SOME FUGITIVE THOUGHTS ON A LETTER SIGNED FREEMAN, ADDRESSED TO THE DEPUTIES, ASSEMBLED AT The High Court of CONGRESS in PHILADELPHIA.
By A BACK SETTLER.
SOUTH-CAROLINA. Printed in the Year M DCC LXXIV.
TO THE IMPARTIAL PUBLICK.
FULLY convinced of the Necessity which exists, that a strict Union between the Head and Members of the British Empire should take Place, no Person can harbour a sincerer Veneration for every Branch of it, or would more cordially rejoice in every Incident which had a Ten|dency to promote the Honour and Happiness of the Whole. Problematical as this Language may ap|pear, in such as are disposed to offer modern publick Opinions, I can with Truth aver, that it is in Con|formity to this Veneration, and that Conviction, I now attempt to expose the Imbecility of a Pamphlet signed Freeman, which lately made its Appearance, and point out a few of the many Absurdities with which it teems.
Men, who, to humour unprovoked Resentment on the one Hand, or to serve unjustifiable Purposes on the other, would invert the Order of Things, as well as the Grounds of established Policy, should be deemed Enemies to Society; but when this Prin|ciple of Corruption is extended, and Persons of dis|tinguished Characters and upright Lives are singled Page 2 out as Objects for Envy and Disappointment to wreck their Effects on, we may, without hesitat|ing, proceed a Step further and venture to pro|nounce such, the Author of Calomnies, and destitute of every Species of honourable Feeling.
I must freely confess my present Difficulty. In this little Pamphlet, I could wish to give some exact Portrait of Freeman, but am at a Loss in the Choice of Colours. Whether I should consider him as pa|triotick or ministerial, heterodox, or orthodox, simplex vel unus, compositus vel idem, or both, or either, or neither, I cannot with Candour determine? But as it is not in the least my Intention to censure a Man who, in a personal Capacity, cannot much obstruct the publick Good, I will only confine myself to such Arguments as tend to illustrate the relative Con|nexion which subsists between Great-Britain and her Colonies.
I am well aware of the many Disadvantages which accompany an Attempt of this Nature. The best of Men are at Times liable to receive wrong Im|pressions, under the Influence of which many are apt to consider Objects only in that Point of View which favours the natural Bias of the Mind. An Habit of thinking thus acquired is not readily erased; indeed with Time it collects a Strength in the Fancy frequently too solid for the forcible Appearance of Reason or Argument to subdue. It is not to be then wondered that many Persons should be dazzled by those false Lights which are often displayed for sinister Purposes, though in other Respects possessed of a good Share of Understanding, as well as Integrity, Qualities which, in general, characterize Americans.
Page 3 As I solemnly declare that I do not wear the Features of any Party, the impartial Publick may safely rely on the Candour of such Reasons as will be used in investigating the Nature of that Right of Dominion which Great-Britain claims over the Co|lonies of North-America. It is the immediate In|heritance of every Man born free, to give his Opi|nion on publick Affairs with Truth; as an Indivi|dual I claim that Right. My Opinion, however, shall be free, it must; for certainly it will be the Language of my Heart, unstudied, uncorrected.
The Sovereignty of a British Parliament over all the Dominions belonging to Great-Britain is so es|sential a Part of the Constitution, that the Right cannot be renounced without a Confusion of Ideas, or a treasonable Surrender. Notwithstanding that internal Evidence which arises in the Mind of a thinking Man to support the Truth of this Maxim, from a Survey of those Principles on which parlia|mentary Power is grounded, a Pamphlet, signed Freeman, was published a few Days since, replete with the most gross Strictures on the Conduct of his Majesty, his Ministers, his Parliament, with many others of his Majesty's Servants;—a Pamphlet, which, if accompanied with Grammar-Coherence, some Appearance of Decency, or shew of Reasoning, would evidently tend in its Consequences to subvert the Constitution, overturn a settled System of sub-ordination, and blot out that Ear-mark by which legal Dominion is distinguished.
The Arguments advanced by Freeman to sustain Positions in direct Contradiction to the inherent Rights of a State, are as incongruous as the Positions Page 4 themselves are absurd. Since the first Establishment of Mankind into separate Societies, there was a su|preme Power centered in some Part of the State or Society, for the Purpose of forming necessary Regu|lations for the Good of the Whole. It was justly presumed, that such Regulations, though essential for the Preservation of the Society, would not prove equally agreeable to each Individual, who might be left at Liberty to judge them a heavy Restraint on the Laws of Nature, there was a coercive Power, ex necessitate, established, which enjoined an impli|cit Obedience to such Laws as the Wisdom of the legislative Body judged proper to enact. The un|equal Dictates of natural Law being thus wisely re|strained, for the general Benefit of the Community, and reduced to a subordinate Limitation, no Argu|ments, on the supposed Impropriety of such Mea|sures as were adopted by the acknowledged legislative Power could be admitted, being in their Nature op|posed to those Principles on which the constitutional Power of the State or Society was founded.
