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The Order of the Day, for the second reading of the Bill, was read.
Mr˙ Fuller said, he did not rise to make any debate, for he was not enabled as yet to form any opinion whether the Bill before the House was a proper one or not; as copies of the charters which had been ordered, were not yet laid before the House, he would, venture to say that no man knew the constitution of that Government; it was, therefore, impossible for him to say, in what manner he would correct and amend it.
Sir George Savile said, he had not troubled the House before on the occasion, but he could not help observing, that the measure now before the House was a very doubtful and dangerous one; doubtful as to the matter and propriety of regulation, and dangerous as to its consequence; that charters by Government were sacred things, and are only to be taken away by a due course of law, either as a punishment for an offence, or for a breach of the contract, and that can only be by evidence of the facts; nor could he conceive that in either of those cases there could be any such thing as proceeding without a fair hearing of both parties. This measure before us seems to be a most extraordinary exertion of Legislative power. Let us suppose a lease granted to a man, wherein was a covenant, the breach of which would subject him to a forfeiture of his lease — would not a court of justice require evidence of the fact? Why, then, will you proceed different from the line which is always observed in courts of justice. You are now going to alter the charter, because it is convenient. In what manner does the House mean to take away this charter, when in fact they refuse to hear the parties, or to go through a legal course of evidence of the facts? Chartered rights have, at all times, when attempted to be altered or taken away, occasioned much bloodshed and strife; and whatever persons in this House may have advanced, that they do not proceed upon this business but with trembling hands, I do also assure them that I have shewn my fears upon this occasion, for I have run away from every question, except one, to which I gave my negative. I do not like to be present at a business which I think inconsistent with the dignity and justice of this House; I tremble when I am, for fear of the consequences; and I think it a little extraordinary that Mr˙ Bollan should be admitted to be heard as an American Agent in the House of Lords, when in the House of Commons he was refused. I believe it is true, that the facts set forth in his petition to this House, were different from those which he presented to the House of Lords; in one declaring himself an inhabitant of Boston, and in the other omitting it. I cannot conceive it possible to proceed on this Bill upon the small ground of evidence which you have had.
Mr˙ Welbore Ellis. I must rise, Sir, with great diffidence, when I differ from the honorable gentleman who spoke last, whose abilities are so eminently great; but I think, that chartered rights are by no means those sacred things which never can or ought to be altered; they are vested in the Crown, as a prerogative, for the good of the People at large; if the Supreme Legislature find that those charters so granted, are both unfit and inconvenient for the public utility, they have a right to make them fit and convenient; wherever private property is concerned, the
General Conway. What I intend to say, will not delay the House long. [The House being rather noisy, the General said, I beg leave once more to say a short word.] I am very sure what I intend to say will little deserve the attention of the House, but the subject is of that importance, that it requires it. The consequence of this Bill will be very important and dangerous. Parliament cannot break into a right without hearing the parties. The question, then, is simply this: have they been heard? What! because the Papers say a murder has been committed, does it follow they have proved it? ‘Audi alteram partem’ is a maxim I have long adhered to; but it is something so inconsistent with Parliamentary proceedings not to do it, that I am astonished at it. The Council are blamed, because they did not give that advice to the Governor which he wanted. I think, Sir, the Governor might have acted alone, without their assistance. Gentlemen will consider, that this is not only the charter of Boston, or of any particular part, but the charter of all America. Are the Americans not to be heard? Do they not choose to consent and agree about appointing an agent? I think there is no harm, upon this occasion, in stretching a point; and I would rather hear Mr˙ Bollan as an agent of America (though he is a little irregular in his appointment) sooner than leave it to be said, that this Bill passed without it. The House being vociferous, he said, I am afraid I tire the House with my weak voice; if that is the case, I will not proceed, but I do think, and it is my sincere opinion, that we are the aggressors and innovators, and not the Colonies. We have irritated and forced laws upon them for these six or seven years last past. We have enacted such a variety of laws, with these new taxes, together with a refusal to repeal the trifling duty on tea; all these things have served no other purpose but to distress and perplex. I think the Americans have done no more than every subject would do in an arbitrary state, where laws are imposed against their will. In my conscience, I think, taxation and legislation are in this case inconsistent. Have you not a Legislative right over Ireland? And yet no one will dare to say we have a right to tax. These Acts, respecting America, will involve this country and its Ministers in misfortunes, and I wish I may not add, in ruin.
