The Constitutional History of England from 1760 to 1860 Part 2

It may be doubted whether the circ.u.mstances which had induced George III. to demand such a power as that with which the bill invested him justified its enactment. He was already the father of a family so numerous as to render it highly improbable that either of his brothers or any of their children would ever come to the throne; while, as a previously existing law barred any prince or princess who might marry a Roman Catholic from the succession, the additional restraint imposed by the new statute practically limited their choice to an inconveniently small number of foreign royal houses, many of which, to say the least, are not superior in importance or purity of blood to many of our own n.o.bles.

Nor can it be said to have been successful in accomplishing his Majesty's object. It is notorious that two of his sons, and very generally believed that one of his daughters, married subjects; the Prince of Wales having chosen a wife who was not only inferior in rank and social position to Lady Waldegrave or Mrs. Horton, but was moreover a Roman Catholic; and that another of his sons pet.i.tioned more than once for permission to marry an English heiress of ancient family. And our present sovereign may be thought to have p.r.o.nounced her opinion that the act goes too far, when she gave one of her younger daughters in marriage to a n.o.bleman who, however high in rank, has no royal blood in his veins. The political inconvenience which might arise from the circ.u.mstance of the reigning sovereign being connected by near and intimate relationship with a family of his British subjects will, probably, always be thought to render it desirable that some restriction should be placed on the marriage of the heir-apparent; but where the sovereign is blessed with a numerous offspring, there seems no sufficient reason for sending the younger branches of the royal house to seek wives or husbands in foreign countries. And as the precedent set in the case of the Princess Louise has been generally approved, it is probable that in similar circ.u.mstances it may be followed, and that such occasional relaxation of the act of 1772 will be regarded as justified by and consistent with the requirements of public policy as well as by the laws of nature.[29] Generally speaking, the two Houses agreed in their support of the ministerial policy both at home and abroad; but, in spite of this political harmony, a certain degree of bad feeling existed between them, which on one occasion led to a somewhat singular scene in the House of Commons. The Commons imputed its origin to the discourtesy of the Lords, who, when members of the Commons were ordered by their House to carry its bills up to the peers, sometimes kept them "waiting three hours in the lobby among their lordships' footmen before they admitted them." Burke affirmed that this had happened to himself, and that he "spoke of it, not out of any personal pride, nor as an indignity to himself, but as a flagrant disgrace to the House of Commons, which, he apprehended, was not inferior in rank to any other branch of the Legislature, but co-ordinate with them." And the irritation which such treatment excited led the Commons, perhaps not very unnaturally, to seek some opportunity to vindicate their dignity. They found it in an amendment which the Lords made on a corn bill. In the middle of April, 1772, resolutions had been pa.s.sed by the Commons, in a committee of the whole House, imposing certain duties on the importation of wheat[30] and other grain when they were at a certain price, which was fixed at 48s., and granting bounties on exportation when the price fell below 44s. The Lords made several amendments on the bill, and, among others, one to strike out the clause which granted bounties. But when the bill thus amended came back to the Commons, even those who disliked the principle of bounties resented this act of the Lords in meddling with that question, which they regarded as a violation of their peculiar and most cherished privilege, the exclusive right of dealing with questions of taxation. Governor Pownall, who had charge of the bill, declared that the Lords had forgotten their duty when they interfered in raising money by the insertion of a clause that "no bounty should be paid upon exported corn." And on this ground he moved the rejection of the bill.[31] In the last chapter of this volume, a more fitting occasion for examining the rights and usages of the House of Lords with respect to money-bills will be furnished by a series of resolutions on the subject, moved by the Prime-minister of the day. It is sufficient here to say that the power of rejection is manifestly so different from that of originating grants--which is admitted to belong exclusively to the Commons--and that there were so many precedents for the Lords having exerted this power of rejection in the course of the preceding century, that they probably never conceived that in so doing now they were committing any encroachment on the const.i.tutional rights and privileges of the Lower House. But on this occasion the ill-feeling previously existing between the two Houses may be thought to have predisposed the Commons to seek opportunity for a quarrel. And there never was a case in which both parties in the House were more unanimous. Governor Pownall called the rejection of the clause by the Lords "a flagrant encroachment upon the privileges of the House," and affirmed that the Lords had "forgotten their duty." Burke termed it "a proof that the Lords did not understand the principles of the const.i.tution, an invasion of a known and avowed right inherent in the House as the representatives of the people," and expressed a hope that "they were not yet so infamous and abandoned as to relinquish this essential right," or to submit to "the annihilation of all their authority." Others called it "an affront which the House was bound to resent, and the more imperatively in consequence of the absence of a good understanding between the two Houses." And the Speaker, Sir John Cust, went beyond all his brother members in violence, declaring that "he would do his part in the business, and toss the bill over the table." The bill was rejected _nem. con._, and the Speaker tossed it over the table, several of the members on both sides of the question kicking it as they went out;[32] and to such a pitch of exasperation had they worked themselves up, that "the Game Bill, in which the Lords had made alterations, was served in a similar manner,"

though those alterations only referred to the penalties to be imposed for violations of the Game-law, and could by no stretch of ingenuity be connected with any question of taxation.

