Part 8

These abominable principles, and this more abominable avowal of them, demand the most decisive indignation. I call upon that right reverend bench, those holy ministers of the Gospel, and pious pastors of our Church—I conjure them to join in the holy work, and vindicate the religion of their God. I appeal to the wisdom and the law of this learned bench, to defend and support the justice of their country. I call upon the Bishops to interpose the unsullied sanctity of their lawn; upon the learned judges, to interpose the purity of their ermine, to save us from this pollution. I call upon the honor of your Lordships, to reverence the dignity of your ancestors, and to maintain your own. I call upon the spirit and humanity of my country to vindicate the national character. I invoke the genius of the Constitution. From the tapestry that adorns these walls, the immortal ancestor of this noble Lord frowns with indignation at the disgrace of his country.[34] In vain he led your victorious fleets against the boasted Armada of Spain; in vain he defended and established the honor, the liberties, the religion—the _Protestant religion_—of this country, against the arbitrary cruelties of popery and the Inquisition, if these more than popish cruelties and inquisitorial practices are let loose among us—to turn forth into our settlements, among our ancient connections, friends, and relations, the merciless cannibal, thirsting for the blood of man, woman and child, to send forth the infidel savage—against whom? against your Protestant brethren; to lay waste their country, to desolate their dwellings, and extirpate their race and name with these horrible hell-hounds of savage war—_hell-hounds, I say, of savage war!_ Spain armed herself with blood-hounds to extirpate the wretched natives of America, and we improve on the inhuman example even of Spanish cruelty; we turn loose these savage hell-hounds against our brethren and countrymen in America, of the same language, laws, liberties, and religion, endeared to us by every tie that should sanctify humanity.

My Lords, this awful subject, so important to our honor, our Constitution, and our religion, demands the most solemn and effectual inquiry. And I again call upon your Lordships, and the united powers of the State, to examine it thoroughly and decisively, and to stamp upon it an indelible stigma of the public abhorrence. And I again implore those holy prelates of our religion to do away these iniquities from among us. Let them perform a lustration; let them purify this House, and this country, from this sin.

My Lords, I am old and weak, and at present unable to say more; but my feelings and indignation were too strong to have said less. I could not have slept this night in my bed, nor reposed my head on my pillow, without giving this vent to my eternal abhorrence of such preposterous and enormous principles.

The warning voice was heard in vain. Chatham’s urgent anxiety was not enough to carry his amendment. It was lost by a vote of 97 to 24. The address triumphed; Parliament adjourned; the members went to their Christmas festivities; the treaty with France was framed and ratified; and the chance of recovering the colonies was lost forever. Chatham did not live till the end of the war, but as soon as he learned that the treaty with France was signed, he knew that the fatal result was inevitable.

LORD MANSFIELD.

The most formidable rival and opponent of Lord Chatham was William Murray, known in history as Lord Mansfield. In point of native talent it would not be easy to determine which had the advantage; but it is generally conceded that Mansfield’s mind was the more carefully trained, and that his memory was the more fully enriched with the stores of knowledge. He was preëminently a lawyer and a lover of the classics; but Lord Campbell speaks of his familiarity with modern history as “astounding and even _appalling_, for it produces a painful consciousness of inferiority, and creates remorse for time misspent.” His career is one of the most extraordinary examples in English history of an unquestioning acceptance of the stern conditions of the highest success.

Mansfield’s education was characterized by a phenominal devotion to some of the severer kinds of intellectual drudgery. Though he was fourth son of Lord Stormont and brother of Lord Dunbar, the Secretary of the Pretender, he seems from the first to have been fully conscious that he must rely for distinction upon his own efforts alone. When he was but fourteen he had become so familiar with the Latin language that he wrote and spoke it “with accuracy and ease,” and in after-life he declared that there was not one of the orations of Cicero which he had not, while at Oxford, written into English, and after an interval, according to the best of his ability, re-translated into Latin. Leaving Oxford at the age of twenty-two he was entered as a student of law at Lincoln’s Inn in 1727. Lord Campbell says of him: “When he was admitted to the bar in 1730, he had made himself acquainted not only with the international law, but with the codes of all the most civilized nations, ancient and modern; he was an elegant classical scholar; he was thoroughly imbued with the literature of his own country; he had profoundly studied our mixed constitution; he had a sincere desire to be of service to his country; and he was animated by a noble aspiration after honorable fame.”