On this Ground I will meet Freeman's Opinion, and demonstrate its Incoherency: That Gentleman may, if he pleases, use the Dialect of metaphysical Jargon, I will confine myself to those plain Reasons which arise from a Contemplation of that constitu|tional Authority which is established in Great-Bri|tain. His Opinion might possibly carry some Weight in Foro Coeli, but I strenuously deny that a Retrospect to the first Principles of our Constitution will render his Plea in Behalf of American Indepen|dence admissible at the Bar of an earthly Tribunal, guided by Wisdom or sound Policy. The Colonies Page 5 were peopled and planted by British Subjects; at their Departure for America, they brought with them their Allegiance, an indelible Mark of their Sub|jection to a British Parliament; a Token of Obedi|ence derived from their Ancestors, who were coeval with the Origin of the State, which no Change of Climate, no after-Act of theirs, could erase from their Persons. Thus circumstanced, the first Emi|grants reached the western Continent, which had been previously declared to be subjected to the Eng|lish State by the Discoverers thereof, agreeable to their Principles of Duty and Allegiance. The Pro|prietorship of those new Territories was granted by the executive Magistrate to the Plymouth Company, with Intent of promoting their Colonization; an Ability of forming such municipal Regulations for their Government, as were consistent with the re|lative Tie of Subjection they were under to the State, was also confirmed to the Company. They regu|larly exercised their Right of Power until their Pri|viledge ceased▪ Whatever local Regulations were made, were instituted in England. In like Manner the other Provinces of America were granted to different Persons, with Power of supreme Jurisdic|tion, though subservient to the Controul of Parlia|ment: And no later than 1732, half a Dozen Eng|lish Gentlemen regularly assembled at a Tavern in London, and there framed Laws for the Province of Georgia, for the Purpose of collecting a Revenue, &c. without the smallest Altercation held by the Inhabi|tants of that Province, concerning the Right of their Proprietors so to do. It must have required a won|derful Accession of Knowledge since the above Pe|riod, Page 6 to discover; that a British Parliament, assembled in Westminster-Hall, cannot legally assume a Power which, when vested in Five or Six British Gentle|men, enjoying themselves over a Bottle at the Crown-and-Anchor, they held sacred, and with a placid Composure submitted to.
America is not a Part of the King's hereditary E|states; it constitutes a Share of the British Empire. The Dominion of the King in America arises from Parliament, which hath appointed him supreme Governor over all the Dominions of the State; and here I cannot sufficiently admire the Sophistry of Persons who affect Obedience to a Magistrate, and renounce at the same Time Subjection to that para|mount Authority from which the Magistrate derives his Power. It is a unlucky Circumstance, that Partizans for that Doctrine of Independence lately broached by Freeman, under a new political Phiz, cannot avoid the sad Alternative of either maintain|ing, that they are not Subjects to the King of Eng|land, or, if that be granted, of confessing their De|pendence on a British Parliament, to the constituted chief Magistrate of which they humbly condescend to submit.
Parliament, foreseeing that the Crown might claim an exclusive Dominion over the Colonies, took an early Opportunity of asserting its Right. This Precaution in Parliament was very necessary. We find, that on a Complaint exhibited by the New|England, Settlers to King James the First, against those who, under the Countenance of Parliament, carried on a Fishery on the Coasts, that many Out|rages had been committed by Persons employed in Page 7 that Business, on their Persons and Property, by cutting down Wood in their Enclosures, &c. James was glad of this Pretext, thinking it would furnish him with a proper Excuse for usurping a sole and exclusive Right of Power. He therefore issued a Proclamation, not only for the Purpose of redressing Grievances complained of by the infant Settlers, but plainly importing the Idea of absolute Dominion, which in his regal Capacity he claimed. The Bri|tish Senate now judged it high Time to interpose, and curb this gigantick Stride of Prerogative. The Affair being introduced into Parliament, James sent his Secretary with a Message desiring they may de|sist, as having no Authority over the Colonies*; but Parliament sensible of its Right, was not to be inti|midated so far as to neglect a Matter of such Im|portance to the State, it resumed the Debates on that Subject, and expedited a Bill clearly thwarting the Assertions contained in the Royal Proclamation. Though this Bill miscarried in the Upper House, through the Machinations of the Duke of Bucking|ham, the Unanimity with which it passed the House of Commons, (there being only two dissenting Voices†) will remain a lasting Monument how conscious the Nation was of possessing a paramount Right over all the new Settlements and Territories acquired conquered or colonized, by its Subjects.
Parliament could not condescend to surrender into the Hands of the Crown a Right of so weighty a Concern. We accordingly find this Business taken up the Year following, in the House of Commons, Page 8 and pursued with such ArdencyDagger, that the King's Secretary gave up the Point. The supreme Juris|diction of Parliament over the Colonies being thus established and acknowledged, by a Prince flushed with Ideas of divine Right, it cannot be doubted, that if its Competency was disputed, of exercising plenary Dominion over other Colonies, as well as New-Plymouth, it would have stept forth with the same Zeal, and incontrovertibly have determined its Right. Thus we see, that notwithstanding the O|pinions Individuals now adays adopt, the Language of Parliament continues the same, with only this Difference, that the Struggle in the Reign of James the First was with the Crown, which attempted to oust it of its supreme Jurisdiction, and that in the Reign of George the Third was with the Colonies, which contended for a Latitude of Independence in|consistent with every Idea of Subordination.
