’d Thomas Hubbard Speaker, on Suspicion of publishing a Pamphlet, entitled THE MONSTER OF MONSTERS;§ and forthwith to make my Appearance before said House to answer to such Questions as should be ask’d me relating to the above Edition: current; Page: [1563] Pamphlet;—But before I could be admitted, was confined in the Lobby about an Hour, then was by the Messenger called before the House; and after my proper Complements before that Grand Assembly, was interrogated in the following Manner, by Mr. Speaker, viz. Do you know any Thing of the Printing this?—Holding it out—Upon which I desired it in my own Hands; which was granted:—After looking over it some Time, I said, it was not of my printing, neither had I any such Letters in my Print-House:—After some considerable Pause, and the Gentlemen looking upon one another, I was ask’d, Whether I knew any thing relating to said Book?—I then desir’d the Opinion of the House, Whether I must answer to that Question? But notwithstanding this Edition: current; Page: [1564] reasonable Request, there was no Vote pass’d, that I could perceive, excepting three or four Gentlemen said Yes, Yes, very earnestly: Upon which I inform’d them, I could not say, I had no Concern; for as I heard there was such a Pamphlet to sell, I had bought two Dozen, and sold them out of my ’Shop, and should not tho’t any Harm if I had sold an hundred of them. This brought on the following Questions and Answers, viz. Who did you buy them of?—I reply’d, they were sent, I thought, by a young Man, but could not tell his Name.—Who did he live with? I then again desir’d the Opinion of the House, Whether I was oblig’d to tell who I bought of?—Three or four again rose up and said I must: Upon which I said, I believ’d the young Man liv’d with Mr. Royal Tyler. It was then demanded, Whether I had any Conversation with him about them? I reply’d, I believe I might in the same Manner as I had with many others, not that I imagin’d him the Author, or any other Person, for I never agreed with any Body about the Printing of it, neither was it ever offer’d to me. I was then ask’d, Whether any of my Hands assisted in the doing of it? I answer’d, I believe my Negro might, as sometimes he work’d for my Brother. I was then queried, Whether my Brother had any Help? I said, No. Then a Gentleman said, Somebody must help him, for one could not print alone: As this was what I never knew before, I reply’d, one could print, and I could do five hundred with my own Hands.—I was next question’d, Whether I ever saw any of it while printing? As I was determin’d to shew no Contempt of Authority, I acknowledg’d I had seen some of it printing off, as Printers transiently go into one another’s Houses.—Whose House was it?—I think it was my Brother’s—What is his Name?—Zechariah—Where does he live? Down by Cross-Street.—One Gentleman stood up and said, sometime ago I said I bought but two Dozen, afterwards I bought a hundred; to which I reply’d, I would have bought a hundred if I could have sold them. Another then stood up and said, before I had Time to answer, You do not Know when you LIE: Upon which I said, Begging your Pardon, Sir, I know when I Lie, and what a Lie is as well as your self: to which there was no Reply.

They then concluded I was the Author, as I could bring no Body else—I desired I might have a little Time to consider as the Book was publish’d several Months past, and perhaps I might give more Light in the Affair; but instead of telling me to go to my Print-House to enquire who brought the Books there, I was lock’d up for three Hours in the upper Chamber of the Court-House: Then was ordered down to make my Appearance before the Hon. House a second Time, and was further examined relating to this MONSTROUS BUSINESS, to know if I could say any thing more, or Edition: current; Page: [1565] give any further Light; (I understood Mr. Royal Tyler had been sent for, and examin’d in my Absence) but as I had nothing to correct in my Answers before, told them I could not give any further Light.—Upon which one stood up and said, when I was in the House before, I said that I bought the Books of Royal Tyler;—Here I was suspicious they intended to get me to acknowledge I had them of him. Which was not true in Fact. I deny’d and said I believe his Boy left them at the Shop. Which I find also I am mistaken in. And after being oblig’d to repeat over great Part of what I had before said, was ordered again in the above Loft, where I was confin’d till between nine and ten o’Clock at Night, without Company or Prisoners Fare—From thence was ordered, Malefactor-like, attended with a Crowd of Spectators, who were waiting at the Doors, to know the Event of the Monster, to his Majesty’s Gaol in Boston; as soon as I was guarded to the Prison-Keeper’s House, many Friends came to see me, endeavouring to keep up my Spirits; but no one imagin’d what was to follow, nor I myself;—but every one concluded, as Security enough was offer’d, that I might have the best Chamber and Bed in the Prison-Keeper’s House; a while after my nearest Friends withdrew, and wish’d me a good Night. It being now between 11 and 12 at Night, we came to the Point in Hand, whether I must actually go into the Gaol; I was told I must, and that into the Stone-one; this I said was cruel hard; but go I must and did; where I now am an Englishman, free born; having been for many Years entitled to the Privilege of voting for some of the Members of that very House, by whose Order I am now committed for no other Reason, but upon Suspicion of printing and publishing the aforesaid Book entitled the Monster of Monsters;*—but as I have heard of many Wonders in Edition: current; Page: [1566] the World, this seems to be the Wonder of Wonders; and I think from this Time I shall never more wonder at any Thing;—But perhaps some may say, this is only a Whim, a Fancy of some Lunatick Person, who imagin’d this Thing while he was dreaming of Monsters. Can it be true in Fact! Is it possible under the English Constitution! Is it possible among a Free People! Especially is it any way likely among New-England Subjects! Search for a Parralel in all the English Records! See if the like can be found, unless when Tyranny prevail’d, and Liberty, the Glory of our Constitution, was oblig’d to hide it’s Head! Without any more Admirations, this very Affair was transacted in Boston, New-England, a Place where our Ancesters fled for Refuge, and left their pleasant Habitations, that they might enjoy LIBERTY, the natural Right of free-born Subjects, and not be confin’d upon Suspicions, nor subjected to those Oppressions which are enough to make a wise Man mad.

Thus far I wrote in Gaol the first Night: About 8 o’Clock in the Morning the Prison-Keeper came up into my dark Apartment and said he had Orders not to allow me Pen, Ink, or Paper, which he immediately took from me; and also said his Orders was, Not to let me see or speak with any Body; which perhaps some may think ought not to be told in Gath, and that I might have more Modesty* than to blaze it about, or publish it in the Streets of Askelon, &c.

Part II.

I Should have inlarged in my first Account, but it was either surmised, or somebody inform’d that I had a Pen and Ink, which the Prison-Keeper said he had Orders to take from me, which he did; so was obliged to break off abruptly; and for Fear of being search’d, hid what I had wrote in a Edition: current; Page: [1567] private Place, where I thought Modesty would be a Check upon him from searching: Now thinking my self very secure, only desired I might have the Liberty of writing a few Lines to my Wife; this Favour was denied me. I then begg’d I might have the Liberty of speaking with some Friend in the Place of my Confinement, which was also denied me;—I then intreated that my Wife might be sent for, that I might deliver some Message to her to intercede for my Deliverance out of this stinking, dark, melancholly Place; but all my Pleadings were of no avail. Mr Young then said, he would carry any Message for me, but not in writing,* though I told him he might see what I wrote.—This I look’d upon to be shocking Orders which Mr. Young had receiv’d, but knew at the same Time, that no Man or Body of Men had a right to give, as this Affair was circumstanc’d either from the Laws of God or Man, but was purely Arbitrary in the bad Sense of the Word—Had I been a Murderer, I should not have been denied these Favours, for they are generally allow’d, the Comfort of their nearest Friends; and though I could enlarge with Truth, and show wherein this Treatment was almost too much for human Nature to bear, shall not at present proceed any further on this Head—

All I could be allow’d was to send a Message by Mr. Young, who said he would deliver it to the Person who was below, and had brought me some Victuals, if I inclin’d to send Word by him; but as I did not care to commit any Thing of a private Nature to him, only desired him to acquaint my Wife† Edition: current; Page: [1568] and Relations, That I was deprived either of the Pleasure of her Company, or theirs; for I was not allow’d to have any Body with me; nor to write her a Line. Which was deliver’d as far as I know. But to digress a little, This Building, by what I can learn from the Prisoners, has seven Apartments, besides the Dungeon; the Walls about three Feet and half thick. When I was first convey’d to Mr. Young’s House, I thought I might have lodg’d there, giving Securitys as before hinted, but the Officer shewed me a Paper, Sgn’d by Thomas Hubbard,* Speaker, wherein was these Words, To put me into the Common Gaol: I hop’d the Common Gaol meant no more than the Wooden one; but I must go into the Stone one, which it seems is the proper Meaning of the Words Common Gaol, as there were explain’d at that Time: I suppose it is called Common, because all Sorts of Criminals are put here, such as Murderers, Thieves, Common-Cheats, Pick-Pockets, &c. And what is worse than all that has been mention’d, Suspicious Persons, who are convicted of no Crime at all; but are to remain there during the Pleasure of Lawless, arbitrary, ambitious Men. So I am here as one of the worst of Criminals, the Nature of my Crime, being only Suspicion. But to proceed, After all Intreaties of my self and Friends failed, as before mention’d, and I found I must go into this Place, I then endeavoured to bring my Mind to my Condition, and thought more than I said, as there are no humane Laws against Thinking, though against Speaking. After Eleven at Night, when People were Edition: current; Page: [1569] generally gone to Rest, I was by the Prison-Keeper and several others, conducted through several Apartments, each of which was secured with Locks and Bolts; on each Door of about 70 Spickes, the Heads of which about two Inches diametor. I walk’d very slow, that I might observe as I went along; and could not help thinking of those Words, which appear’d very stricking to me, of walking through the dark Valley of the Shadow of Death. Having got to my Apartment, without any broken Bones, it being an ugly stumbling Way to the Place, an extraordinary Composure of Mind ensued;* I then fancy’d myself like one of the old Philosophers, the Account of whose Lives has been some Entertainment to me, but wish’d for Diogene’s Tub or Hogshead, or something to keep out the Inclemency of the Weather, for it was a dark stormy Night, and rain’d prodigious hard all next Day. I had no Bed to lodge on, but a Pillow and one Blanket. I walked about, and when tired sat down, and heard the Clock strick every Time from 12 till Eight. There is but one Window, and that without any Thing to keep off the Weather, as there is only several Iron Bars, no Winder-shut, which the Murderer was favour’d with. The Place stunk prodigiously, which oblig’d me to tye my Handkerchief over my Mouth and Nose, for fear of being suffocated; worse than the Smell of Brimstone. I heard no Noise for some considerable Time; all Nature seem’d to be dead; the first stiring of any Thing I could hear, was the Noise of Rats, which seem’d to be of a prodigious Size, and have Reason to think if I had been favour’d with a Club, I might have been the Death of some of them. As I was now depriv’d of all human Company, I wished for my little Dog Corriden, and was sorry I had not thought of him before, whose Company perhaps I might have been indulg’d. About two o’Clock I heard a most terrible Groan as of some human Person, which startled me a little, but had Resolution enough I thought, to encounter, had it been One from the other World; the Groan appear’d to be very long and piercing: In a few Minutes after, I spoke out with as strong a Voice as I could, Who’s there! This seem’d to bring the Dead to Life; for I soon found I had roused the Prisoners in the other Apartments, and was immediately answer’d by one Edition: current; Page: [1570] who said his Name was Wyer, I suppose you have heard of me; he was to have been executed the Thursday following. I told him I was sorry for his Misfortune; and advised him to behave sutably under his Affliction; he thank’d me, and bid me a good Night; he was in the next Room; only a Plank Partition parted us. Soon after I was hail’d by one in the upper Loft, whose Name is Webb, to know if I had just come in, and desired I would not take it amiss, as Prisoners were as kind to one another as the Place would allow of; I then told him between eleven and twelve. From that Time till eight the next Morning, I had no more Conversation with any Body; soon after I heard Wyer at Prayer, who seem’d to be very penitent, then there was a general Muster of the Prisoners, and calling to one another, some for Tobacco; some for Rum, Sugar, Water, &c. some Swearing, Crying and Praying; so that I was entertained with a Variety, which seem’d as though I had got into another World. As I found my Companions must be Murderers, Thieves, common Cheats, &c. I imagin’d I might make a good Improvement by conversing with these notorious Sinners: And though it is said a Man may be known by his Company; yet I beg Leave to contradict that general prevailing Notion, and differ from some; I think there is an Advantage in being with all Sorts of Persons, if Prudence is used, and the Place does not stink too much. Had I not been here, I should not have known the Behaviour of a poor Melefactor bound in Chains; I should not have had so clear an Idea of that Patience and Resignation, which is so much talk’d of, and so little practised in the World. I than desired the Prison Keeper to remove me any where in the Prison, so I might get out of this Place, for I was almost suffocated with the Smell. He told me he could not, unless I went above with Webb; which I readily accepted of; and in about two Hours after was removed; which Place was pleasant in Comparison of the other. I indeavour’d now to make the best of my Companion; and though I had heard a notorious Character of him, must say, he behaved to me with all the Civility of a good natur’d Man.

* ¶ * Is it not very unaccountable, as this Affair took up so much Time, and was carried on with so much Deliberation, that it was never sent up to the Honourable Board, to know if his Excellency and Honours, (who are two Branches of the Legislature) approved of it? Had this been done, as I think it should, with Submission to better Judgment; and had I been so happy as to have been favour’d with their Opinion, doubt not it would have met with but a very cool Reception, and finally thrown out, as not being for the Dignity of the General Assembly to take Notice of such an imaginary Creature; or if in Edition: current; Page: [1571] their Wisdom should have thought otherwise, I cannot entertain the least Doubt but that the Law would have been the Rule for my Trial, and that it could never find Place in the Heart of a sincere and upright Christian of prosecuting it to Effect in the Manner it was done.

Part III.

As I was ordered half a Hour ago by the Prison-Keeper to come out of the close Stone-Gaol, into his Dwelling-House, I think it necessary immediately to give some further Account of this extraordinary Affair, which is not mention’d fully in my first and second Papers.

I have been 48 Hours confin’d in a stinking close Stone-Gaol, a particular Account of which I gave in my second Paper. It is now more than ever before a pleasant Thing for my Eyes to behold the Sun. I am now allow’d the Use of Pen, Ink, Paper, the Pleasure of seeing my Relations, and many Friends, whom before I knew nothing of. I seem to myself as one almost risen from the Dead, and though weak in Body, can perceive a Revival as I have the Liberty of breathing a freer Air. While I was in Tribulation, I am inform’d the People were in Doubt, saying one to another, What meaneth this? And tho’ I had not the Use of the Bible, I cannot remember, whether that in particular was forbid me.

But as I have had many Thoughts, some Parts of Scripture came fresh in my Mind, such as, “If this Counsel or this Work be of Men, it will come to Nought;” And that “there is no Wisdom, nor Understanding, nor Counsel against the Lord.” I was inform’d about Midnight, that the Jaylor had received a strict Charge to thrust me into Prison, and there to keep me safely, but no Orders to make my Feet fast in the Stocks. Afterwards the Keeper himself told this Saying to me, which I suppose came from the Magistrates, to let me go; and doubt not I might have departed in Peace: But St. Paul’s Words seem’d to be rivited into me, speaking of himself and his Fellow-Sufferers, “They have beaten (or abused) us openly uncondemn’d (i.e. by the Law) being Romans, and have cast us into Prison; and now do they thrust us out privily? Nay, verily, but let them come themselves and fetch us out:” Perhaps their hard Hearts may relent, when they see the Situation we are in, as it is natural for the Eye to affect the Heart. So it is applicable in some Measure to my Case, as I was put into the inner Room Edition: current; Page: [1572] in the Prison, and that at Midnight, uncondemn’d, i.e. by the Law; and I am an Englishman, free-born, not having forfeited my Liberty any more than the above Romans; and I now desire that the same Authority that put me in, would by Virtue of that same Power take me out, and not thrust me out privily. I had heard that the Chief Magistrate, and some others, gave this good Advice; Take heed to yourselves, what ye intend to do as touching those Man. If any should say I am mad, or beside my self; it could not be wondered at considering the Treatment I have unjustly received; but I can affirm with all seriousness in the Words of St. Paul, I am not mad, but speak forth the Words of Truth and Soberness. I only speak freely, and every Man of common Sense has this Right, and I think every Man is more or less concern’d in an Affair of this Nature, for this Thing was not done in a Corner, unless it was in a Corner of the Court-House. I did nothing that was worthy of Death or of Bonds, the former I was in great Danger of, the latter I actually experienced; when at the same Time I ought to have been set at Liberty. I have Reason to think twenty four Hours more would have put an End to my Life, for I had catch’d a prodigious Cold the first Night, as the Wind blew hard in upon me the whole Time; and had that been the Case, what Satisfaction could have been made to injur’d Innocence? Would it have been any Mitigation, because it was done by the Representatives of the People, or at least by a Number of them? No! the Crime would have been so much the more aggravated, as it cannot be supposed they were ignorant of what they were doing, though I have so much Charity as to think that forty Men of superior Sense then sitting, would sooner have cut off their Hands than been guilty of such a base Action; but suppose most Votes carried it.

After I was deliver’d from this doleful, melancholly Stinking Place, into Mr. Young’s Dwelling House, I had a particular Account of the Doctor’s attending my Wife, who on this Occasion, was thrown into Fainting Fits, and Hesterick Disorders, of which perhaps she may never recover so as to be the same Woman as before. Here is a further Aggravation of this unprecedented Conduct of those who had no Right to put me there, as I hope I shall be able to prove—The whole Time she was forbid Admittance, who would willingly have kept with me: How then must this appear to a thinking Mind, that the dearer Part of a Man’s Self must be as it were torn from him, which God had join’d together, and no Man had a Right to put asunder, Edition: current; Page: [1573] excepting in some particular Cases, of which there can no Shadow of a Reason be pretended here. I could only hear while in Gaol, the tender Cries of an aged Mother, for the Sight of her Son, the Intercession of Friends for a Relief, and the encouraging Words of some to keep up a good Heart; and the Pity of the poor Melefactor, who said, he thought I was worse off than himself. Soon after I had got into the Prison-Keeper’s House, being weak in Body, and scarcely able to walk, my dear Companion, with Assistance, came in, whose Paleness and quivering Lips, with Trembling, was enough to move a Stoick. Here, I acknowlege, I want Words to paint this Scene in true and lively Colours; and as I imagine Language, were I capable, would only eclipse a true Idea of it, so I think nothing but a compleat Orator, a Master of Language, perfectly acquainted with human Nature, can draw it to its Life; therefore shall forbear.

The Day being now far spent, and my Friends taking their Leave, I retired to a Chamber, and went to Rest as soon as I could; having a tolerable Night’s Refreshment, I awoke with considerable Strength of Body, heard two Sermons preach’d to the poor Melefactor; as there was a Number of Persons came to see the Prisoner on this Occasion, there was Enquiry, how I came out. I also heard the House had sent for the Mittemus1 on Saturday, and that the Sheriff would not give up the Original, for I was not under Bonds, nor any Body for me, that I should not depart the Prison-Yard; and the Doors and Gates being frequently open I had opportunity enough to go out, but being determin’d to show no Contempt of Authority, nor any other Orders, am now, on Monday, (October 28.) still confin’d waiting for the Pleasure of the Hon. House.*

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This Affair, I understand, is the chief Topick of Conversation in Town, and well it may be, for it is a new Thing in the Land. As I live under the Constitution of England, shall transcribe a few Thoughts out of that approved Piece, entitled the Spirit of Laws, Vol. 1. P. 216, and so on.—

“The Liberty of the Subject is a Tranquility of Mind, arising from the Opinion each Person hath of his Safety. In order to have this Liberty, it is requisite the Government be so constituted as one Man need not be afraid of another.

“When the Legislative and Executive Powers are united, in the same Person, or in the same Body of Magistrates, there can be no Liberty; because Apprehensions may arise, least the same Monarch or Senate should enact tyrannical Laws, to execute them in a tyrannical Manner.

“Again, There is no Liberty, if the Power of judging be not separated from the Legislative and Executive Powers. Were it join’d with the Legislative, the Life and Liberty of the Subject would be exposed to arbitrary Controul; for the Judge would be the Legislature. Were it joined to the Executive Power, the Judge might behave with all the Violence of an Oppressor.

“There would be an End of every Thing, were the same Man, or the same Body, whether of the Nobles or of the People, to exercise those three Powers, that of enacting Laws, that of executing the Publick Resolutions, and that of judging the Crimes or Differences of Individuals.”

Tuesday October 29. Afternoon.

The Doctor having acquainted me that my Wife was thrown into Fits on Account of my Confinement, which oblig’d me to write the following Letter to Thomas Hobbard, Esq; Speaker, to be communicated to the House, viz.—

It may not be amiss here to transcribe some Passages of that excellent Book, entitled the English Liberties; or, The Free-born Subjects Inheritance: The Author, in his Preface says, “Let us then by perusing this Treatise deeply imprint in our Minds the Laws and Rights that from Age to Age have been deliver’d down to us from our Renown’d Fore-Fathers, and which they so dearly bought and vindicated to themselves at the Expence of so much Blood and Treasure: In a Word, Let them never perish in our Hands, but let us make our Lives happy in the Enjoyment of them, and piously transmit them to our Posterity; being fully convinced of this Truth, that when Liberty is once gone, even Life itself grows insipid, and loses all its Relish.”

*No Freeman shall be taken or imprisoned, or disseised of his Freehold, or Liberties, or Free Customs, or be outlawed; or exiled, or any otherwise destroyed, nor will we pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land. We will sell to no Man, we will not deny or defer to any Man, either Justice or Right.

No Freeman shall be taken, &c. These Words deserve to be written in Letters of Gold, and I have often wondered that they are not inscribed in Edition: current; Page: [1576] Capitals, in all our Courts of Judicature, Town-Halls, and most publick Edifices; they being so essential to our English Freedom and Liberties, and because my Lord Coke in the second Part of his Institutes, has many excellent Observations on this Chapter; I shall recite his very Words;

That no free Man shall be taken, or imprisoned, but by the Law of the Land, i.e. by the Common Law, or by the Statute Law, for the Liberty of a Man’s Person is more dear to him than any Thing, and therefore if he be wronged in that Liberty, ’tis very reasonable he should be relieved.

No Man shall be disseised, i.e. put out of Seisin or be dispossessed of his Free-hold, i.e. of his Lands or Tenements, or Livelihood, or of his Liberties, or Free-Customs, which belong to him as his Birth-right, unless it be by Lawful Judgment, i.e. by a Verdict of his Equals, or Men of his own Condition, or by the Law of the Land, i.e. to speak once for all, by the due Course and Process of Law.

No Man shall be taken, &c. i.e. restrained of his Liberty, by Petition, or Suggestion, to the King or Council, unless it be by Indictment or Presentment, of good and lawful Men, living near the Place where such Deeds were done. The Warrant or Mittimus,2 containing a Lawful Cause, ought to have a Lawful Conclusion, &c. and him safely to keep until he be delivered by Law, &c. and not until the Party committing shall farther Order.

If any Man, by Colour of Authority where he hath not any in that particular Case, shall persume to arrest or imprison any Man, or cause him to be arrested or imprisoned, this is against this Act, and it is most hateful, when it is done by Countenance of Justice.

There are three Things, which the Law of England (which is a Law of Mercy) principally regards and taketh Care of, viz. Life, Liberty and Estate. Next to a Man’s Life, the nearest Thing that concerns him, is Freedom of his Person; for indeed what is Imprisonment, but a kind of civil Death? “Therefore,” saith Forteseus, “the Laws of England do, in all Cases, favour Liberty.”

If the Impartial should think upon perusing the foregoing, that I have wrote with any unbecoming Passion or Prejudice, I am willing to acknowlege it. But at the same Time must observe, to use the Words of an excellent Writer, “All Anger or Resentment cannot be condemned, although there is little lovely in any Degree of it. An intire Insensibility of all Injuries, of which there are but few Instances, would be a very inconvenient Disposition; exposing a Man to the Contumelies and Petulance of others; nor consistent with his own Character.”

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Is it not very surprising, such a Vote should pass that House, when I declar’d the Book was not of my printing, neither had I any such Types to print with? If it be said it was put to Vote, and there was a Majority for my Committment, and Mr. Speaker was order’d to sign a Mittemus to put me into the Common Gaol, I think he might with as much Propriety have sign’d my Death Warrant if order’d. If it then be said, Mr. Speaker was against this Proceeding, could he not in a genteel Manner have excused himself, and desired the House to appoint another for this Case, and considered if he did me Wrong, though by their Influence, or Order, it would not excuse him, unless they had an absolute Power to take away Life at Pleasure—[I here shall insert that Passage in the English Liberties, Pag. 3. “’Tis true the Law itself affirms, the King can do no Wrong; which proceeds not only from a Presumption, that so excellent a Person will do none, but also because he acts nothing but by Ministers, which (from the lowest to the highest) are answerable for their Doings; so that if a King in his Passion should command A to kill B, without Process of Law, A may yet be prosecuted by Indictment, or upon an Appeal, (where no Royal Pardon is allowable) and must for the same be executed, such Command notwithstanding.”] Would he in Fact have done it, had I been his Son in Law, though ordered by the whole General Assembly? No I dare say, he would not; and he certainly must know, or at least ought to know, in order to qualify him for that Office, I was not dealt with in a due Course and Process of Law; and that their Power did not extend in such Cases to any but their own Members. All I desir’d was a fair Trial at Common Law, which I doubt not is founded upon Reason; and if I had been condemn’d, would have endeavoured to be calm and easy, and thrown them in the Heap of Misfortunes Mankind are subject to.

If this was a just Method of Proceeding, why was not the other Printers sent for, and against whom Warrants were issued? It seems there was no Occasion for this; but if they could sacrifice an innocent Person, it might be a Terror to others. Is this just? Has it the Appearance of Justice! Nay, would any of them have carried the Affair to such a monstrous Heighth with a Relation or an Acquaintance? Would Mr. Speaker have sign’d that Mittimus had I been nearly allied to his Family? It is unaccountable, that a Gentleman, who for several Years has had almost the unanimous Vote of this Town to represent them, should act thus, when he must know our Liberties were touch’d to the Quick; (for I would not in the least imagine he could be Ignorant) and that the plain English of establishing such a Precedent would be this: If Edition: current; Page: [1578] I can be secure, or protected, I will do all in my Power to put every Man into the Stone Gaol that shall pretend either directly or indirectly to find Fault with the Conduct of the House of Representatives, while I am Speaker, even if they are barely suspected; and whatever they order, I will sign, and we will be Judges of Parallels and Innuendoes, though we should incur the Censure of Juvenal, who says, “There are a Sett of Creatures who have no Mercy on Paper, and are ready to answer, even when they are absolute Strangers to the Subject.”

Strange! That Men who have had Liberty and Property continually sounding in their Ears from the Press and Pulpit; even from their Infancy, should be guilty of this unaccountable Conduct? Is the Nature of Right and Wrong altered? Is this Glory departing from New-England which our Renowned Predecessors purchased with so much Blood and Treasure? We hope not. We have our Courts of Justice not yet overthrown: For we have the Grand Privilege of Trials, by our Country, that is by Juries; and I hope never to see the Day, when the People of this Country, will be so stupid as tamely to give up the Privileges they of Right enjoy; but always have a Godly Jealousy, when there is the least Encroachment either in Civil or Religious Affairs, and more especially when the very Foundation is struck at; and act like Men; fear not stern Countenances, the Threats of a Prison, nor the rattling of Chains; but imitate the noble Courage of your Fathers, who are now sleeping quietly in the Dust, and fear’d none of these Things, as they knew they were acting in a just Cause; and have overcome, and no Doubt gain’d the Prize: For should you act an inglorious Part, and they could rise out of their Graves, you would not be acknowleged as their Children, but the degenerate Plants of a strange Vine.

Now while we have Opportunity, let us consider, that as Life once lost, can never be recovered; so when Liberty is banish’d, or by bad Treatment, takes it Flight to another Climate, where it will be kindly receiv’d, it’s almost as impossible to recover it again in its native Beauty, as it is for the Ethiopian to change his Skin, or the Leopard his Spot.

Although I could inlarge, with Assistance, from the best Authors, who has wrote on the Original of Civil Government, The internal Structure of States, and the several Parts of the supreme Power, The Downfall of Tyranny &c. and show wherein the Author of the foregoing Piece has been treated contrary to, and in direct Violation of all the Laws of the English Nation; but must reserve these Thoughts, with an Appendix, for another Opportunity.

South Carolina Gazette, May 5th 1756

As the Council in this province, for some time past, have claim’d and assumed the power of an Upper House of parliament, affecting to resemble the house of lords in Great-Britain, I offer some considerations to the public on that head.

By royal charter of his majesty king Charles II. dated at Westminster the 24th of March 1662, and in the 15th year of his reign: And also by a second charter of his said majesty, dated the 30th of June 1665, in the 17th year of his reign: He did grant and confirm to the lords proprietors of the province of Carolina,

By the 4th paragraph or clause, his majesty was pleased to give the said lords power and authority, to ordain, make and enact, any laws and constitutions whatsoever, according to their best discretion, by and with the advice, assent and approbation of the freemen of the said province, or the greater part of them, or their delegates or deputies, &c.

By the 7th paragraph or clause, his majesty was pleased to ordain, constitute and declare, That the province of Carolina

By an act of parliament, passed in the 2d year of his present majesty’s reign, for establishing an agreement with seven of the lords proprietors of Carolina, for the surrender of their title and interest in that province to his majesty, it is obvious, that, altho’ his present majesty is vested with all the interest, property, and estates of seven of the late lords proprietors, yet (in the said act of parliament) nothing is expressed or intended, to take away or diminish any of the rights and liberties of the people of this province; but, on the contrary, there is a tacit confirmation of of all the privileges granted by his late majesty king Charles II. in his two charters, since in the said act they are both recited.

The ancient and usual method, from the first settlement of this province, to the end of the government of Robert Johnson, Esq; the proprietors governor, (above 50 years), the words used in the enacting clauses of our laws were, “Be it enacted by {blank} palatine, and the rest of the true and absolute lords and proprietors of this province, by and with the advice and consent of the rest of the members of assembly now met at Charles-Town, &c.” This custom was used until the inhabitants denied the authority of the lords proprietors, and James Moore, Esq; was chosen governor: When the enacting clause was altered, and ran in the words following, “Be it enacted by the honourable James Moore, Esq; governor, by and with the advice and consent of the council and representatives of the inhabitants of the settlement in South-Carolina, now met at Charles-Town, and by the authority of the same.” The reasons for this alteration are evident, for they could not make use of the name of the palatine, as he was chosen governor by the people, who had disclaim’d the jurisdiction of the lords proprietors, and consequently were obliged to alter the method formerly used in wording the enacting parts of their laws.

The first law I have met after governor Nicholson’s arrival, bears date the 18th of August, 1721, in which the words of the enacting clause run thus, “Be it enacted by his excellency Francis Nicholson, Esq; governor, by and with the advice and consent of his majesty’s honourable council, and the assembly of this province, &c.” I have not been able to learn the reasons why this method Edition: current; Page: [1594] has been since usually followed, unless ’twas occasioned by the preceding acts passed in governor Moore’s time; which acts could not be worded, in the enacting clause, either with the names of the lords proprietors, or his then majesty king George, because governor Moore had no commission from the king, and the province had disowned the authority of the lords proprietors. It is as reasonable, now to make use of the king’s majesty’s name in all our enacting clauses, as it was, in former times, to use the palatine’s name and the rest of the lords proprietors, for his majesty, now our sovereign and proprietor, has his representative, the governor, to consent on his behalf to all laws passed in the province: and therefore, the using his majesty’s name, would appear more similar and like the custom used in Great-Britain of enacting all laws; and the practice of Ireland, governed by a lord-lieutenant, is so good a precedent, as this province could not be in the wrong to imitate.

