5. The distinc Lion of external and internal taxation is a false one. I have mentioned the customs and the post tax. This leads me to answer another distinction, as false as the above; the distinction of internal and external taxes. The noble Lord who quoted so much law, and denied upon those grounds the right of the Parliament of Great Britain to lay internal taxes upon the colonies, allowed at the same time that restrictions upon trade, and duties upon the ports, were legal. But I can not see a real difference in this distinction; for I hold it to be true, that a tax laid in any place is like a pebble falling into and making a circle in a lake, till one circle produces and gives motion to another, and the whole circumference is agitated from the center. For nothing can be more clear than that a tax of ten or twenty per cent. laid upon tobacco, either in the ports of Virginia or London, is a duty laid upon the inland plantations of Virginia, a hundred miles from the sea, wheresoever the tobacco grows. I do not deny but that a tax may be laid injudiciously and injuriously, and that people in such a case may have a right to complain. But the nature of the tax is not now the question; whenever it comes to be one, I am for lenity. I would have no blood drawn. There is, I am satisfied, no occasion for any to be drawn. A little time and experience of the inconveniences and miseries of anarchy, may bring people to their senses. Mr. Otis's book. Masaniello was mad. Nobody doubts it; yet, for all that, he overturned the government of Naples. Madness is catching in all popular assemblies and upon all popular matters. The book is full of wildness. I never read it till a few days ago, for I seldom look into such things. I never was actually acquainted with the contents of the Stamp Act, till I sent for it on purpose to read it before the debate was expected. With respect to authorities in another House, I know nothing of them. I believe that I have not been in that House more than once since i had the honor to be called up to this; and, if I did know any thing that passed in the other House, I could not, and would not, mention it as an authority here. I ought not to mention any such authority. I should think it beneath my own and your Lordships' dignity to speak of it. I am far from bearing any ill will to the Americans; they are a very good people, and I have long known them. I began life with them, and owe much to them, having been much concerned in the plantation causes before the privy council; and so I became a good deal acquainted with American affairs and people. I dare say, their heat will soon be over, when they come to feel a little the consequences of their opposition to the Legislature. Anarchy always cures itself; but the ferment will continue so much the longer, while hot-headed men there find that there are persons of weight and character to support and justify them here. turbances con Indeed, if the disturbances should continue for a great length of time, force must be Force must be the consequence, an application ad- used if a dis equate to the mischief, and arising tinue. out of the necessity of the case; for force is only the difference between a superior and subordinate jurisdiction. In the former, the whole force of the Legislature resides collectively, and when it ceases to reside, the whole connection is dissolved. It will, indeed, be to very little purpose that we sit here enacting laws, and making res With respect to what has been said or written upon this subject, I differ from the noble Lord, who spoke of Mr. Otis and his book with contempt, though he maintained the same doctrine in some points, while in others he carried it farther than Otis himself, who allows every where the supremacy of the Crown over the colonies. No man, on such a subject, is contemptible. Otis is a man of consequence among the people there. They have chosen him for one of their deputies at the Congress and general meeting from the respective governments. It was said, the man is mad.olutions, if the inferior will not obey them, or if What then? One madman often makes many. 2 The celebrated James Otis is here referred to, who in 1764 published a pamphlet, which was reprinted in England, entitled The Rights of the British Colonies. In this pamphlet, while he admitted the supremacy of the Crown over the colonies, he strenuously maintained, with Lord Chatham, that as long as America remained unrepresented in the House of Commons, Parliament had no right to tax the colonies. Mr. Otis, who was a man of fervid eloquence, expressed himself so strongly respecting the rights of America, that some persons (as Lord Mansfield mentions) treated him as a madman. There is a speech (to be found in most of our collections of eloquence) which bears his name, and begins, "England may as well dam up the waters of the Nile with bulrushes, as fetter the step of freedom," &c. It first ap peared in a work entitled The Rebels, written by Mrs. Child, and was designed as a fancy sketch, like the speeches put by Mr. Webster into the mouth of Adams and Hancock, in his oration on the death of John Adams and Thomas Jefferson. we neither can nor dare enforce them; for then, and then, I say, of necessity, the matter comes to the sword. If the offspring are grown too big and too resolute to obey the parent, you must try which is the strongest, and exert all the powers of the mother country to decide the contest. I am satisfied, notwithstanding, that time and a wise and steady conduct may