Notes:

[Footnote 16: A motion was, indeed, made (but the "Parliamentary History," xvi., 55, omits to state by whom) that the House should "humbly entreat his Majesty, out of his tender and paternal regard for his people, that he would be graciously pleased to name the person or persons whom, in his royal wisdom, he shall think fit to propose to the consideration of Parliament for the execution of those high trusts, this House apprehending it not warranted by precedent nor agreeable to the principles of this free const.i.tution to vest in any person or persons not particularly named and approved of in Parliament the important offices of Regent of these kingdoms and guardian of the royal offspring heirs to the crown." But "it pa.s.sed in the negative," probably, if we may judge by other divisions on motions made by the same party, by an overwhelming majority.]

[Footnote 17: No one doubted that this choice had been made under the influence of Lord Bute, and was designed for the preservation of that influence.--Lord Stanhope, _History of England_, v., 41.]

[Footnote 18: In his speech in the House of Lords on the Regency Bill of 1840, the Duke of Suss.e.x stated that George III. had nominated the Queen as Regent in the first instance, and, in the event of her death, the Princess Dowager.]

[Footnote 19: "Lives of the Chancellors," c. cxli.]

[Footnote 20: It appears from these dates that it was not yet understood that Parliament could not be prorogued for a longer period than forty days.]

[Footnote 21: These words occur in a speech attributed to Lord Mansfield. There is no detailed account of the debates on this subject in either House. All that exists in the "Parliamentary History" is a very brief abstract of the discussion in the Commons, and a doc.u.ment occupying above sixty pages of the same work (pp. 251-314), ent.i.tled "A Speech on behalf of the Const.i.tution against the Suspending and Dispensing Prerogative," etc., with a foot-note explaining that "this speech was supposed to be penned by Lord Mansfield, but was, in fact, written by Mr. Macintosh, a.s.sisted by Lord Temple and Lord Lyttleton."

It certainly seems to contain internal evidence that it was not written by any lawyer, from the sneers at and denunciations of lawyers which it contains, as a cla.s.s of men who "have often appeared to be the worst guardians of the const.i.tution, and too frequently the wickedest enemies to, and most treacherous betrayers of, the liberties of their country."

But, by whomsoever it was "penned" and published, the arguments which it contains against the dispensing power were, probably, those which had been urged by the great Chief-justice, and as such I have ventured to cite them here.]

[Footnote 22: In his "Lives of the Chief-justices" (c. x.x.xvi., life of Lord Mansfield), Lord Campbell says, with reference to this case: "The Chief-justice's only considerable public exhibition during this period was his attack on the unconst.i.tutional a.s.sertion of Lord Chatham and Lord Camden, that, in a case of great public emergency, the crown could by law dispense with an act of parliament. The question arising from the embargo on the exportation of corn, in consequence of apprehended famine, he proved triumphantly that, although the measure was expedient and proper, it was a violation of law, and required to be sanctioned by an act of indemnity." And Lord Campbell adds, in a note: "This doctrine, acted upon in 1827, during the administration of Mr. Canning, and on several subsequent occasions, is now universally taken for const.i.tutional law" (ii., 468).]

[Footnote 23: To adduce a single instance, worthy of remark as affecting the personal liberty of the subject, in 1818 a bill of indemnity was pa.s.sed to sanction the action of the ministry in arresting and detaining in prison, without bringing them to trial, several persons accused of being implicated in seditious proceedings (_vide infra_).]

[Footnote 24: Vol. xvii., 304.]

[Footnote 25: The case is mentioned by Lord Campbell in his "Lives of the Chancellors," c. cxxi. (life of Lord Macclesfield) and c. cxxiv.

(life of Lord Chancellor King).]

[Footnote 26: In fact, however, the age at which a young prince was considered competent to exercise the royal authority in person had been fixed at eighteen; and it is so stated in the speech in which the King, in 1765, recommended the appointment of a Regent to Parliament.-- _Parliamentary History_, xvi., 52.]