It is plain, to every considerate man, that the practice in this province formerly, in passing their laws, shewed there was only two estates, the lords proprietors and the people. The lords proprietors had a governor, who represented the palatine; and the other lords had each his deputy, who consented for his constituent or principal. The governor, with these deputies, sat in council, and gave his, and they their, consent to all laws they approved. This method will plainly appear, by examination of all the laws passed in this province to the end of the proprietors government under Mr. Johnson. Our constitution is no way altered by his majesty’s being vested with the estate of the lords proprietors; it ought to be as near as possible like that of England (by our charter); but the scheme form’d by the late lords proprietors, for making a nobility in this province to represent an upper house, failing, hitherto none but his majesty’s rights and those of the people seem to constitute the legislative power in this province; for, since there is no nobility, the government cannot here be similar or like that of England, one estate or part of the British constitution being wanted, and therefore we come as near to the practice of Great-Britain, by passing our laws in the assembly, and those confirmed or assented to by the governor, as the situation and circumstances of our province will admit. The parliament of England is composed of king, lords, and commons; the two houses agreeing and uniting, are a proper balance of power between the crown and people: But, if his majesty’s authority is represented by his governor, which constitutes one estate of our legislature, and his majesty should further appoint a council, to preside in the nature of an upper house or house of peers, and these appointed only durante bene Edition: current; Page: [1595] placito regis,2 such an appointment must necessarily destroy the balance, and be contrary to the usage of our mother-country. I dare venture to affirm, no instruction from his majesty to any governor, ever called the council an upper house, nor can the council produce any instruction to any governor, wherein any words can imply them to be a house of peers. The council have not any correspondence with his majesty’s ministers, or with the lords for trade and plantations, as council. They have no commission or patent for their places, but are only named by his majesty, or by his majesty’s order to his governor to appoint them. The council have nothing to shew to support any claim or privilege, only his majesty’s instructions to his governor: To him and them they must apply and refer themselves, to know, who they are, what power they have, and what his majesty’s pleasure is concerning them. Their power lives, moves, and has being, only from the governor’s instructions: How far such a council is, from the nature of an upper house, or house of peers, will easily be discerned from a little inquiry: But first it will be proper, to consider the council as assistants to the governor, and named by his majesty for that end, lest the weighty affairs of government be too ponderous for the judgment of every governor, and that the advice of council might help the governors in arduous affairs, and support the rights of his majesty, as well as promote the good of his people in the colonies. If the council were in the nature of an upper house or house of peers, then the governor would have no counsellors; for, they having, as an upper house, given their opinion, he would be precluded asking their advice, they having already determined, and consequently, in most or many cases, will be without council; as it happened not many years since, when a law was proposed for making and stamping bills for the payment of two sloops (the Nonpareil and Pearl) then lately employed in the service of the province; also last year, when a bill was passed by the assembly, for granting to his majesty 40,000 l. to be sent to Virginia, and employed in defending his majesty’s just rights, &c. the council, as an upper house, approved and pass’d the bill, the governor would not assent to the same, in which circumstance his excellency was deprived of counsel, which creates such an absurdity in the government here, that there needs but few words to prove the inconsistency of the council acting as an upper house. The messages usually sent to the assembly are full of absurdity, for they are frequently brought down by the clerk of the council, who stiles him so at the Edition: current; Page: [1596] conclusion, and begins with, a message from the upper house. The lords of parliament are called by writ every parliament, as well as the commons, to consult about the arduous affairs of the kingdom. The lords have no vote for electing parliament-men. The lords are independent, and not to be displaced at pleasure of a minister. The peers are hereditary counsellors to the king and kingdom. The counsellors in Carolina are dependent, and hold their places during pleasure. The counsellors in Carolina vote for members of assembly, and have their representatives: Can they represent themselves, and be represented? The members of the council can be suspended by the governor: Can a peer of England be suspended? The members of the council are summoned, by the governor’s order, upon every important occasion: Does his majesty summon the peers of the realm? Surely, no person can draw the least similitude between the council in Carolina, and the house of peers in England. If his majesty’s ministers should be pleased to order his governor to carry into execution, any instruction which the people apprehend inconsistent with their rights, can the council here appear against such instructions? Have not some governors, instructions to receive no salary or present from the people, unless they will settle it upon them and their successors? Have not some governors instructions, that the laws of the province should all be passed with a saving clause? Can members of the council advise, or publicly oppose, against such instruction? If they cannot appear (from the nature of their office) to dissuade the people from complying with such measures recommended by the ministry, such an upper house would be most dangerous to our rights, liberties, and estates.—It appears to me very odd, that any set of men can be so deluded, as to imagine, that one day they can be freemen, voting for representatives; the next day, representing themselves, as peers; and the third day, metamorphosed into a council of state, to approve or disapprove of what they had determined the morning or day before as an upper house.

If the scheme for making a nobility, form’d by the lords proprietors, had taken effect, then the landgraves, barons and cassicks, would have been an upper house of parliament in this province: But that scheme was never confirmed by act of assembly of Carolina, and so failed.—I imagine from hence, no addition or diminution can be made to our constitution; and altho’ his majesty should be pleased, by his ministers, to give instructions to his governor, for erecting or making an upper house of assembly, I conceive, such an upper house could not have a legal establishment, without an act of parliament of Great-Britain, or an act of assembly of this province; for, if any instructions from his majesty can substitute an upper house, or make Edition: current; Page: [1597] an addition to our legislature, by the same rule, his majesty’s instructions can lessen the rights of assembly, or totally take away all their privileges.—Instructions from his majesty, to his governor, or the council, are binding to them, and esteem’d as laws or rules; because, if either should disregard them, they might immediately be displaced: But, if instructions should be laws and rules to the people of this province, then there would be no need of assemblies, and all our laws and taxes might be made and levied by an instruction.—’Tis certain, many instructions to the governors of the colonies have never been carried into execution, the people not thinking ’twas proper to pass laws for such a purpose.

If the council was admitted to be an upper house, they would have no right to meddle in money matters, which can be made appear, from many precedents in the journals of the house of commons: And if, by seeing the accompts, they can neither lessen nor augment any sum provided in the schedule annexed to the tax-bill, the demand made, for the accompts to be sent them, brings to my mind the novel of the curious impertinent in Don Quixote.—If the council should take upon them to shorten or increase any sum, provided in the schedule to the estimate, it would lead the assembly into a perplexing review of all the accounts again, who have examined them already with the eyes and judgments of the counsellors, as their representatives.—If the gentlemen of the council can shew the instrument of writing, by which they claim their privileges of an upper house, from the grant of any king of England, I will promise to shew them all the rights and liberties the assembly claim endorsed on the back of it.

South Carolina Gazette, June 5th 1756 The Vindication of the Council concluded.

As to the Fourth Head.

It would justly be esteemed the highest presumption in any of the legislative bodies of this province, who, in their most exalted state, are but a poor Epitome of British grandeur, to enter into a discussion of the extent of the privileges and powers of the house of peers and house of commons Edition: current; Page: [1598] in Great-Britain: A subject of too much delicacy to be touched by any but themselves: Much less decent would it be for them to undertake to determine which of those two wise and august bodies have been in the Right, in matters of that kind that have been in dispute between them.

It is confessed on the one hand, that the house of commons have claimed the sole Right of framing, altering, and amending money bills; it must also be confessed on the other hand, that the lords have never allowed that Right to be in the house of commons: They have constantly asserted their own privileges in that respect, which their journals amply testify, though from considerations of prudence, they have frequently waved and suspended their exercise of them. This matter still remains undetermined: For these honourable assemblies having no Superior to appeal to, their disputes can never be decided by others.

It would be comparing small things indeed with great, to mention this province in such a dispute.

This province, and the legislature of it, is entirely subordinate and dependent. Its powers are derivative, and not original. And it can no more prevent its being subject to the controul of the crown, than it can make laws to bind the kingdom of Great-Britain.

The whole power of legislation here springs from the crown: The assembly’s power as a branch of it, must undoubtedly be derived from the same fountain; for they claim their privileges in that respect from the charter, and that was given by the crown. Without this power, which is of the kind with those given to corporations for making By Laws, they could not exercise any legislative functions at all.

If this liberty had not been granted, they must have been unprovided with such laws as would be properly adapted to their situation: The legislature of England, being so far removed, might not have known their wants, or might not have known them early enough to have made a suitable provision for them. Therefore the privileges they now enjoy are ex Gratia Regis; may they not therefore be limited by him, and be subject to his correction?

It is to be considered then, whether the charter will furnish any pretence for the assembly’s claiming ALL the Privileges of the House of Commons in Great-Britain.

The charter granted to the lords proprietors gives a power “TO THEM, to ordain, make, and enact Laws according to their best Discretion, by and with the Advice, Assent, and Approbation of the Freemen or their Delegates, Edition: current; Page: [1599] provided the same be consonant to Reason, and, as near as may be conveniently, agreeable to the Laws and Customs of this our Realm of England.”

It is explicit as to the Subject-Matter of them; but is silent as to the Powers and Privileges of the several constituent parts of the legislative bodies.

If the privileges of the house of commons in Great-Britain are not expressly given, as they are not; it must be said, that they are impliedly given; but that they are not impliedly given will as clearly appear.

The king, it is true, enjoins and commands that the people shall be treated and reputed as his LIEGE faithful People, and shall enjoy all Liberties, Franchises and Privileges as his LIEGE People born within the kingdom of England.

What more is meant by the word Liege, than that such a person shall be intitled to the protection of the king and the laws, for which he is bound to pay a due submission to the king and the laws. Can no man enjoy the privileges of a LIEGE subject, without having all the transcendant Powers of the House of Commons virtually in him? A man may certainly have a right to have his property secured to him, and to have his person protected from violence, and yet be incapacitated from giving a vote for a member of parliament, of being a member, or of enjoying the privileges of one.

Those are privileges depending upon other qualifications and other requisites.

“All the tenants and inhabitants shall be immediately subject to our Crown of England, as depending thereof, for ever.”

Many facts might be produced to illustrate this, but we shall refer to one of the latest in 1718, in an act of repeal of the lords proprietors.

“His majesty having been pleased, by his order in council, to signify his royal pleasure to us the lords proprietors, that we should forthwith repeal an act passed in that province, we in OBEDIENCE TO HIS MAJESTY’S COMMANDS, repeal, &c.”

If neither from the Words nor Spirit of the charter the inferences drawn by the assembly can be collected, what admiration will it not create in our mother-country, to find them declaring, that if they are not permitted to exercise EVERY Privilege that the House of Commons in Great-Britain does, they will renounce THAT which is given them by the charter, of advising, assenting to, or approving of such measures as are conducive to the public safety and tranquility?

This is the plain English, without any gloss, of their first alternative.

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“If the governor shall be of opinion, that the present assembly assume any Power or Privilege whatsoever which is not exercised by the House of Commons in Great-Britain, since we despair of being able to advance the public good, we desire to be dissolved immediately.”

But if the privileges contended for by the assembly were to be found in the charter, and that they had not renounced the benefits of it, by the people’s throwing off the government of the lords proprietors, it must be admitted, that the operation of it would be equally strong in every clause of it. And what comparison will the 15th, 16th and 18th clauses bear, with the numerous advantages and benefits the province enjoys under his majesty’s benign administration of government among us?

This is what Freemen are subjected to by the charter without their advice, assent or approbation. This is one of the privileges we boast of under it!

“Power is given to them likewise, to grant an universal liberty and toleration in religion, even in Indulgencies and Dispensations.”

But thanks to God, the infatuation never prevailed so far, as to have arguments drawn from the charter in favour of POPERY!

If it does not appear, from the most critical observation upon the charter, that the assembly are either possessed of, or intitled to, the privileges of the house of commons;

Their Claim must be derived from

• 1st. Length of practice. Or,
• 2dly. From some fresh grant under the crown.

As to the first, to avoid prolixity, we will confine ourselves to the question upon the accompts, which the assembly refused this year to send to the council.

For which purpose it is proper to be kept in our mind, that without the grace of the crown they have no legislative power at all, much less have they a right to exercise the power given them, in express Contradiction to the directions of the crown.

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From the beginning of government in this province, the accompts relating to expences incurred for public services, have always undergone the examination of both council and assembly.

Humble application having been made by the people of the province, who had renounced the government under the charter, to request his majesty’s most gracious and immediate government and protection of them, Mr. Nicholson was appointed, by his majesty, provisional governor, with full powers, instructions and authorities to establish the peace of the province. In his time an act was passed for electing members of assembly. The 11th clause of this act, immediately, and for many years after, was so understood (and surely therefore rightly understood*), that a committee of the council joined a committee of the commons house of assembly, to examine the accompts of the creditors of the public; and money-bills, strictly and properly so called, were amended by the council, as occasion required, according to his majesty’s 35th instruction to governor Nicholson. This instruction is made Part of the election-act, which, by way of Proviso, restrains the commons house of assembly from claiming any privileges that are contrary to that instruction.

The clause of the act is,

The instruction is,

These privileges were exercised by the council, without any exception taken thereto by the assembly ’till 1735, at which time we find the first precedent of their claiming a sole right of framing, altering and amending money-bills. This claim was afterwards repeated in 1739, but was peremptorily denied by the council.

As we were then upon the eve of a war with Spain, and considering the danger to the public which would arise from such disputes, in order to prevent them, a middle way was agreed upon by both Houses: The assembly admitted the council to propose amendments, and the council allowed their proposed amendments to be inserted by the assembly, and the accompts were always sent by the assembly to the council, and from that time the practice has constantly been observed ’till NOW.

As to the second point.

The instructions to every governor since have been of the same tenor; and indeed no fresh grant of privileges to the assembly has been so much as attempted to be, nor can with Truth be, urged. But there is one of a contrary tendency, where the governor is not to issue money, but by his warrant by and with the advice and consent of the council.

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“But the assembly may, nevertheless, be PERMITTED, from time to time, to view and examine all accompts of money disposed of by virtue of laws made by them.”

If the instruction giving the council a power to frame, alter and amend money bills, is of force and validity, which, being incorporated with the law, can admit of no doubt, it must authorise them likewise to look into every thing relative to such bills: For it would imply a gross absurdity to give a Power of doing a thing, composed of various parts, a consideration of every one of which is necessary to form the judgment, and at the same time to restrain the exercise of that judgment, by concealing any one of those parts: For it is a known and uncontroverted rule, that qui finem dat, dat media ad finem necessaria,4 in order to accomplish any end proposed, you must make use of the necessary means for it; and the more so in this province, where many of these accompts are for services done by the advice of council, who must therefore be the best judges of them.

From an obstinate perseverance in that mistaken opinion, that because an independent body, which acknowledges no Superior, enjoys certain rights and privileges, that therefore an inferior subordinate and dependent body has an equal claim to them, this province may be drawn into real dangers, and finally suffer the greatest evils.

The disparity between this province and her mother-country is great and obvious; there the people cannot be bound by any law that is not made with their own consent. The people of this province likewise, it is true, do consent to the making of laws for their own government in a limited and qualified Way. But it is well known, that they are bound by laws made not only without, but even against their consent,* whenever the parliament of Great-Britain find it necessary to interpose their authority for OUR GOOD, which either we do not see or do not pursue; as they undoubtedly will do in preventing our drawing evils on ourselves by too immoderate and frantic an use of those privileges we are now permitted to enjoy.

But as the gradations in Vice are regularly progressive, ’till they terminate in a dissolute and abandoned course of life, so the Claims of the assembly with regard to privileges, which at first began by making small advances Edition: current; Page: [1604] upon our constitution without receiving any check, have gradually risen to such a pitch, that every new whim and conceit of splenetic Mind or innovating Genius, is immediately resolved into privilege. And as power is ever assuming, and ill brooks controul, a doctrine is lately laid down and publicly avowed by them, in a message of the 15th of April to the governor, in which they deny any legislative power or authority to be in the council: This point once gained, this restraint upon any exorbitancy of an assembly once removed, all power must of course center with them. This was the plan of 1648: That succeeded; and the train of evils that flowed from it are too notorious to be expatiated upon. This is the object now struck at, and to serve that purpose is the stroke given. Too plain is the design to be misunderstood, of too great consequence is it to be passed over without observation.

Perhaps it might have too much the air of Sarcasm to admit this proposition, and to ask in consequence of it, when the act of parliament passed to give the Assembly the privileges of the house of commons in Great-Britain? Whether the crown has not as much power to appoint a council, as it has to give the liberty of chusing an assembly? And whether the assembly claim any authority as a legislative body, but immediately from the crown, and in the same Right that the council do?

Their ZEAL is so predominant, that it is extraordinary to find an inclination in them to wait the formality of a governor’s assent. But it is difficult to reconcile this new manner of enacting laws by Two branches of the legislature with that part of the same message, where they say,

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“We look upon the British constitution to be the best that ever was established, we are very desirous, ’tis our only aim, to have the public business carried on in this province, as the same is done in our mother-country, as nearly as may be, and consistently with our charter, rights, and privileges.”

In Great-Britain laws are known to be enacted by three estates. That is admitted to be the best method: They would approach it as near as may be conveniently: They are the judges of that Convenience, and by a SUPERIORITY of genius have discovered that Two is nearest to Three. If they preferred four branches, they would equally as much resemble their mother-country. But the words of the charter, “as nearly as may be conveniently agreeable to the laws and customs of England refer to the Matter of the laws to be enacted, and not to the Persons or Branches enacting.

That the council have exercised a legislative right, though in a much inferior degree to the house of peers in Great-Britain, is evident from Experience: That they have at this time the same authority for exercising that right that the people indisputably have of sending representatives to the assembly, will appear as fully by the charter itself, as it does by the king’s commission to his governor.

This is certain, they are a body that the assembly are not so well acquainted with as they should be. If they had, they would not have fallen into the inconsistency of finding Fault with the imperfection in their constitution, because they are removable at pleasure and not hereditary as the house of lords are, and at the same time of pointing out the Benefit to the Public from the governor’s Power of suspending or removing them from their station. It would have been more discreet to have attacked the individuals than the body. It seems there is not that Pliancy in their disposition, that implicit Resignation to the opinion of the assembly, that the service of his majesty and the security of the province requires, therefore they hope his Excellency will please to suspend the Council, and appoint other Men according to their own heart, SUCH as they may gently lead into the path they would have them walk in. It is unlucky that, before they made their request, they had not discovered the governor’s Want of Power to gratify it, as they were no doubt well assured of his great Inclination to comply with whatever they desired. But they have now found, that the power given by the crown to suspend, is not arbitrary; it is so limited as not to admit of a wanton exercise of it, to gratify the caprice or humour of a Governor, or his most affectionate Friends; it is to Edition: current; Page: [1606] be made use of only against such as neglect or betray that trust which by the constitution they are invested with, and which by their oaths they have engaged faithfully and conscientiously to discharge.

Let the world consider, that the families and estates of the members of the council, such as they are, are mostly in this province, that the Advantages they receive from a long attendance as council to the governor in the executive part of government, and also as a branch of the legislature, are no greater than what the assembly receives,—the Satisfaction of serving their Country, and thereby rendering the truest and most acceptable Service to our Sovereign;—and that their seats in council are only during pleasure:—Then let them declare what Temptation there can be to induce the council to advance their momentary Power to the abridgment of the privileges of their POSTERITY, THEIR FRIENDS AND THEIR COUNTRYMEN.

It is immaterial whether the persons thus circumstanced, thus complained of, and exercising the second branch of the legislature, are called Deputies, Council, House, or BOARD, as the assembly affect to call them. The house of peers are known by various names, House of Lords, House of Peers, and the Upper House of Parliament. The name will make no variation in the substance and essence of the thing, and the powers belonging to it.

If the palatine was represented by the governor, the other lords proprietors by their deputies, and the people by their delegates, the three distinct branches are formed. If the lords proprietors deputies were appointed only to advise the governor, as the assembly would have the present council to do, then the other lords proprietors would not have an equal share of power with the palatine, nay they would be excluded from having any, whereas the right of legislation is given to every one equally with the palatine.

That these three distinct branches existed, is clear from the Recital in Archdale’s first law in 1695–6, where it is admitted and acknowledged, in the most explicit Terms, by the whole community.

And then follows the enacting stile that always had been used, and was continued to the time of the people’s renouncing their charter, “By palatine, and the REST of the true and absolute lords proprietors of this province, by and with the advice and consent of the REST of the members of the general assembly.”

That these DEPUTIES were a COUNCIL, appears from the act for building a state-house in 1712.

Many of the lords proprietors disallowances and repeals of acts passed here, shew the same thing.

The term, “and the REST of the members of the general assembly,” shews there were more than Two distinct estates: For if the deputies were no branch of the legislature, the form of enacting would have been, By the Palatine and the Members of the General Assembly; or, as the form is in Pennsylvania, by {blank} governor, &c. by and with the Advice and Consent of the Freemen in General Assembly met.

But if this had been otherwise, it is plain, that the People themselves understood, and tho’t it most eligible, that there should be Three distinct branches of the legislature; for at the intermediate Time between their renouncing the proprietary government, and the king’s receiving them more immediately under his own government, when they modelled the legislature ACCORDING TO THEIR OWN WISH, we see the laws enacted by the Governor, by and with the Advice and Consent of THE COUNCIL, and the Representatives.

Upon a further perusal, will be found this title to an act in 1722.

“An estimate of the charges of the government, that is and will be due on the 25th of March next 1723, to be provided for by the General Assembly, and agreed to by the Committee of BOTH HOUSES appointed for that purpose.”

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This ERROR in calling and considering the middle branch of the legislature, Deputies, Council, and HOUSE, prevailed ’till the present enlightened assembly made this new discovery.

For no longer ago than the 11th of May 1754, the assembly, in their address to the governor, take notice of his Affection and Regard for the Welfare of the province, lately expressed in his excellency’s speech to BOTH HOUSES.

When the majority of the assembly become better acquainted with the excellency of the British constitution, they will discern the indulgence that has been shewn to this province by extending the essential parts of it hither. They will not, it is to be hoped, assert against Reason, as they have done against Fact and Experience: They will, it is to be wished, at least have so much regard for their Posterity, as not to draw on them those evils, which their forefathers have avoided, by not presuming to call in question that power that is co-eval and co equal with their own.

If this truth can be any longer doubted of, let them cast their eyes a little further, and read the Introduction to every disallowance and repeal by the king, of acts passed here since his majesty’s taking this province under his more immediate protection.

“Whereas BY COMMISSION UNDER THE GREAT SEAL OF GREAT-BRITAIN the governor, COUNCIL, and assembly are authorized and impowered to make, constitute and ordain laws, &c.”

But the favourite proposition is, that the legislative Power of the Council must be annihilated. Assertions take the place of Argument. The charter, it is said, gives them no such Power; that nothing can give them such a Power but an act of parliament; and that no such Power has been given them by any act of parliament; that the constitution of this country is composed of only Two legislative branches, a governor and the commons house of assembly; and therefore that the commons house of assembly presenting a bill for any purposes of government to the governor, and his assenting to it, will give it the force and validity of a law.

And then again immediately, as if they were determined to be confuted by the changing Sides, “The council are a Branch of the Legislature; for they WANTONLY reject tax bills, they withheld tax-bills; from this conduct of theirs, in not passing Bills, our Grievances arise; by this we are UNAVOIDABLY exposed to Dangers, Calamities, Evils, &c.”

Thus their arguments, like two-edged Swords, are intended to cut on the opposite sides. Some may be made proselytes of by One Part, and some by Edition: current; Page: [1609] the other. If all can but be brought, even by different Principles, into the same Opinion, laying blame or odium on the council, the Point is gained, and the End answered.

Mistake may admit of excuse, as condour will acknowledge and correct it when discovered: But this absurdity has its foundation in Malice: And as the Superstructure is composed of ill-connected parts, it will, like other bad Buildings, fall to pieces without the help of any extraneous force.

Can it be convincing or conclusive to a common understanding, to be told, that the council cannot proceed with a bill, and that their doing it would be to assume a Power they have not, and yet that they are to blame for NOT having proceeded in it.

The council admit, that they act as a legislative body by virtue of no other power or authority than his majesty’s SIGN-MANUAL, and his majesty’s COMMISSION and INSTRUCTIONS to his governor; and they take an OATH to defend all his majesty’s Jurisdictions, Pre-eminences, and Authorities by act of parliament or OTHERWISE.

Besides the instructions already mentioned, there is one that obliges “the governor to observe, in passing all laws, that the stile of enacting the same be, by the GOVERNOR, COUNCIL, and ASSEMBLY.”

Another says, “That in every act which shall be transmitted (and all are ordered to be transmitted) the several Dates, or respective Times when the same passed the ASSEMBLY, the COUNCIL, and received YOUR ASSENT, be particularly expressed.”

But if it was admitted, for argument’s sake, that it is unconstitutional for the council to be a branch of the legislature, that they never did exercise any such power, that his majesty never gave or intended to give them any such, and even that he has no Authority to give any such: but that he has so circumscribed the power of his governor, that he cannot give his assent to any bill without having the advice and consent of the council so to do.

What are the advantages that will accrue to the province from such an admission? Will the business of the public be more expeditiously or better carried on?

If this practice should prevail, let the Errors of a bill presented to the governor by the assembly be ever so gross, or ever so numerous, they must either be enacted into a law, or the unexceptionable parts of the bill must drop.

The governor lays it before the council, and asks their advice and consent whether he shall assent to it.—They are of opinion he ought not.—What Edition: current; Page: [1610] then?—He cannot pass it: And the bill must die. For the only parliamentary step the governor can take is, either to assent to it, or to say, he will consider of it; which is his parliamentary Language of rejecting it.

If it is a bill of that consequence, that the public will suffer for the want of what is intended to be provided for by it, there must be a Prorogation, that it may be altered and brought in again, and so {toties quoties?} from PASSION-WEEK even to CHRISTMAS-Week, ’till the council think it is brought to such a degree of perfection, that the governor may assent to it.

If a tax-bill is laid before them by the governor; they find a Schedule is referred to; they can’t judge of the Propriety or of the Truth of the Allegations in it, without seeing that Schedule; that Schedule refers to Accompts, upon which it is founded; they cannot say the public does not pay too much, or that the creditor of the public has as much as in conscience and justice he ought to have, without seeing those Accompts; they will not give the governor their advice in a blind and implicit manner to assent to the bill. Is not the advice to be given according to Judgment? Can a judgment be formed without having the Facts before them?

According to this Refinement of the constitution, in all human probability no bill would ever pass. As it is, messages frequently pass, and conferences are held, between the council and assembly, before the bills are brought to such maturity as to be fit for the governor’s assent.

Upon this plan of Refinement, the council’s power over the bill would be as great as it is at present; the inconveniences and delays to the members of assembly would be greater; and the public would at last be deprived of that Benefit they had reason to promise themselves from the sage and important Appearance of so many Representatives.

Upon a Recapitulation of the several parts of this Vindication, it will be found, that if the repeated advice of the council had been fortunately attended to, the fort in the Cherokees had been long since built; after many opportunities had been lost, that yet a small detachment might have been at Tennessee the End of February last, and the whole body by the Middle of April. The not passing the tax-bill in April could not surely have been foreseen in January; nor could a transaction in April have prevented those that were to be employed from leaving the town in February and March.

And therefore, that the governor’s not fulfilling his engagements to the Cherokees cannot arise from the council’s not passing the tax-bill.

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Had the assembly sent the accounts according to constant Usage, instead of attempting to destroy the legislative powers of the council, the tax-bill would have been proceeded in. It was in the power of the assembly, by doing this, to remedy the evils they complain of. By this, it was in the power of the assembly, not only to have carried on the fortifications in Charles-Town, but to have given maintenance to many of the Acadians by employing them in those works, since they would not remove the Dangers apprehended from them, and which, in one of their messages to the governor, they said they could not lose Sight of.

It has appeared, that the Precariousness and Uncertainty of passing tax-laws do not proceed from the council; but from the assembly’s setting up NEW claims and pretences, speciously disguised with the name of Privileges, though ill founded and unsupported by Usage or Reason, which they would sooner suffer the public to be shipwreck’d, than they would recede from.

It has been evident also, that the council’s having rejected two tax-bills did not proceed from Wantonness in them; but from a lavish, or to use with Propriety an expression adopted in the remonstrance, a wanton provision being made and insisted upon by the assembly for the supposed services of a person, when they had no evidence to produce of his Merit: That their passing the third, transcribed Verbatim from the second, did not arise from a conviction that they had acted wrong in rejecting the other two, but from a superior consideration, from a generous regard for the honour of Carolina; that the province might not labour under the disgrace and imputation of not having exerted itself in defence of his majesty’s just rights, after the point so essential to the constitution as the Independency of the council, as a Branch of the legislature, had been so fully established by their rejecting the two former bills.

It has been obvious, that the commons house of assembly have not, nor can, consistently with the constitution of this province, enjoy ALL the same privileges that are enjoyed by the house of commons in Great-Britain; and that the council must, agreeable to this constitution, exercise a legislative power, though in a much inferior degree to that exercised by the house of peers in Great-Britain; and that without such power, the constitution of this province can in no respect be said to have any Affinity with that of Great-Britain, the excellence of which commands our Admiration, as our imitation of it will insure our Safety, and which the assembly cannot imitate without acknowledging that power in the council as A FIRST PRINCIPLE.

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Upon the whole.

The council are filled with the greatest zeal for his majesty’s honour and the welfare of this province; and they sincerely lament the unhappy situation it must be in, from the interruptions that have been, and are likely to be, given to the public business in general assembly. The satisfaction they receive from a conviction that they don’t contribute towards it, administers but small consolation to them. They would not have made this appeal to the public, if they had not perceived Jealousies infused into people’s minds, in order to cast an Odium upon their conduct. When it has been so publicly arraigned, it becomes them to break thro’ a silence (which their moderation hath hitherto imposed upon them) which might be looked upon as an admission of those charges that have been so laboriously misrepresented and so industriously propagated. They are not in the least desirous of making any advances or encroachments upon the privileges of others, but their duty to his majesty, to their country, and to themselves, call upon them to defend the Post that has been entrusted to their care.

All that they have had in view, upon this disagreeable occasion, hath been to clear themselves from blame, where it has unjustly been cast upon them. And if in the course of this vindication any unwelcome Truths are fixed on those, whose misrepresentations have obliged them to lay open the real state of things, it has been involuntary and extorted from them. They have avoided all fallacious Arts, or Asperity of Language, that might give specious Colours or a keener Edge to their arguments. The Justice of their cause needs not the one, nor would their Moderation admit of the other, however excusable in them the Treatment they have received might have rendered it.

It is not for want of a DUE RESPECT that no notice is taken AT PRESENT of his excellency’s ANSWER to the REMONSTRANCE. Perhaps a little Time, though it may be needless to give MORE LIGHT, may give a more PROPER OPPORTUNITY,

A Letter to a Gentleman in London.