pre- Examples of vent those extremities which would popular dislikes on oth be fatal to both. I remember well er subjects. when it was the violent humor of the times to decry standing armies and garrisons as dangerous, and incompatible with the liberty of the subject. Nothing would do but a regular militia. The militia are embodied; they march; and no sooner was the militia law thus put into execution, but it was then said to be an intolerable burden upon the subject, and that it would fall, sooner or later, into the hands of the Crown. That was the language, and many counties petitioned against it. This may be the case with the colonies. In many places they begin already to feel the effects of their resistance to govern- | writer refers never passed, and Lord Hale only ment. Interest very soon divides mercantile said, that, if it had passed, the Parliament might people; and, although there may be some mad, have abdicated their right. enthusiastic, or ill-designing people in the colonies, yet I am convinced that the greatest bulk, who have understanding and property, are still well affected to the mother country. You have, my Lords, many friends still in the colonies; and take care that you do not, by abdicating your own authority, desert them and yourselves, and lose them forever. In all popular tumults, the worst men bear the sway at first. Moderate and good men are often silent for fear or modesty, who, in good time, may declare themselves. Those who have any property to lose are sufficiently alarmed already at the progress of these public violences and violations, to which every man's dwelling, person, and property are hourly exposed. Numbers of such valuable men and good subjects are ready and willing to declare themselves for the support of government in due time, if government does not fling away its own authority. My Lords, the Parliament of Great Britain has its rights over the colonies; but it may abdicate its rights. Notice of a manuscript of Lord Hale's, quoted by Lord But, my Lords, I shall make this application of it. You may abdicate your right over the colonies. Take care, my Lords, how you do so; for such an act will be irrevocable. Proceed, then, my Lords, with spirit and firmness; and, when you shall have established your authority, it will then be a time to show your lenity. The Americans, as I said before, are a very good people, and I wish them exceedingly well; but they are heated and inflamed. The noble Lord who spoke before ended with a prayer. I can not end better than by saying to it, Amen; and in the words of Maurice, prince of Orange, concerning the Hollanders, "God bless this industrious, frugal, and well-meaning, but easily-deluded people." The Stamp Act was repealed, and the Declaratory Act, thus advocated by Lord Mansfield, was also passed by a large majority. As Lord Campbell has pronounced the above argument unanswerable, it may interest the young reader to know how it was actually answered by the Americans, and why they denied the right of Parliament to lay internal taxes upon them. 1. They owed their existence not to Parliament, but to the Crown. The King, in the exercise of the high sovereignty then conceded to him, had made them by charter complete civil communities, with Legislatures of their own having power to lay taxes and do all other acts which were necessary to their subsistence as distinct governments. Hence, There was a thing which I forgot to mention. I mean, the manuscript quoted by the noble Lord. He tells you that which had been it is there said, that, if the act conCamden. cerning Ireland had passed, the Parliament might have abidicated its rights as to Ireland. In the first place, I heartily wish, my Lords, that Ireland had not been named, at a time when that country is of a temper and in a situation so difficult to be governed; and when we have already here so much weight upon our hands, encumbered with the extensiveness, variety, and importance of so many objects in a 2. They stood substantially on the same footvast and too busy empire, and the national sys-ing as Scotland previous to the Union. Like her tem shattered and exhausted by a long, bloody, and expensive war, but more so by our divisions at home, and a fluctuation of counsels. I wish Ireland, therefore, had never been named. they were subject to the Navigation Act, and similar regulations touching the external relations of the empire; and like her the ordinary legislation of England did not reach them, nor did the common law any farther than they chose to adopt it. Hence, I pay as much respect as any man to the memory of Lord Chief Justice Hale; but I did not know that he had ever written upon the sub- 3. They held themselves amenable in their ject; and I differ very much from thinking with internal concerns, not to Parliament, but to the the noble Lord, that this manuscript ought to be Crown alone. It was to the King in council or to published. So far am I from it, that I wish the his courts, that they made those occasional refermanuscript had never been named; for Ireland ences and appeals, which Lord Mansfield endeavis too tender a subject to be touched. The case ors to draw into precedents. So "the post tax" of Ireland is as different as possible from that of spoken of above, did not originate in Parliament, our colonies. Ireland was a conquered country; but in a charter to an individual which afterward it had its pacta conventa and its regalia. But reverted to the Crown, and it was in this way to what purpose is it to mention the