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in the House of Commons. The calmness and dignity of the assembly were Letter suited to his habits of thought. Here, after a few years, he had again to encounter his great antagonist, who was raised to the same dignity in 1766. As Chatham was the advocate of the people's rights, Mansfield was the champion of the King's prerogative. He defended the Stamp Act, and maintained the right of Parliament to tax the Americans as being virtually represented in the House of Commons. A speech on that subject, corrected by himself, is given below. Lord Campbell, notwithstanding his strong predilections as a Whig, does not hesitate to pronounce it unanswerable. His speech in favor of taking away the protection extended to the servants of peers is the most finished of his productions, and will also be found in this volume. To these will be added his argument in the case of the Chamberlain of London vs. Allan Evans, which has often been spoken of as the most perfect specimen of juridical reasoning in our language. His address from the bench, when surrounded by a mob, during the trial of the outlawry of Wilkes, will also form part of the extracts.
After discharging his duties as Chief Justice nearly thirty-two years, he resigned his office on the 4th of June, 1783. His faculties were still unimpaired, though his strength was gone; and he continued in their unclouded exercise nearly five years longer, when he died, after an illness of ten days, on the 20th of March, 1793, in the eighty-ninth year of his age.
* The countenance of Lord Mansfield,” says a friend and contemporary, “was un commonly beautiful, and none could ever behold it, even in advanced years, without reverence. Nature had given him an eye of fire ; and his voice, till it was affected by the years which passed over him, was perhaps unrivaled in the sweetness and variety of its tones. There was a similitude between his action and that of Mr. Garrick. In speaking from the bench, there was sometimes a confusion in his perods, and a tendency to involve his sentences in parentheses; yet, such was the charm of his voice and action, and such the general beauty, propriety, and force of his expressions, that, while he spoke, all these defects passed unnoticed.”
The eloquence of Lord Mansfield, especially in his best speeches in the House of Lords. was that of a judge rather than an advocate or a party leader. He had the air of addressing the House of Lords, according to the theory of that body, as one who spoke upon honor. He sought not to drive, but to lead; not to overwhelm the mind by appeals to the passions, but to aid and direct its inquiries ; so that his hearers had the satisfaction of seeming, at least, to forrn their own conclusions. He was peculiarly happy in his statement of a case. “It was worth more," said Mr. Burke, “than any other man's argument.” Omitting all that was unnecessary, he seized, with surprising tact, on the strong points of a subject; he held them steadily before the mind ; and, as new views opened, he led forward his hearers, step by step, toward the desired result, with almost the certainty of intuitive evidence. "It was extremely difficult,” said Lord Ashburton, “to answer him when he was wrong, and impossible when he was in the right." His manner was persuasive, with enough of force and animation to secure the closest attention. His illustrations were always apposite, and sometimes striking and beautiful. His language, in his best speeches, was select and graceful; and his whole style of speaking approached as near as possible to that dignified conversation which has always been considered approprie to tr. the House of Lords.
OF LORD MANSFIELD ON THE RIGHT OF TAXING AMERICA, DELIVERED IN THE HOUSE OF IRDE
FEBRUARY 3, 1766.
INTRODUCTION. IN January, 1766, a plan was brought into the House of Commons, under jord Rockingaag s mustry for the repeal of the American Stamp Act; and in order to mollify the King, who was opposed to thal measure, it was accompanied by a Declaratory Act, affirming that “Parliament had full power and right so make laws of sufficient force to bind the colonies." Lord Chatham, then Mr. Pitt, remarked with sever ity on this Declaratory Act when before the Commons. Lord Camden did the same when it came before the House of Lords, February 10th, 1766. He said, “In my opinion, my Lords, the Legislature have 10 right to make this law. The sovereign authority, the omnipotence of the Legislature, is a favorite doc. trine ; but there are some things which you can not do. You can not take away a man's property without making him a compensation. You have no right to condemn any man by bill of attainder without hearing him. But, though Parliament can not take any man's private property, yet every subject must make contribution; and this he consents to do by his representative. Notwithstanding the King, Lords, ani Commons could in ancient times tax other persons, they could not tax the clergy." He then went on to consider the case of the counties palatine of Wales and of Berwick, showing that they were never taxed till they sent representatives to the House of Commons, observing that the Irish tax then selves, and that the English Parliament could not tax them. “But,” said he, “even supposing the Americans bave no exclusive right to tax themselves, it would be good policy to give it to them, instead of offensively exert ing a power which you ought never to have exercised. America feels that she can do better without us than we can do without her."
