Part 12

John Adams, then a young man just admitted to the bar, was present at the scene, and he dwells on it often with sympathetic delight. There, in the Old Town-House of Boston, sat the five judges of the Province, with Hutchinson as Chief Justice, in robes of scarlet, cambric bands, and judicial wigs; and there, too, in gowns, bands, and tie-wigs, were the barristers. Conspicuous on the wall were full-length portraits of two British monarchs, Charles the Second and James the Second, while in the corners were the likenesses of Massachusetts Governors. In this presence the great oration was delivered. The patriot lawyer had refused compensation. “In such a cause as this,” said he, “I despise a fee.” He spoke for country and for mankind. Firmly he planted himself on the Rights of Man, which he insisted were, by the everlasting Law of Nature, inherent and inalienable; and these rights, he nobly proclaimed, were common to all, without distinction of color. To suppose them surrendered in any other way than by _equal rules and general consent_ was to suppose men idiot or mad, whose acts are not binding. But he especially flew at two arguments of tyranny: first, that the colonists were “virtually” represented, and, secondly, that there was such a difference between direct and indirect taxation, that, while the former might be questionable, the latter was not. To these two apologies he replied, first, that no such phrase as “virtual representation” was known in Law or Constitution,--that it is altogether subtilty and illusion, wholly unfounded and absurd,--and that we must not be cheated by any such phantom, or other fiction of law or politics, or any monkish trick of deceit and hypocrisy; and then, with the same crushing force, he said, that, in absence of representation, all taxation, whether direct or indirect, whether internal or external, whether on land or trade, was equally obnoxious to the same unhesitating condemnation.[95] The effect was electric. The judges were stunned into silence, and postponed judgment. The people were aroused to a frenzy of patriotism. “American Independence,” says John Adams, in the record of his impressions, “was then and there born; the seeds of patriots and heroes were then and there sown, to defend the vigorous youth. Every man of a crowded audience appeared to me to go away, as I did, ready to take arms against Writs of Assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.”[96] But this great birth is inseparably associated with the principle, then and there declared, that “Taxation without representation is Tyranny.”

From this time forward Otis dedicated himself singly to the cause he had so bravely upheld, and the popular heart clove to him. He became the favorite of his fellow-countrymen. His arguments were repeated, his words were gratefully adopted, and the saying, “Taxation without representation is tyranny,” became a maxim of patriotism. In May, 1761, only a few weeks after this utterance, he was chosen a representative of Boston in the Legislature by an almost unanimous vote. The Crown officers were dismayed by this most significant election, and one of them, speaking with prophetic lamentation, said it would “shake the Province to its foundation”; on which John Adams remarked, many years later, when some of its results were already visible, “That election has shaken two continents, and will shake four.”[97] Of course this was simply because it affirmed and invigorated a practical truth of government by which all the people are confirmed in political power. At his new post of duty, Otis became the acknowledged leader, constant, fervid, eloquent, and, according to his own language, “daring to speak plain English.” While still declaring unhesitating loyalty to the Crown, and even pledging “the last penny and the last drop of blood, rather than that by any backwardness of ours his Majesty’s measures should be embarrassed,” he made haste to announce, in words where humor blends with truth, that “God made all men naturally equal,”--that “the ideas of earthly superiority, preëminence, and grandeur are educational, at least acquired, not innate,”--that “no government has a right to make hobby-horses, asses, and slaves of the subject, Nature having made sufficient of the two former for all the lawful purposes of man, from the harmless peasant in the field to the most refined politician in the cabinet, but none of the last, which infallibly proves they are unnecessary.” But the case would have been imperfectly stated, if the patriot representative had not once more cried out against taxation without representation, and warned against the calamities that must follow from this unquestionable tyranny. This early debate is preserved in a pamphlet, printed in 1762, and entitled “A Vindication of the Conduct of the House of Representatives of the Province of the Massachusetts Bay, etc., by James Otis, Esq.,” which, we are told by an eminent authority, contains, in solid substance, all that is found in the Declaration of Rights and Wrongs issued by Congress in 1774, the Declaration of Independence in 1776, and the subsequent writings of those political philosophers who upheld the national cause.[98] Pardon me, if I dwell too minutely on this history. I do it only to illustrate the issue of principle actually made with the mother country.