[Footnote 27: This idea was expanded into an epigram, which appeared in most of the daily papers, and has been thought worthy of being preserved in the "Parliamentary History," xvii., 401 (note):

"Quoth d.i.c.k to Tom, 'This act appears Absurd, as I'm alive, To take the crown at eighteen years, A wife at twenty-five.

The mystery how shall we explain?

For sure, as Dowdeswell said, Thus early if they're fit to _reign_, They must be fit to _wed_.'

Quoth Tom to d.i.c.k, 'Thou art a fool, And nothing know'st of life; Alas! it's easier far to rule A kingdom than a wife.'"]

[Footnote 28: It is remarkable that this clause on one occasion proved an obstacle to the punishment of the abettors of such a marriage. In 1793 the Duke of Suss.e.x married Lady Augusta Murray, first at Rome, and afterward, by banns, at St. George's, Hanover Square. And when the affair came to be investigated by the Privy Council, Lord Thurlow denounced the conduct of the pair in violent terms, and angrily asked the Attorney-general, Sir John Scott, why he had not prosecuted all the parties concerned in this abominable marriage. Sir John's reply, as he reported it himself, was sufficiently conclusive: "I answered that it was a very difficult business to prosecute; that the act, it was understood, had been drawn by Lord Mansfield, the Attorney-general Thurlow, and the Solicitor-general Wedderburn, who, unluckily, had made all persons present at the marriage guilty of felony. And as n.o.body could prove the marriage except a person who had been present at it, there could be no prosecution, because n.o.body present could be compelled to be a witness."--THORP'S _Life of Eldon_, i., 235.]

[Footnote 29: A protest against the bill, entered by fourteen peers, including one bishop (of Bangor), denounced it, among other objections, as "contrary to the original inherent rights of human nature ...

exceeding the power permitted by Divine Providence to human legislation ... and shaking many of the foundations of law, religion, and public security."--_Parliamentary History_, xvii., 391.]

[Footnote 30: The import duty on wheat was fixed at 6_d_. a quarter on grain, and 2_d_. per cwt. on flour, when the price of wheat in the kingdom should be at or above 48s.; when it was at or above 44s., the exportation was to be altogether prohibited.--_Parliamentary History_, xvii., 476.]

[Footnote 31: See Hallam, "Const.i.tutional History," iii., 38-46, ed.

1833, where, as far as the imperfection of our early Parliamentary records allows, he traces the origin of the a.s.sertion of this peculiar privilege by the Commons, especially referring to a discussion of the proper limits of this privilege in several conferences between the two Houses; where, as on some other occasions, he sees, in the a.s.sertion of their alleged rights by the Commons, "more disposition to make encroachments than to guard against those of others." A few years before (in 1763), the House of Lords showed that they had no doubt of their right to reject a money-bill, since they divided on the Cider Bill, which came under that description. As, however, the bill was pa.s.sed, that division was not brought under the notice of the House. But in 1783, in the time of the Coalition Ministry, the peers having made amendments on the American Intercourse Bill, "the Speaker observed that, as the bill empowered the crown to impose duties, it was, strictly speaking, a money-bill, and therefore the House could not, consistently with its own orders, suffer the Lords to make any amendments on it, and he recommended that the consideration of their amendments should be postponed for three months, and in the mean time a new bill framed according to the Lords' amendments should be pa.s.sed." The recommendation was approved by Mr. Pitt, as leader of the Opposition, and approved and acted on by Mr. Fox, as leader of the ministry in that House. But, at the same time, Mr. Fox fully admitted the right of the Lords to discuss such questions, "for it would be very absurd indeed to send a loan bill to the Lords for their concurrence, and at the same time deprive them of the right of deliberation. To lay down plans and schemes for loans belonged solely to the Commons; and he was willing, therefore, that the amended bill should be rejected, though he was of opinion that the order of the House respecting money-bills was often too strictly construed."

And he immediately moved for leave to bring in a new bill, which was verbatim the same with the amended bill sent down by the Lords.--_Parliamentary History_, xxiii., 895. The question was revived in the present reign, on the refusal of the Lords to concur in the abolition of the duty on paper, when the whole subject was discussed with such elaborate minuteness, and with so much more command of temper than was shown on the present occasion, that it will be better to defer the examination of the principle involved till we come to the history of that transaction.]

[Footnote 32: "Parliamentary History," xvii., 515.]

CHAPTER III.

Mr. Grenville imposes a Duty on Stamps in the North American Colonies.--Examination of Dr. Franklin.--Lord Rockingham's Ministry Repeals the Duty.--Lord Mansfield affirms a Virtual Representation in the Colonies.--Mr. C. Townsend imposes Import Duties in America.--After some Years, the Civil War breaks out.--Hanoverian Troops are sent to Gibraltar.--The Employment of Hanoverian Regiments at Gibraltar and Minorca.--End of the War.--Colonial Policy of the Present Reign.--Complaints of the Undue Influence of the Crown.--Motions for Parliamentary Reform.--Mr. Burke's Bill for Economical Reform.--Mr.