Having lately seen in the Journals of the Assembly of this Colony, held in 1758, a long Memorial, addressed to the Right Honorable the Lords Commissioners for Trade and Plantations, by the Merchants of London, in Behalf of themselves and of their Correspondents, Merchants of Bristol, Liverpool and Glasgow, trading and interested in the Colony of Virginia, I cannot help entertaining you with some Observations upon it; and, that you may judge of the Justice with which they are made, I have transcribed the whole Memorial, as it appears on the Journals aforesaid.

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As to the Memorial, by Way of general Observation, I say, it appears from the Complexion of it, to be a Performance wholely dictated by an uncommon Kind of Partiality, and the grossest Species of Weakness imaginable: For from the wording of it, it is evident, that it is but of very late Date that any Paper Money was heard of in Virginia. It would therefore have been but Justice, previous to any Complaint in an Instance so rare, and new, to have made some Enquiry into the Cause of making such an Act; especially if it is attended with such dreadful Consequences as it is represented to be. They would then have found that not only extreme Poverty, but even extreme Danger, united to compel the Colony to fall on some Expedient for raising Money to defray the Expences of an Army that they were under the greatest Necessity imaginable of collecting together, to secure themselves against the rapid Incursions of a cruel and barbarous Enemy. And that before they attempted to substitute Paper or any Thing in Lieu of what I find is by Merchants only called, Money, they had used every Method of borrowing Money at a greater Interest than common, and if I am not much mistaken, Application was even made to some of these complaining Gentlemen, but with very little Success. Such an Enquiry would not only have explained the Cause of making such an Act, by shewing the Dilemma that the Country was in (for altho’ many Gentlemen discovered on the Occasion a truly Patriot Spirit, yet it was impossible for private Fortunes to go any serviceable Length in such an Affair) but it might possibly have convinced Men, calling so loudly for Equity, Law, Justice, and what not, that such an Act was exceedingly proper, and indeed well precedented; for we find even limited Monarchies and Commonwealths have done the same Thing in such distressed Circumstances: Some have coined in the Field, and others have substituted baser Metals in the Room of Gold and Silver which they had not, to answer their pressing Occasions. Surely then they who shall apply the Words Arbitrary and Unjust to a Transaction truely similar as to its Circumstances, to what has before been deemed necessary and passed uncensured, must either be very bad Haberdashers of Epithets, or Men of low and selfish Notions. Should it be said that Virginia ought not to be considered with respect to its Power of making Laws in the Light of a limited Monarchy or Commonwealth; I answer that whenever any People are reduced to the before mentioned Necessity, it is an incontestable Argument for the Exertion of every Degree of Power, since it is certainly ultimately exercised for the absolute Benefit of that very State from which a Power Edition: current; Page: [1619] of the same Nature must necessarily have been granted, had it been near enough to have extended it in a proper Time: Such a Power therefore is always imply’d in the very Nature of Things, let the Degree of Subjection be what it will; and the Consequence of its not being so, would in the Case of any potent and sudden Invasion be the Loss of the Colony to that very State which claims the Subjection, unless Matters shall be conducted hereafter with much greater Precaution, than has hitherto been experienced. To prevent any Thing that may be advanced against this Argument with Respect to the distressed Situation of the Colony, on Account of the Assistance sent to it under General Braddock, or the £. 20000 remitted to the Honorable Robert Dinwiddie, the then Governor; I say in the former Instance, it was more distressed by the Defeat suffered, than it was before the Assistance was sent; for the unexpected Victory inspired the Enemy, with greater Boldness, and if possible lessened their Humanity. In the Instance of the Money, the Person intrusted is perhaps able to assign some Reason why not more than £. 800 was expended, or apply’d to the Use of the Colony, or Maintenance of their Army.

And here I think I ought to be a little explicit, and disclose a Matter somewhat scandalous in the transacting. Mr. Dinwiddie, from a general Foresight in turning the Penny (always distinguishable in him) having ordered certain Necessaries for the Use of the Forces, under the Command of General Braddock, refused absolutely to discharge the Accounts of the Persons employ’d to procure the same to the Amount of £. 1236 - 11 - 2, pretending that he could not regularly carry those Articles to Account with the Government in England, and by frequent Solicitations to the Committee appointed for the Disposal of the Money raised here for the Defence of the Colony, he engaged them to pay that Sum under a most solemn Promise of subjecting to their Order £. 5000 that remained in his Hands out of the above mentioned £. 20000, which he alledged might be regularly done, as that Money was remitted to him for the Use of the Colony; but when the Assembly addressed him to dispose of a Part of that £. 5000 for building a Fort in the Cherokee Country; a Thing recommended to them as necessary to preserve the Friendship of those People, he returned for Answer, that he had no more remaining in his Hands of the above £. 20000 than the £. 800 before mentioned; accordingly no more than that Sum was apply’d as is before expressed. So that the Country instead of being benefitted by that Remittance from England, was not a little injured in as much as it was Edition: current; Page: [1620] properly speaking the Means of their loosing £. 435 - 11 - 2 of their own Money in this Instance alone. I might add further, that at the Time the above Sum of £. 20000 was in that Gentleman’s Hands, or at his Disposal, he was graciously pleased to lend the Country the Sum of £. 3000 at the exorbitant Interest of Six per Cent. which was punctually paid him. These Facts are too true to be deny’d, and although the Sum perhaps may be too trifling for the Enquiry of a British Parliament, yet certainly as it was a very glaring Abuse of the good Intentions of the People of England, it seems but just that the Public should be satisfy’d with an impartial Examination into the Conduct of that Gentleman, in this Particular at least, since from his own Mouth, we have been informed that the M——y at Home had complimented him with £. 2000 of that Money as a Recompence for his extraordinary Care in the Disposal of it.

Now as this was the Situation of the Country, could any Thing but mere Partiality and Weakness dictate a Complaint against an Act so immediately conducive to its Preservation. Thus far I observe of the Memorial in general, I shall now treat it in a more particular Manner, and pursue it as paragraphically as may be in order to shew that the Partiality with which I charge it, is of such a Nature as will not endure a Disguise even with the false Shew of Reasoning which seems to have been purposely adapted quite thro’ it.

I. We are told that the Paper Notes emitted by the Act are by it declared to be a lawful Tender in Payment of any Debt or Demand whatever (excepting his Majesty’s Quitrents.) I agree it is so declared in the Act, and of what Use would such Notes have been, or to what Purpose should they have been issued at all, if they were not to be Current in all Cases. Gentlemen may attempt to gloss over their Endeavours by talking of Expedients for making the Act serviceable for the military Purposes for which it was intended, and yet not general as to the Currency of these Notes; but I beg Leave to say it is nothing more than a Piece of artful Nonsense; for what are the military Services of Money, but the paying of the Soldiers, and purchasing the Stores necessary for War; and could any Man be hired to fight for a Cash that he could not pay his Debts with, but at the Option of his Creditor? And who is there that would part with any Kind of Stores for a Piece of Paper that should only be useful at the Will of another that might think proper to deal with him? If then it is necessary that such Notes should be a current Tender in such Cases; why not in all Cases? Why is a Debt in England of Edition: current; Page: [1621] greater Dignity? Kings indeed have a just Right to such Exceptions, their privy Purses ought always to be kept sacred from any Touch, but that of the last Instance: But Subjects have no Pretence to Immunities, one more than another, they must all equally enjoy an Advantage, or suffer a Calamity whenever it attends a Community. And I hope I am not arguing with Persons who do not think Virginia a Part of the British Community. Had this Law been calculated on the Footing of the Expedient, proposed by the Memorialists to their Lordships, it would have carried its own Insignificancy; that is, it would not have answered its Intention of raising Men for the War, which was necessarily aimed at; but I shall treat the Expedient in a more respectful Manner by taking full Notice of it, when it comes in its Turn, and I believe shew, however prettily it might read in a Countinghouse, it would meet with a quite different Fate at a Bar of Equity.

II. We are told in what Manner the Merchants are affected by the Act.

I think we have here a Declaration of the whole Cause of their Complaint, that is, 1st, The Planters are indebted to them; 2dly, They are furthermore indebted to them; for I am persuaded however artfully they may have divided on this Article of Debt, it is but one and the same Thing, that is, a Debt to the Merchants from the Planters; but it seems to have been necessary here to represent the whole City, nay the several Kingdoms of Great-Britain, likely to be endangered by this Act, in order to raise the greater Clamor against it. I shall not do Justice to the Weakness of this Paragraph, if I do not here take Notice of a Discovery made by it, that I am sure many Merchants of the City of London, have deny’d to be the Case when charged with it in private Letters. We have had many of us for some Time past, great Reason to own the Thing is unhappily true in the first Instance, of our being indebted. Unhappily in as much as the Generality of Creditors are a Kind of lording Tyrants over their unfortunate Debtors, notwithstanding the undoubted Securities pledged, and the annual Tribute paid in, of a very high tho’ lawful Interest. And to this we do attribute (and we presume with Edition: current; Page: [1622] great Truth too) the Growth of many Innovations and arbitrary Charges (to use the Gentlemen’s own Language) that have been and are every now and then brought to Account to keep the poor Dogs of Debtors deep in their Books, and render the Redemption of their Freedom impossible, by thus lowering the Produce of their Commodity, that they may continue under the Obligation of sending it to them alone, thro’ Fear of more apparent Persecutions. I say this we knew, and we have had great Reason to believe (that notwithstanding the Merchants always took Care to carry every Article of Goods as soon as shipped to the Account of the Planter) they were nevertheless in Arrears to the Tradesmen for them, from their being so observably rated above the same Things purchased with ready Money; but it was never certainly known to be so till this Declaration made, which I call a Discovery, and I am much mistaken if they were aware of making it, at the Time they were endeavouring to interest others in their Complaints. Now tho’ this artful Division of theirs is but a weak Effort in them; yet it opens to us a prodigious Aggravation of the Misfortunes of those that are indebted to them, in as much as they are not only obliged to pay dearer, for the Necessaries they send for, from the advanced Price of the Tradesmen, always added for long Credit given; but are loaded with Interest in the Merchants Accounts on that advanced Price; which must needs be a large annual Sum out of the Profits of the Colony, put into the Pocket of the Merchant; a Practice not so well founded as to admit of a common Justification: But I shall forbear to consider this any further here, as it is an Article that may one Day make a very good Figure amongst many others, in a Complaint from this Side of the Water, when the Leisure of a British Parliament shall admit of an Enquiry into the real Causes of the distressed Situation of their Colonies; and some truly noble Spirit shall glory in exerting itself for that Benefit, which has so long been desired.—Let the Attempt be thine, O Fauquier, to complete thy Goodness, thine to explode and remove all unnatural and destructive Jealousies, and by thy Happiness demonstrate to distant and succeeding Delegations, that it is the Patriot Governor alone that can represent the Patriot KING. Nor deem thou this as a Drop bubling from the nauseous Fountain of Flattery: No ’tis the Dictate of a Mind that enjoys more than Kings can confer, a contented Condition; a Mind that has no Demand against thee but what must centre in its Country’s Good; a Mind that disdains all Praise or Commendation to any dignify’d Character but such as is made truly glorious by public Virtue. Now let me ask the Edition: current; Page: [1623] Gentlemen how a Debt from the Planters to the Merchants came to be made an Introduction to their Complaints. It does indeed shew a Connection they have with the Colony, but I beg Leave to say, they are not in that Connection, in the least affected by any new Thing in the Act. They acknowledge the Debts due from the Colony, were by general Agreement dischargeable in Sterling or at the Rate of Sterling Money; and does this Act say they shall not be so discharged? No, nor was it ever intended to operate in such a Manner; it says indeed, that the Paper Notes so issued, shall be a lawful Tender in Payment of any Debt or Demand whatever, and these Words do expresly imply ad valorem, with Respect to Sterling Debts, and it is not in the Power of the most quibbling Petyfogger to cavil long enough to draw any other Meaning out of them. ’Tis a known Rule in the Construction of Statutes, that two Acts equally subsisting shall only operate in the Manner in which they are truly reconcileable, and this for a very good Reason, otherwise every new Statute must be extended so as to take in all the Laws that are relative to the Matter contained in such Statute, which would be perhaps constructing a Volume every Session of Parliament too large for any one Man’s Perusal, and might be productive of great Confusion, which is too often the Case in frequent Revisals. When therefore a subsisting Act has fully regulated any Matter or Thing, a succeeding Statute not expresly or virtually repealing it, shall not be extended to defeat the Purpose of the proceeding Act. I will exemplify it in the Case before us, to shew the Justice of it, tho’ there seems to be little Need of any Exemplification, as there is scarcely a Book treating of Statutes that does not confirm it. There was an Act made in 1748, which the Memorialists have recited, declaring that Executions for Sterling Debts should be levied in Current Money at the Rate of Twenty-five per Cent. Advance on Sterling, and not otherwise. The Act in the Paper Emission in no Part either virtually or expresly repeals or contradicts it; can the Clause then, allowing the Tender of Paper Notes in Payment of any Debt whatever, mean with Respect to Sterling Debts any Thing else, but that such Tender shall be made according to the Act in Force, before the making the Act for Paper Emission, and was that Law in 1748 still in Force could such Tender made under the Paper Act be good, unless it had been made at the Rate of Twenty-five per Cent. And as this was the then ad valorem between Sterling and Currency, how can the Merchant be affected by the Paper Act, as to his Sterling Debt, Bargain, or Contract. This may be a Method out of the Way of Reasoning with these Gentlemen, but if they Edition: current; Page: [1624] will wade in Waters that they are Strangers to, they should apply to those who are acquainted with them, before they rush into Fears and Apprehensions and expose themselves by mere groundless Complaints. From hence it appears any other Construction upon the Act complained of would be against the Rule of Law, and I must say, Against the Rule of common Sense too, for they might as well in my Opinion, carry the Tender in the Act to a Payment of a Debt in Tobacco, which would be an Absurdity, if there was no Limitation of the Words to be allowed. The Gentlemen must now excuse me if I tell them, that altho’ they have laid their Complaint against the Act, in the Defect of it with Respect to a Provision for Sterling Debts; I cannot think that they or their Draftsman were really so ignorant as not to know, that this Act did not stand in Need of any such Clause; but that by the amending Clause in the Expedient proposed to their Lordships, they intended some Thing further, and that their sole Motive for complaining was, that they should not be obliged to take these Notes at any Rate at all, but as they pleased. Should this be the Case, they are not only Men of very inhumane Principles, but notwithstanding their long Practice in the Arts of Profit and Loss, very bad Politicians, as to their particular Interest. Inhumane in that they would either compel a Man to do an Impossibility, (viz.) Pay a Debt in a particular Coin, when it is not in his Power to acquire one Penny of it to do it with, or else pay it in such a Manner, as would oblige him to Part with all that he has: For if there was to be no Restriction set as to the Value of Sterling Money, and the Difference wholly left to the Will of the Creditor, it would be vesting such Creditor with the most arbitrary Rule in the World, and from the very Nature of complaining in all such Cases, it would be giving up the Debtor and his dependent Connections, as a Sacrifice to the certain Cruelty of the Creditor; for he that growls at the wholsome Restrictions Society shall think proper to establish between Man and Man, can only do it from an incompassionate and devouring Temper; in vain is Charity to be expected from him who contends against Laws that have Charity for their Basis. In England indeed where all the Currency they have is a rated Sterling, there can be no Occasion for a Law of this Kind to enable the Debtor to stop the Persecutions of his Creditor; but in Countries where Sterling is a Coin very little seen, such a Law is not only salutary for the Community, but highly Equitable and Just, between Man and Man, that they should be permitted to discharge their Money Debts, of what Kind or Nature soever, in the Currency of the Country in which they live, and it is Edition: current; Page: [1625] the true Business of the Legislature to keep such Laws at all Times subsisting; for Man left to his own Will over his Fellow Creatures, may sometimes fall into such Depravations of Mind, as to become more cruel than the most Savage Beast of Prey. As to their Politicks, I need only put a Case founded on a real Fact, to shew how bad they are with Respect to their Debts. Suppose a People to be so circumstanced as to have no Sterling at all amongst them, and very little of any other Coin, how can such a People be ever able to pay their Debts; few Commodities besides their Tobacco can be exported to any certain Market, but in the Way of Barter; their Tobacco seldom yields much more in England in common Crops, than is sufficient to purchase Necessaries and pay Interest; and should an accidental foreign Trade send a little of its Gold into that Country, a Tender ad valorem of that Gold, must necessarily be allowed, or that would be of little Service; if then it must be allowed in the Case of one Species of Currency, why should it not in all Kinds; would it not then be much easier for such Merchants to get their Debts paid by an established circulating Currency, than by none at all: A Debt so paid might in the Round of Trade (which Adventurers are well acquainted with) be carried Home to England, and there centre in Sterling, with a very fair and considerable Profit. I will now ask where is the material Difference between one Kind of Currency and another with Respect to Trade or Debts; but I bar the Man of miserly Habits from giving any Answer at all, he is first for the most Part a Stranger either to Trade or Debts, because he can scarcely trust himself, how then will he trust another. Again, the Wretch conceives such an inexpressible Pleasure in the counting and poring over his Golden Guineas, that I much question whether double the Sum in Bank-Bills would purchase them. ’Tis to the rational Trader alone that I apply, and such Merchants ought to be deemed; to them therefore I address myself, and I am persuaded I have their true Answer in this Memorial.

They tell us, the Act for emitting Paper-Money is unjust, by Reason that it depreciates the Nature of Sterling Debts, by making what was payable in a Coin of universal Value, payable in Notes of a local, uncertain, and fluctuating Value: If I understand these Terms right, we are to collect from them, that the Value of Sterling is universally agreed upon; and that Paper Notes have no Value at all, but in the Place they are made current; and that even the Value there is uncertain, because of its Fluctuation with Respect to the Value of Sterling: The material Difference between Paper and Sterling Edition: current; Page: [1626] must then lye in the Certainty of the one, and in the Uncertainty of the other. And is it not evident, that all other Species of Coin, with Respect to Sterling, are of the same uncertain Nature as Paper? Neither can Gold and Silver Coin be less so than Paper, as it must be rated by Sterling, the Scarcity or Plenty of which will certainly lower or advance the exchanging Difference; and to say that Gold and Silver Coin is current in more Places than the Paper Currency is, and therefore though local yet less confined, is but a Kind of begging the Question, and when it is granted, it makes very little in the Point, for in those Countries where Gold and Silver Coin are not current by Law, they are only to be considered as a trading Commodity, which is more or less vendible in Proportion to the Gain or Profit that is to be made by it, and there can be no Instance in which a Paper Currency that can be remitted to the Country where it is made current by Law, will not be as good a Commodity in Trade as Gold and Silver, but one; that is, where the trafficking or exchanging Difference between Gold and Silver and Sterling is greater than the intrinsick Difference; and as this can only happen from the too great Scarcity of Sterling Trade, should an Instance or two depending upon such an Accident be made such an Argument of as to decry a Paper Currency, when in every other Case it is equal to all other Coins, except Sterling: And as to Trade or Debts, I beg Leave to say they cannot be affected by it, for the Trader has it always in his Power to suit his Trade to his expected Payments; and the Sterling Debt, when paid in Paper, will always be paid in the exchanging Difference that is then circulating: To be injured, therefore, by the Paper Notes, the Trader or Creditor must put a Case that can only center in his own Neglect or Avarice; his Neglect, in not negociating it away in Time, before Exchange shall rise; Avarice, in keeping it by him, in Expectation that the Exchange is still falling, and from thence proposing a farther Gain to himself. Those who tell us, that Paper Currency has a farther Difference from Gold and Silver Coins, in that it is difficult to be realized; if they mean it is difficult to turn an Estate in Paper Notes into a landed, or any other permanent Estate, I answer it cannot be more so in that than it would be in other Coins, when the Act is considered; for that does absolutely bar all Difference between them, and when an Estate becomes vendible, it cannot by Law be of more Value in one than another: A Man, indeed, of a miserly Disposition might be tempted to part with a Tract of Land for Gold, when he would not for Paper; but that Gold he must keep useless, or clandestinely exchange it; for if he does it openly, he can get no Edition: current; Page: [1627] more for it than if it was Paper. Should a Man want to realize it, as they call it in England, he can as easily exchange it for Bills as Gold, if he does not care to venture it in the Commodity of the Country; and in no Instance does it differ with Respect to realizing from Gold and Silver Coins, but in the before-mentioned one, where the Plenty of such Coin shall so far exceed the Sterling Trade, as to make the exchanging Difference greater than the intrinsick: And thus, at last, does this Difficulty of realizing become greater in the one than the other, by the same Accident which I have before mentioned, and which must be so rare as scarcely to happen twice in a Man’s Life. I am pretty well satisfied, that these Arguments against the Virginia Paper Currency have been adopted from the Practice of other Colonies, where they have both Gold and Silver, and Paper Currencies, at a great Difference with Respect to each other; but it should be considered, that it is there a profitable Trade to the cunning Merchants, and that no Provision (as I am informed) was ever made against it in the Acts that emitted the Paper: But in Virginia this is in a great Measure prevented, and will be more so, as the Iniquities of such Trade shall from Time to Time be discovered; but here I beg Pardon for a Digression; I shall now consider the Arbitrariness, and Injustice charged on the Act by the Memorialists.

The Act they say not only inverts the Nature of Trade from a certain to an uncertain Value of Profit and Loss; but it extends ex post facto to Debts due on Bargains and Contract, made before the Passing of the Act, and therefore it is arbitrary. I was something puzzled to fix a Meaning to the certain Value of Profit and Loss in Trade, which this Act has overset, because from all the Ideas I could collect of Trade, it can have very little Certainty in it; there is always a Probability in it, and some Trades are more probable as to their Success than others; but as I know it was a Complaint against the Act, I have endeavoured to extract a Meaning out of it: That is, that before the Making of the Act, they used to Trade for Sterling only, which they call a Trade of certain Value, and since the Act they are obliged to Trade for Paper Currency, which is of uncertain Value. If this is the Accusation, I beg Leave to say, it is a Mistake, for they did not, nor could they trade any more for Sterling before the Making of the Act, than they do, or can since the Act; that is before the Act there was always a subsisting Currency in the Country, which they were obliged to take in Exchange for Sterling, trade how they would, and this Act does no more than introduce a new Kind of Currency, which these Gentlemen, as I have already shewn, are only pleased Edition: current; Page: [1628] to think meanly of, not that it materially differs from the Currency that subsisted before the making of the Act: Their Accusation therefore as to its inverting of Trade, &c. is vague and idle, and their ex post facto is of the same Stamp; they are Words that do not deserve my Notice, only to expose the Scheme couched in them, they know they give a retrospective Cast to the Act, and such is the popular Cry against a Retrospection in Statutes, that it is like bawling out a mad Dog in the Streets, which has been the Cause of violent Deaths to many an harmless and useful Cur. But I will first satisfy those who shall read me, that it is a Complaint ill founded, and then shew these Gentlemen, that whatever the common and vulgar Opinion may be of retrospective Acts, they may be the most salutary Acts imaginable to a Community in some Instances.

1st, ’Tis said the Act does ex post facto extend to Debts, &c. due before the Making of the Act. I say no Part of this is true, but that the Debts, &c. were contracted before the Act: And how does this Act extend to such Debts? In no other Manner than what they were always extended to, and must from the very Nature of Things have been extended to as soon as ever a Debt, &c. could possibly have been contracted: I say it must from the very Nature and Reason of Things, have been a Rule that every Person trading from Great-Britain in a Country where the particular Currency of that Country was of less Value than Sterling, that such Trader should be obliged to take his Debt or Contract in such Country, at some certain Discount, between the Currency of such Country and Sterling, or he must have traded solely by Barter; and if any one will give himself the Trouble of enquiring Back into the History of Exchange and Trade in this Colony, he will find that for a long Time, the Riches of the People, lying more in Sterling than Currency, from that over Balance, the Difference of Exchange was first on the Side of Currency. I can charge my Memory with having read old Letters, wherein one per Cent. Sterling, was given for one Hundred Pounds Currency. And this seems to be the Reason of those Acts now subsisting amongst us (tho’ very little regarded) prohibiting the Exportation of Cash under large Penalties, and of those other Acts (now so iniquitously extended) giving Encouragement for the Importation of Cash: In Time as the Quantity of Cash encreased, Sterling claimed a superior Value, and as the Riches of the Country declined in Sterling, the exchanging Value encreased; during all which Time the Trader must have suited himself to the Possibility of his Chapman, and the Creditor to that of his Debtor; but when Men became so extravagant as to pay Edition: current; Page: [1629] no Regard to social Good, but governed their Demands wholly by Avarice, let it undo where it would; then the Law in 1748, came in to Remedy the Evil where it could, by taking Cognizance of the Claim of the Creditor, and so ultimately confining the Trader; and if he could not be contented with a reasonable Exchange, the Process brought against the Debtor, ended in a Regulation of the Exchange between Sterling and Currency, as the Legislature then thought was most reasonable: But this Limitation of Exchange to a certain Standard always, was by these very Gentlemen exclaimed against (as I shall shew them presently, to give the World the true Complexion of this Memorial) and the Legislature then fell on the best and most equitable Rule, that can be devised by Man, for the dispensing of Justice to the Creditor, and preserving the unfortunate Debtor from his merciless Claws; by directing Courts to Rate the Value of their Sterling Judgments given, in Current Money, according to the general and most known exchanging Difference; so that the Creditor was justly dealt with, and always had Cash in such a Proportion, as might enable him to replace his Sterling Debt in England, if he pleased. Thus the Rule, which Reason and Nature dictated should be subsisting, became the Rule established by Law, and did subsist before the Act, for emitting Paper Currency. I hope it is now evident the Act has done nothing ex post facto, it has enacted no new Thing with Regard to any Sort of Debts, but only directed that for such a Time, such Notes should have all the Value, that any other Species of Currency had: If it should be said that although Sterling Judgments were before the Act, to be rated in Currency, yet such Currency was no Tender in Law, at it is in this Act; I answer, it is a mere Lawyer’s Quibble, and if it was not expresly declared so in former Acts, yet it was virtually, and consequentially so done, in that every Creditor must know he could recover no more than the real Difference of Exchange; and surely that Court where it should appear that the Debtor had made the Creditor a Tender of the full Exchange on his Debt, must have treated such Creditor on his Refusal, as a litigious Person.

As to retrospective Statutes, I need do no more than mention a common Proposition, to prove that notwithstanding popular Clamor, they are often very expedient. Let a preceeding Transaction be what it will, it may be productive of very great Evil to a Community by its Effects, and shall a Community go on to endure this Evil, because it was produced by an Action done before the Evil was experienced: To say they ought is to fix the Infallibility of human Understanding, as to Causes, Effects, and Consequences, Edition: current; Page: [1630] which is an Absurdity. A Retrospection therefore in such Cases, is not only salutary, but absolutely necessary, to destroy such Effects even if it is obliged to reach the Cause: Suppose for Instance there had been no Rule or Law subsisting to oblige a Creditor to accept of an adequate Exchange for his Sterling Debt in Currency; I say from the apparent Necessity there was of making this Act to raise Men and Money, which has been shewn beyond Contradiction, it was absolutely necessary for the Good of the Community, that the Act should be so made, as to take in the Creditor before the Act, or else such Creditor might have defeated the main Purpose of the Act (that of providing an Army) in refusing to be satisfy’d for his Debt by the Notes, and would not such a Proceeding in Creditors, have struck at the very Vitals of the Community, by leaving the Land defenceless, and in the Power of the Ravages of the Enemy.

The Injustice wherewith this Act is charged, in depreciating Debts, &c. has been fully answered, in the Arguments already used, which shew that neither Trade or Debt, are or can in the least, be affected by the Act; the very Defect they hint at in the Act (that is the Want of a Proviso for paying Sterling Debts ad valorem) is nothing more than a Defect in their own Brain; they either have not read the Laws of the Country, or are disturbed that all the Laws are not every Session brought into one Law, and what a mighty Law would that be! In Fact, the Clause they want was long before this Act enacted, and in some Measure at their own Instance, which I shall now shew in their next Paragraph of Complaint.

In order to make their Complaint more formidable, they usher in the Act passed in 1748, to shew what Sufferers they are like to be by the Virginia Acts of Assembly. In the short Sketch that I have just now given of the History of Exchange in this Colony, I shewed that it was always a Method in the Country, of paying Currency for Sterling ad valorem and that whilst Creditors were govern’d by the real or exchanging Difference subsisting, it remained only an equitable Rule, necessarilly subsisting in the Nature and Reason of Things; but when Avarice admitted of no Bounds to their Demands, the Assembly in 1748, took the Case under their Consideration, and to do Justice to both Creditor and Debtor, made all Executions on Sterling Debts leviable at Twenty-five per Cent. which was then thought the common and reasonable Exchange: But the Law was not long known in England, before the Merchants of London, whom I suppose I may safely call the Memorialists, endeavoured to obtain a Repeal Edition: current; Page: [1631] of it, by the King’s Proclamation; however they were given to understand it was constitutionally late, for a Repeal by Proclamation, as his Majesty had given his Assent to the Act. And an Instruction was accordingly sent to the Governor, to urge the Assembly (as those Gentlemen term it) to do it by a subsequent Act. The Assembly always endeavouring to avoid giving the least Color for a Complaint against them, then readily embraced the Opportunity, and with great Alacrity, passed a Law to Repeal that in 1748, and so enacted, that all Courts on any Judgment given in Sterling, should at the Time of passing such Judgment, settle at what Rate of Discount, the same should be leviable in Current Money. Now let any candid Man say what these Memorialists would be at: A Clause is wanted in the Paper Act to provide for the Payment of Sterling ad valorem, and it is so done and practised before and after the making of the Act. Again, the Act in 1748, is likely to injure them, when in Fact there is no such Law in Being: Surely these Things can hardly be called common Mistakes, no, they are gross Blunders, begotten by a Genius for Clamoring. I now again hope this Act is not only cleared of all Arbitrariness and Injustice, but that it justly rides in Triumph over the Memorial, and all its devilish Machinations, for certainly calumniating Insinuations, and false Accusations, are Satan’s chief Implements.

I will now consider the Expedient proposed by these Gentlemen, and that minutely too, to shew how little deserving of Regard this Body are in this Instance, however formidably they may have united; and indeed to shew how necessary it is to preserve the Justice due to every Cause, by hearing both Parties fully before a Determination should be given.

To separate the Expedient from its great Bundle of Preamble, is simply to say, it is an Amendment to the Paper Act. 1st, To secure all Contracts before the passing the Act from any Effect at all by it. 2dly, That in all Cases of Sterling Debts, &c. stipulated payable in Sterling either before or after the Act, such Debts, &c. shall not be effected by a Tender of Paper, or any other Species of Currency not being Sterling at any Rate, unless the Creditor, &c. shall consent to it; and if he does consent to it and takes the Money, that then he shall be deemed in Law, fully satisfy’d for his Debt, &c.