manuscript? alone that the post-office in America became conIt is but the opinion of one man. When it was nected with that of England. It was thus that written, or for what particular object it was the Americans answered the first three of Lord written, does not appear. It might possibly be Mansfield's direct arguments (p. 149-50). Their only a work of youth, or an exercise of the un-charters made them dependent not on Parliament, derstanding, in sounding and trying a question problematically. All people, when they first enter professions, make their collections pretty early in life; and the manuscript may be of that However, be it what it may, the opinion is but problematical; for the act to which the sort. but on the Crown; and their submission to English authority, much as it involved their pecuniary interests, was rendered only to the latter. Weak as they were, the colonists had sometimes to temporize, and endure an occasional overreaching by Parliament. It was not always easy this Lord Mansfield could only reply, as he does to draw the line between the laws of trade, to which they held themselves subject, and the general legislation of Parliament. But they considered it clear that their charters exempted them from the latter, giving it to their own Leg-idle and false. A virtual representation there islatures. See Massachusetts State Papers, p. may be of particular classes (as of minors and 351. On this ground, then, they denied the right females), who live intermingled in the same comof Parliament to tax them. It is a striking fact munity with those who vote; but a virtual repin confirmation of these views, as mentioned by resentation of a whole people three thousand Mr. Daniel Webster, that the American Decla- miles off, with no intermingling of society or inration of Independence does not once refer to the terests, is beyond all doubt "an absurdity in British Parliament. They owed it no allegiance, terms." The idea is contrary to all English their only obligations were to the King; and usage in such cases. When the Scotch were hence the causes which they assigned for break-incorporated with the English in 1705, they were ing off from the British empire consisted in his conduct alone, and in his confederating with others in "pretended acts of legislation." They had, however, a second argument, that from long-continued usage. Commencing their existence as stated above, the British Parliament had never subjected them to internal taxation. When this was attempted, at the end of one hundred and fifty years, they used the argument of Mr. Burke, "You were not woNT to do these things from the beginning;" and while his inference was, "Your taxes are inexpedient and unwise,' theirs was, "You have no right to lay them." Long-continued usage forms part of the English Constitution. Many of the rights and privileges of the people rest on no other foundation; and a usage of this kind, commencing with the very existence of the colonies, had given them the exclusive right of internal taxation through their own Legislatures, since they maintained their in- | stitutions at their own expense without aid from the mother country. To give still greater force to this argument, the Americans appealed to the monstrous consequences of the contrary supposition. If, as colonies, after supporting their own governments, they were liable to give England what part she chose of their earnings to support her government-one twentieth, one tenth, one half each year, at her bidding-they were no longer Englishmen, they were vassals and slaves. When George the Third, therefore, undertook to lay taxes in America and collect them at the point of the bayonet, he invaded their privileges, he dissolved the connection of the colonies with the mother country, and they were of right free. A third argument was that of Lord Chatham. "Taxation," said his Lordship, "is no part of the governing or legislative power." A tax bill, from the very words in which it is framed, is "a gift and grant of the Commons alone," and the concurrence of the Peers and Crown is only necessary to give it the form of law. When, therefore, in this House," said his Lordship, "we give and grant, we give and grant what is our own. But in an American tax what do we do? We, your Majesty's Commons for Great Britain, give and grant to your Majesty-What? Our own property? No. We give and grant to your Majesty the property of your Majesty's subjects in America! It is an absurdity in terms!" To not considered as “virtually represented" in the English Parliament, but were allowed to send representatives of their own. It was so, also, with Wales, Chester, and Durham, at an earlier period. Nothing, in fact, could be more adverse to the principles of the English Constitution than the idea of the “virtual representation" of three millions of people living at the distance of three thousand miles from the body of English electors. But if not virtually represented, the Americans were not represented at all. A bill giving away their property was, therefore, null and void-as much so as a bill would be if passed by the House of Lords, levying taxes on the Commons of England. Under the English Constitution, representation of some kind is essential to taxation. Lord Mansfield's last argument (p. 151) is, that "the distinction between external and internal taxation is a false one." According to him, as Parliament, in carrying out the Navigation Act, laid external taxes affecting the colonies, Parliament was likewise authorized to lay internal taxes upon them. The answer is given by Mr. Burke. The duties referred to were simply incidental to the Navigation Act. They were used solely as instruments of carrying it out, of checking trade and directing its channels. They had never from the first been regarded as a means of revenue. They stood, therefore, on a footing entirely different from that of internal taxes, which were "the gift and grant of the Commons alone." The distinction between them was absolute and entire; and any attempt to confound them, and to take money on this ground from those who are not represented in Parliament, was subversive of the English Constitution.1 Such were the arguments of the Americans; and the world has generally considered them as forming a complete answer to the reasonings of Lord Mansfield. 