Dunning's Resolution on the Influence of the Crown.--Rights of the Lords on Money-bills.--The Gordon Riots.

But during these years another matter had been gradually forcing its way to the front, which, though at first it attracted but comparatively slight notice, when it came to a head, absorbed for several years the whole attention, not only of these kingdoms, but of foreign countries also. It was originally--in appearance, at least--merely a dispute between Great Britain and her Colonies in North America on the mode of obtaining a small revenue from them. But, in its progress, it eventually involved us in a foreign war of great magnitude, and thus became the one subject of supreme interest to every statesman in Europe. England had not borne her share in the seven years' war without a considerable augmentation of the national debt, and a corresponding increase in the amount of yearly revenue which it had become necessary to raise;[33] and Mr. Grenville, as Chancellor of the Exchequer, had to devise the means of meeting the demand. A year before, he had supported with great warmth the proposal of Sir Francis Dashwood, his predecessor at the Exchequer, to lay a new tax upon cider. Now that he himself had succeeded to that office, he cast his eyes across the Atlantic, and, on the plea that the late war had to a certain extent been undertaken for the defence of the Colonies in North America, he proposed to make them bear a share in the burden caused by enterprises from which they had profited. Accordingly, in March, 1764, he proposed a series of resolutions imposing a variety of import duties on different articles of foreign produce imported into "the British Colonies and plantations in America," and also export duties on a few articles of American growth when "exported or conveyed to any other place except to Great Britain." Another resolution affirmed "that, toward defraying the said expense, it might be proper to charge certain stamp-duties in the said Colonies and plantations."

The resolutions imposing import and export duties were pa.s.sed by both Houses almost without comment. That relating to a stamp-duty he did not press at the moment, announcing that he postponed it for a year, in order to ascertain in what light it would be regarded by the Colonists themselves; and as most, if not all, of the Colonies had a resident agent in London, he called them together, explained to them the object and antic.i.p.ated result of the new imposition (for such he admitted it to be), and requested them to communicate his views to their const.i.tuents, adding an offer that, if they should prefer any other tax likely to be equally productive, he should be desirous to consult their wishes in the matter.

He probably regarded such language on his part as a somewhat superfluous exercise of courtesy or conciliation, so entire was his conviction of the omnipotence of Parliament, and of the impossibility of any loyal man or body of men calling its power in question. But he was greatly deceived. His message was received in America with universal dissatisfaction. Of the thirteen States which made up the body of Colonies, there was scarcely one whose a.s.sembly did not present a pet.i.tion against the proposed measure, and against any other which might be considered as an alternative. Grenville, however, was not a man to be moved by pet.i.tions or remonstrances. He was rather one whom opposition of any kind hardened in his purpose; and, as no subst.i.tute had been suggested, at the opening of the session of 1765 he proposed a series of resolutions requisite to give effect to the vote of the previous year, and imposing "certain stamp-duties and other duties" on the settlements in America, perhaps thinking to render his disregard of the objections which had been made less unpalatable by the insertion of words binding the government to apply the sums to be thus raised to "the expenses of defending, protecting, and securing" the Colonies themselves. The resolutions were pa.s.sed, as the "Parliamentary History" records, "almost without debate," on the 6th of March.[34] But the intelligence was received in every part of the Colonies with an indignant dissatisfaction, which astonished even their own agents in England.[35]

Formidable riots broke out in several provinces. In Ma.s.sachusetts the man who had been appointed Distributor of Stamps was burnt in effigy; the house of the Lieutenant-governor was attacked by a furious mob, who avowed their determination to murder him if he fell into their hands; and resolutions were pa.s.sed by the a.s.semblies of the different States to convene a General Congress at New York in the autumn, to organize a resistance to the tax, and to take the general state of affairs into consideration.

Before, however, that time came, a series of events having no connection with these transactions had led to a change of ministry in England, and the new cabinet was less inclined to carry matters with a high hand.