The family of Murray was one of those Scotch families upon whom a peerage was bestowed by James I. It is not very singular therefore that Lord Stormont, the representative of the family, in the eighteenth century, should, like his predecessors, remain true to the Stuarts and the Pretender. William, the fourth son, grew up in the traditional political beliefs of his ancestors. While Pitt, therefore, was a Whig, Murray was a High Tory. In manner they were as different as in politics. Pitt was ardent and imperious, Murray was cool and circumspect. Pitt strove to overwhelm, but Murray strove to convince. Though Pitt was the great master of declamatory invective, Murray was vastly his superior in all the qualities that go to make up a great debater. The immediate influence of Pitt’s speeches was far more overwhelming, but the qualities of Murray’s argument were more persuasive and more permanent in their influence. Pitt entered the House of Commons in 1735 at twenty-six; Murray in 1742 at thirty-seven. During fourteen years therefore, before 1756 they were each the great exponents of the political parties to which they respectively belonged. Murray entered the House of Lords as Chief Justice and with the title of Baron Mansfield in the same year in which Pitt began his great career as Prime Minister. The power of Pitt was in the House of Commons, while that of Murray was in the House of Lords. Pitt’s influence was over the masses, whose devotion was such that “they hugged his footmen and even kissed his horses.” Murray’s power was over the more thoughtful few who in the end directed public opinion and moulded public action.

The character of Murray, like that of his great rival, was not only above reproach, but was remarkable for its stern rejection of every thing that tried to turn him aside from his great purpose. When the Duchess of Marlborough strove to put him under obligations by sending him a retainer of a thousand guineas, he returned nine hundred and ninety-five, with the remark that a retaining fee was never more nor less than five guineas. When Newcastle offered him a pension of £6,000 a year, if he would remain in the House of Commons, instead of taking the Bench, he put the offer aside without a moment’s hesitation, saying: “What merit have I, that you should lay on this country, for which so little is done with spirit, the additional burden of £6,000 a year?” He was Lord Chief Justice for nearly thirty-two years. Though he probably did more to strengthen the cause of the mother country against the colonies than any other one man, yet his great services have been no less generously acknowledged in America than in England. It was Mr. Justice Story who said: “England and America, and the civilized world, lie under the deepest obligations to him. Wherever commerce shall extend its social influences; wherever justice shall be administered by enlightened and liberal rules; wherever contracts shall be expounded upon the eternal principles of right and wrong; wherever moral delicacy and judicial refinement shall be infused into the municipal code, at once to persuade men to be honest and to keep them so; wherever the intercourse of mankind shall aim at something more elevated than that grovelling spirit of barter, in which meanness, and avarice, and fraud strive for the mastery over ignorance, credulity, and folly, the name of Lord Mansfield will be held in reverence by the good and the wise, by the honest merchant, the enlightened lawyer, the just statesman, and the conscientious judge. The proudest monument of his fame is in the volumes of Burrow, and Cowper, and Douglas, which we may fondly hope will endure as long as the language in which they are written shall continue to instruct mankind. His judgments should not be merely referred to and read on the spur of particular occasions, but should be studied as models of juridical reasoning and eloquence.”

When the matter of repealing the Stamp Act came before Parliament, the question turned, as we have already observed, chiefly on the subject of the clause declaring the _right_ of Parliament to levy the tax. While Chatham arrayed all his powers against the right, Mansfield was its most strenuous supporter. His speech on the subject is of great importance to the American student, because it is by far the most able and plausible ever delivered in support of the British policy. It is avowedly directed to the question of right, not at all to the question of expediency. Lord Campbell, although inclined to the doctrines of the Whigs, refers to the speech as one of arguments to which he “has never been able to find an answer.” The position of Mansfield undoubtedly had a very great influence in determining and strengthening the policy of the King and of the ministry. The speech was corrected for the press by the orator’s own hand, and may be regarded as authentic.

LORD MANSFIELD.

ON THE RIGHT OF ENGLAND TO TAX AMERICA. HOUSE OF LORDS, FEBRUARY 3, 1766.