There is not the least Similitude between the two Periods of Charles the First and George the Third; nor would any Person draw the Portrait who had the smallest Particle of Respect for his Sovereign. Unhappy Charles became Heir to his Father's Follies as well as his Crown; taught from his Infancy to consider Parliaments as formal Expletives in the State, he judged them unnecessary when once they had ceased to echo the Will of the Sovereign, and de|termined to rule without them. In consequence of this fatal Resolution, arbitrary Exertions of the Pre|rogative grew into Use. Those were the Ills from which the Troubles of that Reign sprung. The House of Commons could no longer endure the con|tinual Page 9 Attacks which were made on its Privileges: It therefore, (not the People, as Freeman observes) arose in its Might, and established its undoubted Right. This was not a Contest between the Prince and a particular Body of his Subjects; it was strictly a Case in which the Sovereign was Plaintiff and Par|liament Defendant: The Claim of the Crown was absolute and sole Dominion: Parliament demurred; and since no other Court of Judicature could deter|mine this important Cause, the Appeal, from Ne|cessity, lay to the God of Hosts. What a soul and ungenerous Misrepresentation! to combine the Events of two Princes Reigns, and assimilate them, where there is not the most distant Parity to justify the Observation; the one having usurped the Authority of Parliament, and substituted his will for Law; the other so tender of the Rights of this People, as not to proceed in the smallest Affairs without collecting the Sense of his Senate.
I will now consider the Weight of those Reasons which Freeman urges, to exempt America from Taxation by a British Parliament.
Having already admitted the Americans (though not descended from the same Ancestors with the People of England, being a Compound of English, Scots, Irish, French, Dutch, &c. New-York in particular, was a Dutch Settlement until the Reign of Charles the Second, and was subject to the States of Holland, which gave Law and collected a Revenue therein) to be entitled to such Rights as Englishmen legally should enjoy, I cannot see a single Inference that arises from the Concession, to justify Americans in withdrawing an Obedience to such Laws as the Wis|dom of the English State judges convenient to enact. It is the heavy Misfortune of Freeman, to quote Cases which, if properly considered, overthrow the Prin|ciples he would wish to establish. I must confess his Case is desperate; having impatiently solicited the Touch of Corruption for long Series of Years, and meeting with only contemptuous Repulses, a lament|able Circumstance, which, when coupled with a total and merited Disregard of his Countrymen, and an entire Shipwreck of private Fortune, in the Re|duction of which, alas! the Nicks of Seven and Eleven bore no inconsiderable Share. I say, to re|medy those Calamities. Prudence must necessarily Page 11 dictate some Measures proper to be pursued; and in this Pursuit, what Choice could be so happily adopt|ed as that which bore the Aspect of Popularity, and offered an Occassion of revenging himself on an un|feeling Ministry, unfeeling, alas! to the earnest and repeated Solicitations of Freeman. I hope this will prove a sufficient Answer to such as may be led to inquire with Hudibras,
The first Reason assigned by the Author of the Letter to the general Congress, is so unguardedly couched that it may be retorted, I fear, with too much Success. Exempli gratia; the Americans are formed of different People, Dutch, French, Swedes, Germans, Scots, Irish and English.
Each Individual brought with him those unalien|able Rights which were his Inheritance in the Country from whence he emigrated.
Therefore each of those Persons is entitled to all and singular the Rights, Privileges and Benefits, which they legally could enjoy in their several Countries from which they extracted their Origin.
To prevent, however, the Absurdity and Confu|sion which take birth from the Jumble of Matter contained in the first Position of Freeman's Letter, I have taken Care to secure, by legal Demonstration, to the Americans the Rights of Englishmen, in a former Part of this short Treatise.
Magna Charta comes next in Order, which is "such a Fellow that he will have no Sovereign." If Page 12 he is "such a Fellow," he must be formidable in|deed; but that he is "no such Fellow," will, I think, incontestibly appear.
The first and principal Care of the Barons who obtained that memorable Charter, was to secure the Roman Catholick Religion: Their second Precau|tion was to lop off the luxuriant Branches of Norman Hardships. That which was granted to the Barons at Runnemede, and which Freeman hath so highly extolled, I account of little Weight, and this for two Reasons; the first, as not sufficient for redressing the Oppressions which the People then groaned under; the second, because the Acquisition of the Charter did not carry a legal Complexion, being obtained from a Prince in Duress. But that Charter of Im|munities, which was confirmed by King Henry the Third to his Barons, with Amendments in Favour of the Subject, which is properly stiled Magna Charta, may deserve the Eulogium of Freeman. I will now clearly demonstrate, that Magna Charta hath been, and still is, subject to the Controul of Parliament; first, in the Article of Religion, which is totally changed from that Form which the Barons contend|ed for in Blood, and indeed established. Here mark. This Alteration in Religion was adopted by Parlia|ment, which did not presume Magna Charta to be a "Fellow superior" to its enacting Power.
The second Instance of doing away the Substance of the great Charter is evident from every day's Practice. Whereas the twenty-ninth Chapter of Magna Charta expresses, that no free Man shall be disseized of his Lands or Tenements, or banished, or imprisoned, unless by the Judgment of his Peers; Page 13 we notwithstanding see a Writ issues in the first In|stance from the Courts, which requires special Bail, or in Default thereof an Imprisonment of the person ensues before the Cause comes to a Trial, or a Judgment of his Peers can be obtained. Least this Custom should be deemed an Abuse, and uncoun|tenanced by Parliament, we have only to refer to to those various Acts of Insolvency made for the Re|lief of the Unhappy. Although those humane Laws free many Objects from the Claws of merciless Cre|ditors, is it not clearly apparent, that by a 〈◊〉 Wind they support, a Custom expressed in Cap. 29th of Magna Charta to be oppressive and unwarrantable? Indeed the Wisdom of that Body which enacted a Law in the Reign of Edward the Third, that Magna Charta should be deemed and considered as the com|mon Law of England was not very conspicuous; for if it was the common Law of the Realm, or lex non scripta, and stood unrepealed by any Statute, it im|ported such absolute Authority and Verity in itself, as not to require the Aid of Parliament to sustain it. But when an Act had been passed for that Purpose, so far from confirming the Substance of the Charter for common Law, that every immemorial Custom or municipal Usage contained therein must immediately lose its Habit of Action, and assume the Name of lex scripta, thro' the legal Operation of that Statute. Even this Law, tho' not penned with a superabun|dant Share of Wisdom, is an incontestible Proof that Parliament only considered the great Charter as the best Confirmation of the Subjects Rights that could then be obtained, and by no Means fastened on it an Idea of an exclusive paramount Controul over sub|sequent Page 14 Parliaments, which in Truth have repealed, explained or rescinded, almost every Article in this celebrated Charter, notwithstanding the blind Asser|tion, "that he is such a Fellow, that he will have no Sovereign." I will now proceed and speak on the Petition of Rights, which is the next in Order of Succession.