Indeed, even the boldest statesman could hardly have learned the state of feeling which had been excited in America without apprehension, and those who had the chief weight in the new administration were not men to imperil the state by an insistance on abstract theories of right and prerogative. Accordingly, when, after Lord Rockingham had become Prime-minister, Parliament met in December, 1765, the royal speech recommended the state of affairs in America to the consideration of Parliament (a recommendation which manifestly implied a disposition on the part of the King's advisers to induce the House of Commons to retrace its steps), papers were laid before Parliament, and witnesses from America were examined, and among them a man who had already won a high reputation by his scientific acquirements, but who had not been previously prominent as a politician, Dr. Benjamin Franklin. He had come over to England as agent for Pennsylvania, and his examination, as preserved in the "Parliamentary History," may be taken as a complete statement of the matter in dispute from the American point of view, and of the justification which the Colonists conceived themselves to have for refusing to submit to pay such a tax as had now been imposed upon them. At a later day he was one of the most zealous, as he was probably one of the earliest, advocates of separation from England; but as yet neither his language nor his actions afforded any trace of such a feeling.

He affirmed[36] the general temper of the Colonists toward Great Britain to have been, till this act was pa.s.sed, the best in the world. They considered themselves as a part of the British empire, and as having one common interest with it. They did not consider themselves as foreigners.

They were jealous for the honor and prosperity of this nation, and always were, and always would be, ready to support it as far as their little power went. They considered the Parliament of Great Britain as the great bulwark and security of their liberties and privileges, and always spoke of it with the utmost respect and veneration. They had given a practical proof of their goodwill by having raised, clothed, and paid during the last war nearly 25,000 men, and spent many millions; nor had any a.s.sembly of any Colony ever refused duly to support the government by proper allowances from time to time to public officers.

They had always been ready, and were ready now, to tax themselves. The Colonies had a.s.semblies of their own, which were their Parliaments. They were, in that respect, in the same situation as Ireland. Their a.s.semblies had a right to levy money on the subject, then to grant to the crown, and, indeed, had constantly done so; and he himself was specially instructed by the a.s.sembly of his own State to a.s.sure the ministry that, as they always had done, so they should always think it their duty to grant such aids to the crown as were suitable to their circ.u.mstances and abilities, whenever called upon for the purpose in a const.i.tutional manner; and that instruction he had communicated to the ministry. But the Colonies objected to Parliament laying on them such a tax as that imposed by the Stamp Act. Some duties, they admitted, the Parliament had a right to impose, but he drew a distinction between "those duties which were meant to regulate commerce and internal taxes."

The authority of Parliament to regulate commerce had never been disputed by the Colonists. The sea belonged to Britain. She maintained by her fleets the safety of navigation on it; she kept it clear of pirates; she might, therefore, have a natural and equitable right to some toll or duty, on merchandise carried through that part of her dominions, toward defraying the expenses she was at in ships to maintain the safety of that carriage. But the case of imposition of internal taxes was wholly different from this. The Colonists held that, by the charters which at different times had been granted to the different States, they were ent.i.tled to all the privileges and liberties of Englishmen. They found in the Great Charters, and the Pet.i.tion and Declarations of Right, that one of the privileges of English subjects is that they are not to be taxed but by their common consent; and these rights and privileges had been confirmed by the charters which at different times had been granted to the different States. In reply to a question put to him, he allowed that in the Pennsylvania charter there was a clause by which the King granted that he would levy no taxes on the inhabitants unless it were with the consent of the Colonial a.s.sembly, or by an act of Parliament; words which certainly seemed to reserve a right of taxation to the British Parliament; but he also demonstrated that, in point of fact, the latter part of the clause had never been acted on, and the Colonists had, therefore, relied on it, from the first settlement of the province, that the Parliament never would nor could, by the color of that clause in the charter, a.s.sume a right of taxing them till it had qualified itself to exercise such right by admitting representatives from the people to be taxed. And, in addition to objections on principle, he urged some that he regarded as of great force as to the working of this particular tax imposed by the Stamp Act. It was not an equal tax, as the greater part of the revenue derived from it must arise from lawsuits for the recovery of debts, and be paid by the lower sort of people; it was a heavy tax on the poor, and a tax on them for being poor. In the back settlements, where the population was very thin, the inhabitants would often be unable to get stamps without taking a long journey for the purpose. The scarcity of specie, too, in the country would cause the pressure to be felt with great severity, as, in his opinion, there was not gold and silver enough in the Colonies to pay the stamp-duty for a single year. In reply to another question, whether the Colonists would be satisfied with a repeal of the Stamp Act without a formal renunciation of the abstract right of Parliament to impose it, he replied that he believed they would be satisfied. He thought the resolutions of right would give them very little concern, if they were never attempted to be carried into practice. The Colonies would probably consider themselves in the same situation in that respect as Ireland.

They knew that the English Parliament claimed the same right with regard to Ireland, but that it never exercised it; and they might believe that they would never exercise it in the Colonies any more than in Ireland.

Indeed, they would think that it never could exercise such a right till representatives from the Colonies should be admitted into Parliament, and that whenever an occasion arose to make Parliament regard the taxation of the Colonies as indispensable, representatives would be ordered.