Lord Northington, the Chancellor, made some coarse and bitter remarks in reply; and Lord Mansfield then rose to defend his favorite doctrine of the right of Great Britain to tax the colonies. His speech is by far the most plausible and argumentative one ever delivered on that side of the question; and Lorc Campbell, in referring to the subject, says, “Lord Mansfield goes on with great calmness, and with argu ments to which I have never been able to find an answer, to deny, as far as the power is concerned, tbe Jistinction between a law to tax and a law for any other purpose." The speech was corrected for the nress by Lord Mansfield, and may therefore be relied on as authentic.
SPEECH, &c. MY LORDS,—I shall speak to the question but I never was biased by any consideration of The question strictly as a matter of right; for it is applause from without, in the discharge of my one of right sot expedi
" a proposition in its nature so perfectly public duty; and, in giving my sentiments ac
distinct from the expediency of the cording to what I thought law, I have relie tax, that it must necessarily be taken separate, upon my own consciousness. It is with grea if there is any true logic in the world; but of pleasure I have heard the noble Lord who moved the expediency or inexpediency I will say noth- the resolution express himself in so manly and ing. It will be time enough to speak upon that sensible a way, when he recommended a dissubject when it comes to be a question. passionate debate, while, at the same time, be
I shall also speak to the distinctions which urged the necessity of the House coming to sucb have been taken, without any real difference, as a resolution, with great dignity and propriety of to the nature of the tax; and I shall point out, argument. lastly, the necessity there will be of exerting the | I shall endeavor to clear away from the ques force of the superior authority of governnient, if tion, all that mass of dissertation and Re
Refutation o opposed by the subordinate part of it.
learning displayed in arguments which arguments I am extremely sorry that the question has have been fetched from speculative records and
practices ever become necessary to be agitated, and that men who have written upon the subthere should be a decision upon it. No one in ject of government, or from ancient records, as this House will live long enough to see an end being little to the purpose. I shall insist that put to the mischief which will be the result of these records are no proofs of our present Con. the doctrine which has been inculcated; but the stitution A noble Lord has taken up his ar arrow is shot, and the wound already given. Igument from the settlement of the Constitution shall certainly avoid personal reflections. No at the Revolution ; I shall take up my argument one has had more cast upon him than myself; from the Constitution as it now is. The Consti
tution of this country has been always in a mor ? Lives of the Chancellors. V., 206. ing state, either gaining or losing something
and with respect to the modes of taxation, when of Spain ; they were states der endent upon the ve get beyond the reign of Edward the First, house of Austria in a feudal dependence. Noth. w of King John, we are all in doubt and obscu-ing could be more different from our colonies city. The history of those times is full of uncer- than that flock of men, as they have been called, tainties. In regard to the writs upon record, who came from the North, and pourea into Eu. they were issued some of them according to law, rope. Those emigrants renounced all laws, all and some not according to law; and sucb [i. e., protection, all connection with their mother counof the latter kind) were those concerning ship-tries. They chose their leaders, and marched money, to call assemblies to tax themselves, or under their banners to seek their fortunes and to compel benevolences. Other taxes were rais-establish new kingdoms upon the ruins of the ed from escaage, fees for knights' service, and Roman empire. by other means arising out of the feudal system. But our colonies, on the contrary, emigrated Benevolences are contrary to law; and it is well under the sanction of the Crown and
Direct Argo known how people resisted the demands of the Parliament. They were modeled menis. 1. "The Crown in the case of ship-money, and were per- gradually into their present forins, ted by charter. secuted by the Court; and if any set of men respectively, by charters, grants, and dependent on were to meet now to lend the King money, it statutes; but they were never sep. Great Britain svould be contrary to law, and a breach of the arated from the mother country, or so emancirights of Parliament.