The discussion, of which the speech of Pitt already given, formed a part, came up on the adoption of the motion declaring the right of England to tax America,—a motion accompanying the bill repealing the Stamp Act. The motion was strenuously opposed, not only by Pitt in the House of Commons, but also by Lord Camden in the House of Lords. Camden said: “In my opinion, my Lords, the legislature have no right to make this law. The sovereign authority, the omnipotence of the legislature is a favorite doctrine; but there are some things which you cannot do. You cannot take away a man’s property, without making him a compensation. You have no right to condemn a man by bill of attainder without hearing him. But, though Parliament cannot take away a man’s property, yet every subject must make contributions, and this he consents to do by his representative. Notwithstanding the King, Lords, and Commons could in ancient times tax other people, they could not tax the clergy.” Lord Camden then went on to show at length, that the counties palatine of Wales and of Berwick, were never taxed till they were represented in Parliament. The same was true, he said, of Ireland; and the same doctrines should prevail in regard to America. It was in answer to Lord Camden that the following speech of Lord Mansfield was made.

MY LORDS:

I shall speak to the question strictly as a matter of right; for it is a proposition in its nature so perfectly distinct from the expediency of the tax, that it must necessarily be taken separate, if there is any true logic in the world; but of the expediency or inexpediency I will say nothing. It will be time enough to speak upon that subject when it comes to be a question.

I shall also speak to the distinctions which have been taken, without any real difference, as to the nature of the tax; and I shall point out, lastly, the necessity there will be of exerting the force of the superior authority of government, if opposed by the subordinate part of it.

I am extremely sorry that the question has ever become necessary to be agitated, and that there should be a decision upon it. No one in this House will live long enough to see an end put to the mischief which will be the result of the doctrine which has been inculcated; but the arrow is shot and the wound already given. I shall certainly avoid personal reflections. No one has had more cast upon him than myself; but I never was biased by any consideration of applause from without, in the discharge of my public duty; and, in giving my sentiments according to what I thought law, I have relied upon my own consciousness. It is with great pleasure I have heard the noble Lord who moved the resolution express himself in so manly and sensible a way, when he recommended a dispassionate debate, while, at the same time, he urged the necessity of the House coming to such a resolution, with great dignity and propriety of argument.

I shall endeavor to clear away from the question, all that mass of dissertation and learning displayed in arguments which have been fetched from speculative men who have written upon the subject of government, or from ancient records, as being little to the purpose. I shall insist that these records are no proofs of our present Constitution. A noble Lord has taken up his argument from the settlement of the Constitution at the revolution; I shall take up my argument from the Constitution as it now is. The Constitution of this country has been always in a moving state, either gaining or losing something and with respect to the modes of taxation, when we get beyond the reign of Edward the First, or of King John, we are all in doubt and obscurity. The history of those times is full of uncertainties. In regard to the writs upon record, they were issued some of them according to law, and some not according to law; and such [_i. e._, of the latter kind] were those concerning ship-money, to call assemblies to tax themselves, or to compel benevolences. Other taxes were raised from escuage, fees for knights’ service, and by other means arising out of the feudal system. Benevolences are contrary to law; and it is well known how people resisted the demands of the Crown in the case of ship-money, and were persecuted by the Court; and if any set of men were to meet now to lend the King money, it would be contrary to law, and a breach of the rights of Parliament.

I shall now answer the noble Lord particularly upon the cases he has quoted. With respect to the Marches of Wales, who were the borderers, privileged for assisting the King in his war against the Welsh in the mountains, their enjoying this privilege of taxing themselves was but of a short duration, and during the life of Edward the First, till the Prince of Wales came to be the King; and then they were annexed to the Crown, and became subject to taxes like the rest of the dominions of England; and from thence came the custom, though unnecessary, of naming Wales and the town of Monmouth in all proclamations and in acts of Parliament. Henry the Eighth was the first who issued writs for it to return two members to Parliament. The Crown exercised this right _ad libitum_, from whence arises the inequality of representation in our Constitution at this day. Henry VIII. issued a writ to Calais to send one burgess to Parliament. One of the counties palatine [I think he said Durham] was taxed fifty years to subsidies, before it sent members to Parliament. The clergy were at no time unrepresented in Parliament. When they taxed themselves, it was done with the concurrence and consent of Parliament, who permitted them to tax themselves upon their petition, the Convocation sitting at the same time with the Parliament. They had, too, their representatives always sitting in this House, bishops and abbots; and, in the other House, they were at no time without a right of voting singly for the election of members; so that the argument fetched from the case of the clergy is not an argument of any force, because they were at no time unrepresented here.