The controversy still continued, when, in 1764, the orator, who by voice and pen had so bravely maintained the cause of his country, put forth another publication, entitled “The Rights of the British Colonies Asserted and Proved.” Mark, if you please, the vigor of the title. The rights of the Colonies are not only “asserted,” but “proved.” Reprinted in London, this pamphlet was read by Lord Mansfield, Chief Justice of England, and was answered by Soame Jenyns, a partisan writer of the Crown. The copy I hold in my hand has the imprint of London, and is marked “Third Edition.” All things considered, it is the most remarkable pamphlet of our country, and one of the most remarkable ever written. Recent events, verifying the truths it so early announced, elevate its place in history. Here are the same vital principles, enforced with learning and eloquence, which Otis announced at the bar, and then again in the debates of the Legislature; and here are not only the truths asserted by our fathers, but the unanswerable arguments by which they were vindicated. Even an abstract would be too long for this debate; but the character of this Defence of the American People, not unlike Milton’s famous “Defensio pro Populo Anglicano,” will appear in a few passages, where, as in gleams, may be discerned the _Idea of a Republic_.

I do not pause on the assertion, “that every man of a sound mind should have his vote,” or the authority he invokes, when he says, “Lord Coke declares that it is against Magna Charta and against the franchises of the land, for freemen to be taxed but by their own consent,” both of which, sounded by him elsewhere,[99] are important premises. Nor do I dwell on that admirable statement of much in little, “The first simple principle is Equality and the Power of the Whole.”[100] The Equality of All and the Power of All!--the two buttresses of a just government. I come at once to the plain statement of fundamental right.

“The supreme power cannot take from any man any part of his property _without his consent in person or by representation_.”

“Taxes are not to be laid on the people _but by their consent in person or by deputation_.”[101]

Such are “the first principles of law and justice, and the great barriers of a free state”; and then he adds, “I ask, I want no more.”[102] And these principles he claims for all, without distinction of color.

“The colonists are by the Law of Nature free-born, as indeed all men are, white or black.… Does it follow that ‘tis right to enslave a man because he is black? Will short, curled hair, like wool, instead of Christian hair, as ’tis called by those whose hearts are as hard as the nether millstone, help the argument? Can any logical inference in favor of Slavery be drawn from a flat nose, a long or a short face?”[103]

Assuming these rights as common to all, whether white or black, he insists that any taxation, whether direct or indirect, without representation, is only another form of Slavery.

“I can see no reason to doubt but that the imposition of taxes, whether on trade, or on land, or houses, or ships, on real or personal, fixed or floating property, in the Colonies, is absolutely irreconcilable with the rights of the colonists, as British subjects, _and as men_. I say men, for in a state of Nature no man can take my property from me without my consent. _If he does, he deprives me of my liberty and makes me a slave.…_ The very act of taxing, exercised over those who are not represented, appears to me to be depriving them of one of their most essential rights as freemen, and, if continued, seems to be in effect _an entire disfranchisement of every civil right_. For what one civil right is worth a rush, after a man’s property is subject to be taken from him at pleasure, without his consent?”[104]

Such was the voice of James Otis, who was our John the Baptist. It was he who went before in this great controversy. He first stated the case between the Colonies and the mother country, and first developed the principles in issue. But, though first, he was not long alone. Conspicuous among his followers was Samuel Adams, that austere patriot, always faithful and true, who desired to make Puritan Boston “a Christian Sparta.” He was remarkable for the simplicity, accuracy, and harmony of his style, and on this account often held the pen for the Legislature or the town-meeting. In obedience to the latter, he drew up instructions to the Representatives of Boston, afterward adopted in Faneuil Hall, where, repeating the very arguments of Otis, he says, “If our trade may be taxed, why not our lands, why not the produce of our lands, and everything we possess or make use of?” And then, advancing in the subject, he asks: “If taxes are laid upon us in any shape _without our having a legal representation where they are laid_, are we not reduced from the character of free subjects to the miserable state of tributary slaves?”[105] In proposing this question, he leaves no room to doubt the answer it deserved.

Soon thereafter, Franklin, as agent of Pennsylvania, maintained the same principles in England. But the ministry, hurried on by fatal folly leading to destruction, persevered in their pretension. The Stamp Act was passed, and for the first time in our history papers bore stamps, to swell the revenue of the Crown. Massachusetts remonstrated in formal resolutions, “particularly considered,” wherein it is declared, “That there are certain essential rights of the British Constitution of Government, which are founded in the law of God and Nature, and are the common rights of mankind,--therefore, … that no man can justly take the property of another without his consent,-- … that all acts made by any power whatever, other than the General Assembly of this Province, imposing taxes on the inhabitants, are infringements of our inherent and unalienable rights as men and British subjects, and render void the most valuable declarations of our Charter.”[106] In an address to the Royal Governor, the Legislature, after setting forth the injustice of the Stamp Act, proceeded to say, “We must beg your Excellency to excuse us from doing anything to assist in the execution of it.”[107] The people in town-meetings took up the strain, and all united against the Act. But Massachusetts was not alone.