I cannot here pass over a Compliment due to the Gentlemen, on Account of their Happiness in the Choice of a Draftsman, who has discovered in the Memorial, a wonderful Dexterity in splitting Unities; that is, dividing Edition: current; Page: [1632] one and the same Thing into several Parts, for the Sake of multiplying Sentences: The wiser Part of Mankind has indeed condemned the Practice as nonsensical, but a bad Cause (or rather no Cause at all) for complaining, should be rolled up in an abundant Disguise of Words. The first Part of the Amendment proposed is wholly to secure Debts, &c. made before the Act from being affected by it. And what does the second Part of the Amendment propose? Nothing more than to secure all Sterling Debts, made both before and after the Act, from being affected by it; for I conceive it wants no written Law to tell a Man if his Creditor is willing to discharge his Debt, for Carrots or Turnips, he may pay them to him; and that after he has paid them, and the Creditor has taken them as such, he is certainly discharged from any further Claim on Account of that Debt or Contract; and for this he has the Law of common Sense to direct him. But now for the Reasonableness of such an Amendment, which not only strikes at the Paper Act, but at all Rules and Acts relative to the exchanging of current Money, and of Course at the Law of necessary Justice, before explained; when I say the Reasonableness of such an Amendment, I mean not the Amendment as it is worded, for verily that is mere formal Nonsense, but of any Amendment to secure these Sterling Debts, &c. from being paid by Law in the Currency of the Country ad valorem, for that is the certain Drift of the Memorialists; a Drift they did not care to be plain in discovering, when they charged the Paper Act as being defective with Respect to Sterling Debts: In this Kind, indeed, it is defective; and had it been otherwise, it would have been the most fallacious Act imaginable, by emitting a Currency that should be no where current, not so current as a Cask of Nails, or any other Commodity, to be sold only to him that might want to buy them, for any Man might hold what he had to sell at a Sterling Demand, and then of what Worth would the Paper Notes have been? I need say nothing more to such an Amendment, than to remind any Reader of the Necessity that must have always subsisted of exchanging (not only in Virginia, but in every Country where Sterling is not the sole Currency) Sterling for such Currency, at an agreed Rate; and that it was from this Necessity alone that any Law could ever have arisen to establish the Method of doing it, lest the Will of the Creditor should grow too extravagant for the Capacity of the Debtor; all which, I flatter myself, I have fully shewn in my Observations already made on this Memorial. I should now take Leave of the Expedient, but that there is a seeming Arrogancy in concluding that it was impossible for the Edition: current; Page: [1633] Assembly of Virginia to make any Objections to the Amendment, in so far as it is, bona fide, founded on Principles of common Justice, and the Laws of England. What, do the Principles of common Justice oblige a People, extending the Power of a Mother-Country, by improving her distant Territories, and in doing that, confined (except in some trifling Commodities) solely to a Trade with that Mother-Country? I say, should such a People, in the Course of such Trade, fall in Debt to such Mother-Country, do the Principles of common Justice enjoin, that Persons so circumstanced should not be allowed any Way of paying such Debts, but in a Coin of which there is hardly an Hundred Pounds to be found amongst them in a Year; or else to pay them according to the extravagant Demands that their Creditors shall make in the Currency they have: Gentlemen that talk so, must be Madmen; is this common Justice? It is, bona fide, unnatural, and against all Justice. Again, the Amendment (they say) is founded on the Laws of England; to this I answer, without entering into a critical Enquiry as to the Fact, and with all possible Deference, that if there be such a Law, as the Laws of no People on Earth should be unalterable, every Moment that it has had any Effect in the Manner that these Memorialists propose, it must have been grievously partial and burthensome; and therefore it ought now to change its Face, and smile on those who have deserved all Attention, and every reasonable Indulgence; who, in Spite of Poverty and every unnatural Check, have certainly convinced the World, that they are faithful Subjects, endued with that Nobleness of Spirit that has ever distinguished a true-born Briton.

The Conclusion is of a Piece with the whole Memorial, that runs on with a very great Air of Importance, but complains of nothing real; and this, it is evident, is as pompously inclined to the same Point, Nothing. There is a Request made to their Lordships, that they would be pleased to suspend giving Judgment on the Virginia Act as it now stands, by Way of Approbation thereof, till such Time as the Sense of the Assembly of the Province is had upon the Amendments proposed thereto; which, in Fact, is desiring that their Lordships would let the Act keep its Force and Efficacy, which every Act must necessarily do that is passed by the Governor, unless his Majesty shall declare his Dissent by Proclamation, which no Doubt he is in some Cases advised to: But, if the Act lyes for his Majesty’s Pleasure, it is necessarily operating here as a Law, unless provided against in the Body of it by a suspending Clause. Their Lordships Approbation of an Act might Edition: current; Page: [1634] indeed incline his Majesty to give his Assent to it, and thereby give it a greater Degree of Firmness in the Constitution; but this can hardly be very necessary, in many temporary Laws: Of Course then these Gentlemen have really asked for nothing, with Respect to their Complaint; not only nothing to their Purpose, but so long as their Request is granted; that is, that their Lordships shall be silent as to their Approbation of the Act. It is very materially against them; but I have all along seen they have a latent Meaning in the Memorial, and I suspect here they are praying that their Lordships will suspend their Approbation, in order to offer up another Prayer hereafter, that they will be pleased to advise his Majesty to repeal it; and this Construction is not out of the Way of their partial System carefully kept up through the whole: But would not this be a most extraordinary Prayer indeed, first to let an Act emit Money at such a settled Currency and on such a settled Fund, and, when the Money is in Circulation, repeal it, because London or British Merchants are put on the necessary and just Footing with other People. If I mistake not, it would amount to an entire Forfeiture of publick Faith, with a very sacred Absolution for so doing.

I will now recommend both the Memorial, and Observations on it, to the impartial Reader; and let him say if in any Instance he ever met with less Cause of Complaint, less Decency or Gratitude to that Country against whom they complain, less Respect to that Board to whom they address themselves, or less Regard for the Reputation of their own Body: I say less Cause of Complaint, because the very Matter complained of (if ever it existed) was not only long before their Complaints fully remedied, but even before the passing the Act; I say less Decency and Gratitude to that Country against whom they complain; 1st, in puffing out how largely they are indebted to them; 2dly, in accusing them with arbitrarily and iniquitously endeavouring to destroy their Trade, and cheat them of their Debts: For this would be the Conclusion, had the Facts been true; and not in the least reflecting how many of them owe their very Being, as Merchants, to the Civilities of the Country, and at Times perhaps when their own Credit was not sufficient to have induced any Man but a bold-venturing Virginian to have trusted them: I say less Respect to that Board to whom they address themselves, in presuming to build on Mistakes, Blunders, scandalous Accusations, and what not, in order (if possible) to deceive their Lordships, and less regardful of their own Reputation in rendering it for ever after this a Edition: current; Page: [1635] just Matter of Suspicion, whether the Facts on which they shall ground any future Complaint, are truly stated or not.

Was it for such Uses as these, ye Merchantmen of London, that this Country has submitted to a long and constant Tax on their Commodity, in order to raise a Treasury for the mutual Benefit of the Trade;* that instead of assisting them in their greatest Poverty, in the Day of their greatest Distress, with the Overflowings of that Heap, if properly accounted for ye do not only loudly oppose their Endeavours to preserve themselves, but even abuse them, and aim by your Complaint (no Matter whether founded on Truth or Falsehood) at particular Exemptions of yourselves, from all Possibility of suffering in the common Calamity, and thereby shew yourselves no otherwise interested in the Country, than in the dirty Demands you have against it.

If the Gentlemen shall think proper to shew themselves offended at what I have written, I can only say that I am sorry for the Cause of Writing, but not for having done it; for ’tis certainly a Piece of Justice due to the Legislative Body of my Country, to remove from them where it can be done with Truth, every Kind of Reflection against their Honor, their Virtue; and I shall never be affected with any Reply that can be made, having an excellent little Fortress to protect me, one built on a Rock not liable to be shaken with Fears, that of Independency, my Batteries are Facts and Truth, and my Engineer is a Fellow as fit for his Post as any in the World, Reason; thus supported I will conclude with the Words of Cicero, in the Cause he plead for Publius Quinctius.

Hic ego, si Crussi omnes cum Antoniis existant, si tu L. Philippe, qui inter illos florebas hanc causam votes cum Hortensio dicere, tamen superior sim necesse est; non enim quemadmodum putatis, omnia sunt in eloquentiâ, est quaedam tamen ita perspicua veritas, ut eam infirmare nulla res possit. Of which I shall give the following modest Translation, by Way of Address to the Lords of Trade, &c.

Edition: current; Page: [1636]

A Letter, To the People of Pennsylvania, &c.

Whoever has made himself acquainted with antient History, and looked into the original Design of Government, will find, that one of its chief and principal Ends was to secure the Persons and Properties of Mankind from private Injuries and domestic Oppression.

In forming a Plan of Government compleatly to answer these excellent Purposes, the fundamental Laws and Rules of the Constitution, which ought never to be infringed, should be made alike distributive of Justice and Equity, and equally calculated to preserve the Sovereign’s Prerogative and the People’s Liberties. But Power and Liberty ever being Opponents, should the Work stop here, the Constitution would bear a near Analogy to a Ship without Rudder, Rigging, or Sails, utterly incapable of answering the End of its Construction. For tho’ the wisest and best Laws were enacted to fix the Bounds of Power and Liberty, yet without a due Care in constituting Persons impartially to execute them, the former by its Influence, and Encroachments on Liberty would soon become Tyranny, and the latter by the like Extent of its Limits might possibly degenerate into Licentiousness. In both which Cases, the Condition of Mankind would be little mended; scarcely better than in their original State of Nature and Confusion, before any civil Polity was agreed on.

The Men therefore who are to settle the Contests between Prerogative and Liberty, who are to ascertain the Bounds of sovereign Power, and to determine the Rights of the Subject, ought certainly to be perfectly free from the Influence of either. But more especially of the former, as History plainly evinces, that it is but too apt to prevail over the Ministers of Justice by its natural Weight and Authority, notwithstanding the wisest Precautions have been used to prevent it.

The Necessity of this independent State of Justice is rendered apparent by the slightest Consideration of human Frailty. Consider Men as they really are, attended with innumerable Foibles and Imperfections, ever liable to err; and you will find but very few, who are so obstinately just, as to be Proof against the enticing Baits of Honor and Interest. The Love of Promotion and private Advantage, are Passions almost universal, and admit of the most dangerous Extreams. The one in Excess generally produces the most servile Obedience, the other intolerable Avarice and a base Dereliction of Edition: current; Page: [1663] Virtue. That which we love and engages our Attention, we are ever ready to purchase at any Price. Thus an inordinate Lover of Promotion sooner than part with it, would surrender up his Regard for Justice, his Duty to his Country, and to his GOD for its Preservation. And the avaricious Man sooner than lose his Pelf, would part with his Honor, his Reputation, I had almost said his Life. And such is the Influence of this Dread of parting with that which we esteem, whatever it be, that it so effectually chains down the Powers of the human Soul, that it cannot be said to enjoy Freedom of Judgment, scarcely Freedom of Thought.

Of this Truth, the abject Promises and servile Conduct of the great Lord Bacon, exhibit an irrefragable Proof. It was but rational to think, that a Man of his extensive Abilities, and capacious Soul, that could comprehend all the Beauties of Rectitude and Justice at a View, would at least preserve in his public Station, an independent and unperverted Judgment. And yet his Virtue fell a Victim to his love of Promotion. He begged for Preferment with the same low Servility, that the necessitous Pauper would beg for daily Bread. His Promise to the King in order to obtain the Chancellors Place, was, “That when a Direction was once given, it should be pursued and performed.” And when he succeeded in his Wishes, his Conduct with respect to the Court and its arbitrary Measures, shewed that he strictly fulfilled his Engagement.

Whoever has read the Form of a Commission during Pleasure, and considered its Limitations, must certainly be surprized that a generous Mind would accept of a Tenure so servile, and so incompatible with the very Nature of Justice. He can be but a Tenant at Will of a G——r at best, and for the most Part of an At——y G——l, or perhaps some other Favorite in the several Counties. The Terms of Tenure are, until our further Will and Pleasure shall be made known, which, by a natural Construction, if we may call Reason and Experience to our Aid, is, no longer than you gratify us, our Favorites and Creatures, in your Determinations, let our Will and Pleasure therein be ever so illegal, ever so partial and unjust.

That some Men of independent Circumstances, happy in the Possession of Virtue, have accepted of those Commissions and acted uprightly, I will not pretend to dispute. They are remarkable Instances of public Integrity, and merit the highest Commendation. They are among Mankind, as a Comet among the Stars, rarely to be seen. But generally to look for strict Impartiality and a pure Administration of Justice; to expect that Power Edition: current; Page: [1664] should be confined within its legal Limits, and Right and Justice done to the Subject by Men who are dependent, is to ridicule all Laws against Bribery and Corruption, and to say that human Nature is insensible of the Love, or above the Lure of Honor, Interest, or Promotion.

With what Freedom and Justness do the modern Writers of a certain great Nation, complain against the Multiplicity of ministerial Officers, who hold their Commissions during Pleasure; and what renders that Freedom so justifiable, and those Complaints so just, but the Misfortunes the Nation has suffered, by the Weight these Creatures have thrown into the Scale of Power, by paying an implicit Obedience to its Commands, and a devoted Adherence to its Measures. If then, such are the dangerous Effects of a Dependency in the ministerial Officers, whose Conduct is circumscribed by positive Laws, and checked by the superior Courts of Justice; how much more so must a Dependency of the judicial Officers be, where every Thing is left in the Power, and to the Discretion of the Judge, on whose Breath, the Security of all Property and the Liberty of the People depend? Must it not produce more dangerous Consequences? Will it not bring on inevitable Ruin?

But further to illustrate the Necessity of an independent State of Justice in every Community where the Security of Property and the Happiness of Mankind, is the object of its Polity, numerous Instances might be adduced from the Histories of Europe, in which it has been the principal Policy of the most arbitrary Princes, who have conceived a Design of quelling the Spirit of Liberty, and enslaving their Subjects to their Will and Pleasure, to draw over to their Party the Ministers of the Law. By this Means, having effectually superseded the Execution of the Laws, and subdued the Power which alone could check a tyrannical Exercise of Prerogative; they have let loose every Instrument of Oppression, and left Nothing in the Community able to oppose the Torrent. Attempts of this Kind have frequently succeeded, and sometimes in Reigns, when the Judges have been as independent as the Law could make them. If so, how much more easily is this Policy pursued and executed, when the Judges hold their Offices on the servile Tenure of during Pleasure.

Without wandering into foreign History, a few Examples from that of our Mother-Country, and our own Province, will best suit my Purpose, as they are more familiar and adapted to your Circumstances.

By this Kind of Policy, Richard H. broke over every Barrier of Law, and prostrated the Fence which the Wisdom of Ages had planted round Edition: current; Page: [1665] the Constitution. Or as the Historian has it, “By the murderous Weapons of perverted Law.”

The Opinion subscribed by all the Judges in England, touching the Commission for inspecting the public Revenues of the same Reign, is an evincing Evidence of this Truth. The Parliament observing the immense Profusion of the public Treasure by the Ministers of Richard, the great Want of Oeconomy in his Houshold, a Number of Pensions granted to his Creatures, his numerous Favorites grown rich amidst a national Penury and Distress, saw the Necessity of an Enquiry into, and Reformation of these Abuses, and appointed a Committee of eleven Noblemen for that Purpose, whose Authority was confirmed by an Act of Parliament. But this being inconsistent with the King’s arbitrary Plan, he no sooner received the Supplies, but in a most solemn Manner he protested against it, and pursued every Measure in his Power to enslave the Nation. His detestable Scheme was to intimidate and corrupt the several Sheriffs to return a packed Parliament of his own Tools; the City of London was to furnish him with Men and Money, and the Judges of the Courts were to pervert the Laws, and sacrifice the Rights of the Nation.

But he failed in all his Reliances, save on the prostituted Judges: The Sheriffs informed him, that the People would never give up that most valuable Privilege, the Freedom of Elections. The City of London excused herself from acting her Part in the horrid Scene. But the Judges over-awed and corrupted, justified all his Measures. In the Opinion, I have mentioned above, they declared, that the Commission and Statute aforesaid, were derogatory to the King’s Prerogative; that the Persons who moved for them, procured, or prevailed on his Majesty to assent to them, should be punished with Death; that the King in all Matters to be treated of in Parliament, had a Right to direct and command from the Beginning to the End thereof; that if they acted contrary to the King’s Pleasure made known therein, they were to be punished as Traitors; that he could whenever he pleased, remove any of his Judges and Officers, and justify or punish them for their Offences; And that the Lords and Commons could not impeach them for any of their Crimes; with many other Things equally subversive of the Laws of the Land, and the very Being of the Constitution. An Opinion, so evidently infamous and servile, that it cannot call for the least Remark. I shall therefore only observe, that Belknap Chief-Justice, after he had signed it, not being resolute enough to be steady, nor so vicious as to want Remorse for violating his Oath, the Edition: current; Page: [1666] Cause of Truth and his Country, declared, “that he wanted Nothing but a Hurdle, a Horse, and a Halter to bring him to the Death he deserved.”

The same Plan of Policy was pursued by Charles I. He removed Sir Robert Heath, Lord Chief-Justice, from his Office, because he could not approve of, and justify his Conduct, and Sir John Finch, a most abject Tool of the Court, became his Successor.

Thus by removing at his Pleasure, Men of Virtue and Integrity from the Courts of Law, and placing in their Stead such as would serve his arbitrary Purposes, he procured a Set of Judges entirely devoted to his Will. Under the Sanction of their Opinion, he issued forth his Proclamations, and enforced an Obedience to them, as the fundamental Laws of the Land; while those very Laws, by which not public and private Property only, but the very Existence of the Constitution itself was preserved, were dispensed with. So far did he carry this Policy, that it was common for the Secretaries of State, to send Letters to the Judges to lay aside the Laws against Papists, while the Persons that dared to disobey his arbitrary Proclamations, were proceeded against with more Rigour than if they had violated the fundamental Laws of the Kingdom.

The same Measure was taken to justify and support that infamous Violation of the Subjects Right, the Imposition of Ship-Money. The Judges were first closetted, flattered, threatened and intimidated, until they were prevailed on to subscribe to an Opinion, directly inconsistent with the Laws of the Land and the Liberties of the Nation.

No Englishman can ever forget the unheard of Barbarities committed by Judge Jefferies, that murdering Instrument of the Court of James II.

Nor will that successful Attempt of the same King, to procure a set of Judges that should determine, not according to Law, but his tyrannical Directions, ever to be effaced from the Minds of Britons: He first closetted them agreeable to the Example of his Predecessor Charles; and would have made an express Bargain with them, that they should continue in their Commissions, provided they would maintain his pretended Prerogative of dispensing with penal Laws. But four of them discovered great Dissatisfaction at the Proposal, and particularly, Sir Thomas Jones plainly told him, “He would not do what he required of him.” His Majesty answered, “He would have twelve Judges of his own Opinion.” Sir Thomas replied, “Twelve Judges, Sir, you may possibly find, but not twelve Lawyers.” But to convince him of his Mistake, the King in a few Days appointed four such Creatures from Edition: current; Page: [1667] the Bar, in the Room of the four worthy Judges, as effectually answered his Purpose; and eleven out of twelve, confirmed, as far as their Opinions could confirm, his illegal Power of dispensing with the Laws of their Country.

Many other Instances of this Nature, might be brought from the History of your Fore-fathers to demonstrate the Necessity of creating the Office of a Judge, independent of Power; and to show that an Increase of Prerogative, a Perversion of the Laws, a Suspension of your natural Rights, and a Violation of the fundamentals of an English Constitution, have often been effected by this Kind of Policy; this undue and illegal Influence on the Courts of Justice.

But permit me to remind you of those notorious Instances of violated Property, the Insistment of your Servants in the late Spanish War, who were a Part of Property as firmly secured by the Laws of your Country, as any you enjoy; as much your Right, as the Ox you have paid for, or the Inheritance you have purchased. Were they not by an arbitrary Stretch of Power, violently wrested from your Hands, without Money and without Recompence? What availed all your Endeavours to procure the Benefit of those Laws, and a Restitution of your Rights? Your Courts of Justice were dependent on, and under the Direction of the very Author of the Oppression.

Thus it is evident from the Nature of Justice, from the slightest Consideration of the frailty of human Nature, and from antient as well as modern Observation; that your Rights and Properties have been utterly insecure, while your Judges have been under the Influence of, and subject to the pleasure of your Rulers; and that your Welfare and Happiness have been merely Ideal, when the Laws of the Land, those impregnable Bulwarks of your Safety, have either been suspended, or not executed.

Having shewn you, that a Security of your Rights and Properties was the chief End of your entring into Society, and that, that Security cannot be obtained without an independent and uninfluenced Judicature; it becomes an indispensible Duty to take some Pains, to convince you, that this Security is your undoubted Privilege as Englishmen, of which you cannot be divested without Violence to your antient Rights and the Principles of an English Government.

To trace this your important Privilege to its original Source, it will be necessary to follow me back to the first Dawn of the present Constitution of England; there to learn the precarious Situation of Property, and the wise Remedy, that was framed to give it a permanent Security.

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Before the Time of the great Alfred, that wise Founder of the English Government, the Care of the several Counties was committed to the Nobility. They acted in a double Capacity as Leaders of the Troops, and Judges of the People’s Properties; and being frequently absent on Military Duty, were obliged to leave the Administration of their civil Affairs to Prefects or Deputies, who, holding their Authority during the Pleasure of the Lords, and the Lords being the Creatures and Dependents of the Crown, in all their Determinations, paid a devoted Obedience to the Directions of their Superiors, and the Voice of Prerogative, while, the Execution of the Laws, and the Rights of the Subject were the least of their Concern. The Nation at this Time had Property, but no Safety in the Enjoyment. They had some Degree of Liberty, but held it as Tenants at Will of the Crown, of the Nobility or their Favorites; they had Laws, but no Protection from the hostile Hand of the domestic Oppressor. In this unfortunate and desponding Situation, did the great Father of public Virtue find Liberty and Property—The two principal Objects of all good Laws. A generous Compassion for the distressed State of the Nation, induced him to alter the Constitution wherever he found it inconsistent with the Welfare and Happiness of his People. The Security of Property, without which private Felicity is a mere Chimera, engrossed his chief Attention. He was the Author of the excellent Institution of Trials by Jurors that solid Pillar of English Liberty. He altered the former dependent State of Justice, by appointing and commissionating Judges independent of the Crown; that they might ever after remain free from its Influence, and deaf to every Solicitation, but the Convictions of Truth. He did not perhaps, like our modern Politicians, see no Advantage in an impartial Administration of Justice, but well knew from late Experience, that Justice must be a Stranger to the Land, whose Form of Government could not ensure Safety to the Liberties, and Properties of the People.

The Office of a Judge being thus wisely established, numerous Instances might be drawn from the English History, to demonstrate, that the Ministers of Justice were not removeable at the Pleasure of the Crown. Edward I. a Prince remarkable for his excellent Schemes of distributive Justice, and as cautious as the good Alfred, lest his Prerogative should oppress the Law, was determined to purge the civil Polity from the gross Pollutions it had contracted from former Reigns. But before he could displace a Set of the most venal and corrupted Judges, he was under a Necessity from the Nature Edition: current; Page: [1669] of their Commissions, to impeach them before the Nobility, and convict them of their Offences.

The like Method was taken by the great Restorer of English Liberty, Edward III. In Order to remove Green and Skipwith from their Offices, who had justly incurred his, and the Nations Displeasure, by their Extortion and Partiality.

The infamous Tresilian Chief-Justice, and his Brother Judges; the former of whom was punished Capitally, and the others banished to Ireland in the Reign of Richard II. were first tryed and convicted, before they were removed from the Seat of Justice.

In the arbitrary Reign of James I. Lord Chief-Justice Coke, who at that Time had become very odious to the King, by a virtuous Opposition to his Measures, and had also incurred the public Indignation, by his extream Avarice, was convicted, of one of the most trifling Articles exhibited against him, on his own Confession, which served as a Pretence for the removing him from his Offices.

Agreeable to this excellent Policy of the common Law, ever since the latter End of the eighth Century, the Judges have held their Commissions during their Good Behaviour; a few Instances to the Contrary made by the Incroachments of Power, excepted: Even in the most arbitrary Reigns of Charles, and James II. the Judges were commissionated in this legal and constitutional Form; reigns in which Power had so great an Ascendancy, that had it not been consistent with the antient common Law, and the Usage and Custom of Ages, the Rights of the Nation had not met with so great a Favour. The Forms of the Commissions of Sir Robert Hide, and Sir Robert Forster, who held them during Good Behaviour, are to be seen in the Reports of Charles’s Reign. And Sir Robert Archer some Time before, having unjustly incurred the Displeasure of Charles, received a Supersedeas to his Commission as one of the Judges, but with virtuous Resolution, he refused to surrender his Patent without a Trial, and continued in his Office during his Life.

The next Thing worthy your Attention is, how far this invaluable Policy, so often suspended by arbitrary Power, was restored and confirmed by your Predecessors, the first Settlers of this Province. They had drank of the bitter Cup of despotic Authority: They had sufferd the Mischiefs of perverted Law: They had seen their Liberties both civil and religious bend under its Weight: They resolved therefore to seek a more hospitable Country, but Edition: current; Page: [1670] would not venture their Lives and Estates in this desart Land, without some Security against any Incroachment on this inestimable Part of their Mother Constitution. They wisely foresaw great Danger of an Invasion thereof, in a Province, where an immense Quantity of Property, was to attend a large Extent of Power, where the same Person who was to enjoy the Powers of Government, was likewise to be an universal Landlord, possessed of many Millions of Acres, with all their increasing Advantages and Emoluments; that this Property, at the same Time it produced Contests, would create Power and Influence, and if those Contests were to be decided, tho’ not immediately by the Proprietary himself, yet mediately by his Deputies, whose Dignity, Office and Estate depended on his Breath, their Conditions and Circumstances by their Removal could be rendered worse, and the Safety of their Persons and Properties more precarious. It was therefore expresly stipulated and solemnly covenanted by William Penn, with the first Adventurers before their Departure from their native Country, That

Thus secured as they Thought, in the Enjoyment of their Liberties and Estates, they surrendered up every social Connection of their native Land, under the vain Expectation of enjoying this Privilege agreed on before their Departure. But how righteously this fundamental Rule of your Constitution has been observed, the late dependent State of your Magistracy (whose Commissions have been granted during the Governors Pleasure) the Partiality and Favour that have been shewn to a favorite Att——y, to whose Influence they have been indebted for their Offices, and on whose Will their Continuance therein depended; the many Instances of Men of Integrity being displaced from the Seat of Justice, because of their virtuous Opposition to the Measures of Power; and the partial Distribution of Offices to Creatures and Tools, are so many incontestable Testimonies, of a manifest Breach of public Faith with your Predecessors and you their Posterity.

If your Ancestors here were not wanting in their Endeavours to secure you from the Mischiefs of perverted Law, and to transmit to you an upright Edition: current; Page: [1671] Administration of Justice; the Parliament of your Mother Country, have not been less careful in this respect. At the Time of the happy Revolution, that famous Opportunity of overcoming the Usurpations of former Reigns, and restoring the Constitution to its antient Freedom, many of the national Rights were revived and confirmed by the Bill of Rights. And yet, such was the Haste and Zeal of the Parliament, to settle the Essentials of the present Government, that many important Matters were neglected, among which may be accounted, a Restitution of the Courts of Judicature to their antient Independency. But this Error was not long undiscovered, the Parliament called to Mind the Mischiefs the Nation had suffered by the slavish Opinions of the Judges in the Case of Ship-Money; the arbitrary Removal of Justices Powel and Holloway, for acting consistent with their Oaths and Consciences in the Case of the five Bishops; they remembered that such was the Influence of James II. with the Judges, whom he commissioned during his Pleasure, that Juries were packed; the Subject held to excessive Bail; the Laws of Liberty violated and dispensed with; expensive Fines imposed; cruel Punishments inflicted; the Spirit of Liberty worn out, and many Innocents condemned. Without the Spirit of Divination, they plainly foresaw, that the same Train of fatal Consequences must attend the Liberties of the Nation, should their Judges remain subject to the same Influence. They therefore, as soon as it became necessary to make a farther Limitation of the Succession of the Crown in the Protestant Line, gladly embraced the happy Opportunity of rectifying former Mistakes, and of making a further Security for the antient Rights and Liberties of the Subject. They resolved that the one should go Hand in Hand with the other. And by the Act which settled the further Limitation of the Crown, it is, among other Things expresly declared, That the Judges Commissions shall be made Quam diu se bene gesserint, or as long as they should behave themselves well in their Offices; and their Salaries shall be ascertained and established.

Here it is worthy your Information, first, That the Rights and Liberties claimed and declared by the Bill of Rights, that second Magna Charta, and the Act of Settlement, created no Innovation of the antient Constitution. The Parliament had no Design to change, but only to restore the antient Laws and Customs of the Realm, which were the true and indubitable Rights and Liberties of the People of England. This appears as well from the Bill of Rights, and the Resolves which preceded the Act of Settlement, as from the Act itself. From whence it follows, that this Right of the People to Edition: current; Page: [1672] have their Judges indifferent Men, and independent of the Crown, is not of a late Date, but Part of the antient Constitution of your Government, and inseparably Inherent in the Persons of every freeborn Englishman; and that the granting Commissions to the Judges during Pleasure, was then esteemed by the Parliament, and truly was, an arbitrary and illegal Violation of the Peoples antient Liberties.

Secondly, That those excellent Laws were intended to extend, and actually do extend to all the King’s Subjects in America. That their Faith and Allegiance are bound by them to the present most excellent Royal Family, and of Course that they are entitled to the Rights and Liberties therein claimed, asserted and confirmed. And yet your former G——rs, as if they had been determined to revive and pursue the wicked Policy of those arbitrary Reigns I have mentioned, and to throw aside the worthy Example of his present most gracious Majesty, have acted as if those excellent Laws were not to be executed, and the Example of their Sovereign unworthy of influencing their Conduct. They have granted all the Commissions of the Judges during their Will and Pleasure, and like Charles and James, have occasionally removed such as dared oppose their arbitrary Designs, and filled up their Places with others, who would ratify and support their Measures, however unjust and illegal.

This being the Case, what Censure and Blame would your Representatives have merited, had they not seized the first Opportunity of rendering your Courts and Judges independent. An Opportunity offered; they passed a Law, limiting the Number of the Judges which before was unlimited, and left it in the Power of a bad G——r, to create as many Dependents as his Measures should call for. It directs that the Judges of the Supream Court and Common-Pleas, shall hereafter hold their Commissions during their Good Behaviour; which before have often depended on the Nod of a G——r, or an At——y G——l. And it ordains, that the Judges of the Common-Pleas shall hold the Orphans Court; that in no Instance, your Properties exceeding the Value of £5. should be determined by Men dependent on Power or its Advocates; and the Ministers of Justice, who ought to be the Ministers of your Protection, may not be prevailed on, either to pervert your Laws, or to give up your Rights.

A law so full of Advantages to the People, one would imagine could not have an Enemy; and yet we find there is Nothing so virtuous, but the Enemies of Virtue will decry. The principal Objection against this Law is, that Edition: current; Page: [1673] “It brings a great Expence on the Counties, without any Benefit accruing from it.” Let us enquire what mighty Burden will attend it in the County of Philadelphia, where the Expence will be greatest. The Judges have never sat above Five Days in the Quarter at most, which, at Twenty Shillings per Day, will amount to One Hundred Pounds per Annum. One Hundred Pounds divided among 7000 Taxables, which this County contains, will not make it Three pence half penny per Man. Is an Expence so trifling equal to the Advantages to be derived from such a Law? Is that Expence unnecessary which procures Safety to your Property, and Protection to your Persons? Is an impartial Administration of Justice of so little Moment to the People? For what Purpose were the Courts of Judicature established? Was it that Judgment should be given according to the Nod and Direction of a P——y, G——r, or Att——y G——l, or, as the last shall happen to be employed? Or, was it that they should be free from all Fear, Favour or Affection whatsoever? That their Determinations might flow from an honest Conscience, from an impartial and unbiassed Mind?