The Nature of this Petition is so unconnected with the Purpose it was intended to second, that the Au|thor of the Letter to the Delegates must certainly have imagined no Person properly informed of our History would have ever perused it. Supplemental Acts of State to supply the Defect of Laws, Tonnage and Poundage, and a Collection of other Duties upon Merchandises of all Kinds, all which had been positively refused to be granted by Act of Parliament, with many other Impositions on Trade, formed the Basis on which the Superstructure of this Petition was raised. This also was a Contest between the King and his Parliament, and not in any Degree analagous to the Case of the Americans. I could say more on this Head: but behold the Bill of Rights, which claims some little Attention.
What new and curious Alliances are hourly form|ing! Freeman is become a Supporter of the Bill of Rights. How? From Habit of Body or Conviction of Mind? From neither! Having exhausted his Stock of ministerial Expectation, and soured by Dis|appointment, he hath publickly avowed his Apostacy, and prophecied the Approach of the final Ruin of American Freedom, with nearly as much Zeal as George Fox did the Destruction of the English Mo|narchy in 1660. However, it is Time to use a Page 15 serious Dialect. The Bill of Rights hath not the smallest Tendency to support the Opinion of Free|man. This Bulwark of Freedom was erected for another Purpose: It was a positive Declaration made by Parliament, of those Conditions by which a Te|nure of the British Crown could be held. The supreme Authority of Parliament, not only over all the British Dominions, but also over the Crown, was rendered manifest at this memorable Period; and the Subjection of the Colonies to Parliament cannot be more strongly featured than in that Resolve of the Assembly of Virginia, which unanimously agreed, That if
Surely the Planet which presided over this Gentle|man's Nativity must have been of a very inauspicious Nature, and given early Omens of the left-handed Singularity of Fortune which was to accompany him in his political Walk of Life. That a Man, pro|causis, may be an Enemy to others is not very un|common; but when a Person becomes the bitterest Enemy of the Cause he intended to establish, it is a convincing Proof that he hath attained the Summit of Folly. The smallest Attention to those Principles on which the Act of Settlement was founded, will render the Truth of this Assertion incontrovertibly clear.
The Heart of Man could not devise an Expedient, or produce a Case wherein the unbounded Power Page 16 of Parliament could appear in that Plenitude of legal Lustre with which it did in the Act of Settlement. The Ordinance formed for the Trial of Charles the First, was neither constitutional or parliamentary: The Grant of the Crown to King William, on the Abdication, wanted something of Form, and can only be justified on Principles of Necessity; by such as would draw Conclusions from abstracted Principles of Government; tho', as Blackstone observes, the safest Way for the Subject is to consider that Tran|saction on the Footing of solid Authority: But in the Act of Settlement Parliament actually appeared in the Zenith of its legal Omnipotence. By this Act we see Parliament modelling the Crown, and limit|ing it to Persons not in a regular but a parliamentary Order of Succession. And farther; the Issue of King William, by any other Queen except Mary, excluded from the Inheritance of their Father's Crown, to make Way for the Accession of the Princess Anne and her Issue to the Throne; on Failure of which, the Crown was to revert to the Issue of King William, if in esse; or, in Default thereof, the lineal Descendants of King James the First were to inherit; under which last Clause King George First was called to the Empire, Great Grandfather to our present most gracious Sovereign, whose Life may God long Perpetuate.
The Case of Durham is by no Means applicable to the Colonies: It is a Country situated in England, and paid Taxes equally with the represented Places of that Kingdom before it obtained the Privilege of Representation. This Country was ordered to send two Knights to represent it, at the first Parliament Page 17 of Edward the Third: Its Inhabitants presented Petition to Mortimer signifying their Poverty, and could not well disburse Money for the Knights At|tendance, but that, as heretofore, they would con|tribute their Proportion of all general Assessments. We accordingly find, specified in Doomesday-Book, the different Levies collected in Durroman, or Durham, as it is now called, when general Aids were required. The two cities in England most famed for Manu|factures are now unrepresented, viz. Bermingham and Manchester. A single Doubt is not to be started, that had they desired a Representation it would have been allowed them. Indeed the former had the Offer of Privilege made it in ••66, by the Marquis of Rockingham, but it was declined: The Inhabi|tants of those Towns are a wise and loyal People, satisfied with the Blessings arising from the auspicious Reign of the most humane Prince that ever graced a Throne. They look nothing more on that Head, but bestow their whole Attention on the Ac|quisition of Riches and Greatness.