Lord North. I do not consider this matter of regulation to be taking away their charters in such manner as is represented; it is a regulation of Government to assist the Crown; it appears to me, not to be a matter of political expediency,
Sir George Yonge. It appears to me, Sir, that it is unanswered and unanswerable, what has been advanced by the honorable gentleman who spoke second, that the parties should be heard, though even at a twelvemonth hence. Nothing, Sir, but fatal necessity can countenance this measure. No body of men ought to be proceeded against without being heard, much less ought the regulation of a whole Government to take place, without the parties attending in their defence against such alterations.
Governor Johnstone. I see, Sir, a great disposition in this House to proceed in this business without knowing any thing of the constitution of America; several inconveniences will arise if the Sheriff is to be appointed by the Governor; the jury will of course be biased by some influence or other; special juries will be most liable to this. [Here the Governor gave an account of the different riots which had happened in England, and compared them with what he called the false account of those from America.] I impute, says he, all the misfortunes which have happened in America, to the taking away the power of the Governor. No man of common sense, can apprehend that the Governor would ever have gone for two or three days in the country during these disturbances, if he had had the command of the military power. The natural spirit of man would be fired, in such a manner, as to actuate him to show resistance; but in this Governor no power was lodged. I disapprove much of the measure which is before us, and I cannot think but its consequences will be prejudicial.
Mr˙ C˙ Jenkinson. I rise, Sir, only to observe, that if the Colony has not that power within itself to maintain its own peace and order, the Legislature should, and ought to have. Let me ask, Sir, whether the Colony took any step, in any shape, to quell the riots and disturbances? No, they took none. Let me ask again, whether all the checks and control that are necessary, are not put into the commission of the Governments? Much has been said about hearing the parties, and taking away this chartered right; I am of opinion, that where the right is a high political regulation, you are not in that instance bound to hear them; but the hearing of parties is necessary where private property is concerned. It is not only in the late proceedings, but in all former, that they have denied your authority over them; they have refused protection to his Majesty' s subjects, and in every instance disobeyed the laws of this country; either let this country forsake its trade with
Mr˙ Harris. I cannot see, Sir, any reason for so wide a separation between America and England as other gentlemen are apt to think there ought to be; that country, Sir, was hatched from this; and I hope we shall always keep it under the shadow of our wings. It has been said, no representation, no taxation. This was the system formerly adopted, but I do not find it authorized in any book of jurisprudence, nor do I deem it to be a doctrine either reasonable or constitutional. I insist upon it, they are bound to obey both the Crown and Parliament. The last twelve years of our proceedings have been a scene of lenity and inactivity. Let us proceed and mend our method, or else I shall believe, as an honorable gentleman has observed, that we are the aggressors.
Sir Edward Astley. If we have had a twelve years' lenity and inactivity, I hope we shall not now proceed to have a twelve years' cruelty and oppression. By the resolution and firmness which I perceive in the House, it seems to indicate a perseverance in the measure now proposed, which I deem to be a harsh one, and unworthy of a British Legislature.
Mr˙ Ward found fault with the charter being left too much, as to the execution of its powers, in the People, and he could not think that the Legislature was doing any thing which it had not a right to do, as he had looked upon all charters to be granted with a particular clause in it, expressing that it should not be taken away but by the Parliament.
Governor Pownall. Sir, the few words that I shall trouble the House with on this occasion, will be directed simply to facts, and to the rectifying some matters of fact respecting the constitution of the Province of Massachusetts Bay, which some gentlemen, on both sides the House, seem to me to have mistaken, and to have mis-stated.
As to opinions, I shall never more trouble the House with mine on this subject. While the affairs of America remained on that ground, that opinions might, operate on measures of policy, I never withheld mine, poor as they may have been — I always avowed them openly and publicly. In this House I delivered my sentiments explicitly and directly. It was my duty so to do — I consider it as of perfect obligation; and I hope I have fulfilled that duty. I could not but think it a matter of imperfect obligation, even to obtrude my sentiments, and the best information that I could give, in other places, out of this House. I hope I have not there exceeded my duty; I have expressed the same sentiments at all times, and have given the same opinion in what I have written to America. All tended to one point — the pointing out the grounds of reconciliation and peace.
The case at present ceases to be matter of opinion — it is come to action. The measure which you are pursuing will be resisted, not by force, or the effect of arms, as was said by an honorable gentleman on the late occasion, but by a regular united system of resistance.