The Enemies to this Law, like all other Persons who do not act upon Principle, manifestly contradict their own constant Practice. What Man among them, who has a Controversy with his Neighbour, would not chuse to have it determined by Arbitrators at least as independent of his Opponent as himself? I think I am safe in asserting, that no Man of common Sense, would submit his Cause to the Judgment of Arbitrators, who are the Tenants at Will, or Debtors of his Antagonist, or to Persons who are connected with him by Blood or Affinity, or by Obligations and Favours conferred. Is it not a common Objection at our Courts of Justice, in the Election of Referees, that the Person named, is of the same religious Persuasion with the other Party? Whence arises the Objection but from a well grounded Suspicion, that in some Men, even Similitude of Sentiments may create undue Favour and Attachment to the Interest of one side; and bias the private Judgment and be the Cause of Injustice.

If this be the Case between Neighbour and Neighbour, how does it stand between the Proprietaries and the People of this Province? Every Freeholder is by Contract their Debtor, and therefore every one of them may, and many often will, have Disputes and Lawsuits with them, respecting the many Covenants contained in their Grants, and the Quitrents. Does not the same Reason which declares the Use of indifferent Arbitrators in the Case of private Persons, loudly proclaim the Necessity of independent Men Edition: current; Page: [1674] to settle the Differences between Power and Property; between the Proprietaries and the People? Have not Men who are cloathed with immense Property and extensive Power, by the Weight of these alone, too great an Opportunity of influencing the Courts of Justice, without this unnatural and unreasonable Dependency of the Judges on their Pleasure?

I have shewn you, in the Reigns of Charles and James, that Men of Fortune and the most extensive Abilities, have sacrificed their Honor, their Oaths and their Consciences, on the Altar of Court Influence. That they have violated the sacred Office and Trust of a Judge, which were committed to them for the Welfare of the People. Do you think it would be a difficult Task to produce you Examples of the like Immolations in your own Government? Have some of your past Administrations been less oppressive and arbitrary than those of Charles and James? Have not the Royal Grant and Proprietary Charter, the Foundations of your Constitution, been dispensed with, and superseded by arbitrary P——y Edicts? Have not those Edicts, which like the Laws of the Medes and Persians were to alter not, chained down the Judgments of your Rulers, and deprived them of their Discretion in Matters of Legislation?

Have you known a Scheme of Power to deprive you of your Properties, in which your M——g——st——es have not been concerned? Have you forgot the Attempt to destroy the Freedom of your Elections, abetted and supported by the Men who ought to have suppressed it? Have not your Servants, as much your Property as the Money in your Purses, been illegally enlisted, by a former G——r, and scarcely any could be found, who dared to execute the Laws made for its Safety? What Part did they act, in preventing your Houses, (which by Law are to every Man a Place of Refuge and Safety) from being made Barracks for the Soldiery.—Did they execute the penal Statute of our Mother Country against it, or did not some of them act a shameful Neutrality, while others united with Power, and in its very Council abetted the illegal Attempt. How manfully and conscientiously did they exert themselves in suppressing the Rioters, those Instruments of Power, who were collected to frighten the Representatives to surrender up your sacred Rights, or were not some of them mixed with the Mob, promoting and abetting their wicked Design?

Where then is the Difference? If Charles and James dispensed with penal Statutes in Order to introduce Popery, your former G——rs have dispensed with the Laws and Fundamentals of your Liberties and Privileges, Edition: current; Page: [1675] in order to introduce Slavery. If the former influenced the Determinations of the Judges, and thereby perverted the Laws of the Country, your P——ries by severe Penalties, have deprived the Head of the executive as well as legislative Authority, of his Discretion and Reason: And your G——rs have so influenced the Courts of Justice to justify and support their despotic Designs, that you and your Predecessors, from the like dangerous Policy, have suffered equal Mischief, and the like Misfortunes.

Should, then, the same illegal and arbitrary Measures hereafter be pursued by some future Son of Oppression; should a Design be formed of dispensing with your Laws, and of imposing unnecessary Taxes and Burthens heavy to be born, without the Assent of your Representatives, and the Ministers of Justice be thought the proper Instruments of effecting these horrid Purposes, how certain the Success! how easy the Task! while your Judges are dependent on the Will of the Oppressor. Can you doubt that human Nature, wearing the Yoke engraved with the Motto DURING PLEASURE, will not hold and practice the Doctrine of passive Obedience and non Resistance, with respect to the Destruction of your Rights and Privileges? If it should retain Virtue enough not to be active in their Ruin, Will not the same Cause ever produce the same Effect? Will that which was once destructive, now change its Nature, and become harmless and innocent? Has the Poison of the Asp ever lost its virulent Quality? Will you then surrender up your sacred Rights into the Hands of Power for Protection? Will you suffer the Safety of your Persons, which is still more precious, to depend on the Humour and Caprice of your Rulers and their Favorites?

Consider, my Countrymen, farther, are the Pennsylvanians Men of more independant Fortunes, or of greater Abilities? do they inherit a greater Share of inflexible Virtue? And are they less liable to Influence and Corruption than the People of England? Has not fatal Experience evidently demonstrated, that the private Property of your P——ries, and their Favorites, will daily clash more and more with yours; more frequently and in a much greater Degree than the private Interest of your Sovereign possibly can with that of his Subjects. And yet has not the wise Example and Policy of a British Parliament thought it indispensably necessary, even there, that the Judges should hold their Commissions during good Behaviour, as independent of the Crown as of the Nation.

If those Things be so, can the least Spark of Reason be offered, why a British Subject in America shall not enjoy the like Safety, the same Protection Edition: current; Page: [1676] against domestic Oppression? Is it because you have left your native Land at the Risque of your Lives and Fortunes, to toil for your Mother Country, to load her with Wealth, that you are to be rewarded with a Loss of your Privileges? Are you not of the same Stock? Was the Blood of your Ancestors polluted by a Change of Soil? Were they Freemen in England; and did they become Slaves by a six Weeks Voyage to America? Does not the Sun shine as bright, our Blood run as warm; Is not our Honor and Virtue as pure, our Liberty as valuable, our Property as dear, our Lives as precious here as in England? Are we not Subjects of the same King, and bound by the same Laws, and have we not the same God for our Protector?

What, then, can you think of those abject Americans; those Slaves by Principle; those Traitors to their own and Posterities Happiness, who plunging the Dagger into the Vitals of their own Liberty, do not blush at declaring, that you are not entitled to the same Security of Property; the same Rights and Privileges of the freeborn Subjects of England? Let me ask those Enemies to your Welfare, how much thereof are you entitled to? Who will measure out and distribute your poor Pittance, your short Allowance? Is a Tenth, an Hundredth, or a Thousandth part to be the Portion of your Liberty? Abject detestable Thought! The poor African, who is taken Captive in War, and dragged an involuntary Slave to Jamaica, calls for your Humanity and Compassion; but the voluntary Wretch, that works out his own and Posterities slavish Condition, for the Sake of a little present Lucre, Promotion or Power, is an Object deserving your deepest Resentment, your highest Indignation.

Ye who are not wilfully blind to the Advantages of this beneficial Law, who for want of a little Reflection have spoke derogatorily of its Merits; let me rouse you from your Lethargy, and prevail on you to see through the Perspective of Truth, your and your Posterities Danger and approaching Misery. What will avail the Laws which are and shall be made for your Protection, if they are not impartially executed? What will avail the virtuous Struggles, the noble Victories of your Representatives over the Attempts of your intestine Enemies? What will avail, the heavy Taxes you labour under? the Thousands you have exhausted? the Blood and Treasure you have expended, to protect your Persons and Properties from foreign Invaders, if they are not safe from the insidious Designs of Ambition and Power, their ever vigilant and active Foes, nor even from the artful Attempts of a Edition: current; Page: [1677] litigious Neighbour, who is in favour with the Great, or can first employ a favorite Attorney?

Whatever then, be the Fate of the Law, which has occasioned this Address to you, let me intreat you, to insist on the Enjoyment of this your native, your antient and indubitable Right. ’Tis yours by the Usage and Custom of ages; ’tis yours by the Rules of Reason; ’tis yours by Covenant with the first Founder of your Government; ’tis yours by the united Consent of King, Lords and Commons; ’tis yours by Birth-right and as Englishmen.—Complain, and remonstrate to your Representatives incessantly, until they shall, like the great and good Alfred, make a Restitution of this your most important and essential Right, the first and principal Object of their Concern; until they prevail on your G——rs to grant the Judges Commissions to the People of Pennsylvania, in the same free and constitutional Manner, as your Sovereign grants them to his Subjects in England.

Be assured, if a Privilege thus justly founded, so often ratified and confirmed; if an impartial and independent Administration of Justice is once wrested from your Hands, neither the Money in your Pockets, nor the Clothes on your Backs, nor your Inheritances, nor even your Persons, can remain long safe from Violation. You will become Slaves indeed, in no respect different from the sooty Africans, whose Persons and Properties are subject to the Disposal of their tyrannical Masters.

A Vindication &c.

A Quorum of the house of representatives of the Province of the Massachusetts-Bay, being met, on the 8th of Sept. ad. 1762, according to prorogation, informed his Excellency the Governour by a committee chosen Edition: current; Page: [1683] for that purpose, that they were ready to proceed to business. The committee returned that they had delivered the Message. Mr. Secretary came down soon after with a message from his Excellency, directing the attendance of the House in the council chamber. Mr. Speaker with the House immediately went up; when his Excellency was pleased to make the following Speech; of which Mr. Speaker obtained a Copy, and then with the house returned to their own Chamber.

His Excellency’s speech is as follows. Viz.

This speech (with General Amherst’s Letter therein referred to) being read, the Consideration thereof was appointed for the next morning at nine of the clock.

September the 9th, the house agreable to the order of the day, entered into the Consideration of his Excellency’s speech.

In the course of the debate the following speech was made, as nearly as can be recollected by memory;

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A little paper only, accompanied this message, with a short account of the Difference to the Province by the Governor and Council’s inlarging the Establishment, which amounted to about Seventy two Pounds. But no notice was taken of the Commissary’s and other Bills which must finally swell this account much higher. However it was neither the measure, nor the expence of it, that gave the House so much uneasiness, as the manner of it; that is, the inlarging an Establishment without the knowledge of the house, and paying it without their privity or consent. The Council minute relating to this Affair stands thus.

The Protection of the Fishery is undoubtedly a very important object and the Province at the beginning of the War built a Ship of twenty Guns, Edition: current; Page: [1689] and a Scow of sixteen Guns, for the immediate protection of the Trade. I wish the Interests of Commerce were more attended to by those who have it in their Power to cherish them. The trade in the opinion of some has never received a Benefit from those Vessels equal to the Tax Trade alone has paid for their Support. However if more are wanted, when that necessity appears, doubtless the assembly will establish more, in the mean time, no more can be lawfully established at the publick Expense. There has been an Instance or two of the Governor and Council’s taking upon them in the recess of the Court to fit out the Province Ship, in a very unusual and unconstitutional manner, as appears by the following Extracts from the Council Records.

To the Honour of General Brattle he was single in his Opposition to this Resolution.

There had been some other Proceedings that were very much disrelished by former Houses, e.g. In three Days after the Heirs of Lieutenant Governor Phipps had received a Denial from the House to bear the Expence of his Honor’s Funeral, the Governor and Council paid it. Some other extraordinary accounts had also been allowed contrary to the known and express Sense of the House. All these matters together alarmed the present House, and they thought it high time to remonstrate. Accordingly when the Governor’s Message relating to the Sloop Massachusetts was read, (upon a motion made and seconded) it was ordered as an Instruction to the Committee to answer it, to remonstrate against the Governor and Council’s making and increasing Establishments without the Consent of the House. Tho’ no Notice is taken of this Instruction in the printed Votes of the House. The Journal stands thus, “Read and Ordered, that Mr. Otis, Mr. Tyler, Captain Cheever, Col. Clap and Mr. Witt, take said message under consideration, and report an answer thereto.”

Sept. the 15th, The committee reported the following answer and Remonstrance, Viz.

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Which being read, was accepted by a large majority, and soon after sent up and presented to his Excellency by Captain Goldthwait, Mr. Otis, Captain Taylor, Mr. Cushing and Mr. Bordman.

The same day the above remonstrance was delivered, the Town was alarmed with a report that the House had sent a message to his Excellency reflecting upon his Majesty’s person and government, and highly derogatory from his crown and dignity, and therein desired that his Excellency would in no case take the advice of his majesty’s council. About five of the clock P.M. the same day Mr. Speaker communicated to the house a Letter from the Governor of the following purport.

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Upon the reading of this letter, it was moved to insert these words, to wit, “with all due reverence to his Majesty’s sacred Person and Government, to both which we profess the sincerest attachment and loyalty be it spoken it would be of little importance,” &c. But a certain member crying “Rase them,” “Rase them,”* the proposed amendment was dropped, it being obvious, that the remonstrance would be the same in effect, with or without the words excepted against. These dreadful words, under which his Excellency had placed a black mark, were accordingly erased and expunged, and the Message returned to the Speaker.

In the course of the debate a new and surprising doctrine was advanced. We have seen the times when the majority of a council by their words and actions have seemed to think themselves obliged to comply with every Thing proposed by the Chair, and to have no rule of conduct but a Governor’s will and pleasure. But now for the first time, it was asserted that the Governor in all cases was obliged to act according to the advice of the council, and consequently would be deemed to have no Judgment of his own.

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In order to excuse if not altogether justify the offensive Passage, and clear it from ambiguity, I beg leave to premise two or three data.* 1. God made all men naturally equal. 2. The ideas of earthly superiority, preheminence Edition: current; Page: [1694] grandeur are educational, at least acquired, not innate. 3. Kings were (and plantation Governor’s should be) made for the good of the people, and not Edition: current; Page: [1695] the people for them. 4. No government has a right to make hobby horses, asses and slaves of the subject, nature having made sufficient of the two former, for all the lawful purposes of man, from the harmless peasant in the field, to the most refined politician in the cabinet; but none of the last, which infallibly proves they are unnecessary. 5. Tho’ most governments are de facto2 arbitrary, and consequently the curse and scandal of human nature; yet none are de jure3 arbitrary. 6. The British constitution of government as Edition: current; Page: [1696] now established in his Majesty’s person and family, is the wisest and best in the world. 7. The King of Great-Britain is the best as well as most glorious Monarch upon the Globe, and his subjects the happiest in the universe. 8. It is most humbly presumed the King would have all his plantation Governors follow his royal Example, in a wise and strict adherence to the principles of the British constitution, by which in conjunction with his other royal virtues, he is enabled to reign in the hearts of a brave and generous, free and loyal people. 9. This is the summit, the ne plus ultra4 of human glory and felicity. 10. The French King is a despotic arbitrary prince, and consequently his subjects are very miserable.

Let us now take a more careful review of this passage, which by some out of doors has been represented as seditious, rebellious and traiterous. I hope none however will be so wanting to the interests of their country, as to represent the matter in this light on the east side of the atlantick, tho’ recent instances of such a conduct might be quoted, wherein the province has after its most strenuous efforts, during this and other wars, been painted in all the odious colours that avarice, malice and the worst passions could suggest.

The house assert, that “it would be of little consequence to the people, whether they were subject to George or Lewis, the King of Great-Britain or the French King, if both were arbitrary, as both would be, if both could levy taxes without parliament.” Or in the same words transposed without the least alteration of the sense.

“It would be of little consequence to the people whether they were subject to George the King of Great-Britain, or Lewis the French King, if both were arbitrary, as both would be, if both could levy taxes without parliament.”

The first question that would occur to a philosopher, if any question could be made about it, would be whether the position were true. But truth being of little importance with most modern politicians, we shall touch lightly upon that topic, and proceed to inquiries of a more interesting nature.

That arbitrary government implies the worst of temporal evils, or at least the continual danger of them is certain. That a man would be pretty equally subjected to these evils under every arbitrary government, is clear. That I should die very soon after my head should be cut off, whether by a sabre or a broad sword, whether chopped off to gratify a tyrant by the christian name of Tom, Dick or Harry is evident. That the name of the tyrant would be of Edition: current; Page: [1697] no more avail to save my life than the name of the executioner, needs no Proof. It is therefore manifestly of no importance what a prince’s christian name is, if he be arbitrary, any more, indeed, than if he were not arbitrary. So the whole amount of this dangerous proposition may at least in one view be reduced to this, viz. It is of little importance what a King’s christian name is. It is indeed of importance that a King, a Governor, and all other good christians should have a christian name, but whether Edward, Francis or William, is of none, that I can discern. It being a rule to put the most mild and favourable construction upon words that they can possibly bear, it will follow that this proposition is a very harmless one, that cannot by any means tend to prejudice his Majesty’s Person, Crown, Dignity or Cause, all which I deem equally sacred with his Excellency.

If this proposition will bear an hundred different constructions, they must all be admitted before any that imports any bad meaning, much more a treasonable one.

It is conceived the house intended nothing disrespectful of His Majesty, his Government or Governor, in those words. It would be very injurious to insinuate this of a house that upon all occasions has distinguished itself by a truly loyal spirit, and which spirit possesses at least nine hundred and ninety-nine in a thousand of their constituents throughout the province. One good natured construction at least seems to be implied in the assertion, and that pretty strongly, viz. that in the present situation of Great Britain and France, it is of vast importance to be a Briton, rather than a Frenchman; as the French King is an arbitrary despotic Prince; but the King of Great Britain is not so de jure, de facto, nor by inclination; a greater difference on this side the Grave cannot be found, than that which subsists between British subjects, and the slaves of tyranny.

Perhaps it may be objected that there is some difference even between arbitrary Princes in this respect at least, that some are more rigorous than others. It is granted, but then let it be remembered, that the life of man is as a vapour that soon vanisheth away, and we know not who may come after him, a wise man or a fool; tho’ the chances before and since Solomon, have ever been in favour of the latter. Therefore it is said of little consequence. Had it been No instead of little, the clause upon the most rigid stricture might have been found barely exceptionable.

Some fine Gentlemen have charged the expression as indelicate. This is a capital impeachment in politicks, and therefore demands our most serious Edition: current; Page: [1698] attention. The idea of delicacy in the creed of some politicians, implies that an inferior should at the peril of all that is near and dear to him (i.e. his interest) avoid every the least trifle that can offend his superior. Does my superior want my estate? I must give it him, and that with a good grace, which is appearing, and if possible being really obliged to him that he will condesend to take it. The reason is evident; it might give him some little pain or uneasiness to see me whimpering, much more openly complaining at the loss of a little glittering dirt. I must according to this system not only endeavour to acquire my self, but impress upon all around me a reverence and passive obedience to the sentiments of my superior, little short of adoration. Is the superior in contemplation a king, I must consider him as God’s vicegerent, cloathed with unlimited power, his will the supreme law, and not accountable for his actions, let them be what they may, to any tribunal upon earth. Is the superior a plantation governor? he must be viewed not only as the most excellent representation of majesty, but as a viceroy in his department, and quoad provincial administration, to all intents and purposes vested with all the prerogatives that were ever exercised by the most absolute prince in Great Britain.

The votaries of this sect are all Monopolizers of offices, Peculators, Informers, and generally the Seekers of all kinds. It is better, say they, to give up any thing, and every thing quietly, than contend with a superior, who by his prerogative can do, and (as the vulgar express it) right or wrong, will have whatever he pleases. For you must know, that according to some of the most refined and fashionable systems of modern politics, the ideas of right and wrong, and all the moral virtues, are to be considered only as the vagaries of a weak or distempered imagination in the possessor, and of no use in the world, but for the skilful politician to convert to his own purposes of power and profit.

With these,

• The Love of Country is an empty Name,
• For Gold they hunger: but n’er thirst for Fame.

It is well known that the least “patriotic spark” unawares “catched,” and discovered, disqualifies a candidate from all further preferment in this famous and flourishing order of knights errant. It must however be confessed they are so catholic as to admit all sorts from the knights of the post to a garter and Star; provided they are thoroughly divested of the fear of Edition: current; Page: [1699] God, and the love of mankind; and have concentrated all their views in dear self, with them the only “sacred and well-beloved name,” or thing in the universe. See Cardinal Richlieu’s Political Testament, and the greater Bible of the Sect, Mandeville’s Fable of the Bees. Richlieu expresly in solemn earnest, without any sarcasm or irony, advises the discarding all honest men from the presence of a prince, and from even the purlieus of a court. According to Mandeville, “The moral virtues are the political offspring which flattery begot upon pride.” The most darling principle of the great Apostle of the order, who has done more than any mortal towards diffusing corruption, not only thro’ the three kingdoms, but thro’ the remotest dominions, is, “that every man has his price, and that if you bid high enough, you are sure of him.”

To those who have been taught to bow at the name of a King, with as much ardor and devotion as a papist at the sight of a crucifix, the assertion under examination may appear harsh; but there is an immense difference between the sentiments of a British house of commons remonstrating, and those of a courtier cringing for a favour. A house of Representatives here at least, bears an equal proportion to a Governor, with that of a house of Commons to the King. There is indeed one difference in favour of a house of Representatives; when a house of Commons address the King, they speak to their Sovereign, who is truly the most august Personage upon earth: When a house of Representatives remonstrate to a Governor they speak to a fellow subject; tho’ a superior, who is undoubtedly intitled to decency and respect; but I hardly think to quite so much Reverence as his master.

It may not be amiss to observe, that a form of speech may be, in no sort improper, when used arguendo,5 or for illustration, speaking of the King, which same form might be very harsh, indecent and even ridiculous, if spoken to the King.

The expression under censure has had the approbation of divers Gentlemen of sense, who are quite unprejudiced by any party. They have taken it to imply a compliment rather than any indecent reflection, upon his Majesty’s wise and gracious administration. It seems strange therefore that the house should be so suddenly charged by his Excellency with Impropriety, groundless Insinuations, &c.

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What cause of so bitter Repentance, again and again, could possibly have taken place, if this clause had been printed in the Journal, I can’t imagine. If the case be fairly represented, I guess the province can be in no danger from a house of Representatives daring to speak plain English, when they are complaining of a grievance. I sincerely believe the house had no disposition to enter into any contest with the Governor or Council. Sure I am that the promoters of this address had no such view. On the contrary, there is the highest reason to presume that the house of Representatives will at all times rejoice in the prosperity of the Governor and Council, and contribute their utmost assistance, in supporting those two branches of the legislature, in all their just rights and preheminence. But the house is and ought to be jealous and tenacious of its own priviledges; these are a sacred deposit intrusted by the people, and the jealousy of them is a godly jealousy.

But to proceed with our narration; on Saturday about a quarter before one of the Clock, Mr. Secretary came down with his Excellency’s vindication, which is as follows.

This being read, the Secretary instantly informed the Speaker, that his Excellency directed the attendance of the house in the council chamber.

The two houses had finished the publick business; and before this the house of Representatives had by a committee asked a recess, so it was presumed the house was sent for to be prorogued, as it turned out. The Speaker rose to go up to the council, without desiring the house to attend him, the usual and regular form, which it is presumed was forgot. But it was moved that his Excellency’s vindication, according to his desire, should be printed in the Journal. This motion was seconded, and passed in the affirmative by a great majority. Then a motion was made and seconded, for a committee to prepare a Reply to this vindication in the recess of the court, and to make report at the next session; this also passed in the affirmative by a considerable majority, and Mr. Speaker, Mr. Otis, and Mr. Tyler, were chosen a committee for said purpose. Then the House immediately attended his Excellency in the Council-Chamber. When his Excellency, after giving his assent to two or three bills, prorogued the court.

It was wished, at least by the moderate part of the house, that his Excellency had thought fit so far to give up the point, as to wave any contest about it, by assuring the house, that if his right was ever so clear, he would not exercise it, if grievous to the people. A like condescension crowned heads have practised, and found their account in it; as I am persuaded his Excellency would, if the unanimous vote of thanks from the whole representative body of this people is worth any thing. This I guess he would have had: And as it is a maxim that the King can do no wrong, but that whatever is amiss is owing intirely to those about him; so, with regard to his Excellency, we ought to presume the best; and that it is to be charged to the account of some weak or wicked advisers, that this business did not end happily. However, the matter is now become very serious, by his Excellency’s vindication; which we shall next consider.

The Charter of the province of the Massachusetts-Bay, has invested the Governor and Council with power to issue (without the concurrence of the House, as it is now construed, or rather as the genuine sense of the Edition: current; Page: [1704] Charter has been waved by former Houses) the monies out of the treasury. But the Question is, Whether this power be limited? If it is unlimited, the priviledge of levying taxes by originating them in the House of Representatives, is of little value. What Representative would plume himself upon the priviledge of originating taxes, if the money could be squandered away at pleasure; which in other words may happen hereafter to be just as the tools and sycophants of power shall advise. This power therefore, in the nature and reason of the thing, should seem to be limited by some usage or custom, if not by something more explicit. The words of the Charter are,

Here seems to be an express limitation of the power. Nothing is left to usage or custom, much less to discretion. It is manifest from the Charter, that the Acts of the province are the only legal and constitutional justification to the Governor and Council, in issuing any money out of the treasury: “According to such Acts as are or shall be in force within our said Province,” are certainly no unmeaning words.

It is clear from hence, that without the aid of an Act of the province, the Governor and Council cannot legally take a shilling out of the treasury, let the emergency be what it may. It is agreed with his Excellency, that in issuing Edition: current; Page: [1705] Money from the treasury, as the charter has of late years been construed the Governor and Council are meer executive officers. They are controllers-general of the Treasury, i.e. the treasurer cannot pay without their warrant; but then they are as much bound by the acts of the province, as the treasurer himself. He, the Treasurer, indeed may be called to an account, but they can’t, being in other respects two branches of the Legislature. The only remedy therefore is a remonstrance, and when that proves ineffectual, the house may and ought to refuse to supply the Treasury, and stop a few Grants and Salaries; which would soon bring matters right without any dangerous shock to Government, or weakening thereof; but what the whole world must impute to a Governor and Council, that would oblige a House to have recourse to the last resort, but one; I mean as we are a dependent Government, a dutiful and humble remonstrance to his Majesty.

The Parliament of Great-Britain have as the last resort, been known to appeal to Heaven, and the longest sword; but God forbid that there ever should be occasion for any thing of that kind again; indeed there is not the least danger of it since the glorious revolution, and the happy establishment resulting therefrom. It was formerly the custom for the Speaker of the house to sign all warrants upon the treasury, but this was at last either tamely given up, or at least waved.

It may be objected, that tho’ our supply bills appropriate by far the greatest part of the sums raised, yet something is always expresly left for contingencies, and the Governor and Council may and must in the nature of the thing apply this at discretion. I answer, 1. Even this is issued by force of an act, and not by virtue of any general power in the Governor and Council, independent of the act. 2. Neither custom nor usage suppose that this sum appropriated for contingencies could be applied to the fitting out of men of war, and making establishments for them; for armed vessels is one express appropriation in our acts, which shews that this is not considered as a contingency, and that the assembly do not expect any further charge for this article, than they have appropriated.*

3. All our Governors and Councils have not always confined themselves to the appropriation for contingencies, but some have drawn for what they deem’d contingencies when they have known the appropriation to be Edition: current; Page: [1706] expended, and in short have not confined themselves to any appropriation in payment; whatever they may have done in the form of their warrants. 4. If the Governor and Council can fit out one man of war, inlist men, grant a bounty and make establishments, why not for a navy, if to them it shall seem necessary, and they can make themselves the sole judges of this necessity. The rumour in the case of the Massachusetts was that fourteen privateers instead of one pyrate were cruizing off Canso. What could this one poor sloop have done against such odds? Salus populi est suprema Lex.6 Why then did not the Governor and Council fit out fourteen men of war, or at least enough to take fourteen privateers? It has been said that there were no privateers among the fishermen, but that when they discovered the sloop, she was taken for one, and that many of the fishermen ran home in a fright, and lost their fares. How true this is I can’t say, but have heard it reported, and believe there is at least as much ground for it as there was to believe the story of fourteen privateers. The Governor and Council doubtless meant well as to the protection of the fishery, and had there been no unjustifiable extension of their power, every one would have thankfully acquiesced. The money for fitting out this sloop might have been raised by the Governor and Council’s promise to recommend a reimbursement to the assembly. They might perhaps have borrowed it of the Treasurer upon the same terms, and the priviledges of the House thereby would have been preserved. It would be a very easy thing to raise twenty times the sum wanted to fit out this sloop upon the credit of a like recommendation. This method was taken in fitting out the King George in 1761, as appears by the vote of Council, and the Governor’s message afterwards to the house of Representatives, and their vote thereupon, which last are as follows,

The House, after long debate, and divers referrences, on the second of June, voted, “that the province treasurer be directed to repay the seven hundred Dollars borrowed of the merchants on the credit of the province for bounty, in order to man the ship King George.”

I want to know why the same method of raising the money might not have been taken the first time of fitting out the ship King George, and in fitting out the sloop Massachusetts.

However, even this method of supplying the treasury by the Governor and Council’s ordering subscriptions upon the credit of the province (by which it is presumed a recommendation to the assembly is meant) is by no means a justifiable practice.

The Governor and Council have naturally a great influence in all Houses of Representatives, and when the money is once taken up and applied, it would seem hard to make the subscribers lose it; and so in time it would come to be a thing of course, for the House to reimburse all expences the Governor and Council should be pleased to create in the recess of the assembly; and after a course of tame acquiescence in such a practice, the House would become as some desire to have it, a very insignificant, unimportant part of the constitution.

It is therefore the indispensible duty of the House of Representatives, to be very cautious how they allow or approve of any expences incurred even in this way.

His Excellency is pleased to wave any inquiry “whether any necessity can be sufficient to justify a House of Representatives in giving up the privilege of originating taxes?” for this reason only expressed; viz. “I don’t believe (says his Excellency) that such a cession was ever desired by any Person concerned in the government, or that any Governor and Council since the Edition: current; Page: [1708] revolution, attempted or ever will attempt to tax the people.” I wish I could exercise as much charity towards former Governors and Councils, as for his Excellency and the present honourable Council; but I can’t. I am verily persuaded, that we have had some Governors and some Councellors, since the revolution, that would gladly have been as absolute as Turkish Bashaws; and that the whole tenor of their actions has given convincing proof of such a disposition.

A tax upon the people in form, by issuing a tax bill, and ordering an assessment, I believe has not been attempted by a Governor and Council since the revolution. This would be too alarming. The vulgar are apt to be forcibly affected with names and appearances, rather than by realities. If the money can be drawn out of the treasury without any regard to the appropriations, made by the acts of the province; and the House whenever called upon, will without murmuring supply the treasury again; they serve the purpose of a very convenient machine to quiet the people; and the money flows in with greater ease and plenty than if the Governor and Council were, ad libitum,7 to collect and dissipate the public treasure.