When the Affair of Durham was agitated in the Reign of Charles the Second, the Reasons quickly appeared for introducing the Motion in Behalf of its Representation. This was a ministerial Manoeuvre, to give Sir John Willoughby, a warm Espouser of the Doctrine of passive Obedience, a Seat in the House of Commons. The popular Party, headed by Sir John Coventry, distinguished themselves in Opposition, in the Lower House: As did the Earl of Shaftsbury in the Upper. It was, however, agreed to, and a Right of Representation confirmed to Durham.Page 18 By what strange Fatality hath the Author of the Letter to the Delegates been induced to furnish his Adversaries with such a Number of unsurmountable Arguments against himself? The most learned of Men may at Times inattentively stumble into an Error; but such a Catalogue of Absurdities is some|what uncommon, and must oust of him of all Be|nefit of Clergy in the argumentative World.
Indeed the first Position laid down by this Gentle|man, "That the Americans being descended from the same Ancestors with the People of England," would imply a dangerous Tendency, to deprive one Moiety of Americans of those specified Rights which, as English Subjects, they have a just Right to exer|cise: For by this Method of Reasoning it would follow, that no Americans but such as were descended from the same Ancestors with the People of England, could with Propriety become Candidates for the chartered Rights of Englishmen. The Americans, however, are entitled in general to every legal Right a Subject can demand: Not on the Principle of "being descended from the same Ancestors with the People of England;" but for this Reason, that on their Arrival in America, they settled in a Colony, the Territory of which, with the whole Country, adjoining, was declared by Cabot, who was autho|rised by Henry VII. to make Discoveries, to be sub|ject to the English State, and to constitute a Part of its Dominions.
It is a Truth to which all Men have assented; that the Swedes were the first People who colonized both Sides of the River Delaware. They called this Page 19 Settlement New-Sweden. They fortified it in seve|ral Places, and erected a Fort in particular, which they named Elsenburgh, a Name it still preserves, The Dutch laid a Claim to this Country, pretending that an Englishman, which they had appointed for the Purpose, was the first Discoverer thereof in 1609. They formed a Colony at the Mouth of Hudson's River, which they named New-Amsterdam (now New-York) and the Country adjoining was called New-Netherland. They extended those Settlements as far as Fort Orange (now Forty Abany) which is a Distance of forty Leagues up the River. They also established a Colony on the Banks of Connecticut River. The prodigious Increase of the, Dutch in those Parts rendered them formidable to the Swedes, who apprehending least their more powerful Neigh|bours should wrest their Possessions from them, agreed to throw themselves under the Protection of the States of Holland; and accordingly made a formal Surrender of that Country to the Dutch Governor. Parliament considered those Dutch Settlements as bold Usurpations on a British Territory; a Conclu|sion which flowed from the Principle of Cabot's Dis|covery. Therefore, in the Reign of Charles the Second, the House of Commons voted a large Sum for sitting out a Fleet for the Reduction of New-Netherland; which was accordingly effected, and the whole Country reduced to the Obedience of the English State.
As the Proprietory of Maryland had been granted by the Crown to Lord Baltimore, a Roman Catholick, that Nobleman's Son brought over a great Number of respectable Popish Families from Ireland: These Page 20 were the actual and primary Settlers of that Pro|vince. Therefore, agreeable to Freeman's Logick, we must Reason thus:
The Inhabitants of Maryland being descended from the same Ancestors with the Papists of Ireland, have a Right, and ought to enjoy all and singular the Privileges and Immunities which Papists enjoy in Ireland.
But the Papists in Ireland being declared by Law incapable of exercising any of those Rights or Immu|nities which Protestants in that Kingdom hold and enjoy.
Therefore the Inhabitabitants of Maryland, &c.
The manifest Absurdity of such Logick is evi|dently conspicuous. Were I not well satisfied that Feeman's Appetite for ministerial Goods was truly sickened, I would have concluded his Performance a high finished Stroke in Politicks, to subject three|fourths of Americans to the State of Aliens or Pa|pists, under the outward Cloak of Patriotism. I have only continued that invidious Distinction be|tween English and Irish which characterizes the Writer of the Letter to the Deputies, with a View of exposing the Fallacy of that Principle the Dis|tinction was created to sustain.
I believe now I may venture to affirm, that Magna Charta, the Petition of Rights, the Bill of Rights, and the Act of Settlement, serve but to shew the unmeasurable Power of Parliament over the Crown and Dominions of the State. So distant are they from generating an Incapacity in the British Senate, that they confirm its imperial Authority, I cannot sufficiently wonder that Freeman should Page 21 overlook the two principal Laws now extant, which establish the Subject's Right, viz, the 12th Charles the Second, and the Habeas Corpus Act. The former removed every Oppression affecting Property, by reducing the Lands of the Kingdom to free, or soc|cage Tenure: The latter effectually secured the Person of the Subject from every Attack that Ty|ranny could devise. It is therefore well observed by a learned Judge, that Magna Charta, and Charta de Foresta, only pruned off some of the out-shooting Branches of Norman Tyranny: But those two Acts of Charles the Second's Reign plucked up every Root from which Oppression could by any Possibility take Birth. How those two only Monuments of British Freedom should escape the Notice of the learned Author of the Letter to the Delegates is inconceive|able to me: But, when we see a String of Laws appealed to, Laws, which, on a proper Information of their Tendency, incontrovertibly damn tha As|sertions of the Appealer, can we possibly prevent that risible Ton which every Muscle of the Face will naturally assume?
Seeing, therefore, that the various Arguments de|duced to limit the taxing Attribute of Parliament have not only failed, but fatally operated to demon|strate its perfect Ability, I will now consider the Principles of feodal Power, on which the Sovereignty of the British State is founded.