Virginia, by positive statute, as early as 1655-6 recognized the just principle, as we have already seen;[108] and now a writer of that State, catching the spirit of Otis, declared, in an elaborate pamphlet, that it was “an essential principle of the English Constitution that the subject shall not be taxed _without his consent_”; and then again, quoting the words of another, “All men have natural, and freemen legal rights, which they may justly maintain, and no legislative authority can deprive them of.”[109] The Legislature of Virginia, even before Massachusetts, adopted resolutions kindred in spirit, which were moved by Patrick Henry, and heroically carried by his eloquent voice, even against the menacing cry of “Treason.” Thus spoke Virginia, exposing the true issue, and insisting on the inseparability of taxation and representation:--

“_Resolved_, That the taxation of the people by themselves, or _by persons chosen by themselves to represent them_, who can only know what taxes the people are able to bear, or the easiest method of raising them, and must themselves be affected by every tax laid on the people, _is the only security against a burdensome taxation_ and the distinguishing characteristic of British freedom, without which the ancient Constitution cannot exist.”[110]

Pennsylvania, by her House of Assembly, spoke also to the same effect:--

“_Resolved, N. C. D._, That this House think it their duty thus firmly to assert with modesty and decency their _inherent rights_, that their posterity may learn and know that it was not with their consent and acquiescence that _any taxes_ should be levied on them by any persons but their own representatives.”[111]

The controversy proceeded. At the invitation of Massachusetts, moved by Otis, a Congress assembled at New York in October, 1765, having delegates from Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, and South Carolina, which, after a prolonged session, adopted a declaration of colonial rights and grievances, where it is declared:--

“That it is inseparably essential to the freedom of a people, and the undoubted right of Englishmen, that no taxes be imposed on them _but with their own consent, given personally or by their representatives_.

“That the people of these Colonies are not, and from their local circumstances cannot be, represented in the House of Commons in Great Britain.”[112]

At last the Stamp Act was repealed. But the pretension of taxation was suspended rather than abandoned. A ministerial partisan continued to urge the scheme in unscrupulous language:--

“All countries unaccustomed to taxes are at first violently prepossessed against them, though the price which they give for their liberty: like an ox untamed to the yoke, they show at first a very stubborn neck, but by degrees become docile and yield a willing obedience.… America must be taxed.”[113]

As time advanced, the old audacity was revived, and, under the lead of the reckless Charles Townshend, taxes were imposed by Parliament on tea, glass, lead, paper, and painters’ colors. The old opposition in the Colonies was revived also, and taxation without representation was again denounced. Committees of correspondence were established, and the work of organization began. The whole country was in a fever. Massachusetts, as in times past, did not hesitate to proclaim the true principle. At a town-meeting of Boston in 1772, there was a declaration of rights, “which no man or body of men, consistently with their own rights as men and citizens or members of society, can for themselves give up or take away from others”; and here we meet again familiar words:--

“The supreme power cannot justly take from any man any part of his property without his consent in person or by his representatives.”[114]

Against all Parliamentary taxation, as often as it showed itself, this impenetrable buckler was lifted. But the mother country was perverse. Ship-loads of tea arrived. At Boston the tea was thrown into the dock. The Colonies entered into an agreement of non-importation. Then came troops, and the Boston Port Bill, by which this harbor was vindictively closed against commerce. The whole country, including even South Carolina, made common cause with Massachusetts. Gadsden exclaimed, “Massachusetts sounded the trumpet, but to Carolina is it owing that it was attended to.”[115] And Virginia exclaimed, “_We will never be taxed but by our own representatives._ This is the great badge of Freedom.… Whether the people in Boston were warranted by justice, when they destroyed the tea, we know not; but this we know, that the Parliament, by their proceedings, have made us and all North America parties in the present dispute.”[116] Meanwhile more troops arrived. All things portended strife; and yet the colonists did not ask for independence. They only asked for rights, insisting always that there should be no taxation without representation. “The patriots of this Province,” said John Adams in 1774, “desire nothing new; they wish only to keep their old privileges. They were for one hundred and fifty years allowed to tax themselves, and govern their internal concerns as they thought best. Parliament governed their trade as they thought fit. This plan they wish may continue forever.”[117] Thus stood the two parties face to face.