It is observable, that in France and other despotic governments, ’tis often with great difficulty, and sometimes with hazard, that the revenue is collected. Had Richlieu and Mazarine convinced the parliaments that it was a great priviledge to be allowed to vote as much money as was called for, and for any purpose the court might want it, the government would have had the appearance of liberty under a tyranny; which to those ministers would have been a vast ease and security. But those great politicians either never thought of this refinement, or, the parliaments were too stupid to be convinced, of the utility of such a plan.

His Excellency proceeds, “The business of originating the taxes most certainly belongs to the Representatives of the people; and the business of issuing money out of the treasury, as certainly belongs to the Governor and Council.” To say nothing of the doubt that might justly be made, whether a non-claim, waver, or even an express concession by any former house, of the priviledge of joining in a warrant, for issuing the money, can be binding upon their Successors? Would not a stranger to our constitution be lead to think, from this general assertion of the Governor, that he with the Council, could issue money without regard to the acts of the province, and Edition: current; Page: [1709] the appropriations thereby made; and that the house indeed, had no right to appropriate, but only to lay the burden of taxes on the people? Especially when his Excellency in the next period says, that “in general, all votes and orders (and acts might have been added) for the charge of the governments, originate in the House of Representatives; and the money for defreying such charge, is issued by the Governor, with the advice of the council, without any further reference to the house of Representatives.”

That this is true in fact, to wit, that after the money is raised, his Excellency and their Honors have no further reference to, or regard for the house, is possible. But that they have had some regard to appearances is certain from the form of their warrants.

Now, if after the house have supplied the treasury, the Governor and Council have a right to issue the money without further regard to the house of Representatives; why are the words Out of the appropriation for, &c. inserted, but to salve appearances? Otherwise it might run thus, “Out of the public money in the treasury.” “But as it is impossible, (says his Excellency,) that the General Court should provide for every contingency that may happen unless they were continually sitting; there will sometimes be cases in which the Governor & Council is to be justified in issuing money for services not expresly provided for by the General Court; of these there are two very obvious.” “The one is, when a danger arises so immediate and imminent, that there is no Time for calling together the assembly. In this I apprehend there is no other limitation of expence, but in proportion to the evil impending. For the safety of the people being the supreme law, should at all Edition: current; Page: [1710] events be provided for. The other is, where the expence of some necessary service is so inconsiderable, as to be not worth the while to put the province to the charge of the Assembly’s meeting for that purpose only, at an expence perhaps of ten or twenty times more than the sum in question.” Frequent and long sessions I know are burdensome to the people, and many think they had better give up every thing, than not have short sessions. But let these consider that it is a very poor bargain, that for the sake of avoiding a session extraordinary, sacrifices the right of being taxed by their Representatives; and risques ten or twenty times the sum in the end, to be levied by a Governor and Council. I know too, that some gentlemen in order to lessen the weight of a House of Representatives, are constantly exclaiming against long and frequent sessions; the people are gulled with the bait, and the house when they meet, are often in want of time to compleat the public business, in the manner that they would wish, and the nature of some affairs requires. What is the consequence? Why, it is become a very fashionable doctrine with some, that in the recess of the court, the Governor and Council are vested with all the powers of the General Assembly. It is costly and unpopular to have frequent and long sessions; therefore they shall be few, short and hurried; and in the mean time, the Governor and Council shall have a right to do what they judge “the supreme law,” the good of the common-wealth, requires, and no limitation or bounds are to be set to the money they expend, but their sovereign judgment of the quantum of the impending evil; for, “the safety of the people being the supreme law, should at all events, and by all means (but that of calling an assembly together) be provided for.” This is a short method to put it in the power of the Governor and Council, to do as they please with the men and money of the province; and those Governor’s who can do as they please with the men and money of a country, seem to me to be, (or at least are in a pretty fair way soon to be) arbitrary; which in plain English means no more than do as one pleases. As to those inconsiderable services, not worth while to put the province to the charge of an assembly; it seems to be of no great importance whether they are performed or not. 2. There is always an appropriation for contingencies, great and small. If this sum should be exhausted, sufficient might always be procured upon the credit of a recommendation from the Governor and Council, for a reimbursement. 3. Any particular service had better suffer, and the province suffer, that way, than lose such a priviledge as that of taxing Edition: current; Page: [1711] themselves; upon which single priviledge evidently depends all others, Civil and Religious.

His Excellency tells us of “the law and usage of every royal government upon the continent;” and that, “in that over which he presided formerly, he had upon an emergency, with the advice of the Council only, raised three hundred men at a time, and marched them to the defence of the frontiers, and when the assembly has met has received their thanks for so doing.”

Whether the assembly of this province equal the assembly of New-Jersey, in gratitude or any other virtue, I shall not presume to determine. But this I am sure of, that this province has been more liberal in their grants to his Excellency, than to any of his predecessors. Instead of any debate about his salary, three grants have been made in less than two years, amounting to near three thousand pounds sterling in the whole, besides the very valuable island of Mount Desart which the province thought they had a right to grant subject to his Majesty’s confirmation; and which his Excellency will have confirmed to him. All this with the ordinary perquisites, besides the full third of all seizures, must amount to a very handsome fortune, obtained in about two years and two months. His Excellency has not been pleased to tell us, whether the assembly paid the expence of this extraordinary march, or whether the Governor and Council ordered it to be paid? Now if the assembly paid it, as they doubtless ought, after thanking his Excellency, and thereby admitting the utility of the measure, their priviledge was saved. But if the Governor and Council paid it out of the treasury, and the House acquiesced in the infringement of their priviledge, it cannot be produced as a precedent for us, let it be ever so royal a government. His Excellency has a right to transport any of the militia of this province to any part of it, by sea or land, for the necessary defence of the same; and to build and demolish forts and castles, and with the advice of the council in times of war, to exercise martial law upon the militia, but then it is with the House to pay the expence, or refuse it as they please. No man by charter can be sent out of the province but by an act of the three branches of the legislature. The King himself applies to parliament to support his army and navy, and it is their duty to do it, and they ever have and will do it; and the supplies for these ever originate in, and are appropriated by the House of Commons; in whose money bills the House of Lords won’t presume to Edition: current; Page: [1712] make any amendment; consent or reject in the whole is all the power they exercise in this particular.

His Excellency next proceeds to state “the case in question,” by which I suppose is meant the facts relative to fitting out the sloop Massachusetts. The facts mentioned, I take it for granted are in the main true, but the most material one seems to be omitted, namely, that the Governor and Council made an establishment; in consequence of which the expense of this fitting out, or a great part at least has been paid out of the Treasury, by warrant from the Governor and Council. There is also a small mistake in his Excellency’s saying the sloop was then returned. She was expected, but her return was uncertain. Had the sloop been sent and the pay or reimbursement referred to the House, there might have been no complaint as to this particular step. But the main question is not as to the right of sending the sloop, but of making, or increasing her establishment, and paying it out of the publick monies without the consent of the House; not only in this, but in a number of late similar instances, that have induced the House to question the right of the Governor and Council to draw monies out of the treasury in this way. Or more properly, as it results from the remonstrance of the House, and his Excellency’s vindication: The question is in effect, whether the House have a right to appropriate the money they agree to levy upon their constituents?

It being pretty evident I hope by this time, that if the Governor and Council can issue what they please, and for what they please, that the House has no right to appropriate; and it is as clear that if the right of appropriation is of any avail or significancy, the Governor and Council cannot issue the monies from the treasury for what they please; but are bound and limitted by the appropriations and establishments made by the acts of the province, to which by the way they are two parties of three in the making.

His Excellency having given us his state of the case in question, proceeds “to apply it to the censure it has met with” as his Excellency is pleased to express it. By which I presume his Excellency means the application he had promised in the beginning of his vindication. “I shall consider, says his Excellency, what the legal and constitutional powers of the Governor and Council are; then state the fact in question, and by the application of the one to the other, see whether the conclusion before mentioned will follow.”

Here again there seems to be some little obscurity, by reason of these words, “fact in question”; there being no question about the facts, but about Edition: current; Page: [1713] the right, not so much about the right of fitting out the vessel, as the Governor and Council’s right to pay for it out of the treasury, without the consent of the House. What question can there be about facts? There is no doubt but that the vessel was sent, and that in consequence of an application from Salem and Marblehead gentlemen.

I therefore presume to read the second paragraph of his Excellency’s vindication according to the sense and spirit, (tho’ not strictly agreable to the letter.) thus, “In order to my vindication (dele to which) I shall 1. Consider what the legal and constitutional powers of the Governor and Council are. 2. State the facts. 3. By application of the legal and constitutional powers of the Governor and Council to the fact, see whether the conclusions before mentioned will follow.” According to this division, which in the spirit, tho’ not in the letter, is a very good one; his Excellency has given us his sense of the legal and constitutional powers of the Governor and Council. His Excellency is undoubtedly as well acquainted with the nature of these powers, as “what the priviledges of the people are, their bounds and their nature.” I presume his Excellency also has the same thorough knowledge of “what the priviledges of the House of Representatives are, their nature and their bounds;” which last are more immediately the subject of inquiry, than those of the people. Tho’ it is true, that the priviledges of the House are the great barrier to the priviledges of the people, and whenever those are broken down the people’s liberties will fall an easy prey.

His Excellency having finished his state of facts, proceeds according to the method premised to the third and last head of discourse, which is, with his Excellency the application; not “of the case in question, to the censure it has met with,” tho’ the latter words seem to import this; but of the legal and constitutional powers of the Governor and Council, to the facts, in order to make his conclusions. This is evidently his Excellency’s meaning. The application is mental. The conclusions are expressed. The first his excellency is pleased to make is in these words. “This was an act which the Governor with the Council had a right to do.” I am no great admirer of the syllogistic form of reasoning, and this dress is very uncourtly, yet all conclusive reasoning will bear the test of the schools. Let us try an experiment. His Excellency’s whole vindication may nearly in his own words be reduced to this categoric syllogism. “All the money for defreying the charges of the government is issued by warrant of the Governor with the advice of Council, without any further reference to the house of Representatives.”

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The principal merchants in Salem and Marblehead were frightened with a rumour of a privateer; upon their application the Governor and Council took the alarm, fitted out an armed vessel, and by their warrant defreyed the charge out of the treasury without any reference at all to the House of Representatives.

Therefore,

1. “This was an act which the Governor with the Council had a right to do.” No man in his senses to be sure can deny the major proposition, for the word is plainly implies a right; according to Mr. Pope and other great authorities, “whatever is is right.” The minor is a bare recital of notorious facts; therefore the way is clear to follow his Excellency in the rest of his inferences. 2. Inference. “It was a legal and constitutional exercise of the powers vested in them.” 3. “It was an exertion of the executive power, distinct from that of the legislative.” 4. If it was wrong, &c.

His Excellency then proceeds to ask the House a very important question. But before we consider what answer may be given to that question, and probably would have been given, had there been time before the court was prorogued; I beg leave to make a few observations upon his Excellency’s three last inferences. I have carefully examined the Charter, and the laws of this province, and think I may challenge any man to show any thing in either, that gives the least colour of right to the Governor and Council, to fit out an armed vessel to cruize upon the high seas, at the expence of the province, or to grant a bounty for inlisting the seamen, or to impress them when they won’t inlist fast enough, as in the case of the ship King George, or to make an establishment for the officers and seamens wages, much less to issue the money from the treasury for defreying these charges by warrant of the Governor and Council, without any reference to the House of Representatives, who must upon supposition of such powers be strangers, total strangers to the expense thus brought upon the province.

But we are told that “this is an exertion of the executive power of the government, distinct from the legislative.”

I am as much for keeping up the distinction between the executive and legislative powers as possible. Happy, very happy, would it be for this poor province, if this distinction was more attended to than it ever has been. I am heartily rejoiced however, that his Excellency seems here to discountenance and explode the doctrine that some among us have taken great pains to inculcate, viz. that in the recess of the general assembly the whole power Edition: current; Page: [1715] of the three branches devolves upon the Governor and Council. If I may compare small things with great, without offence, this doctrine is as absurd as if a man should assert that in the recess of parliament, the whole power of parliament is devolved upon the King and the House of Lords. Had such a doctrine always prevailed in England, we should have heard nothing of the oppressions and misfortunes of the Charles’s and James’s; The revolution would never have taken place; the genius of William the third would have languished in the fens of Holland, or evaporated in the plains of Flanders; the names of three George’s would doubtless have been immortal; but Great-Britain to this day might have been in chains and darkness, unblessed with their influence. I take it for granted therefore, his Excellency must mean by “power of the government,” not the power of the whole province in great and general court assembled, but only the executive power of the Governor and Council, distinct from the legislative, as just explained by him. Names are sometimes confounded with things by the wisest of men. It is however of little importance what the power is called, if the exercise of it be lawful. If the power of taxing is peculiar to the general assembly, if the charter has confined it to the general assembly, as I think it evidently does, and this act of the Governor and Council is a tax upon every inhabitant, as it clearly is, being paid out of money raised by their representatives upon them for other purposes, which must remain unsatisfied; and so much more must be raised upon them as is thus taken away: It follows that as all taxation ought to originate in the House; this act of the Governor and Council is so far from being an executive act peculiar to them, that it is evidently taking upon them in their executive capacity, or what other name else, you are pleased to give it, a power not only confined by the charter, law and constitution of the province, to the general assembly or legislative body of the province, but so far confined to one branch of that body, that it can lawfully and constitutionally originate only in the House.

If therefore this act was wrong and ill-advised, which I think has been abundantly proved, whether his Excellency will be pleased to admit it or not; it could “amount to more than an improper application of the publick money by those who have lawful authority to apply such money to the publick purposes.” It is granted, should the treasurer without warrant do such an act, it would be no more than an improper application of the public money by one who has lawful authority to apply such money to the publick purposes, by warrant from the Governor and Council. Should the treasurer Edition: current; Page: [1716] act without such warrant, he would be accountable. But when he has the Governor and Council’s warrant, that perhaps will justify, or at least, ought to excuse him, be the warrant right or wrong; because it would be hard to make him answerable for the conduct of his superiors, and to expect him to set himself up as a judge against the Governor and Council, one of which joins in his choice, and the other has an absolute negative upon him. But upon supposition the Governor and Council act wrong, and misapply the monies of the province, which his Excellency seems to concede, is at least a possible case. What is to be done? I agree with his Excellency that they are not liable to be called to an account, and it would be a ridiculous vanity and presumption in the House to think of any such thing. We have no body to institute a suit against the Governor and Council; no court to try such a suit; all that would be left therefore in so unhappy a case (if the priviledge of the House of joining in all issues from the treasury has been given up by former assemblies, and that is binding upon their successors, “which I don’t mean to admit”) is to remonstrate. This method the House have taken in the present case, rather than at this juncture reclaim their ancient priviledge of joining in all warrants for the issues from the treasury. However, I conceive that the right of joining in such warrants can never die. But to confine ourselves to his Excellency’s inferences, let us for a moment concede that this act by the Governor and Council, at most is only a misapplication of the publick monies. The conduct of the House is certainly to be justified. The Governor and Council of the province misapplying money, is a grievous event, a terrible misfortune, and a dreadful example to inferiors. It would be enough to infect seven eighths of the petty officers in the community. Whenever a peculator, great or small, should be called to an account after such an event repeated, and passed unnoticed by the House, he would at least console and comfort, nay even plume himself with such like reflections as these. “My betters have done so before me. They make what applications they please of the publick money, without regard to law, or the duty of their trust, and so will I.” Tho’ with regard to the present Governor and Council, it is presumed a misapplication can proceed only from an error in judgment, which the wisest are in a degree subject to, not from any supposed pravity of inclination; yet it would be of dangerous tendency, and therefore a proper subject of remonstrance. A remonstrance is not an insolent and presumptuous “calling a Governor and Council to an account for difference of opinion only,” nor any charge of wilful evil, but only of error in judgment, Edition: current; Page: [1717] and a humble endeavour to point it out; relying always upon their known goodness and wisdom, that whenever they shall discover the truth, they will readily follow it. The House of Commons remonstrating (as they have sometimes done) I believe would be astonished to hear their humble petitions to the Throne called “hard words and groundless insinuations, &c. and viewed as calling the King to account. It is true, that the Governor and Council may do many things, if they are so disposed, which they cannot be called to an account for in this world; but this will hardly prove that they have a right to do them, especially after the whole body of the people by their Representatives complain of them as grievous. It is by no means a good inference in politicks, any more than in private life, or even in a state of nature, that a man has a right to do every thing in his natural power to do. This would be at once to make a man’s own will and his power, however obtained, the only measure of his actions.

But in answer to his Excellency’s grand question, it will appear that this act, and the like instances complained of, are more than a bare misapplication of the public money; they are what the house called them “a method, (and they might have added a lately devised method, the first instance almost being in the case of the ship King-George, in 1760) of making and increasing establishments by the Governor and Council,” in effect taking from the House their most darling priviledge, that of originating all taxes.” “In short (i.e. a short method for) annihilating one branch of the legislature.”

And it remains infallibly true, when once the Representatives of a people give up this priviledge, the government will very soon become arbitrary, i.e. the Governor and Council may then do every thing as they please.

His Excellency asks, “When this distinction is considered, how can this act, right or wrong, be applied to the right of originating taxes, annihilating one branch of the legislature, and making the government arbitrary.” His Excellency, thro’ his whole vindication, seems to speak of the single act of fitting out the sloop, and don’t once mention the establishment made for her, or the payment thereof; much less the two instances of fitting out the ship King George: All which the house had in view, as is manifest by their saying, that, “had this been the first instance, they might not have troubled his Excellency about it.” However, if this was the only instance that ever had happened of such an exertion of the executive power by the Governor and Council, it seems to be very applicable to the right of originating taxes, and to have a tendency to make the Governor and Council of the province Edition: current; Page: [1718] arbitrary. If the Governor and Council have a right to draw what money they please out of the treasury, under a notion of discretion which they are to exercise, as executive officers of the government; it follows, that for so much charge as the government incurs by the exercise of this discretionary power, by so much the province is taxed by the Governor and Council, without any privity or consent of the house; so much charge then as is incurred by this discretionary power, the house cannot be said to originate. Their right of originating taxes therefore is so far taken away; their power as to this ceasing and coming to nothing, by the Governor and Council exercising it themselves, without the house, may be said to be annihilated. And when the power and priviledge of any branch of the legislature ceases, is taken away and annihilated, then the government is so far arbitrary. The house are so modest as only to say, “that in such a case it will soon become arbitrary.”

Can any man be so unreasonable as to contend that the province is not as much taxed by the Governor and Council’s paying for this sloop out of the money already raised, as if the house had voted it? What is the difference? The people pay the reckoning whether the Governor and Council take upon them to arm vessels out of money raised for other purposes, or the house vote to raise money for arming vessels. When the money is gone out of the treasury for arming vessels, the debts of the province contracted by the three branches of the legislature must nevertheless be paid, and other monies must be levied instead of those taken away by the Governor and Council. And as according to his Excellency’s distinction, there is no limitation of the discretionary expence, so long as the good of the whole, in the opinion of the Governor and Council shall require it; they may spend every farthing in the treasury, and for what they please. Suppose his Excellency should judge it expedient and absolutely necessary upon the apprehension of some imminent and immediate danger (of which he is in fact absolutely by the charter the sole judge) to march all the militia to the frontiers. This he can do without even the advice of the Council. Suppose the Council, tho’ not consulted, as they need not be, as to the utility of the march, should place such absolute confidence in his Excellency’s wisdom as to sign a warrant for drawing every farthing out of the treasury for the paying and subsisting this armament. Could not as much be said for all this, as is said for fitting out the sloop?

The House of Representatives, should they presume to remonstrate, might with the same propriety be given to understand that “there was not Edition: current; Page: [1719] time to call them together,” that “the danger was immediate and imminent, and in such a case there is no limitation of expence, but in proportion to the evil impending;” “for the safety of the people being the supreme law, should at all events be provided for.” Furthermore, “this was an act the Governor and Council had a right to do:” “It is a legal and constitutional exercise of the powers vested in them.” “It is an exertion of the executive power of the government, distinct from the legislative.” Nay let us go but one step further, and I think the reasoning will be compleat on the side of his Excellency, or on the side of the House. All things are possible, and when his Excellency and the Council we are now blessed with, are taken from us, we may have a Governor and Council, that after they have given out orders to array and march the militia, and by warrant drawn all the money out of the treasury, may alter their minds as to the imminent danger, lay by the expedition, but instead of replacing the money in the treasury, divide and pocket it among themselves.

The reader no doubt starts at such a supposition, ’tis only a bare possibility as stated. The House might possibly remonstrate in such a case. But I hold that upon the principles advanced by his Excellency, it would be wrong in them so to do, and that it ought to be taken for a satisfactory answer, That “if it were wrong and ill advised in the Governor and Council (thus to convert all the treasure of the province to their own use, which they might not mean to admit) yet it would amount to no more than a very improper application of the publick money, by those who had lawful authority to apply such money to the publick purposes.”

“When this distinction is considered, how could such an act, whether right or wrong, be applied to the right of originating taxes, annihilating one branch of the legislature, and making the government arbitrary.” Perhaps such future Governor not understanding law distinctions so well as his Excellency our present Governor, might expresly add, and so good Messieurs Representatives you have nothing to do but to supply the treasury, again, tax the many headed monster* once more, and when you have done it, the first moment I think fit I’ll draw it all out again, under colour of some sudden imminent danger; and if you don’t like it, you may e’en go h——g yourselves, as they at least most certainly would richly deserve who should tamely submit to such usage.

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To conclude. Would all plantation Governors reflect upon the nature of a free government, and the principles of the British constitution, as now happily established, and practice upon those principles, instead (as most of them do) of spending their whole time in extending the prerogative beyond all bounds; they would serve the King their master much better, and make the people under their care infinitely happier.

Strange it is, that when King’s and many of her mighty men have fallen in their attempts upon the liberties of the people of Great Britain, that plantation Governor’s don’t all consider the Act of 13th of George the second, Chapter vii. which is a plain declaration of the British parliament, that the subjects in the colonies are entitled to all the privileges of the people of Great Britain. By this act of parliament even Foreigners having lived seven years in any of the British colonies, are deemed natives, on taking the oaths of allegiance, &c. and are declared by said act to be his Majesty’s natural born subjects of the kingdom of Great Britain, to all intents, constructions and purposes, as if any or every of them had been, or were born within the kingdom. The reasons given for this naturalization of foreigners, in the preamble of the act are, that

Nor is any new priviledge given by this act to the natives of the colonies, it is meerly as to them a declaration of what they are intitled to by the common law, by their several charters, by the law of nature and nations, and by the law of God, as might be shown at large, had I time or room.

All settled attempts therefore, against the liberty of the subject, in any of the plantations, must end in the ruin of the Governor who makes them; at least they will render his administration as uneasy to himself, as unhappy for the people. It is therefore the indispensable duty of every one, and will be the sincere endeavour of every honest man, to promote the utmost harmony between the three branches of the legislature, that they may be a mutual Edition: current; Page: [1721] support to each other, and the ornament, defence and glory of the people Providence has committed to their care.

I am convinced that if his Excellency will in all cases take the advice of the general assembly, (which however contemptably some may affect to speak of it, is the great council of this province, as the British parliament is of the kingdom) that his administration will be crowned with all the success he can desire. But if instead of this, the advice of half a dozen or half a score, who among their fellow citizens may be chiefly distinguished by their avarice, ignorance, pride or insolence, should at any time obtain too much weight at court, the consequences will be very unfortunate on all sides.

Had the writer of these sheets any thing to ask or fear from his Excellency, for himself, a very slender modern politician would quickly perceive the incompatability of this performance with a court interest. That he has done every thing he could in his small sphere to make his Excellency’s administration prosperous to him and happy for the people, abundant proofs have been given; and they will one day be convincing to his Excellency. He has never opposed his Excellency in any thing but what he would have opposed his own Father in. And he takes this opportunity publickly to declare, that in all his legal and constitutional measures, his Excellency shall find him a fast tho’ humble friend and servant: But the Liberty of his country, and the Rights of mankind, he will ever vindicate to the utmost of his capacity and power.

Instructions to Jasper Mauduit

Our late Agent William Bollan, Esqr., having by his letters of the 8th of May 1761, of the 12th of February, and the 15th of March last, Copies of which will be transmitted you with this, informed the General Court that the Province’s power of Legislation is like to be nearly affected if not called in Question, by the Requisition of a suspending Clause in our Acts, and that in certain Cases, at least, they shall not take Effect untill they shall have received the Royal Sanction.

We are also informed by the same Gentleman, that “many powerful Reasons have for a long” Time called

The natural Rights of the Colonists, we humbly conceive to be the same with those of all other British Subjects, and indeed of all Mankind. The principal of these Rights is to be “free from any superior power on Earth, and not to be under the Will or Legislative Authority of Man, but to have only the Law of Nature for his Rule.”

Our political or Civil Rights will be best understood by beginning at the Foundation,

This Liberty is not only the Right of Britons, and British Subjects, but the Right of all Men in Society, and is so inherent, that they Can’t give it up without becoming Slaves, by which they forfeit even life itself. Civil Society great or small, is but the Union of many, for the Mutual Preservation of Life, Liberty and Estate. These notions of Liberty had the Ancient Greeks and Romans, and the same Ideas had our Ancestors in Britain, long before the discovery of America. Most of the Transactions from the Grant of Magna Charta to the Revolution may be considered as one continued Struggle between Prince and People, all tending to that happy Establishment, which Great Britain has since enjoyed and is every day increasing to perfection.

The Allegiance of British Subjects being perpetual and inseparable from their persons, so while they are in the Breach of none of the Laws of their Country, is their Liberty. No Reason can be given why a man should be abridg’d in his Liberty, by removing from Europe to America, any more than by his removing from London to Dover, or from one side of a street to the other. So long as he remains a British Subject, so long must he be intitled to all the privileges of such an one: The most essential and fundamental of these Priviledges, are by no means local, that is, confined to the Realm; but by the Common law, by the Constitution and by particular Acts of Parliament extended throughout the Dominions. The particulars of these priviledges are to be found in Magna Charta, the Bill of Rights, and in almost every publick Transaction, since the Revolution. By the Laws of Nature and of Nations, which in this Instance at least, are the voice of universal Reason, and of God, when a Nation takes possession of desert, uncultivated and uninhabited Countries, or which to our present purpose is the same thing, of a Country inhabited by Salvages, who are without Laws and Government, and settles a Colony there; such Country tho’ separated from the principal Establishment or Mother Country, naturally becomes part of the State, equally with its antient possessions. This is not only Confirmed by the Practice of the Antients, but by the Moderns, ever since the Discovery of America. Frenchmen, Portugals, and Spaniards are no greater Slaves abroad than at home, and by Analogy Britains should be as free on one side of the Atlantic as on the other.

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That this is the sense of the British Parliament is among many instances that might be cited very evident from the 13th G: 2nd C: 7. By this Act even Foreigners having lived seven Years in any of the British Colonies are deemed Natives, on taking the Oaths of Allegiance, etc., and are declared by said Act, to be his Majesty’s natural born Subjects, of the Kingdom of Great Britain, to all intents, Constructions and purposes, as if any, or every of them, had been or were born within the Kingdom. The Reasons given for this Naturalization, in the Preamble of the Act are, that

It seems a little strange that after this explicit declaration of the Parliament, made no longer since, than the 13th Year of the last Reign, that any of the Colonies should be called upon by their agent, and earnestly pressed for a full proof and firm Establishment of their original and inherent Rights.

It is now near three Hundred Years since America was first discovered, and that by, British Subjects, and near ten Generations have passed away, thro’ various Toils and many bloody Conflicts, in settling this Country. None of these ever dreamt, but what they were intitled to equal Priviledges, with those of the same Rank, born within the Realm. We have heard it from our Fathers, and their Fathers told it unto them, that British America was ever to be distinguished from the slavish Colonies round about it, as the fortunate Britains are from their Neighbours, upon the Continent of Europe. We humbly conceive that it is for the Interest of Great Britain that her Colonies should be thus distinguished. It is agreed by some very judicious English Writers, that the Expeditions made by our antient Princes, however they might enlarge their power, and exalt their glory, were far enough from being serviceable to the Liberty or property of the Subjects. The figure Great Britain now makes, arises from Maxims embraced in the Reign of Queen Elizabeth, and which have been in a measure adhered to ever since, and are daily improving by Practice. This wise Queen is thought to have laid the Real Foundation of that Wealth, power and true Glory which we Edition: current; Page: [1728] rejoice to see our illustrious Sovereign in the full possession of. She among other great things, promoted the Navigation and Commerce of her subjects, open’d a free passage for them to both the Indies, and excited that spirit which induced her Subjects to make Settlements in the most distant parts of the Globe.

Some things indeed of a very disagreeable kind, (even in her Reign, and much more so, in every Reign afterwards till the Revolution) conspired to hasten these Settlements. These furnish a very striking proof, that the great Author of Nature, and the kind Father of us all, has made the sorest temporal Evils, Civil war and discord subservient to his allwise purposes, and productive of great temporal good. To the freedom of the British Constitution, and to their Increase of Commerce, it is owing, that these Colonies have flourished, without diminishing the inhabitants of the mother Country, contrary to the Effects of plantations made by most other Countries, which have suffered at home, in order to aggrandize themselves abroad.

Great Britain is well known to have increased prodigiously both in Numbers and in wealth, since she began to Colonize. There are very good judges, who scruple not to affirm, that it is to the Growth of the plantations Great Britain is indebted for her present Strength, and populousness. As the wild wastes in America have been turned into pleasant Habitations, and flourishing trading Towns, so many of the little Villages, and obscure Burroughs in England, have put on a New Face, suddenly started up and become fair Market Towns, and great Cities. London itself, which bid fair to become the Metropolis of the World, is five Times more populous than in the days of Elizabeth. This and numberless other Mutual Advantages are intirely derived from the spirit of Trade and Commerce, the planting of Colonies and some consequential Amendments in our Constitution, or rather to the Reduction of it, to its first principles. Hence it is demonstrable how much we all owe to that beautifull Form of Civil Government under which we live. It is also evidently the Interest, and ought to be the care of all those intrusted with the Administration of the Government, to see that every part of the British Empire enjoys to the full the advantages derived from the Laws, and that Freedom which is the Result of their being maintained with Impartiality and Vigour. This we have seen reduced to Practice in this and the preceding Reigns, and think we have the highest Reason (from the paternal care and goodness that his Majesty has hitherto discovered to all his dutiful and loyal subjects and to us in particular) to rest assured that our priviledges Edition: current; Page: [1729] will remain sacred and inviolate: We shall ever pray that our most gracious Sovereign’s life may be prolonged, and that he and his posterity may Reign in Britain, and in British America till Time shall be no more.

It must be manifest to every judicious and disinterested person, that the Connection between Britain and her Colonies is so strong and natural, as to make their mutual happiness, depend upon a mutual Support. Nothing tends more to the destruction of both, than sowing seeds of Dissention between them. From the Importance of these principles, it is presumed, that Great Britain has been induced to go through so many glorious Enterprizes during this and the last Reign, for the defence of her Colonies, and that the Colonies have so very loyally and strenuously exerted themselves. We think it but a piece of Common Justice due to the good people of this Province, to declare that they are not behind any of the Colonies in their Duty to their King and Country.

We have the satisfaction to inform you, that altho’ the War is protracted beyond what was expected, this Province has readily complied with every Requisition made for his Majesty’s service this year.