This last question put to the witness, like several others in the course of his examination, had been framed with the express purpose of eliciting an answer to justify the determination on the subject to which Lord Rockingham and his colleagues had come. It could not be denied that the government was placed in a situation of extreme difficulty-- difficulty created, in part, by the conduct of the Colonists themselves.

That, as even their most uncompromising advocate, Mr. Pitt, admitted, had been imprudent and intemperate, though it was the imprudence of men who "had been driven to madness by injustice." On the one hand, to repeal an act the opposition to which had been marked by fierce riots, such as those of Boston, and even in the a.s.semblies of some of the States by language scarcely short of treason,[37] seemed a concession to intimidation scarcely compatible with the maintenance of the dignity of the crown or the legitimate authority of Parliament. On the other hand, to persist in the retention of a tax which the whole population affected by it was evidently determined to resist to the uttermost, was to incur the still greater danger of rebellion and civil war. In this dilemma, the ministers resolved on a course calculated, as they conceived, to avoid both evils, by combining a satisfaction of the complaints of the Colonists with an a.s.sertion of the absolute supremacy of the British crown and Parliament for every purpose. And on February 24, 1766, the Secretary of State brought in a bill which, after declaring, in its first clause, "that the King's Majesty, by and with the consent of the Lords spiritual and temporal, and Commons of Great Britain, in Parliament a.s.sembled, had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the Colonists and people of America, subjects of the crown of Great Britain, in all cases whatsoever," proceeded to repeal the Stamp Act, giving a strong proof of the sincerity of the desire to conciliate the Colonists by the unusual step of fixing the second reading of the bill for the next day.

But in its different clauses it encountered a twofold opposition, which he had, probably, not antic.i.p.ated. It is unnecessary to notice that which rested solely on the inexpediency of repealing the Stamp Act, "the compulsory enforcement of which was required by the honor and dignity of the kingdom." But the first clause was even more strenuously resisted, on grounds which its opponents affirmed to rest on the fundamental principles of the const.i.tution. It was urged in the House of Commons by Mr. Pitt that, "as the Colonies were not represented in Parliament, Great Britain had no legal right nor power to lay a tax upon them--that taxation is no part of the governing or legislative power. Taxes," said the great orator, "are the voluntary gift and grant of the Commons alone. In legislation the three estates of the realm are alike concerned; but the concurrence of the peers and the crown to a tax is only necessary to clothe it with the form of a law; the gift and grant is in the Commons alone.... The distinction between legislation and taxation is essentially necessary to liberty."

Mr. Pitt had no claim to be considered as a great authority in the principles of const.i.tutional law. George II., slight as was his political knowledge or wisdom, complained on one occasion of the ignorance of a Secretary of State who had never read Vattel; and in this very debate he even boasted of his ignorance of "law-cases and acts of Parliament." But his coadjutor in the House of Lords (Lord Camden, at this time Chief-justice of the Common Pleas) owed the chief part of the respect in which he was held to his supposed excellence as a const.i.tutional lawyer, and he fully endorsed and expanded Pitt's arguments when the bill came up to the House of Lords. He affirmed that he spoke as "the defender of the law and the const.i.tution; that, as the affair was of the greatest consequence, and in its consequences might involve the fate of kingdoms, he had taken the strictest review of his arguments, he had examined and re-examined all his authorities; and that his searches had more and more convinced him that the British Parliament had no right to tax the Americans. The Stamp Act was absolutely illegal, contrary to the fundamental laws of nature, contrary to the fundamental laws of this const.i.tution--a const.i.tution governed on the eternal and immutable laws of nature. The doctrine which he was a.s.serting was not new; it was as old as the const.i.tution; it grew up with it; indeed, it was its support. Taxation and representation are inseparably united. G.o.d hath joined them; no British government can put them asunder. To endeavor to do so is to stab our very vitals." And he objected to the first clause (that which declared the power and right to tax), on the ground that if the ministers "wantonly pressed this declaration, although they were now repealing the Stamp Act, they might pa.s.s it again in a month." He even argued that "they must have future taxation in view, or they would hardly a.s.sert their right to enjoy the pleasure of offering an insult." He was answered by Lord Northington (the Chancellor) and by Lord Mansfield (the Chief-justice), both of whom supported the motion to repeal the tax, but who also agreed in denying the soundness of his doctrine that, as far as the power was concerned, there was any distinction between a law to tax and a law for any other purpose; and Lord Mansfield farther denied the validity of the argument which it had been attempted to found on the circ.u.mstance that the Colonies were not represented in Parliament, propounding, on the contrary, what Lord Campbell calls "his doctrine of virtual representation." "There can," said he, "be no doubt but that the inhabitants of the Colonies are represented in Parliament, as the greatest part of the people of England are represented, among nine millions of whom there are eight who have no votes in electing members of Parliament. Every objection, therefore, to the dependency of the Colonies upon Parliament which arises upon the ground of representation goes to the whole present const.i.tution of Great Britain.... For what purpose, then, are arguments drawn from a distinction in which there is no real difference of a virtual and an actual representation? A member of Parliament chosen for any borough represents not only the const.i.tuents and inhabitants of that particular place, but he represents the inhabitants of every other borough in Great Britain. He represents the City of London and all the other Commons of the land, and the inhabitants of all the colonies and dominions of Great Britain, and is in duty and conscience bound to take care of their interests."