It is evident, that a very reasoning Faculty is here required, to form even a distant Idea of what this loose and ungrammatical Jumble of Words would import; yet, lest it should appear to be the Produc|tion of a Mind totally lost in the wide Expanse of Space, I will beg leave to explain its Tendency: Which is, that there does not exist a legislative Power on Earth warranted with sufficient Authority to de|prive a Man of any one original or natural Right which in a State of Nature he is entitled to. Won|derful Reasoning!—has this Phaenomenon been sent on Earth to recall the original Jurisdiction of Socie|ties? By a talismanick Wave to remit into the Hands of the People, those Powers delegated by their An|cestors for the Purpose of correcting the savage Abuse of natural Law! Has this speculum Justitiae per|fectly forgot the first Principles of common Law, which Lord Coke hath laid down, that no absolute Property is vested in a Subject; that every Idea of allodial Right ceased on the Introduction of the feu|dal System—a System on which the King's Right to collect Quit-rent and Crown-rent is founded? and indeed, until the Appearance of this celebrated Letter to the Delegates, was never contested. It may not be improper to observe, that Ideas of feodal Sovereignty were actually supported by the common Law, "not annihilated," as Freeman asserts; and in all Cases where the Terrors of this lordly Do|minion, are now suspended; with Thankfulness we must attribute it to the Wisdom of that Parlia|ment Page 23 which passed the Soccage-Act, in the 12th Year of Charles the Second's Reign. By this excel|lent Law the Lands of the Kingdom were ascertained to their Proprietors; and Tenants were freed from the vexatious and galling Oppressions which took Rise from the slavish Tenures their feodal Tyrants subjected them to, and were only liable to those Assessments which Parliament at different Times would judge proper to lay on.
Principles of feodal Sovereignty being incorporated with, and supported by common Law; and the Hard|ships springing from such Principles being removed by Statute Law, does it not follow, that Freeman, not content with subjecting one Moiety of the Ame|ricans to the hard Condition of Aliens or Papists, would further deprive the Whole, of those Exemp|tions from feodal Dominion, which their English Brethren claim under Force of a Statute? Yet, lest I should be accused of Misrepresentation in a Matter of this Importance, I think it incumbent on me to quote the Gentleman's own Words.—
The Americans cannot be Candidates for more Immunities than their Brethren in England claim by Law. Now, unless Freeman makes it appear that the Law made in the Reign of Charles the Second extends to all the Colonies of North-America, it must give an incurable Wound to the flattering Hopes I entertained, that the Americans were free Men, and entitled to every plenary Right of Exemption from feodal Hardship, a Subject residing in England actually enjoys.
Page 25 It is not to be here understood, that the 12th of Char. II. had any farther Tendency than to remove the arbitrary Restraint under which the Subject's Property was held, from illegal Stretches of feodal Principles. The Idea was left untouched: It was only the frightful Edifice that was raised on this visionary Foundation. which tumbled beneath that invaluable Law. The Basis being of a magical Composition withstood the Shock, and indeed could not disappear without a Repeal of the whole Body of both Statute and Common Law; the great Out|lines of which, in common with the Codes of every Nation in Europe, are founded on this visionary Principle. The Happiness of the Subject was not however compleated by this Law; it is true his Pro|perty was thereby secured; the Safety of his Person was not yet provided for: But the thirtieth Year of this Kings Reign produced another Law called the Habeas Corpus Act, which, in Conjunction with the former▪ effectuated the Redemption of the Subject's Property and Person from every Device of Tyranny. These two Laws are the Palladium of British Freedom.
Were Freeman's Principles adopted, and every genuine Right of Liberty which is established in England made attainable in America, it would com|plete the Ruin of many American Provinces, as well as the West-India Islands. A general Manumission of Negroes is a Doctrine badly calculated for the Meridian of either America or the Islands; yet it is one of those original Rights, the Exercise of which all human Forms immediately enjoy, by setting a Foot on that happy Territory where Slavery is for|bidden to perch.
Page 26 As the Compliance of the Judges with the Mo|tion for issuing Writs of Assistance, hath been con|strued and Effect of their Dependance on the Crown; and as the Author of the Letter to the Delegates hath been induced on this Supposition to draw a Comparison between
But, before I enter into these Considerations, it will be necessary to take a Review of the superiour Courts of Judicature, established for the Benefit of the Community, and for the Support of our glorious and excellent Constitution, together with the indis|pensible Duty of Justices appointed by the Royal Order to preside in each.
These Courts are divided in two Parts, viz. Law and Equity: Judges in the former are sworn, in their Dispensation of Justice, to be guided by the Com|mon and Statute Law of the Realm. Any wilful Appeal to private Opinion, in their solemn Deter|minations, where there is a Record which attests, or an Act that declares, how the Law in the particular Case stands, is a criminal Deviation from their Duty, and a flagrant Breach of Oath, for which they are liable to be prosecuted, and most severely punished.
However, least a rigorous Determination of a Court of Law should affect the Subject in Cases wherein he lay exposed to the Letter of the Law; and, as it was impossible for him to obtain Redress from Judges sworn to act according to Law; a Court Page 27 of Equity was established, and endued with Powers to mitigate the Rigour of such Decisions as appeared not consistent with equitable Principles of Justice.
This short Review of the Duty of Judges being ended, I am now left at Liberty to consider the Propriety of the Conduct of that "Set" of Judges which unanimously agreed that Writs of Assistance should issue.
The Attorney-General moved the Court of Com|mon-Pleas in February Term 1773, for a Writ of this Nature. A Gentleman who took Notes on that Day, hath done me to Favour of communicating to me the Substance of the Chief Justice's Argument; I will beg leave to insert it here.