I told this House, (it is now four years past,) that the People of America would resist the tax which lay then upon them — that they would not oppose power to your power, but that they would become impracticable. Have they not been so from that time to this very hour? I tell you now, that they will resist the measures now pursued, in a more vigorous way. You will find them prepared for such resistance, not by arms, but by a system of measures. The Committees of Correspondence in the different Provinces, are in constant communication — they do not trust the conveyance of the Post-Office — they have set up a constitutional courier, which will soon grow up to the superseding of your Post Office. As soon as intelligence of these affairs reach them, they will judge it necessary to communicate with each other. It will be found inconvenient and ineffectual so to do by letters — they must confer. They will hold a conference — and to what these Committees, thus met in Congress, will grow up, I will not say.
On the other point, should matters ever come to arms, you will hear of other officers than those appointed by your Governors. When matters once come to that it will be, as it was in the late civil wars of this country, of little consequence to dispute who were the aggressors — that will be merely matter of opinion. It is of more consequence at
I hope the House will excuse my trespassing on their patience — it is the last time that I shall speak on this subject. If, however, the knowledge which my situation must necessarily have supplied me with, can enable me to be of any use in matter of information, on any points which come before you, I shall constantly attend in my place, and in my place be ready to answer to any questions on such matter, as any gentleman may wish to receive information upon, as far as I may be able to inform him; and in this light I beg leave to state, that although by the charter of the Province of Massachusetts Bay the Governor is obliged to take with him, not simply the advice, but the consent of the Council, in the nomination of judges and other civil officers — yet it is from the power of the Governor' s commission held under the broad seal, that all the commissions in the Province are derived; and cease with the determination of that commission. All those officers, except the Attorney General, even the Sheriffs, which an honorable gentleman had conceived not to be so, and which the present proposed Bill directs to be appointed and removed by the Governor, are according to the powers and privileges of the present charter, appointed by the Governor in Council. The difference is, that in those Governments which are established by the King' s patent commissions, the whole act of appointment is in the Governor — which act, indeed, he is by his instructions directed to do in the Act. He is the sole efficient: he may advise with the Council, but he is not bound to take their consent — he is not incompetent to the act, without their consent. His commission gives him full power to act — if he acts without the advice of his Council, he does, indeed, break through his instructions, and may incur his Majesty' s displeasure; but yet the appointment is good to all intents and purposes. The first is the act of legal power, derived from the commission; the second, is a matter prudential, with which the mode of the act is properly and wisely accompanied.
In the charter under consideration, the matter of instruction was made a component part of the act — by which the Council were made a component part of the Governor, and so far forth of the supreme executive magistrate. This I have always thought to be an original and radical blunder. If the Bill, as it was first proposed, had gone no farther than to the remedy of this error, I think there could not have been a reasonable objection to it — but of that I shall say no more now — I have already given my opinion on that point.
Another gentleman (misled by a construction which some Governors have made of their powers) thinks that the Council are so much, in all cases of Government, a part of the supreme executive magistrate, that if they refuse to act with the Governor, he cannot do any act of Government either civil or military. I know of no Act in which they are constituted such part, but in the case of the nomination of civil officers. In every other, the Governor, both by the charter and by his commission is, perfect and complete, supreme executive magistrate. I am sure I can speak from fact; — I have, as Governor, without communion of power with the Council, done every civil act of Government, which the King, actuating the powers of the Crown, does here within the Realm. And as to the military, if it had been my misfortune to have been Governor in these times, and if the interposition of the military had been necessary, I would not have applied to them for their aid — I would have sent them an order. I am sure there is no officer within the Province would have dared to have disobeyed it. They must have obeyed. The power to give such order is, both by the charter and the commission (which are both under the broad seal,) in the Governor, as Commander-in-chief; and I know of no revocation of it, but by the mere letter of a Secretary of State, which could have no effect; but which was at the same time one of the most dangerous measures ever taken.