We have raised three Thousand three hundred provincials, and granted a Bounty of seven pounds Currency for Eight hundred and ninety Men more to enlist into the Regular Regiments. We shall upon all Occasions rejoice in demonstrating, even with the Sacrifice of life and Fortune, our Attachments to his Majesty’s person, Family and Government. The New England Governments for many Years (without any immediate Support from England, or their neighbouring Colonies, some of which last indeed were unable) defended themselves, and protected their Brethren, from the Insults of the French, and the Ravages of the Barbarians. The particulars of these services, and the Expence and loss of Men, may be hereafter collected in one view, and transmitted you. But at present we must attend to the Subject of Legislation.

The power of Legislation is in this Province immediately derived from the Charter of King William and Queen Mary; which with a New impression of our laws will be transmitted you, by the first opportunity. This Legislative power has been ever Subject to the King’s Disapprobation, as expressed in said Charter. And all antient Acts of Parliament are received here, and duly obeyed, that can be considered as part of, or amending the Common Law; and all such Acts of Parliament as expressly mention the plantations.

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By this Charter, it is granted, ordained, and established, that all and every of the Subjects, that shall come to inhabit within this Province or Territory, and every of their Children, which shall happen to be born here, or on the Seas in coming here, or returning from hence, shall have and enjoy all the Liberties and Immunities, of free and natural Subjects, within any of the dominions, to all intents, and Constructions and purposes, whatsoever, as if they had, and every of them were born within the Realm of England. This is declaratory of the Common Law, the Law of nature and nations, which all agree in this particular. There are regularly three Incidents to a subject born: 1. Parents under the actual Obedience of the King. 2. That the place of his Birth, be within the King’s dominions. 3. The time of his Birth, is to be chiefly considered, for he cannot be a Subject born of one Kingdom, that was born under the allegiance of the King of another Kingdom, albeit afterwards, the one Kingdom descends, to the King of the other Kingdom, see 7. Coke, Calvin’s Case, and the several Acts of Parliament relating to Naturalization, from Ed: 3d to this time. By which it will evidently appear that the British American Colonies are part of the Common wealth and well entitled to the rights, liberties and benefits thereof.

It may not be amiss to observe that we were possessed of one very important branch of Liberty, before the people of England were, for by the Charter of King James 1 to the adventurers, a free profession of Religion is declared to be one of the principal ends of the plantation. This was long enough before the Acts of Toleration at home.

The said Charles proceeds,

The Reasons against a suspending Clause, in these laws, until the King’s approbation, or disapprobation may be known, are briefly these: 1. There is no such thing required by the Words of the Charter, except in a particular Case, to wit of grants of Land, in Sagadahock. 2. The Cotemporary, as well as constant usage to the country, ever since the Charter, and which has never before been called in question, is, as we think, an unanswerable argument in Edition: current; Page: [1733] Law, and in reason, that no such thing was ever intended. 3. The Laws for Assessments, Rates and Taxes mentioned in the Charter, and many others are in their nature annual. Now if these are not to take Effect, until they have received the Royal Sanction, they would often not take Effect at all, for the time of their Continuance, or the greatest part of it would be ordinarily elapsed before such Sanction could possibly be obtained. This Consideration is enough to evince, what confusion would happen in the domestick concerns of the province, even in the time of Peace. But in a time of War, as this is, his Majesty’s Service would be extremely endangered hereby, for if all Acts and orders for levying our provincial Troops (which are commonly raised in the Spring, and dismissed in the Fall) were to be sent home, as by this principle they must, the Campaign would be over before such Acts and orders could be returned from England. A Multiplicity of such instances might be mentioned, and numberless others that can’t be foreseen, may possibly happen, by the Establishment of such a principle. All the officers of the Government, who depend upon annual grants, for their services, must be by this means, kept out of their pay and Subsistance, untill the Royal approbation be known, so that the Treasury instead of yielding ready and prompt payment, will ever be a year behind hand, and the King’s officers in the meantime, starving, and his service Suffering. The Charter provides, that without the Governor’s Consent or approbation, signified and declared in writing, no such orders, Laws, Statutes, Ordinances, Elections, or other Acts of Government whatsoever to be made, passed or done by the said General Assembly, or in Council, shall be of any force Effect or Validity. This at least very strongly implies, that immediately upon such consent or approbation, they become Laws, and want nothing but publication, especially as in the Clause preceeding, upon such Consent of the Governor, and publication under the Seal of the Province, the Subject is required to yield carefull and due Obedience.

5. If it had been intended that the Royal approbation should also have been obtained, previous to our Laws having any Force, a Word or two would have put the matter beyond all doubt, as in the subsequent Clauses relating to the grants of Lands. Those in Massachusetts, Plymouth and Province of Main, are expressly grantable by the Province, without having further royal approbation than the Charter. Those in Sagadahock are expressly grantable, by the General Court, but the grant is as expressly suspended until the Royal approbation be signified. 6: This Clause then, “such and so many Edition: current; Page: [1734] of them, as shall be disallowed and rejected, shall thenceforth cease and determine, and become utterly void and of none Effect,” shews the intent was, to make the King’s disallowance in the nature of a repeal, and the act voidable, not void. If it is considered in this light all mean Acts are good. This Construction is abundantly confirmed by the constant usage hitherto, and by the next Clause

until the Expiration thereof, or that the same shall be repealed by the General Assembly. If this doctrine of Suspension takes place, every Act must lie three years, unless his Majesty’s pleasure be sooner signified, which is not probable, for there is no Instance, of any allowance being signified, nor is it requisite by Charter, and there have been but few disallowances. If all our Acts are to be three Years, in order for a disapprobation, the most important affairs, as raising Taxes, laying Excise, Imposts, Grants of Money, to his Excellency the Governor, and others for their Salaries, levying Troops, paying and subsisting for the King’s service, would be always three years behind hand. Such a form of Legislation, would be a burthen rather than a benefit to the Subject. Omnis Innovatio plus novitate perturbat, quam utilitate prodest.1 We have proved that be an act, ever so necessary to be carried into immediate Execution, yet by this new system, it may lay and be suspended three years. Let us suppose that the next day after the three years of suspension are expired, the Continuance of the Act, any longer becomes dangerous, or detrimental to the Province, from some one of a Thousand Changes in Circumstances, which are daily turning up, in the ordinary Course of human affairs.

What is to be done: Why the Assembly, as by Charter they have right, repeal this Act, but this Act of repeal can have no immediate Effect, any more than any other law, but must be suspended it is said for the Royal Edition: current; Page: [1735] approbation or disallowance, and may lie three years more without any allowance or disallowance, so here’s six years gone, three of which the poor Colony is without a law, perhaps absolutely needful for its being, and three Years after the Occasion of the law ceases, and becomes absolutely bad, it must remain in force. A little Change in Circumstances would cause another similar rotation, and so on Ad infinitum, both in Number and Continuance, Uno absurdo dato Mille Sequuntur.2

Further, the Governor, and the Assembly, by the Charter, and in the nature and Reason of things, are deemed in general the most Adequate Judges, of all local Laws, and most of our Laws are such. Some few there may be indeed, of which the boards in England, are infinitely better Judges than we are, but if they all had the Wisdom of angels they must often be in the dark in relation to such as in their nature are local, and have the particular state and Circumstances of this People for their object. If these suspensions are Established, it will be in the power of the Crown, in Effect, to take away our Charter without act of Parliament, or the Ordinary process at Common law, and surely, the laws of England, will never make such Construction of the King’s Charter, as to put it in the power of the donor or his Successors to take it away when he pleases. We have nothing of this kind to fear from his present Majesty, or his Ministry, on the contrary, we flatter our selves that when the services and sufferings of the American Colonies in general, and of this in particular, are fully considered, they will afford very strong inducements, to enlarge rather than Curtail our Priviledges. We would recommend to you, to Consult Mr. Jackson upon this Subject and such other Council, learned in the law as you may think Needfull.

We shall as soon as possible furnish you with some further particulars, relative to this very interesting and important question.

We shall with this transmit you Copies of the Instructions heretofore given Mr. Bollan, and from time to time make such additions as our affairs may require.

In Council, June 14th, 1762. Read and accepted, and ordered that the Secretary transmit a Copy hereof to Mr. Agent Mauduit by the first opportunity.

A Single and Distinct View of the Act vulgarly entitled The Two-penny Act.

In compliance with the Opinion of my Friends, and with Col. Bland’s challenging the CLERGY to an open Justification of their Complaint, on the Spot, where particular Facts can be best Examined, I have here put down a few plain ones in point, for the Satisfaction of Him and the Public: Though, in his Appeal to particular Facts I am afraid he was not over Sincere; in as much as no body deals more in General Topicks, False Facts, and ill-adapted Maxims, than himself.

I suppose, if my Tobacco had been paid in 1758, I could have sold it for Fifty Shillings a Hundred; and I allow 133 l. 6 s. 8 d. Currency for 100 l. Sterling, as the Exchange in that Year. If I am not exact to a shilling, in either of these Articles, it will not affect the Consequences to be deduced from them; or, the proportionable Share which must be Assign’d to each of my Parishioners, out of that Part of my Income, for one Year, proposed to be taken away from me, by The Two-penny Act.

Taking these Premises for granted, I find, that my Salary that Year would have amounted to 300 l. Sterling; and that the Sum intended to be taken out of it for certain good purposes is 200 l. Sterling. To shew what these good Purposes are, I have here put down a List for 1758, of the Persons who Pay towards the Maintainance of the Minister in my Parish, with their Number of Tithables, taken from Authentick Copies now in my Hands; and have annexed the Sum in Sterling, that each of them was Presented with, as far as they could be by the late Assembly, out of my Salary; which I shall beg leave to accompany with a few Reflections at the bottom.

I depend on the good Sense of my Parish, who have never shewn any Resentment, or given any Ill-treatment to me, for presuming to make a Voyage to England, in quality of Agent for the Convention of the Clergy, that they will not be Offended at seeing their Names on this Occasion. But, as I have consulted no Body on this Head, if any of them should take Offence, he must thank Col. Bland, and Col. Carter for it, whose Endeavours to confound Poverty with Riches, Loss with Gain, Justice with Injustice, Necessity with its Opposite, have called upon me to dispel the Fog, which they are willing to diffuse over the Face of a Truth, in it’s own Nature as Clear as the Sun.

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I think it necessary to advertise the readers that this letter was drawn up above eight months ago, purely for amusement. But from a motive which has prevailed with me, I now make it public. To distinguish His Reverence’s elegant and polite language, the quotations from his inimitable works are printed in italic characters.

To the Reverend John Camm, Rector of York-Hampton

It must be confessed, may it please Your Reverence, that you have erected two noble works, outlasting monumental brass, in honor of your victory over the patrons of ignorance and irreligion. The dignity of sentiment that shines with so peculiar a luster in your Single and Distinct View and in your Observations,* the elegant language devoid of sophistry and diversified with the most agreeable tropes that give ornament and strength to those excellent performances, must excite the admiration of the present age and transmit your name, with distinguished éclat, to posterity.

Wonderful genius! who with infinite wit and humor can transform the unripe crab, the mouth-distorting persimmon, the most arrant trash into delicious fruit, nay wring-jaw cider into palatable liquor. Presumptuous tithe-pig Colonel! Infatuated syllogistical Colonel! What humiliating disgrace have they brought upon themselves! But they deserve it. Why did they inflame your resentment? Did they not know Your Reverence has honesty to represent facts truly, learning to write accurately, and wit to make your lampoons, though loaded with rancor and abuse, agreeable and entertaining? Did they not know that besides these excellent accomplishments you possess in an eminent degree that cardinal virtue† with whose assistance very moderate abilities are capable of making a great figure? What arrogance was it then, even in the boreas of the Northern Neck, in the violentus auster,2 to enter the lists against such a gladiatorian penman? Could these pygmies expect to triumph over such a redoubted colossus? And in defense too of a cause that was not defensible? In defense of some particular Assemblies that had been impeached of high crimes and misdemeanors before the Lords of Trade and Plantations, when Your Reverence was agent for the WHOLE body of the Virginia clergy in England? Edition: current; Page: [1781] These high crimes and misdemeanors, it is certain, are accumulated in the impeachment to a surprising degree; but what then? The impeachment may be true, notwithstanding; nay, it is true: Your Reverence has said it is true and that is enough. Indeed the colonels with their hurly-burly vociferous verbosity dispute your veracity and pretend that in your representation of the General Assembly’s conduct you indulge a language injurious to the truth, that you encourage party contentions, that you break in upon the respect owing to the legislature of the colony, that you construe the worthiest and best intentions into criminal designs against the royal authority, that you prefer the support of your own cause before the truth and the service of the public, and that by a low kind of wit and satire you expect to prevail against reason and argument. But they, you know, deal in false facts, ill-adapted maxims, confident assertions, imaginary impossible cases, inconsistent notions, sneaking chicanery, and voluminous nonsense, and therefore are not worthy of credit.

May it please Your Reverence, I was pronouncing the other day a sublime miscellaneous oration before a numerous audience, and proving that Your Reverence does not deserve these reflections. But before I proceed I must explain what I mean by a miscellaneous oration, not that I intend this explanation for Your Reverence’s information; this would be presumption, since you have proved indisputably, by your own incomparable writings, that you are a perfect master of the miscellaneous manner. But as this letter may fall into the hands of readers less learned than Your Reverence, I think it necessary for their information. A miscellaneous oration then is exactly like that kind of miscellaneous writing in which, according to a noble author, the most confused head, if fraught with a little commonplace book learning, may exert itself to as much advantage as the most orderly and settled judgment.

An orator in this way draws together shreds of learning and fragments of wit, and tacks them in any fantastic form he thinks proper; but connection, coherence, design, and meaning are against his purpose, and destroy the very spirit and genius of his oration. In short, may it please Your Reverence, it is just like the miscellaneous remarks in your Single and Distinct View.

I say, may it please Your Reverence, I was holding forth to a numerous audience in support of your charge against the General Assembly, when the hot and violent demagogue, rushing through the crowd in an attitude that would have frightened the renowned knight of La Manca himself, advanced Edition: current; Page: [1782] upon me with hasty strides and brawled out, Thou dealer in general topics, thou confounder of justice with injustice, I will prove this charge to be contrary to the truth in every instance.

I had given half a crown, may it please Your Reverence, for your Single and Distinct View; and as a subscriber to the Virginia Gazette I became possessed of your Observations, and another witty paper* remarkable for an elegant and polite description of a certain odoriferous knight who has the honor of being distinguished by one of the titles properly belonging to Your Reverence. But Ned the barber, a shrewd inquisitive fellow, while shaving me the other day, cast his eye upon that facetious paper, which I held in my hand, and asked me whether the progenitors of the sweet-scented knight received the honor of knighthood from the monarch who advanced the loin of beef to that dignity or not. I told him I believed this honor must have been conferred by the British Solomon, because as history tells us he was very intimate with His Reverence’s ancestors, making them the constant companions of his sports and divertisements; and it was probable he created them baronets when he instituted that order, but of this I could not be positive. Well then, said Ned, pray Sir ask the Rector of York-Hampton; he knows all things, all secrets, no prattling gossip,

• Who with an hundred pair of wings
• News from the furthest quarters brings,
• Sees, hears, and tells, untold before,
• All that she knows, and ten times more,

knows so much as this Reverend Rector does; and as nothing can be hid from him, no person is so capable of resolving this question. To oblige Ned the barber, this digression has obtruded itself; and he waits with impatience for your determination.

May it please Your Reverence, as you had declared the hectoring bullies were more considerable for fierce language than true spirit, I was under no difficulty about the manner of my defense; for, thought I, if Your Reverence obliged two bullies to part with their strongholds, surely the same weapons, though perhaps not managed when in my hands with the same Edition: current; Page: [1783] dexterity as when under Your Reverence’s conduct, will dispel the fog which one Cromwellian preacher endeavors to diffuse over the face of truth. Then by a motion of my left hand, which I was obliged to use upon this occasion, similar to that of a soldier when he is commanded to handle his cartridge, I drew your Single and Distinct View from my right pocket, and opposing it to the enemy I found myself more invincible than if armed with Mambrino’s celebrated helmet, or the more celebrated shield, forged with Vulcanian art for the son of Thetis. It was, may it please Your Reverence, altogether impenetrable to the enemy’s great guns; and as for his small arms, they made not the least impression upon it. Having this advantage, I advanced, in my turn, upon my antagonist, drove him off the field, and took possession of several posts the strength of which he had magnified, until they fell into my hands. He then shifted his ground, and by a sudden maneuver which I really did not expect, entrenched himself in new entrenchments. These I instantly stormed; but as I could not carry them I was at a loss how to conduct my attack until reflecting on the astonishing virtues of your Single and Distinct View, I resolved to try if trumpeting it out would not have the effect upon these entrenchments as the sound of the ram’s horn had upon the walls of Jericho; and I assure you I had great expectations at first, for the entrenchments were shocked several times, especially upon the repetition of your fine criticisms, and I verily thought they would have been leveled with the ground by the sound of the words justice, learning, religion, liberty, property, public good, which compose part of your character, in the panegyric Your Reverence so justly bestows upon yourself.

But as the severest shocks from this tremendous battery did not destroy the entrenchments, though they were frequently severe enough to shock my senses, I applied to your Observations, and thundering out with a vociferous contempt these words of your other encomium upon yourself, I write for liberty and property, for the rights of commerce, for an established church, for the validity of the King’s authority, pro aris et focis,3 immediately the enemy beat the chamade and demanded a conference, which I granted him. As this conference relates to Your Reverence, I think it proper to transmit you a particular detail of it, which I choose to do through Mr. Royle’s press, that I may be certain of its coming safe to hand.

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The Colonel opened the conference as followeth:

I make no doubt, Sir, said he, but that you have entered into this controversy from an opinion that everything the Rector has advanced with respect to the General Assemblies, and those whom he distinguishes by the name of his adversaries, is true.

I replied, My motive for espousing His Reverence proceeds from my opinion of his veracity. Then, Sir, said the Colonel, I will convince you that the Rector has neither truth or ingenuity. Neither truth or ingenuity in His Reverence’s works! replied I, hastily. What do you mean, Colonel? Have you not experienced the wonderful effects of his Single and Distinct View? And would you not have felt, perhaps, more fatal effects from his Observations had you not implored this conference? I acknowledge, said the Colonel, the Rector’s works, like those deep-throated engines Milton makes the apostate angels oppose to the celestial army,

• . . . belched out smoke,
• And with outrageous noise the air
• And all her entrails tore; disgorging foul
• Their devilish glut . . .

but smoke and noise are not evidences of truth. Colonel, said I, interrupting him, I expect you will not treat His Reverence with scurrility. I will endeavor to avoid it, answered the Colonel, for I am by no means fond of copying the Rector’s style or saintlike phrases; it is by reason and argument, not by blows and insults, that I expect to convince you of the truth.

The Colonel went on: I had determined not to give myself any further trouble about the Rector of York-Hampton. I know it was a Sisyphean labor to engage in a dispute with this man, for, as Pope says,

• Destroy his fib, or sophistry, in vain,
• The creature’s at his dirty work again.

I thought too I should be very indifferently employed to reply in form, as Lord Shaftesbury calls it, to his Single and Distinct View, which in my opinion carries with it its own ridicule; neither could I be persuaded that so sorry a performance, which perverts the meaning of my most simple expressions, mutilates sentences, and makes me speak words I never uttered would be looked upon by men of sense as a refutation of my Letter to the Clergy. And as for his tinsel wit, if it can be worthy of such an epithet, I despised Edition: current; Page: [1785] it. But that I may convince you of this writer’s sophistry, of his misrepresentation of the plainest facts, and of the constitutional proceedings of the General Assembly, I will examine his legerdemain performances; and I hope irksome as the talk is I shall have the strength to go through with it.

In the apology this Rector makes for his impudence or rudeness (these are his own words) he says that in this war which his adversaries began, the manner of his defense has been directed by the conduct of the attack, for he found it too great a difficulty for him to let the merit of their example be entirely thrown away; so that lex talionis4 is the rule of retribution with this peacemaking Rector. However, let that be as it will, let us see whether this eminent divine is a man of truth and ingenuity. My adversaries began the war, says this faithful recorder of events. But is he sure of this? Or is it a false fact, a confident assertion invented to persuade men out of their senses, according to his own elegant expressions? I affirm it is a false fact, a confident assertion, which, if I prove, will, I presume, make the scourge he intended for others reverberate with double force upon himself.

At the September session of Assembly in the year 1758, the people represented to the House of Burgesses that “by reason of the short crops of tobacco made that year it would be impossible for them to discharge their public dues and taxes that were payable in tobacco, which would expose them to the vexatious and oppressive exactions of the public collectors; and they prayed that an act might pass for paying all public, county, and parish levies, and officers’ fees in money at such price as by the House should be thought reasonable.” The short crops made that year, and the impossibility of paying their public tobacco dues as the laws then stood, were the reasons given by the people for desiring, and by the General Assembly, in consequence of this representation, for passing the Two-Penny Act. But though the relief of the people from the general distress of that year could be the only possible motive with the General Assembly for passing that act, yet this discerner of spirits, this man who knows everybody’s thoughts, discovered other reasons for their conduct. Suffer me to recite them in brief from the impeachment brought against the legislative body of the colony before the Lords of Trade and Plantations in the time of the Rector’s agency in England. In that impeachment they are accused with exercising acts of supremacy inconsistent with the dignity of the Church of England and manifestly tending Edition: current; Page: [1786] to draw the people of the plantations from their allegiance, with assuming to themselves a power to bind the King’s hands, with having nothing more at heart than to lessen the influence of the crown and the maintenance of the clergy, with attacking the rights of the crown and of the clergy, with depriving the King of his royal authority over the clergy, putting them under the power of the vestries and making them subject to the humors of the people, with never intending any good to the clergy, with taking possession of the patronages and wanting to be absolute masters of the maintenance of the clergy, with passing acts of Assembly on pretense that only small quantities of tobacco were made in some years that they might render the condition of the clergy most distressful, various, and uncertain after a painful and laborious performance of their functions. In short, and to sum up the whole in one word, with being traitors in the legal sense of the word.

This charge, so heavy and so injurious, occasioned my Letter to the Clergy; and I will submit it to your determination whether I had not a right, as a friend to truth, as a member of that body so grossly abused, to obviate the acrimonious invectives contained in this charge. If I had no right, then I am the aggressor; but if I had, then the Rector’s want of truth and ingenuity in a plain matter of fact is evident, as he must be the author of this controversy.

To this I replied, You certainly have a right, Colonel, by all legal methods, to vindicate the conduct of the General Assembly not only as a member of it, but as an honest man, against every unjust accusation; and as this impeachment was brought in a public manner before the Lords of Trade in England, who have the direction and superintendency of the plantation affairs, I must own that your publishing your defense here does not make you the author of this war. The promoter of this impeachment is, without question, the person who BEGAN it. Well then, Sir, said the Colonel, the Rector BEGAN the war. I replied, Be not so hasty, Colonel; His Reverence is innocent. A man of his integrity, of his truth and uprightness of heart, could not invent such a malevolent groundless charge; and as you accuse a clergyman remarkable for his humility and meekness of temper as a promoter of dissension between the legislature and clergy of the colony, you deserve the censure His Reverence has thought proper to pass upon you. Why Sir, asked the Colonel, seemingly astonished, was not the Rector the author of this impeachment? If he was not the clerk that drew it, still he was the instrument; or, that I may express myself in less ambiguous terms, the informer upon whose evidence it was drawn up. Nay, does Edition: current; Page: [1787] not the paper* presented by him to the Lords of Trade as The Humble Representation of the Clergy of the Church of England in His Majesty’s Colony and Dominion of Virginia, which in fact composes part of this invidious libel, prove that he was the author of it? And is not this more than thinking, according to the pretty proverb so wittily applied in his Observations? Is it not good authority for charging him with being the author, the forger of the impeachment? Besides, does he not justify it in his Observations? Does he not, by a most unfair and disingenuous comment upon four acts passed by the General Assembly attempt to prove that they all agree in these peccant circumstances? Why really, Colonel, said I, how can you justify three of those acts? For by your present plan of defense, you only endeavor to prove that the General Assembly were not guilty of the crimes laid to their charge by passing one act; their passing three others, then, of the same pernicious tendency, is altogether unjustifiable. I was, may it please Your Reverence, a little graveled here, and under some apprehension of tripping if I had attempted a further justification of your truth and ingenuity. I was therefore desirous to divert the Colonel from pursuing his proofs against you as the author of the war by putting him upon his defense of the other three peccant acts.

The Colonel replied, I perceive, Sir, by your attempting to divert me from the point I was upon, you are convinced the Rector BEGAN the war. The Colonel stopped. I was silent. For, may it please Your Reverence, what could I say in your vindication until I had it from yourself that you was not the informer upon whose evidence this impeachment was drawn up; but if you deny that you was the informer, and will let me know who was, I am resolved to have another bout with the Colonel. I must therefore beseech you to be very explicit in this particular when you favor the public with your next production.

It would be disgustful, even to you, Sir, his friend, resumed the Colonel, was I to take notice of all the fustian contained in his panegyrics upon his own and his brethren’s loyalty. Don’t think, gentlemen of the clergy, said the Colonel, breaking out into a rhapsody upon repeating the word brethren, don’t think that you all have the honor of being brethren to this ever-to-be-reverenced Rector. No, gentlemen, the word brethren, like the word many,† is capable of being taken by two handles. Do not, therefore, flatter yourselves Edition: current; Page: [1788] that the Rector of York-Hampton takes it by the same handle he takes the word all* (by which single word all has produced one of the finest pieces of true genuine original criticism that ever was invented by the wit of man). I say, gentlemen, the word brethren is not, like the word all, to be taken by the big handle, but like the word many is to be taken by the little handle; so that the Rector’s brethren are but few comparatively with the whole body of the Virginia clergy, perhaps only a quindecemvirate5 of them, of which he is the chief, who in a general convention of twenty-five carried the vote for appointing him their agent to impeach the General Assembly of their country of treason. But now I am addressing myself to the clergy, give me leave to propose a question or two to those fifty-five (for it seems there are at least eighty parochial clergymen in the colony)† who did not think proper to attend the regular summons of the bishop’s commissary. Did you, gentlemen, when you sent excuses for want of your appearance send also your concurrence in the measures that were proposed in the convention? Were you acquainted with these measures before they were proposed? If you were, who made you acquainted with them? Not your late commissary. He was one of the traitors; he was not under the influence of the clergy or in their true interest, and therefore cannot be supposed to have given you the information, though he was the only person who ought to have done it; perhaps he was not let into the secret designs of the Rector and his brethren. And if you were not informed, could you send your concurrence to measures you knew nothing of? I am persuaded you could not, but that you would have attended the regular summons of the bishop’s commissary on purpose to have opposed the measures that were carried by the quindecemvirate had you been acquainted with them before the meeting of the convention. The respect I bear you, the high sentiments I entertain of your truth and ingenuity (these, gentlemen, are favorite words with the Rector), the piety, candor, and integrity so conspicuous in the lives of most of you, make me sure you would have attended on purpose to oppose measures so contrary to your real interest, so repugnant to truth, and which could only serve to destroy the harmony and concord it is your inclination as well as duty to cultivate and maintain between the legislature and the reverend body of the clergy.

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The Colonel resumed his defense: Was I to trace out ALL the Rector’s boasts of his and his brethren’s adhering to and preserving the old constitution, which some particular Assemblies were endeavoring to destroy, of their sheltering themselves under the authority of the British oak, under the wings of the prerogative, under the protection of a most gracious and religious monarch, from whose allegiance the General Assemblies were attempting to draw the people of the plantations, it would carry me further than there is any need to go on this occasion. ALL his ostentatious flourishes are to be seen at large in his masterly works, which I suppose are by this time transmitted to Graham Franks, now in England, to be laid before the Board of Trade or perhaps a more honorable board, that his unparalleled loyalty may be manifested when his cause against the collector of his parish levy is carried before that high tribunal. But lest the word ALL, which I have taken occasion to use twice in this part of my defense, to wit, once when I spoke of the Rector’s boasts, and again when I spoke of his ostentatious flourishes, should fling him into labor with another criticism and make him bring forth, like the mountain in the fable, I must inform you which handle you are to take it by in these two places. Know then, Sir, that you are to take this word ALL by the big handle, and not by the little handle, which last mentioned handle I took it by when in my Letter to the Clergy I explained my sense of it as it stood in the impeachment by making it include the greater part of the members of the General Assembly; which I said must be the import of the word in that part of the impeachment I was then considering. But this explanation I suppose the Rector passed over, that he might demonstrate to the world his profundity in critical knowledge.

I will now examine the three acts the Rector cites as further instances of the General Assembly’s disloyalty.

In the year 1738 two new counties and parishes were erected upon the frontiers of the colony, far distant from navigation. That these counties might be settled and a good barrier be thereby made against the French,* several encouragements were granted to the inhabitants; one of these was that they might pay all levies and officers’ fees in money for tobacco, at the rate of three farthings per pound. Under this regulation the salary of the ministers in each of the new parishes was only £152, when the salary of Edition: current; Page: [1790] the other parochial ministers was 16,640 pounds of tobacco, as settled by the act of 1727, which was then in force. The ministers of these new parishes continued to receive this salary of £152 until the year 1753, when one of them petitioned the Council for an augmentation of his salary; this petition was sent by the Council to the House of Burgesses, who immediately passed the act for the frontier parishes, as the Rector calls it, whereby the minister’s salary in each of these parishes was settled at £100 a year, according to the desire of the minister petitioning. This act, passed upon this consideration, and which was so advantageous to the ministers of these parishes, was one article in the impeachment of high crimes against the majesty of our sovereign and the dignity of the Church of England; and as the colony had no agent at that time in England to represent a true state of the case, was, from the misrepresentation of the agent appointed by fifteen of the Virginia clergy without the participation of the two ministers concerned, repealed by the royal proclamation. For this repeal the ministers of those two parishes returned the Rector their humble and hearty acknowledgments by their petition to the General Assembly for a renewal of the repealed act, without which they must starve; which petition had such an effect upon the humanity of this traitorous Assembly, who had nothing more at heart than to lessen the maintenance of the clergy and to render their condition most distressful, various, and uncertain, that regardless of the Rector’s resentment they complied with the ministers’ request.

As to the Norfolk and Princess Anne Act, I presume I need not repeat what I have said upon it in my Letter to the Clergy, where I have given a candid and honest account of the reasons which prevailed with the General Assembly to pass it; to which I can add nothing, except that the petition from the people which gave rise to it was presented to the House of Burgesses at their October session, 1754, and being referred to the next session, did not come under the consideration of the House until the 7th day of May, 1755; so that full time was given for any person to represent against it if it had not been agreeable to him.

From this account of the Frontier and Norfolk acts the Rector’s want of truth and ingenuity, of decency and good manners in his remarks upon the General Assembly for passing these acts, is sufficiently evident. For him to charge the legislature with attempting to lessen the influence of the crown and the maintenance of the clergy because they gave to the ministers of the frontier parishes an increase of salary, without which they must have lived in Edition: current; Page: [1791] the greatest indigence, and because they gave relief to the people in one part of the colony from laws which under their particular circumstances were extremely oppressive to them, I say for him to charge the legislature with such attempts is an instance of want of truth and an indecency of behavior which no man could be guilty of but one who was resolved to trudge, with might and main, through dirt and mire to gain his ends.