Lord Mansfield's doctrine of a virtual representation of the Colonies must be admitted to be overstrained. The a.n.a.logy between the case of colonists in a country from no part of which representatives are sent to Parliament, and that of a borough or county where some cla.s.ses of the population which may, in a sense, be regarded as spokesmen or agents of the rest form a const.i.tuency and return members, must be allowed to fail; yet the last sentences of this extract are worth preserving, as laying down the important const.i.tutional principle, subsequently expanded and enforced with irresistible learning and power of argument by Burke, that a member of the House of Commons is not a delegate, bound, under all circ.u.mstances, to follow the opinions or submit to the dictation of his const.i.tuents, but that from the moment of his election he is a councillor of the whole kingdom, bound to exercise an independent judgment for the interests of the whole people, rather than to guide himself by the capricious or partial judgments of a small section of it. But in its more immediate objects--that of establishing the two principles, that the const.i.tution knows of no limitation to the authority of Parliament, and of no distinction between the power of taxation and that of any other kind of legislation--Lord Mansfield's speech is now universally admitted to have been unanswerable.[38]

The abstract right was unquestionably on the side of the minister and the Parliament who had imposed the tax. But he is not worthy of the name of statesman who conceives absolute rights and metaphysical distinctions to be the proper foundation for measures of government, and pays no regard to custom, to precedent, to the habits and feelings of the people to be governed; who, disregarding the old and most true adage, _summum jus summa injuria_, omits to take into his calculations the expediency of his actions when legislating for a nation which he is in the daily habit of weighing in his private affairs. The art or science of government are phrases in common use; but they would be void of meaning if all that is requisite be to ascertain the strict right or power, and then unswervingly to act upon it in all its rigor. And, therefore, while it must be admitted that the character of the power vested in King, Lords, and Commons a.s.sembled in Parliament is unlimited and illimitable, and that the legal competency to enact a statute depends in no degree whatever on the wisdom or folly, the justice or wickedness, of the statute, the advice given to a const.i.tutional sovereign by his advisers must be guided by other considerations. To quote by antic.i.p.ation the language addressed to the Commons on this subject by Burke eight years afterward, the proper policy was "to leave the Americans as they anciently stood ... To be content to bind America by laws of trade.

Parliament had always done it. And this should be the reason for binding their trade. Not to burden them by taxes; Parliament was not used to do so from the beginning; and this should be the reason for not taxing.

These are the arguments of states and kingdoms."[39]

The ministry were strong enough to carry their resolutions through both Houses. Their measure was divided into two acts, one known as the Declaratory Act, a.s.serting the absolute and universal authority of Parliament; the other repealing the Stamp Act of the preceding year. And both were pa.s.sed without alteration, though the Lords divided against them on both the second and third readings of the bill for repeal founded on them,[40] some of them entering long protests in the journals of the House. The right to tax was a.s.serted, but the tax itself was repealed. And Franklin's estimate of the feelings on the subject entertained by his countrymen was fully verified by the reception which the intelligence met with in the Colonies. To quote the description of Lord Stanhope: "In America the repeal of the Stamp Act was received with universal joy and acclamation. Fireworks and festivals celebrated the good news, while addresses and thanks to the King were voted by all the a.s.semblies.... The words of the Declaratory Act, indeed, gave the Americans slight concern. They fully believed that no practical grievance could arise from it. They looked upon it merely as a salve to the wounded pride of England; as only that 'bridge of gold' which, according to the old French saying, should always be allowed to a retreating a.s.sailant."[41]

A recent writer, however, has condemned the addition of the declaration of the abstract right to tax with great vehemence. "Nothing," says Lord Campbell,[42] "could exceed the folly of accompanying the repeal of the Stamp Act with the statutable declaration of the abstract right to tax."