"Tolls or Duties upon Merchandises, now called Customs, have been long payable to his Majesty's Predecessors, Kings and Queens of England; so long as to induce many to believe that they were the In|heritance of the King by immemorial Usage or com|mon Law. But my Lord Coke, in his 2d Institute, Page 58, in his Exposition of Magna Charta, clearly demonstrates, that these Customs derived their Au|thority under the Sanction of an Act of Parliament, and were not allowable by common Law; but were first granted to the Crown, by the Statute of West.•st, in the Reign of Edw. I. so that by this we see King's Rights to Customs established by Autho|rity of Parliament almost 500 Years since; and they now constitute a Part of the King's extraordinary Revenue. At first they were granted for only stated Terms of Years; and afterwards to the different Kings for Life, by different Acts of Parliament. I Page 28 shall, however, go no farther back than the Reign of Charles II. when the Act of Tonnage and Pound|age passed, among the first Laws made after the Restoration—in the 12th of Char. II. Cap. 4. By that Act a Subsidy of Tonnage and Poundage was given to his Majesty for Life, and the Rates of Merchandise were settled, as they were then agreed upon, by the Commons in Parliament, and signed by their Speaker.
"The same Duties were afterwards granted for Life to Jac. II. and W. III. And by three different Acts of Parliament made since, viz. 9th Anne, Cap. 6, the 1st Geo. I. Cap. 12, and the 3d Geo. I Cap. 7, they are made perpetual; so that the King's Right thereto appears to be clear and indisputable, under the several Acts of Parliament mentioned."
"Immediately after the Act of Tonnage and Poundage had passed, it became necessary to secure to the King the Payment of the parliamentary Re|venue granted him by that Act, and to prevent him of being defrauded thereof.
"And accordingly, by the 12th of the same King, Cap. 19, it was enacted, That where Goods liable to Customs, Subsidy, or other Duties, by the Act of Tonnage and Poundage, shall be conveyed away without Entry or Agreement for the Customs; that on Oath thereof before the Lord Treasurer, or any of the Barons of the Exchequer, or the chief Magistrate of the Port or Place where the Offence was committed, or of the Place next adjoining there|to, it shall be lawful for the Lord Treasurer, &c. to issue Warrants to any Person, or Persons, enabling him or them, with Assistance of a Sheriff, Justice Page 29 of Peace, or Constable, to enter any House by Day, where such Goods are suspected to be concealed; and in case of Resistance, to break open such Houses and seize, &c. and all Officers and Ministers of Justice are required to be aiding and assisting thereto.—No House to be entered except within a Month after the Offence is committed; and Damages may be re|covered against a false Informer.
"The Remedy provided by this last mentioned Act was what was first suggested for securing the Payment of the King's Customs; but a very short Experience of it shewed that it was defective, and did not answer the intended Purpose; for after an Information received by the Officers of the Customs, the Time spent in taking the necessary Steps for ob|taining the Warrant, generally gave the Offenders an Opportunity of privately conveying away the Goods. A further Act was therefore necessary; and we ac|cordingly find, that in less than two Years after, an Act was passed, entitled, An Act for preventing Frauds and regulating Abuses in his Majesty's Customs. It is the 14th Char. II. Cap. II. the Preamble of which sets forth, that,
"By this Act the Remedy became as complete as possible; the Formality of making Oath before the Lord Treasurer, a Baron of the Exchequer, or a chief Magistrate, on every Information of uncus|tomed or prohibited Goods, is dispensed with, and no Time lost, and as little Opportunity as possible given to secrete the Goods. Under this Act of Par|liament, the Officers of the Customs in England are constantly armed with a Writ of Assistance, which is issued by the Clerk of the Exchequer as a Thing of Course, without any particular Application to the Court. Thus the Power of the Custom-House Of|ficer is given him by Act of Parliament, and the Writ facilitates the Execution thereof: It is a No|tification to the Constable of the Character and Sta|tion of the Officer; and is at the same Time a Se|curity to the Subject, against others who might pre|tend to that Character, without a Right to assume it. By the former Act, the Officer acted under the Authority of any inferior Magistrate; his Power now emanates from a higher and more solemn Au|thority; Page 31 a Writ under the Seal of the Court of Ex|chequer—a Disobedience to which is a Contempt of the Court.
"It remains now to be considered, how these Powers came to be extended to the Officers of his Majesty's Revenue in America.
"The first Act of Parliament I shall take Notice of for this Purpose is the 7 & 8 of Will. III. Cap. 22. entitled, An Act for the more effectual preventing of Frauds, and regulating Abuses in the Plantation-Trade in America. By this Act, it is among other Things provided,
"By this Act, it is evident the Intention of the Legislature was to cloath the Custom-House Offi|cers in America with the same Powers as those in England. But as the 14 Char. II. directs the Writs of Assistance to issue from the Court of Exchequer, and as such Courts are not generally established in America, for that Reason it became a Doubt whether any other Court could legally issue such Writs.
"This made a further Act of Parliament neces|sary. Accordingly, by the 7th Geo. III. Cap. 46, after reciting the 14th Char. II. the 7 & 8 Will. III. and then reciting, That no Authority being expres|sly Page 32 given by the Act of King William, to any parti|cular Court to grant such Writs of Assistance for the Officers in the Plantations, it is doubted, whether such Officers can legally enter Houses, and other Places on Land, to search for the seize Goods in the Manner directed by the said recited Acts.