And now, Sir, may I not say with great justice of this Rector, in his own words, that he has shown more judgment in suppressing part of the Apostle’s account of charity than in giving us what he had quoted; for had he given the Apostle’s account unmutilated, the reader must have seen that charity doth not behave itself unseemly, that it rejoiceth not in iniquity, but rejoiceth in the truth. But as the proverbial account of truth, that it is not to be spoken at all times, seemed to be more for the Rector’s purpose, he has preferred it in his articles of impeachment.

The general act of 1755 was passed when, I confess, there was not such a pressing necessity for it as there was afterwards, in the year 1758; but their passing this act when perhaps there was no great necessity for it does not make the General Assembly guilty of the crimes contained in the Rector’s impeachment.

The legislature of this as of all other countries are fallible men, and as such may enact laws which they may think necessary and for the public good but which from experience may be found unnecessary and even destructive of that good they were intended to promote. But is this fallibility to be imputed to them as a crime? Or is their enacting a law to enable the inhabitants of the colony to discharge their tobacco debts in money, in a year, as they thought, of general dearth and scarcity, an evidence of their attempting to restrain the power of their sovereign and to destroy the dignity of the established church? And yet in such a point of view does this Rector place their conduct. Is such a representation honest? Is it such a one as ought to have come from a man who so confidently charges others with a want of truth and ingenuity? And is it decent for a clergyman to treat members of the General Assembly for offering a just defense against so aggravated a charge with a language not to be found but amongst those who have prostituted themselves to the lowest dregs and sediments of scurrility? Here I stopped the Colonel and said with some warmth, You forget your promise, Colonel, not to treat His Reverence with hard names. His scurrility, indeed, is provoked defensive scurrility; which consideration will have its due effect with the readers of every degree, who Edition: current; Page: [1792] are the judge and jury and everything with His Reverence. But you, Colonel, have, unprovoked, abused His Reverence in your first defense, and in your letter to him published in a public newspaper you have charged him with a neglect of duty in his parish, which is one of the most palpable, barefaced, and impudent falsehoods that ever was invented. I thought, Sir, replied the Colonel, I had convinced you that the Rector was the aggressor, and that his abusive and unjust charge against the General Assembly had occasioned the controversy between us. As to my abuse of him in my Letter to the Clergy, you must be convinced of the contrary if you will read that letter with attention; for though the manner in which he has detached my words which seem to have any severity of expression in them from their proper places, collected them into one view, and taken them to himself, may show how easy it is for a caviler to give a new sense, or a new nonsense, to anything, yet as they are applied by me in the several parts of my Letter to the Clergy in which they stand they will appear to be nothing more than proper and just expressions relative to the treatment the General Assemblies have received from the Rector and his accomplices. It is true, in one place of my letter I have disputed the Rector’s superiority in point of learning above other men, which I acknowledge is great sauciness in me, since he has demonstrated by his fine writings that he is as excellent a critic and as learned a divine as he is a good Christian; but as I did not know so much at that time, I hope I shall be forgiven. If I have accused him with a neglect of duty in his parish, and can be convinced that this accusation is unjust, in that case I have done him an injury, and will not only ask his forgiveness of my offense, but make an atonement for it by publicly acknowledging that I have aspersed the character of a diligent pastor, attentive to and perpetually careful of the spiritual concerns of all the flock committed to his charge. But then, as I may differ from him about the precise meaning of the word duty, I must, to prevent mistakes, have the meaning of it fixed and determined; for perhaps I may understand it in a more extensive sense than the Rector doth. It is, you know Sir, according to his own definition of it, a complex term, and consequently must include something more than an excursion out of the parish where he resides to his church in York-Hampton on a Sunday when he is not confined at home by pain and sickness. I suppose the Rector calls himself a minister, a laborer, a watchman, a pastor, a steward, an ambassador, in sacred things. These different characters, then, must have different heads of duty belonging to them. I cannot therefore agree that he discharges all these duties by only attending Edition: current; Page: [1793] his parish church on a Sunday; and if he does nothing more, he may be likened to a servant who having six talents committed to his management wraps five of them up in a napkin and only trades with one, or rather a small part of one of them. Whether such a servant acts justly or not is not for me to determine. But Colonel, said I, I have studied to find out what connection there could be between His Reverence’s neglect of duty in his parish and the dispute between you and him about the Two-Penny Act. Exactly as much, Sir, replied the Colonel, as there is between my officiating as a clergyman in the churches of the parish where I live and a dispute relating to the power of the General Assembly to enact laws; which is all the reply I shall make to his windmill and giant and his other quixotisms. Why Colonel, said I, do you really officiate as a clergyman in the churches of the parish where you live? I do not, answered the Colonel; but I officiate sometimes as reader in the church which I frequent in the absence of the minister, being thereto appointed by the vestry. My motive for accepting this appointment, I presume, the Rector has no right to inquire into, since it was not from a pecuniary consideration. Well Colonel, said I, as to that matter, whether right or wrong, I have no business with it; but your resentment against His Reverence for making use of the happy privilege which every British subject enjoys, of approaching the throne in an humble petition, is not to be defended. Did I express any resentment against the Rector, replied the Colonel, for making use of this happy privilege, I should be blameable because I value it as much as the Rector can, notwithstanding his pompous encomiums upon his own loyalty. But I shall always consider it as an affront to the throne, which under our present illustrious race of kings has been eminently distinguished for truth and justice, to approach it with a petition loaded with calumny and abuse against the King’s substitute and every other part of the legislature of the colony. If the Rector thought himself injured by any act of the General Assembly, he had a right to approach the throne with an humble petition against it; but then he should have approached it with truth: he should have represented facts with candor and integrity, and not have imputed such act to causes which could not possibly exist; and if he had done so, I assure you, Sir, he and I should have had no dispute.

But Colonel, said I, in your account of the famous petition* you have reflected with great severity upon the clergy, when I own I can see no mighty harm in that petition, provided it might stand alone, without your comment. Edition: current; Page: [1794] Besides, it was the petition of one clergyman only, who did not prefer it from any imagination that there was room to expect success in it, but to evince the contrary by experiment. Your reflections therefore were very disingenuous; and though the design of the petition is a piece of secret history, a stratagem, a machination, which it seems you, with all your sagacity and insight into everybody’s affairs, have not been able to penetrate, yet your inference drawn from it that if the provision for the clergy was made better by an act they would make no complaint concerning encroachments on the authority of the King is no less ungenerous, since to make this inference good it should have appeared in the petition that the clergy wanted a better provision by an act without a suspending clause. But there is no such thing in the petition; and I believe it would be a difficult matter to prove that the clergy, though willing enough to have a better provision, would accept of it by means of an act without a suspending clause. My account of the famous petition, as the Rector calls it, replied the Colonel, is taken from the Burgesses’ Journals, where it stands as the petition of the clergy, and not as the petition of one of them. However, let it be for the present that it was owned by one clergyman only. The Rector says this clergyman designed well; and that one other clergyman was privy to the petition, who, from what he says about the secret history of it, I conclude must be himself. Now this petition declares that many clergymen who are a disgrace to the ministry find opportunities to fill the parishes; and can any expression be found in my Letter to the Clergy, torture it how you will, that reflects with such severity upon them as this declaration doth, which was made in the most public manner by one of their own body abetted by one other, and he no less a person than the pious Rector of York-Hampton? And if our parishes are filled with so many clergymen who are a disgrace to the ministry, may it not be suspected that such men would accept of a better provision by an act without a suspending clause? And that they would not be very nice in examining whether such act was worded exactly conformable to a royal instruction to the governor for his own particular conduct, especially when they were not answerable for a transgression of it? The Rector, in zeal for the royal authority, might, for aught I know, be willing to refuse a better provision under such an act; but as he has not as yet attained to that degree of supremacy as to decree by his own authority that his brethren should refuse it, it would be necessary to determine this matter in a convention. And if the clergymen, distinguished with such excellent characters by the author of the petition, who are so Edition: current; Page: [1795] many, should prevail against the self-denying Rector of York-Hampton upon a question in which their temporal interest might outweigh the royal authority as in all probability they would, the Rector, by an established rule of the convention, must submit, and perhaps rather than be the occasion of a schism, would subscribe to the vote of the majority. But as his conduct in such a case cannot be known, it must remain a matter of opinion whether he would accept of a better provision or not under such an act.

But notwithstanding the changes the Rector is perpetually ringing upon an act with, and an act without a suspending clause, his loyalty will not shine forth with a meridian brightness unless he refuses to accept of a better provision under an act with a suspending clause; for the governor is not to give his assent to any act with a suspending clause that alters or repeals an act which has received the royal approbation, without first obtaining the King’s permission. So that before the Rector ought to accept of a better provision under any act of the General Assembly, the clergy should appoint him their agent a second time to approach the throne with an humble petition for the royal permission to the governor to give his assent to such act; which appointment, if I dare venture a conjecture, would be extremely pleasing to him, as he would thereby have an opportunity of soliciting a place for himself of the first ecclesiastical dignity in the colony, which I believe is at this time vacant.

And let it not be thought that a convention cannot be held during the vacancy of the commissaryship for appointing him agent; for if an advertisement in the Virginia Gazette, signed by him and two or three others, was of sufficient authority, in the late commissary’s time, to convene the clergy, certainly now there is no commissary he may by his own power call a convention upon a matter of such importance to himself.

But let all this happen as it may, it is extremely obvious that the Rector’s temper inclines him to inflame his own resentment into a fixed contempt of the General Assembly; otherwise he could not have approved of the conduct of the author of this petition, if what he says of him is true, that he did not prefer the petition from any imagination that there was room to expect success in it, but to evince the contrary by experiment: so that the General Assembly may be used by designing men as instruments to carry on their deep-laid stratagems and machinations on purpose to afford matter of pleasantry to the Rector. But it may be that the Rector has tripped in his history of this clergyman’s conduct, who, I have heard, gave the gentleman on whom he Edition: current; Page: [1796] prevailed to present the petition to the House of Burgesses a quite different account of his design; and that gentleman was insulted by a great intimate of the Rector’s for presenting it; which insult, I suppose, would not have been given if the author of the petition had expected no other effects from it than what the Rector says he did.

Colonel, said I, your remarks are of a sour and aggravating cast. His Reverence’s temper does not incline him to inflame his own resentment; he has suffered persecution; he has missed the president’s place at the college; he has been forbid, with others, the late governor’s house under the title of disturbers of his government; he has been recommended by the late governor in conjunction with others to the correction of the Grand Jury for being so audacious as to publish under their names an invitation to as many of their brethren as were willing to attend, for them to meet at a brother’s house before he left the country. He has been forbid the present governor’s palace, when he waited on him with the royal disallowance to several acts of Assembly. He has, I say, suffered all these persecutions, cum multis aliis quae nunc prescribere longum est;6 and certainly His Reverence, who has suffered so much for adhering to reason and justice, and the principles of true patriotism, is excusable for the freedoms he has used.

The Rector, replied the Colonel, gives colorings to his imagery as best suit his purpose; but remove the false appearances and his representations will not exhibit so amiable a character. The brother at whose house this meeting was appointed was not a person of that distinction or moral accomplishments as to make it necessary for the clergy to pay their compliments to him in a body upon his leaving the country. The late governor knew, the late commissary knew, as did many other gentlemen, that he was one of the cabal; and they all believed, and, if it was proper to dwell any longer on this circumstance, a very good account might be given for their belief, that this meeting was on purpose to raise disturbances in the government, to form stratagems and machinations against the administration and the legislature of the colony, which this brother was to solicit in England. And as Mr. Dinwiddie, the late governor, thought it an affront to his authority as well as to the bishop’s commissary for three or four clergymen to assume to themselves a power to call a meeting of the clergy, he resented the insult in a manner becoming his character as the King’s substitute. As to the prohibition the Rector received from appearing at the present governor’s palace, his affrontive and disrespectful Edition: current; Page: [1797] behavior was the occasion of it; for, as I have been informed that contrary to his duty and the respect due to the King’s representative, he did not wait on the governor with the royal disallowance to several acts of Assembly, with which he was charged by the Lords of Trade, until several weeks after his arrival in the country, though he was in the place of the governor’s residence; and when he did wait on him he delivered the dispatch opened after he had communicated it to such of his brethren as he thought proper. So that his own modesty, if he has any, and a consideration of his own character, should, methinks, have prevented his complaining of this prohibition.

And as to his missing the president’s place at the college, his contumacious treatment of the Visitors’ authority, which is so publicly known, could not entitle him to their favors, even admitting that he was qualified in other respects.

Colonel, said I, this is all prejudice. You suffer your passion to make a fool of you. His Reverence has given the strongest proofs of true patriotism; he has delivered the constitution from the basest attempts to destroy it; he faces every attack, encounters every danger, despises every obloquy; in short, he may say, with old Siffredi in the play,

• . . . I have preferred my duty,
• The good and safety of my fellow subjects,
• To all those views that fire the selfish race
• Of men . . .

since he has with boldness, and, as he says, with truth justified his impeachment against the General Assemblies who were attempting to overturn the constitution and to restrain the royal prerogative by passing acts which interfered with acts confirmed by His Majesty, without a suspending clause. Now, Colonel, how can you exculpate the General Assemblies from this atrocious crime?

The Rector’s patriotism, answered the Colonel, is as conspicuous as his modesty and politeness; but it is really matter of pleasantry, as this Thersites* Edition: current; Page: [1798] said of the famous petition, to hear him haranguing about the constitution, which if he knows anything of, he does not care to make it public.

The constitution cannot be destroyed, nor the royal prerogative restrained by any act of the General Assembly. The King as sovereign possesses an inherent power in the legislature of the colony and can give his allowance or disallowance to any act passed by them; but as the Rector boasts that I am not able to answer his arguments upon this head of accusation, that I am graveled, that he hath caught my gentleman tripping lightly over marshy ground, you must give me leave to examine into the power of the General Assembly to enact laws, which I believe will put an end to the Rector’s exultations and convince you it was the contemptibleness and not the weight of his arguments that prevented my answering them in the letter I thought proper to address to him.

I do not suppose, Sir, that you look upon the present inhabitants of Virginia as a people conquered by the British arms. If indeed we are to be considered only as the savage aborigines of this part of America, we cannot pretend to the rights of English subjects; but if we are the descendants of Englishmen, who by their own consent and at the expense of their own blood and treasure undertook to settle this new region for the benefit and aggrandizement of the parent kingdom, the native privileges our progenitors enjoyed must be derived to us from them, as they could not be forfeited by their migration to America.

One of the greatest lawyers and the greatest philosopher of his age* tells us, “A country gained by conquest hath no right to be governed by the English laws.” And another no less eminent lawyer† says, “Where the country of a pagan or infidel is conquered, there, ipso facto, the laws of such country are abrogated.” And from hence I suppose it was that a learned and upright judge‡ gave it as his opinion, “That Virginia is to be governed by such laws as the King pleases.” But certainly this great judge was not acquainted with Virginia; if he was he never would have given an opinion which with respect either to the original or present inhabitants of this country must be erroneous. It must be erroneous with respect to the original inhabitants because they were never fully conquered, but submitted to the English government Edition: current; Page: [1799] upon terms of peace and friendship fixed and settled by treaties; and they now possess their native laws and customs, savage as they are, in as full an extent as they did before the English settled upon this continent. It must be erroneous with respect to the present inhabitants because upon a supposition that their ancestors were conquerors of this country, they could not lose their native privileges by their conquests. They were as much freemen, and had as good a right to the liberties of Englishmen after their conquest as they had before; if they had not, few of them, I believe, would have been induced by so inadequate a reward to endeavor an extension of the English dominions, and by making conquests to become slaves.

Under an English government all men are born free, are only subject to laws made with their own consent, and cannot be deprived of the benefit of these laws without a transgression of them. To assert this is sufficient; to demonstrate it to an Englishman is useless. He not only knows, but, if I may use the expression, feels it as a vital principle in the constitution, which places him in a situation without the reach of the highest executive power in the state, if he lives in an obedience to its laws.

If then the people of this colony are freeborn and have a right to the liberties and privileges of English subjects, they must necessarily have a legal constitution, that is, a legislature composed in part of the representatives of the people who may enact laws for the internal government of the colony and suitable to its various circumstances and occasions; and without such a representative, I am bold enough to say, no law can be made.

By the term internal government it may be easily perceived that I exclude from the legislature of the colony all power derogatory to their dependence upon the mother kingdom; for as we cannot lose the rights of Englishmen by our removal to this continent, so neither can we withdraw our dependence without destroying the constitution. In every instance, therefore, of our external government we are and must be subject to the authority of the British Parliament, but in no others; for if the Parliament should impose laws upon us merely relative to our internal government, it deprives us, as far as those laws extend, of the most valuable part of our birthright as Englishmen, of being governed by laws made with our own consent. As all power, therefore, is excluded from the colony of withdrawing its dependence from the mother kingdom, so is all power over the colony excluded from the mother kingdom but such as respects its external government. I do not deny but that the Parliament, as the stronger power, Edition: current; Page: [1800] can force any laws it shall think fit upon us; but the inquiry is not what it can do, but what constitutional right it has to do so. And if it has not any constitutional right, then any tax respecting our internal polity which may hereafter be imposed on us by act of Parliament is arbitrary, as depriving us of our rights, and may be opposed. But we have nothing of this sort to fear from those guardians of the rights and liberties of mankind.

But it may be objected that this general position excludes all the laws of England, so as that none of them are obligatory upon us in our internal government. The answer to this objection is obvious: the common law, being the common consent of the people from time immemorial, and the “birthright of every Englishman, does follow him wherever he goes,” and consequently must be the general law by which the colony is to be governed. So also the statutes of England in force at the time of our separation, having every essential in their institution to make them obligatory upon our ancestors, that is, their consent by their representatives, and having the same sanction with the common law, must have the same extensive force, and bind us in the same manner the common law does; if it was otherwise it would involve this contradiction, that of two laws made by the same power, one is coercive upon us when the other is not so, which is plainly absurd.

From these principles, which I take to be incontrovertible, as they are deduced from the nature of the English constitution, it is evident that the legislature of the colony have a right to enact ANY law they shall think necessary for their internal government.

But lest these principles, plain and evident as they are, should be controverted by the Rector or some other of Sir Robert Filmer’s disciples, who perhaps may assert that the King by his prerogative can establish any form of government he pleases in the colony, I will examine the power the General Assembly derives from grants from the crown, abstracted from the original rights of the people.

King James I by his charter, under the great seal of England, granted the dominion of Virginia to the Treasurer and Company of Adventurers, and gave them full power and authority to constitute a form of government in the colony as near as might be agreeable to the government and policy of England. Pursuant to this power, the Treasurer and Company by their charter established the legislature in the governor, Council, and representatives of the people, to be called the General Assembly, with “free power to treat, consult, and conclude as well of all emergent occasions concerning Edition: current; Page: [1801] the public weal of the colony and every part thereof, as also to make, ordain, and enact such general laws and orders for the behoof of the colony and the good government thereof as shall from time to time appear necessary or requisite.”

The General Assemblies have continued to exercise this legislative power from that time. King James left them in full possession of this power upon his dissolving the company; and King Charles I in the year 1634 by order in his Privy Council declared that “interests which the colony enjoyed while they were a corporation should not be impeached, but that they should enjoy the same privileges they did before the recalling the company’s patent.” And in the year 1642 under his sign manual and royal signet he “confirmed the form of government, declared that they should ever remain under the King’s immediate protection, and that the form of government should not be changed.”

After the Restoration, in the year 1675, the General Assembly sent three agents to England to solicit a new charter from King Charles II. Their petition upon this occasion was referred by the King’s order in his Privy Council the 23rd of June to his attorney and solicitor general, who reported their opinion to the Lords of the Committee for Foreign Plantations, “That it would be for His Majesty’s service and for the increase of the trade and growth of the plantation of Virginia if His Majesty shall be graciously pleased to grant and confirm, under his great seal, unto his subjects in Virginia the particulars following.” And then they recite the several heads of the General Assembly’s petition, one of which was “That the power and authority of the General Assembly, consisting of the governor, Council, and Burgesses, may be by His Majesty ratified and confirmed”; but with this proviso, “That His Majesty may, at his pleasure, revoke any law made by them; and that no law so revoked shall, AFTER such revocation and intimation thereof from hence (i.e., from England), be further used or observed.”

The Lords of the Committee for Foreign Plantations presented this report to His Majesty in his Privy Council at Whitehall on the 19th of November 1675; which His Majesty approved and confirmed, and ordered a bill to be prepared by the attorney and solicitor general for his signature in order to the passing letters patent “for the settlement and confirmation of all things according to the said report.”

A complete charter was accordingly prepared, and received the King’s signature; but before it came to the great seal stopped in the hanaper office upon receiving an account of Bacon’s insurrection.

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But though the charter did not pass the great seal, King Charles II from that time, and his successors ever since, have inserted the several clauses of it relative to the power of the General Assembly in their commissions to their governors, who have “full power and authority, by and with the advice of the Council to call General Assemblies, and by and with the advice and consent of the Council and Assembly or the major part of them respectively, to make, constitute, and ordain laws, statutes, and ordinances for the public peace, welfare, and good government of the colony, and the people and inhabitants thereof.” “Which laws, statutes, and ordinances, of what nature or duration soever, are to be within three months or sooner after the making of them transmitted unto the King under the public seal of the colony for the royal approbation or disallowance. And in case all or any of them shall at any time be disallowed and not approved and so signified by the King under his sign manual or by the Privy Council unto the governor or commander-in-chief of the colony for the time being, then such and so many as shall be disallowed and not approved shall from thenceforth cease and determine and be utterly void and of no effect.”

From this short review of our constitution it may be observed that the people have an original right to a legal government, that this right has been confirmed to them by charter, which establishes the General Assembly with a general power “to make, ordain, and constitute laws, statutes, and ordinances for the public peace, welfare, and good government of the colony.” Which power, by a constant and uninterrupted usage and custom, they have continued to exercise for more than 140 years. And if what Lord Coke says in Calvin’s Case is true, that “where the King by charter or letters patent grants to a country the laws of England or a power to make laws for themselves, he nor his successors can alter or abrogate the same,” we cannot be deprived of this right, even upon the Rector’s principles of passive obedience.

But it may be asked if the King’s assent is not necessary to give sanction to the acts of the General Assembly. I answer, it is necessary. As sovereign, no law can be made without his assent, but then it is not necessary that he should be present in his royal person to give his assent; this is plainly impossible. He therefore gives power by commission under his great seal to his governor to give his assent, which, to speak in the language of the law, is in this case a teste meipso7 and gives life and being to the laws in the same manner as if he was present in his royal person.

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The King frequently gives his assent to acts of Parliament by commission to persons appointed for that purpose; he does the same thing by his commission to the governor, who thereby becomes the King’s representative in his legislative character, so that the governor’s assent to laws here is in effect the King’s assent. But as the King cannot be informed of the nature of the laws passed by his commissioner while under the consideration of the General Assembly, he reserves to himself a power of abrogating them, notwithstanding his commissioner’s assent; and from the time of such abrogation, and not before, they are to cease and determine.

But Colonel, said I, notwithstanding you have deduced your history of the constitution from the royal grants and the established principles of the English government, His Reverence is in the right. He relies upon the King’s instructions to the governor, which ought not to be infringed, but must have the force and obligation of laws upon us.

I have, replied the Colonel, a high reverence for the majesty of the King’s authority, and shall upon every occasion yield a due obedience to all its just powers and prerogatives; but submission, even to the supreme magistrate, is not the whole duty of a citizen, especially such a submission as he himself does not require. Something is likewise due to the rights of our country and to the liberties of mankind. To say that a royal instruction to a governor, for his own particular conduct, is to have the force and validity of a law, and must be obeyed without reserve, is at once to strip us of all the rights and privileges of British subjects, and to put us under the despotic power of a French or Turkish government. For what is the real difference between a French edict and an English instruction if they are both equally absolute? The royal instructions are nothing more than rules and orders laid down as guides and directions for the conduct of governors. These may and certainly ought to be laws to them, but never can be thought, consistently with the principles of the British constitution, to have the force and power of laws upon the people. Which is evident from this plain reason: promulgation is essential to the nature of laws, so that no law can bind any people before it is declared and published to them; but the King’s instructions are to be kept secret and not published to us, no not even to the Council, unless the governor thinks it for the King’s service. “You are to communicate,” says one of these instructions to the governor, “unto our Council of Virginia from time to time, such and so many of our instructions as you shall find convenient for our service.” So that from the instructions themselves it is evident the Edition: current; Page: [1804] King does not intend them as laws to his people. Besides, the royal instructions are drawn up in England by ministers who from their distant situation from us cannot have so full and perfect a view of affairs in the colony as is necessary for those who are to be legislators and supreme directors of them. Sudden emergencies will arise; present occasions will be lost; and such quick and unexpected turns are perpetually happening in all sublunary affairs as require the utmost vigilance and celerity, and can never stay for such a distant guidance and command. The ministers in England see nothing with their own eyes that is passing amongst us and know nothing upon their own knowledge, and therefore are very improper legislators to give laws to the colony. The King’s instructions, then, being only intended as guides and directions to governors, and not being obligatory upon the people, the governors are only answerable for a breach of them, and not the General Assembly; and if they are answerable only, they have the only right of determining whether their passing acts upon particular emergent occasions is contrary to the spirit and true meaning of their instructions or not. In short, Sir, the Council and House of Burgesses have a right to present any act relative to the internal government of the colony to the governor for his assent without violating any instruction; and the governor has a right, as the King’s commissioner representing the royal person, to give or refuse his assent to such act as he may think it agreeable or contrary to his instructions directing his conduct in this particular. This I say, Sir, the Council and House of Burgesses may do, from the general powers with which they are invested by the constitution, without being guilty of attempts to restrain the power of the royal prerogative; which being committed to the governor, he is to determine how he is to exercise it and no other person has anything to do with it in this case. From hence then it is evident that the General Assembly may pass an act which alters or repeals an act that has received the royal approbation without destroying the old constitution or attempting to bind the King’s hands; and if such act is passed, it must have the force and obligation of a law until the King declares his royal disallowance of it.

But since the royal instructions are so much insisted on by the Rector, I will examine whether the same doctrine I have endeavored to establish may not be deduced from them.

I have no copy of the instructions relating to this question, nor have I been able to procure one; but as I have formerly read them, I believe I can recite them tolerably exact.

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By these instructions the governor is “not to give his assent to any act that alters or repeals any other act without a suspending clause, although the act to be altered or repealed has not had the royal approbation, unless in cases of great emergency; nor is he to give his assent to any act that alters or repeals any other act which has had the royal approbation without first obtaining the King’s permission, under the penalty of being removed from his government and incurring the King’s highest displeasure.” Now I infer from these instructions that, admitting the governor should pass an act contrary to them, he subjects himself to the penalties inflicted on him for a breach of his instructions, but the act so passed by him has the obligation of a law until the King’s disallowance of it; for if such act is void, ab initio,8 the instructions would be absurd, because to restrain the governor from passing an act which when passed is as absolutely void as if it had never existed, is absurd and useless.

Our sovereign, therefore, knowing that from the fundamental principles of the constitution such act must have the force of a law when passed by the governor, has restrained him from giving his assent in such a case under particular personal penalties, but has left the act to its course until he thinks proper to repeal it by his disapprobation.

But this is not all; for as the governor may pass an act in a case of great emergency though contrary to the general tenor of the instructions, it would involve a greater absurdity, if possible, should an act be void ab initio which he passes by virtue of the general powers given him by his commission under the King’s great seal, and another act passed by him under the same authority have the force of a law because the governor is of opinion that the exigencies of the colony make such act necessary. Under such a construction the case is plainly this: the governor passes an act in a case of great exigency contrary to the strict letter of his instructions, which act shall have the force of a law because he thinks the circumstances of the colony require it; but if he passes such an act when he thinks the circumstances of the colony do not require it, such act shall be void ab initio. This is like the absolution in the Romish Church, which is of no effect, though proclaimed with a loud voice, unless the intention of the priest accompanies, and is too absurd to deserve any further consideration. And yet into such an absurdity Edition: current; Page: [1806] must you fall, Sir, when you contend that such an act is void ab initio, from a construction of the royal instructions to the governor.

Neither will the Rector’s hearsay account* of one of the revised laws make any alteration in the case, for the land law that was altered by this revised law never received the royal assent; but the reason why this revised law laid some time dormant and unobserved was that as it affected the King’s grants of his lands, a suspending clause was added to it so that it could have no operation until the royal approbation of it was obtained. And though this approbation was obtained, it was not known to us until several years after, when Mr. Montague, our present agent, by direction from the committee of correspondence, inquiring after it found it in the Council office in England and transmitted it to us, from which time it became in force here.

But Colonel, said I, though all this may be true I am at a loss to know what good reason can be given for an order of the late Assembly to support the vestries against the appeals of the clergy, and not an order for supporting private contractors against the merchants. When, Sir, answered the Colonel, you can produce an instance of a merchant or any other person except the Rector and two or three of his brethren bringing suits to try the validity of an act of the legislature, I will give you a reason why the merchants were not included in the order of the late Assembly. I suppose from what you say you would insinuate as if the Assembly pointed the clergy out as the particular objects of their resentment; but in this you are mistaken. An action was brought in the General Court by the Rector against the collector of his parish levy on purpose to controvert the power of the General Assembly in making laws, or rather to render their power a mere cipher. It behoved them then to support their own authority and the validity of their own acts against every attempt to destroy it; and from hence it was that by an order of the late Assembly the collector of York-Hampton parish levy was to be defended in the Rector’s suit against him at the public expense.

Thus, Sir, I have endeavored to obviate the Rector’s arguments and to convince you that the General Assemblies were not setting up the standard of rebellion against the King’s authority when they passed the acts which have given this patriot Rector such great offense. The insults offered by him to the legislative body of the colony and to private characters are Edition: current; Page: [1807] certainly carried to a great height; but whether this is owing to the panic he is thrown into lest the old constitution should be destroyed or to satisfy a malevolent and turbulent temper, is not worth my time to inquire. I have avoided repeating what I said formerly in my letters upon this subject, so must desire you to consider those letters as part of my present defense, since I cannot think that the Rector has given any answer to them.

I know that the plainest demonstration is lost upon men who are under the influence of prejudice or an obstinate disposition of mind. Such men will never want ground for wrangling, especially if they have any by-purposes to serve. But notwithstanding the artful endeavors and invidious representations of such men, I make no doubt that you will, from a sincere desire of promoting truth and the public good, give an impartial decision in this dispute, which I shall submit to you after observing that whoever throws out reflections on the acts of the legislature as plainly tend to weaken their authority, let his profession of patriotism be otherwise ever so specious, is so far an enemy to his country.

Colonel, said I, I have not sufficiently considered this matter to form a just opinion of it; but as His Reverence is a great master of reason and acquainted with the nature and principles of government, I will communicate this conference to him, which, as soon as he has reconnoitered, I doubt not will receive a proper reply.

And thus, may it please Your Reverence, the conference broke up of which I have given you this faithful account. I shall be extremely rejoiced if you can find leisure from the laborious and painful duties of your pastoral office to send forth a reply to the Colonel’s arguments; but

• Cum tot sustineas et tanta negotia solus,
• . . . moribus ornes,
• Legibus emendes; in publica commoda peccem,
• Si longo sermone morer tua tempora . . .9

I am, may it please Your Reverence, with the utmost deference and esteem,

Number II

Number III