Upon this ground, supposed to be the fact, that the Council are part of the executive magistrate, it is alleged as matter of crime against them, that they refused to act with the Governor at the time of the late riots; by which the powers of Government were suspended, the power of the charter, misused, so that the Governor could not act; but as I have shewn that this is not the fact, the allegation of crime
Mr˙ Rigby. Upon my word, Sir, what was just now said is very worthy the consideration of this House; and if, from what the honourable gentleman says, it is true, and I believe he is well informed, it appears that America is preparing to arm; and that the deliberations of their town-meetings tend chiefly to oppose the measures of this country by force. He has told you, Sir, that the Americans will appoint other officers than those sent by Government to command their troops. He has told you that a Post-Office is established on their account from town to town, in order to carry their treacherous correspondence from one to another. He has told you, the Post-Office revenue will soon be annihilated. If these things are true, Sir, I find we have been the aggressors, by continually doing acts of lenity for these twelve years last past. I think, Sir, and speak out boldly when I say it, that this country has a right to tax America; but, Sir, it is matter of astonishment to me, how an honourable gentleman, (General Conway) can be the author or bringer in of a Declaratory Law over all America, and yet saying at one and the same time, that we have no right to tax America! If I were to begin to say that America should not be taxed, and that these measures were not proper, I would first desire my own Declaratory Law to be repealed; but being of opinion that the Americans are the subjects of this country, I will declare freely, that I think this country has a right to tax America; but I do not say I would put any new tax on at this particular crisis; but when things are returned to a peaceable state, I would then begin to exercise it. And I am free to declare my opinion, that I think we have a right to tax Ireland, if there was a necessity so to do, in order to help the mother country. If Ireland was to rebel and resist our laws, I would tax it. The mother country has an undoubted right and control over the whole of its Colonies. Again, Sir, a great deal has been said concerning requisition. Pray, in what manner is it to be obtained? Is the King to demand it? Or are we, the Legislative power of this country, to send a very civil, polite gentleman over to treat with their Assembly? How and in what manner is he to address that Assembly? Is he to tell the Speaker of it, that we have been extremely ill-used by our neighbours, the French; that they have attacked us in several quarters; that the finances of this country are in a bad state; and, therefore, we desire you will be kind enough to assist us, and give us some money? Is this to be the language of this country to that; and are we thus to go cap in hand? I am of opinion, that if the Administration of this country had not been changed soon after the passing of the Stamp Act, that tax would have been collected with as much ease as the land tax is in Great Britain. I have acted, with regard to America, one consistent part, and shall continue in it till I hear better reason to convince me to the contrary.
Governor Pownall to explain. I apprehend I have been totally misunderstood. I did not assert the Americans were now in rebellion, but that they are going to rebel; when that comes to pass, the question will be, who was the
Mr˙ Charles Fox. I am glad to hear from the honorable gentleman who spoke last, that now is not the time to tax America: that the only time for that is, when all these disturbances are quelled, and they are returned to their duty; so, I find, taxes are to be the reward of obedience; and the Americans, who are considered to have been in open rebellion, are to be rewarded by acquiescing to their measures. When will be the time when America ought to have heavy taxes laid upon it? The honorable gentleman (Mr˙ Rigby) tells you, that that time is when the Americans are returned to peace and quietness. The honorable gentleman tells us also, that we have a right to tax Ireland; however, I may agree with him in regard to the principle, it would not be policy to exercise it; I believe we have no more right to tax the one than the other. I believe America is wrong in resisting against this country with regard to its Legislative authority. It was an old opinion, and I believe a very true one, that there was a dispensing power in the Crown, but whenever that dispensing power was pretended to be exercised, it was always rejected and opposed to the utmost, because it operated to me, as a subject, as a detriment to my property and liberty; but, Sir, there has been a constant conduct practised in this country, consisting of violence and weakness, I wish those measures may not continue; nor can I think that the Stamp Act would have been submitted to without resistance, if the Administration had not been changed: the present Bill before you is not what you want; it irritates the minds of the People, but does not correct the deficiencies of that Government.
Sir Gilbert Elliot said, there was not the least degree of absurdity in taxing your own subjects, over whom you declared you had an absolute right; though that tax should through necessity, be enacted at a time when peace and quietness were the reigning system of the times: you declare you have that right, where is the absurdity in the exercise of it?
Sir Richard Sutton read a copy of a letter relative to the Government of America, from a Governor in America to the Board of Trade, showing, that at the most quiet times, the disposition to oppose the laws of this country were strongly engrafted in them, and that all their actions conveyed a spirit and wish for independence. If you ask an American who is his master, he will tell you he has none, nor any Governor, but Jesus Christ. I do believe it, and it is my firm opinion, that the opposition to the measures of the Legislature of this country, is a determined prepossession of the idea of total independence.
The Bill was then read a second time.
Resolved, That this House will, upon Wednesday morning next, resolve itself into a Committee of the whole House, upon the Bill.