1 The reader will find this distinction fully drawn out in Mr. Burke's Speech on American Taxation, page 249, 250. He there shows, that during the whole operation of the Navigation Laws, down to 1764, "a parliamentary revenue thence was never tinguish revenue laws, specifically as such, were once in contemplation; that "the words which dis premeditatedly avoided;" and that all duties of this kind previous to that period, stood on the ground of mere "commercial regulation and restraint.” SPEECH OF LORD MANSFIELD WHEN SURROUNDED BY A MOB IN THE COURT OF THE KING'S BENCH, ON A TRIAL RESPECTING THE OUTLAWRY OF JOHN WILKES, ESQ., DELIVERED JANUARY 8, 1768. INTRODUCTION. IN 1764, Mr. Wilkes was prosecuted for a seditious libel upon the King, and for an obscene and impious publication entitled an Essay on Women. Verdicts were obtained against him under both these prose cutions, and, as he had fled the country, and did not appear to receive sentence, he was outlawed in the sheriff's court for the county of Middlesex on the 12th of July, 1764. In 1768 he returned to England, and applied to the Court of the King's Bench for a reversal of the outlawry; alleging, among other things, that the sheriff's writ of exegent was not technically correct in its wording, since he merely described the court as "my county court," whereas he ought to have added a description of the place, viz., “of Middlesex." Mr. Wilkes was now the favorite of the populace. Tumultuous meetings were held in his behalf iu various parts of the metropolis; riots prevailed to an alarming extent; the Mansion House of the Lord Mayor was frequently assailed by mobs; members of Parliament were attacked or threatened in the streets; and great fears were entertained for the safety of Lord Mansfield and the other judges of the Court of the King's Bench during the trial. On the 8th of June, 1768, the decision was given, the court being surrounded by an immense mob, waiting the result in a highly excited state. Under these circumstances, Lord Mansfield, after reading his decision for a time, broke off suddenly, and, turning from the case before him, addressed to all within the reach of his voice a few words of admonition, in which we can not admire too much the dignity and firmness with which he opposed himself to the popular rage, and the perfect willingness he showed to become a victim, if necessary, for the support of law. BUT here let me pause. SPEECH, &c.' It is fit to take some notice of various terrors being out-the numerous crowds which have attended and now attend in and about the hall, out of all reach of hearing what passes in court, and the tumults which, in other places, have shamefully insulted all order and government. Audacious addresses in print dictate to us, from those they call the people, the judgment to be given now, and afterward upon the conviction. Reasons of policy are urged, from danger in the kingdom by commotions and general confusion. Give me leave to take the opportunity of this great and respectable audience to let the whole world know all such attempts are vain. Unless we have been able to find an error which bears us out to reverse the outlawry, it must be affirmed. The Constitution does not allow reasons of state to influence our judgments: God forbid it should! We must not regard political consequences how formidable soever they might be. If rebellion was the certain consequence, we are bound to say, "Fiat justitia, ruat cœlum." The Constitution trusts the King with reasons of state and policy. He may stop prosecutions; he may pardon offenses; it is his to judge whether the law or the criminal shall yield. We have no election. None of us encouraged or approved the commission of either of the crimes of which the defendant is convicted. None of us had any hand in his being prosecuted. As to myself, I took no part (in another place) in the addresses 1 From Burrows Reports, iv., 2561. Be justice done, though heaven in ruits fall. for that prosecution. We did not advise or assist the defendant to fly from justice; it was his own act, and he must take the consequences. None of us have been consulted or had any thing to do with the present prosecution. It is not in our power to stop it; it was not in our power to bring it on. We can not pardon. We are to say what we take the law to be. If we do not speak our real opinions, we prevaricate with God and our own consciences. I pass over many anonymous letters I bave received. Those in print are public, and some of them have been brought judicially before the court. Whoever the writers are, they take the wrong way! I will do my duty unawed. What am I to fear? That "mendax infamia" [lying scandal] from the press, which daily coins false facts and