But it does not seem difficult to justify the conduct of the ministry in this particular. For, besides the great weight deservedly attached to Franklin's a.s.surance that the declaration would not be objected to by the Colonists, and besides the consideration that, on a general view, it was desirable, if not indispensable, to impress on all cla.s.ses of subjects, whether at home or abroad, the const.i.tutional doctrine of the omnipotence of Parliament, the line of argument adopted by Mr. Pitt and Lord Camden, in denying that omnipotence, left the ministers no alternative but that of a.s.serting it, unless they were prepared to betray their trust as guardians of the const.i.tution. Forbearance to insist on the Declaratory Act could not fail to have been regarded as an acquiescence on their part in a doctrine which Lord Campbell in the same breath admits to be false. It may be added, as a consideration of no small practical weight, that, without such a Declaratory Act, the King would have been very reluctant to consent to the other and more important Repealing Act. And, on the whole, the conduct of the ministry may, we think, be regarded as the wisest settlement both of the law and of the practice. It a.s.serted the law in a manner which offended no one; and it made a precedent for placing the spirit of statesmanship above the letter of the law, and for forbearing to put forth in its full strength the prerogatives whose character was not fully understood by those who might be affected by them, and also could plead that Parliament itself had contributed to lead them to misunderstand it by its own conduct in never before exerting it.

For the moment, then, contentment and tranquillity were restored in the Colonies. Unhappily, they were not lasting. The same year which saw the triumph of the Rockingham administration in the repeal of the Stamp Act, witnessed also its fall before a discreditable intrigue. And the ministry which succeeded it had not been a year in office before the new Chancellor of the Exchequer, Charles Townsend, revived the discontents in America which Lord Rockingham had appeased. It cannot be said, however, that the blame should all belong to him; or that the Rockingham party in the House of Commons were entirely free from a share in it.

They were--not unnaturally, perhaps--greatly irritated at the intrigue by which Lord Chatham had superseded them, and were not disinclined to throw difficulties in the way of their successors, for which the events of the next year afforded more than one opportunity. Lord Chatham, as has been mentioned, was universally recognized as the chief of the new ministry, though he abstained from taking the usual office of First Lord of the Treasury, and contented himself with the Privy Seal; but he had constructed it of such discordant elements[43] that no influence but his own could preserve consistency in its acts or harmony among its members, as nothing but his name could give it consideration either in Parliament or in the country. In the first months of the next year, 1767, he was attacked with an illness which for a time disabled him from attending the cabinet, being, apparently, the forerunner of that more serious malady which, before the end of the summer, compelled his long retirement from public life; and the Opposition took advantage of the state of disorganization and weakness which his illness caused among his colleagues, to defeat them on the Budget in the House of Commons, by an amendment to reduce the land-tax, which caused a deficiency in the supplies of half a million. This deficiency it, of course, became necessary to meet by some fresh tax; and Townsend--who, though endowed with great richness of eloquence, was of an imprudent, not to say rash, temper, and was possessed of too thorough a confidence in his own ingenuity and fertility of resource ever to be inclined to take into consideration any objections to which his schemes might be liable--proposed to raise a portion of the money which was needed by taxes on gla.s.s, paper, tea, and one or two other articles, to be paid as import duties in the American Colonies. His colleagues, and especially the Duke of Grafton himself, the First Lord of the Treasury, and as such the nominal Prime-minister, having been also, as Secretary of State, a member of Lord Rockingham's ministry, which had repealed the former taxes, did not consent to the measure without great and avowed reluctance; but yielded their own judgment to the strong feeling in its favor which notoriously existed in the House of Commons.[44] Indeed, that House pa.s.sed the clauses imposing these import duties without hesitation, being, probably, influenced in no small degree by the evidence given in the preceding year by Dr. Franklin, who, as has been already seen, had explained that the Colonists drew a distinction between what he called "internal taxes" and import duties "intended to regulate commerce," and that to the latter cla.s.s they were not inclined to object. And a second consideration was, that these new duties were accompanied and counterbalanced by a reduction of some other taxes; so that the ministry contended that the effect of these financial measures, taken altogether, would be to lower to the Colonists the price of the articles affected by them rather than to raise it. But one of the resolutions adopted provided that the whole of the money to be raised from these taxes should not be spent in America, but that, after making provision for certain Colonial objects specified, "the residue of such duties should be paid into the receipt of his Majesty's Exchequer, and there reserved, to be from time to time disposed of by Parliament toward defraying the necessary expenses of defending, protecting, and securing the said Colonies and plantations." And this clause seems to have been understood as designed to provide means for augmenting the number of regular troops to be maintained in the Colonies, whose employment in the recent disturbances had made them more unpopular than formerly.[45]