Then came the Continental Congress, which at once put forth resolutions, where, after claiming the enjoyment of life, liberty, and property, as natural rights, it was insisted that the colonists could be bound by no law to which they had not consented by representatives. Here was the original programme of James Otis: first, the rights of men, according to Natural Law; and, secondly, the principle that government, including of course taxation, depended on the consent of the governed. “_The foundation_ of English Liberty and _of all free government_,” said these resolutions, “is a right in the people to participate in their legislative council.”[118] In harmony with these resolutions were the several addresses of the Continental Congress,--to the people of Great Britain, to the inhabitants of the Province of Quebec, and to the king himself,--always pleading for Human Rights in the largest sense. The address to the people of Great Britain begins by an appeal for “the rights of men and the blessings of Liberty,” and then insists “that no power on earth has a right to take our property from us without our consent.”[119] The address to the inhabitants of the Province of Quebec, in similar spirit, says: “_The first grand right is that of the people having a share in their own government by their representatives chosen by themselves_, and, in consequence, of being ruled by laws which they themselves approve, not by edicts of men over whom they have no control. This is a bulwark surrounding and defending their property.”[120] And the petition to the king has the same key-note: “Duty to your Majesty, and regard for the preservation of ourselves and our posterity, _the primary obligations of Nature and society_, command us to entreat your royal attention.”[121] Thus constantly, down to the last moment, did our fathers set forth the principles they sought to establish as essential to free government. Thus constantly did they testify to the cause for which I now plead.

Answering voices came back from England, announcing the principles in issue. The right of taxation was asserted; but there were many who disguised the tyranny by assuming that the Colonies were “virtually represented.” Perhaps that spirit of legal technicality which is satisfied by form at the expense of reason was never more strikingly illustrated than in the argument of Sir James Marriott, the Admiralty Judge, who gravely insisted, in the House of Commons, that England “had an undoubted right to tax America, because she was represented by the members for the County of Kent, of which the thirteen provinces were a part or parcel, for in their charters they were to hold of the manor of Greenwich in Kent.”[122] The whole pretension had been scouted by the indignant eloquence of Mr. Pitt, afterward Lord Chatham. “The idea,” said he, “of a _virtual representation_ of America in this House is the most contemptible idea that ever entered into the head of a man. It does not deserve a serious refutation.”[123] As the controversy continued, and especially as those masterly state papers, the addresses of the Continental Congress, reached England, the ministers of the king were put on the defensive. They retained as advocate none other than Samuel Johnson, who, for “small hire,” lent the pen which had written “Rasselas,” “The Vanity of Human Wishes,” and the English Dictionary, to a rancorous attack on the principles of our fathers. Its concentrated venom was all expressed in the title, “Taxation no Tyranny.” Another pamphlet appeared in reply, with the epigram, “Resistance no Rebellion,” embodying the idea, that, where there is taxation without representation, resistance is justifiable; and thus was issue joined at London. This was in 1775. Already the “embattled farmers” had gathered at Lexington and Bunker Hill; already Washington had drawn his sword at Cambridge, as commander-in-chief and generalissimo of the new-born armies; already war had begun. At last, to the defiant watchword, “Taxation no Tyranny,” hurled from London, our fathers returned that other defiant watchword, “Independence.” But they did not turn their backs upon the principles asserted throughout the long controversy. Independence was the means to an end, and that end was nothing less than a Republic, with Liberty and Equality as animating principles, where government stood on the consent of the governed, or, which is the same thing, where there should be no taxation without representation: for here was the distinctive feature of American institutions.

* * * * *

2. The principles heralded through fifteen years of controversy were not forgotten when Independence was declared: and here I come to the national declarations of the Fathers.

It sometimes happens that men fail in support of the cause to which they are pledged, or content themselves with something less than the truth. But not so with our fathers. In declaring Independence they continued loyal to their constant vows. The natural rights of all men, and the consent of the people as the only just foundation of government, which James Otis first announced, which Samuel Adams maintained with severe simplicity, which Patrick Henry vindicated even against the cry of “Treason,” and which had been affirmed by legislative bodies and public meetings, were embodied in the opening words of the Declaration. There they stand, like a sublime overture to the new Republic, interpreting, inspiring, and filling it with transforming power.

“We hold these truths to be _self-evident_: that _all men are created equal_; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights governments are instituted among men, _deriving their just powers from the consent of the governed_.”

Nor did these declarations proceed from the National Congress alone. The States spoke also in their Bills of Rights.