false motives? The lies of calumny carry no terror to me. I trust that the temper of my mind, and the color and conduct of my life, have given me a suit of armor against these arrows. If during this King's reign I have ever supported his government, and assisted his measures, I have done it without any other reward than the consciousness of doing what I thought right. If I have ever opposed, I have done it upon the points themselves, without mixing in party or faction, and without any collateral views. I honor the King and respect the people; but many things acquired by the favor of either are, in my account, objects not worthy of ambition. I wish popularity, but it is that popularity which follows, not that which is run after. It is that popularity which, sooner or later, never fails to do justice to the pursuit of noble nothing that can happen, will weigh a feather against allowing the defendant, upon this and every other question, not only the whole advantage he is entitled to from substantial law and justice, but every benefit from the most critical nicety of form which any other defendant could claim under the like objection. The only effect I feel is an anxiety to be able to explain the grounds on which we proceed, so as to satisfy all mankind "that a flaw of form given way to in this case, could not have been got over in any ends by noble means. I will not do that which 173 The threats go farther than abuse-personal violence is denounced. I do not believe it. It is not the genius of the worst of men of this country, in the worst of times. But I have set my mind at rest. The last end that can happen to any man never comes too soon, if he falls in support of the law and liberty of his country (for liberty is synonymous with law and government). Such a shock, too, might be productive of public good. It might awake the better part of the kingdom out of that lethargy which seems to have benumbed them, and bring the mad part back to their senses, as men intoxicated are sometimes stunned into sobriety. Once for all, let it be understood, that no endeavors of this kind will influence any man who at present sits here. If they had any effect, it would be contrary to their intent; leaning against their impression might give a bias the other way. But I hope and I know that I have fortitude enough to resist even that weakness. No libels, no threats, nothing that has happened, 66 Lord Mansfield now resumed the discussion of the case, and stated in respect to the insertion of the qualifying phrase "of Middlesex," mentioned above, that a series of authorities, unimpeached and uncontradicted, have said such words are formally necessary; and such authority, though begun without law, reason, or common sense, ought to avail the defendant." He therefore (with the concurrence of the other judges) declared a reversal; adding, "I beg to be understood, that I ground my opinion singly on the authority of the cases adjudged; which, as they are on the favorable side, in a criminal case highly penal, I think ought not to be departed from." This reversal, however, did not relieve Mr. Wilkes from the operations of the verdicts already mentioned. Ten days after, Mr. Justice Yates pronounced the judgment of the court, sentencing him to be imprisoned for twenty-two months, and to pay a fine of one thousand pounds. SPEECH OF LORD MANSFIELD IN THE CASE OF THE CHAMBERLAIN OF LONDON AGAINST ALLAN EVANS, ESQ., DELIVERED IN THE HOUSE OF LORDS, FEBRUARY 4, 1769. INTRODUCTION. THIS case affords a striking example of the abuses which spring up under a religious establishment. The city of London was in want of a new mansion house for the Lord Mayor, and resolved to build one on a scale of becoming magnificence. But, as the expense would be great, some ingenious churchmen devised a plan for extorting a large part of the money out of the Dissenters, who had for a number of years been growing in business and property, under the protection of the Toleration Act. The mode was this. A by-law of the city was passed, imposing a fine of £600 on any person who should be elected as sheriff and decline to serve. Some wealthy individual was then taken from the dissenting body, and, by a concert among the initiated. was chosen to the office of sheriff. Of course he was not expected to serve, for the Test and Corporation Acts rendered him incapable. He was, therefore, compelled to decline; and was then fined £600, under a by-law framed for the very purpose of extorting this money!! Numerous appointments were thus made, and £15,000 were actually paid in; until it came to be a matter of mere sport to "roast a Dissenter," and bring another £600 into the treasury toward the expenses of the mansion house. At length Allan Evans, Esq., a man of spirit, who had been selected as a victim, resolved to try the question. He refused to pay the fine, and was sued in the Sheriff's Court. Here he pleaded his rights This is one of those sentences of Cicero, in his first oration against Catiline, which it is impossible to translate. Striking as the sentiment is, it owes much of its force and beauty to the fine antithesis with which it flashes upon the mind, and even to the paronomasia on the word invidiam, while its noble rhythmus adds greatly to the effect. To those who are not familiar with the original, the following may give a conception of the meaning: Such have always been my feelings, that I look upon odium incurred by the practice of virtue, not as odium, but as the highest glory. See Parliamentary History. |