This last Act, therefore, places the Matter be|yond all Doubt. It is a polar Star by which, agree|able to their Oath of Office, the Opinion of Law-Judges must be guided, and their Determination concluded. It leaves not the smallest Opening for a shuffling Disposition to run with the Hare, and hunt with the Hound. A positive Refusal of a Judge to comply with an Act of Parliament, is a violent Breach of the Trust reposed in him, and includes a Prosecu|tion for high and mighty Crimes and Misdemeanours.
These were the Reasons which influenced the Chief Justice to comply with the Motion. An ex|tensive Page 33 Acquaintance with the various Laws relating to the Customs, from the earliest Period to the pre|sent Time, informed this Ornament of the Bench how the Law stood; and a Conscience not ungrateful to the Remembrance of a solemn Oath, constrained him to determine according to Law. The three Assistant-Judges, Messrs. Savage, Coslett, and Murray, concurred unanimously in this Decision, and gave weighty and substantial Reasons for coinciding with the Chief Justice's Opinion. Even Mr. Justice Fewtrell (whose Conduct is misrepresented by Free|man on this Occasion) entertained no Doubt of the Legality of issuing Writs of Assistance; and only hesitated in concurring with the other Judges from an Uncertainty which was the superior Court of Justice, the Court of Chancery or the Court of Common-Pleas; a Doubt which would have been entirely removed, by an Appeal to the Decision of all the Judges in England, on a Question proposed by the Lord Chancellor Talbot, Anno 1735, which was the supreme Court of Justice in the Kingdom. The House of Lords and the King's Bench were declared to be the two supreme Courts of Justice*
Having taken a comprehensive View of the Ar|guments which constrained one "Set" of Judges, "Men without the visible Shadow of Independence" to grant those Writs, it will be only fair to consider what Motives could restrain another "Set" of Judges, Men of Property, from issuing such Writs. But, before I proceed further, it will not be amiss to ob|serve, that Freeman might have been contented with holding up his own Conduct to publick Ridicule, Page 34 without introducing the Names of other Gentlemen to share a Part of his Calamity. It is with Regret I answer this Passage in his Letter, as I am necessitated to analyze somewhat unfavourably thereon; yet, perhaps, my Method of censuring may do the Gentlemen at least as much Honour, as the ill-favoured Eulogiums bestowed on them by the Au|thor of the Letter to the Delegates.
The first Motive, therefore, which naturally oc|curs, why Judges, Men of Property, in a mercan|tile Colony like this, should determine contrary to written Law, might arise from a partial Adherence to Self-Interest. The best of Men, as Times now run, are induced to take every Step of aggrandizing their Fortunes. The Spirit of accumulating Dollars, when added to that dissolving Satisfaction of Mind which a free born Subject of America tastes in seeing a stately Slave stand on every Perch of his extensive Plantation, is somewhat allayed by the bitter Re|membrance of paying Tribute to Caesar. I may with Truth here add, that our Brethren in England would heartily concur with Americans, in the Doc|trine of paying neither Taxes or Customs (with which it must be allowed they are heavily laden) were they not compelled by the positive Injunction of a superior Power, and with which, as inferiors, they are bound to comply.
The second Reason, why they refused to grant those Writs, is humourously related by Freeman; because the Opinion of the Bench was guided by Rawlins Lowndes, Esq who, Freeman asserts, was not bred regularly to the Profession of the Law; and the other Judges went to School to Mr. Lowndes,Page 35 who taught them to quaff such large Draughts of Law, as quickly enabled them to administer Justice with publick Approbation. This is, I think, the richest and most expressive Description of Quackery that ever caught my Attention. Indeed Empyrism is displayed with such Pathos, that I would have considered it in no other Light than of a Burlesque on the "Set" of learned Judges referred to, was I not sensible that the ingenious Author of the Letter to the to the Delegates, intended, sub ficto nomine, to be the Herald of his own Fame, and by the Side-Wind of his Eulogium on the great Abilities of Mr. Lowndes, "who had never eat Commons at the Temple," formed a Design to establish an Idea of his own uncommon Powers, by the sole Strength of which he hath been enabled to make such a rapid Progress in Law-Story, without the vulgar Aid of a Temple- Erudition.
I can now sincerely aver, that nothing but a warm Wish of promoting an Union between the Mother-Country and her Colonies, induced me to answer the mad Arguments of a Man, who, soured by Dis|appointment, would widen the Breach of Discon|tent: But, Americans! resume your Understanding, and discountenance every Design of Faction. Famed as you are for Justice, Humanity and Honour; it would ill become Men, justly celebrated for such godlike Virtues, to submit their Judgment as a Prey for Artifice to sport with; or to suffer their Atten|tion to be diverted into any Channel but that which alone can render them a great and flourishing People.
Imperial Rome, which once gave Law to the World, fell by publick Discontents, as much as by Page 36 Debauchery. Whilst the Romans continued a firm united People, they extended their Conquests over the Earth; but when Faction reared its Head, and Persons thought it their Interest to embrace Ex|tremes, ambitious Men were not wanting to keep these Breaches open: It was then the ancient Roman Virtue began to decline. Publick Offices, which were in the Gift of the People, were generally filled by their designing Leaders; indeed the most flagrant and turbulent Characters were commonly preferred. The guilty Custom drawing into an E|stablishment, soon rendered the Air of Italy too polluted for Freedom or Order to dwell in; they therefore winged their Way: By which Flight the Romans lost themselves and the Empire of the World together.
I will conclude this Pamphlet with an Advice to Freeman.
A BACK SETTLER.
Keowee,Sept. 25th, 1774.