The reasoning about the colonies of Great Britain, drawn from the colonies of antiquity, is a mere useless display of learning; for the colonies of the Tyrians in Africa, and of the Greeks in Asia, were totally different from our system. No nation before ourselves formed any regular system of colonization, but the Romans; and their system was a military one, and of garrisons placed in the principal towns of the conquered provinces. The States of Holland were not colonies of Spain; they were States dependent upon the house of Austria in a feudal dependence. Nothing could be more different from our colonies than that flock of men, as they have been called, who came from the North and poured into Europe. Those emigrants renounced all laws, all protection, all connection with their mother countries. They chose their leaders, and marched under their banners to seek their fortunes and establish new kingdoms upon the ruins of the Roman empire.

But our colonies, on the contrary, emigrated under the sanction of the Crown and Parliament. They were modelled gradually into their present forms, respectively, by charters, grants, and statutes; but they were never separated from the mother country, or so emancipated as to become _sui juris_. There are several sorts of colonies in British America. The charter colonies, the proprietary governments, and the King’s colonies. The first colonies were the charter colonies, such as the Virginia Company; and these companies had among their directors members of the privy council and of both houses of Parliament; they were under the authority of the privy council, and had agents resident here, responsible for their proceedings. So much were they considered as belonging to the Crown, and not to the King personally (for there is a great difference, though few people attend to it), that when the two Houses, in the time of Charles the First, were going to pass a bill concerning the colonies, a message was sent to them by the King that they were the King’s colonies, and that the bill was unnecessary, for that the privy council would take order about them; and the bill never had the royal assent. The Commonwealth Parliament, as soon as it was settled, were very early jealous of the colonies separating themselves from them; and passed a resolution or act (and it is a question whether it is not in force now) to declare and establish the authority of England over its colonies.

But if there was no express law, or reason founded upon any necessary inference from an express law, yet the usage alone would be sufficient to support that authority; for, have not the colonies submitted ever since their first establishment to the jurisdiction of the mother country? In all questions of property, the appeals from the colonies have been to the privy council here; and such causes have been determined, not by the law of the colonies, but by the law of England. A very little while ago, there was an appeal on a question of limitation in a devise of land with remainders; and, notwithstanding the intention of the testator appeared very clear, yet the case was determined contrary to it, and that the land should pass according to the law of England. The colonies have been obliged to recur very frequently to the jurisdiction here, to settle the disputes among their own governments. I well remember several references on this head, when the late Lord Hardwicke was attorney general, and Sir Clement Wearg solicitor general. New Hampshire and Connecticut were in blood about their differences; Virginia and Maryland were in arms against each other. This shows the necessity of one superior decisive jurisdiction, to which all subordinate jurisdictions may recur. Nothing, my Lords, could be more fatal to the peace of the colonies at any time, than the Parliament giving up its authority over them; for in such a case, there must be an entire dissolution of government. Considering how the colonies are composed, it is easy to foresee there would be no end of feuds and factions among the several separate governments, when once there shall be no one government here or there of sufficient force or authority to decide their mutual differences; and, government being dissolved, nothing remains but that the colonies must either change their Constitution, and take some new form of government, or fall under some foreign power. At present the several forms of their Constitution are very various, having been produced, as all governments have been originally, by accident and circumstances. The forms of government in every colony were adopted, from time to time, according to the size of the colony; and so have been extended again, from time to time, as the numbers of their inhabitants and their commercial connections outgrew the first model. In some colonies, at first there was only a governor assisted by two or three counsel; then more were added; afterward courts of justice were erected; then assemblies were created. Some things were done by instructions from the secretaries of state; other things were done by order of the King and council; and other things by commissions under the great seal. It is observable, that in consequence of these establishments from time to time, and of the dependency of these governments upon the supreme Legislature at home, the lenity of each government in the colonies has been extreme toward the subject; and a great inducement has been created for people to come and settle in them. But, if all those governments which are now independent of each other, should become independent of the mother country, I am afraid that the inhabitants of the colonies are very little aware of the consequences. They would feel in that case very soon the hand of power more heavy upon them in their own governments, than they have yet done, or have ever imagined.