Order of the Day, for the Second Reading of the Bill, Read, Debate
Mr. Fuller
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Sir George Savile
Mr. Welbore Ellis
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Legislature will not take it away without making a full recompense; but wherever the regulation of public matter is the object, they have a right to correct, control, or take it away as may best suit the public welfare. The Crown may sometimes grant improper powers with regard to Governments that are to be established — will it not be highly proper and necessary that the Legislature, seeing in what manner the Crown has been ill-advised, should take it into their consideration, and alter it, as far as necessary? It is the Legislature' s duty to correct the errors that have been established in the infancy of that constitution, and regulate them for the public welfare. Is a charter, not consistent with the public good, to be continued? The honorable gentleman says much bloodshed has been occasioned by taking away or altering of chartered rights; I grant it; but it has always been where encroachments have been made by improper parties, and the attack has been carried on by improper powers. He also says, this form of Government in America ought not to be altered without hearing the parties; the papers on your table, surely, are sufficient evidence what they have to say in their defence. Look only into the letter dated the 19th of November, 1773, wherein the Governor applied to the Council for advice, and they neglected giving it to him; and also wherein a Petition was presented to the Council by certain persons who applied for protection to their property during these disturbances; the Council, without giving any answer, adjourned for ten days, and the Governor was not able to do any thing himself without their opinion. Look again, Sir, into the resolution which the Council came to when they met again, stating the total insufficiency of their power. This, surely, Sir, is an evidence competent to ground this bill upon. We have now got no farther than just to alter these two parts, as stated by themselves. Surely, Sir, that form of Government which will not protect your property, ought to be altered in such a manner as it may be able to do it.
General Conway
Lord North
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but of necessity. If it does not stand upon that ground, it stands on nothing. The account which has just now been read to you is an authentic paper, transmitted to Government here, shewing that the Council refused, in every case, their assistance and advice; and will this country sit still, when they see the Colony proceeding against your own subjects, tarring and feathering your servants; denying your laws and authority; refusing every direction and advice which you send? Are we, Sir, seeing all this, to be silent, and give the Governor no support? Gentlemen say, let the Colony come to your bar, and be heard in their defence; though it is not likely that they will come, when they deny your authority in every instance. Can we remain in this situation long? We must, effectually, take some measure to correct and amend the defects of that Government, I have heard so many different opinions in regard to our conduct in America, I hardly know how to answer them. The honourable gentleman, who spoke last, formerly blamed the tame and insipid conduct of Government; now he condemns this measure as harsh and severe. The Americans have tarred and feathered your subjects, plundered your merchants, burnt your ships, denied all obedience to your laws and authority; yet so clement, and so long forbearing has our conduct been, that it is incumbent on us now to take a different course. Whatever may be the consequence, we must risk something; if we do not, all is over. The measure now proposed, is nothing more than taking the election of Counsellors out of the hands of those people, who are continually acting in defiance and resistance of your laws. It has also been said by gentlemen — send for the Americans to your bar — give them redress a twelvemonth hence. Surely, Sir, this cannot be the language that is to give effectual relief to America; it is not I say, again, political convenience, it is political necessity that urges this measure: if this is not the proper method, shew me any other which is preferable, and I will postpone it.
Sir George Yonge
Governor Johnstone
Mr. C. Jenkinson
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America, or let us give that due protection to it which safety requires.
Mr. Harris
Sir Edward Astley
Mr. Ward
Governor Pownall
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this moment so to act — to take such measures — that no such misfortune may come into event.
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vanishes: yet I must own, and I must say, that as it is always for the benefit of the public, that the Governor should advise with, and have the advice of his Council — that as it is always of benefit to Government, that he should take with him and be supported by the authority of his Council, and, especially, in this Province, where the authority of the country is of more solid effect than in any other — the Council, and every member of it, are highly blameable, are, indeed, inexcusable, whenever they refuse to advise, whenever they withhold their authority from the aid and support of Government. I do not know whether they be not liable to censure in refusing their assistance, as they are by the charter expressly called Assistants; but surely their conduct was inexcusable, when, instead of assisting, they sought and took occasion in the midst of these disturbances, to bring forward as an act of Council, a report fraught with all the matters of contest and dispute, which were the very grounds taken as principles by the People engaged in the disturbances. Thus far as to matter of fact; as to matter of opinion, I shall not trouble the House with it. [The few words afterwards spoken by way of explanation, were so far from signifying that the People were going to rebel, that they were expressly spoken to obviate that misapprehension of what had been said.]
Mr. Rigby
Governor Pownall
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occasion of it. Something has been said relative to requisition: I think I gave several instances wherein the same had been complied with in time of war.
Mr. Charles Fox
Sir Gilbert Elliot
Sir Richard Sutton
Bill Read, Resolution