pated as to become sui juris. There are sev. I shall now answer the noble Lord particular-eral sorts of colonies in British America. The ly upon the cases he has quoted. With respect charter colonies, the proprietary governments, to the Marches of Wales, who were the border- and the King's colonies. The first colonies were ers, privileged for assisting the King in his war the charter colonies, such as the Virginia Comagainst the Welsh in the mountains, their enjoy- pany; and these companies had among their diing this privilege of taxing themselves was but rectors members of the privy council and of both of a short duration, and during the life of Ed- houses of Parliament; they were under the au ward the First, till the Prince of Wales came to thority of the privy council, and had agents resibe the King; and then they were annexed to dent here, responsible for their proceedings. So the Crown, and became subject to taxes like the much were they considered as belonging to the rest of the dominions of England; and from Crown, and not to the King personally (for there thence came the custom, though unnecessary, is a great difference, though few people attend of naming Wales and the town of Monmouth in to it), that when the two Houscs, in the time of all proclamations and in acts of Parliament. Charles the First, were going to pass a bill conHenry the Eighth was the first who issued writs cerning the colonies, a message was sent to them for it to return two members to Parliament. by the King that they were the King's colonies, The Crown exercised this right ad libitum, from and that the bill was unnecessary, for that the
hence arises the inequality of representation in privy council would take order about them; and vir Constitution at this day. Henry VIII. issued the bill never had the royal assent. The Com. & writ to Calais to send onc burgess to Parlia- monwealth Parliament, as soon as it was settled fuent. One of the counties palatine (I think he were very early jealous of the colonies separating said Durham) was taxed fifty years to subsidies, themselves from them; and passed a resolution before it sent members to Parliament. The cler- or act (and it is a question whether it is not in gy were at no time unrepresented in Parliament. force now) to declare and establish the authority When they taxed themselves, it was done with of England over its colonies. the concurrence and consent of Parliament, who But if there was no express law, or reason permitted them to tax themselves upon their pe-| founded upon any necessary infer- ,. They have tition, the Convocation sitting at the same time ence from an express law, yet the submitted to
English law, with the Parliament. They had, too, their rep-usage alone would be sufficient to and thus ac
knowledged resentatives always sitting in this House, bish- support that authority; for, have not Weir depend ops and abbots; and, in the other House, they the colonies submitted ever since ence. were at no time without a right of voting singly their first establishment to the jurisdiction of the for the election of members; so that the argu-mother country? In all questions of property, ment fetched from the case of the clergy is not the appeals from the colonies have been to the an argument of any force, because they were at privy council here ; and such causes have been bo tine unrepresented here.
determined, not by the law of the colonies, but by The reasoning about the colonies of Great the law of England. A very little while ago, The colonies Britain, drawn from the colonies of there was an appeal on a question of limitation Arte antiquity, is a mere useless display in a devise of land with remainders; and, not*# of learning; for the colonies of the withstanding the intention of the testator appear. Tyrians in Africa, and of the Greeks in Asia, ed very clear, yet the case was determined con. were totally different from our system. No na-trary to it, and that the land should pass accord. Lion before ourselves formed any regular system ing to the law of England. The colonies have of colonization, but the Romans; and their sys- been obliged to recur very frequently to the ju. tem was a military one, and of garrisons placed risdiction here, to settle the disputes among their in the principal towns of the conquered provin- own governments. I well remember several
*. The states of Holland were not colonies references on this heard. when the late Lord Hardwicke was attorney general, and Sir Clem- has been ultimately to fix the trade of the colo 6: Wearg solicitor general. New Hampshire nies, so as to center in the bosom of that country and Connecticut were in blood about their differ from whence they took their original. The Nav ences ; Virginia and Maryland were in arms igation Act shut up their intercourse with for against each other. This shows the necessity eign countries. Their ports have been made of one superior decisive jurisdiction, to which all subject to customs and regulations which have subordinate jurisdictions may recur. Nothing, cramped and diminished their trade. And du. my Lords, could be more fatal to the peace of ties have been laid, affecting the very inmos! the colonies at any time, than the Parliament parts of their commerce, and, among others, tbas giving up its authority over them; for in such a of the post; yet all these have been submitted case, there must be an entire dissolution of goy- to peaceably, and no one ever thought till now ernment. Considering how the colonies are of this doctrine, that the colonies are not to be composed, it is easy to foresee there would be taxed, regulated, or bound by Parliament. A no end of feuds and factions among the several few particular merchants were then, as now, dis. separate governments, when once there shall be pleased at restrictions which did not permit them no one government here or there of sufficient to make the greatest possible advantages of their force or authority to decide their mutual differ- commerce in their own private and peculiai ences; and, government being dissolved, nothing branches. But, though these few merchants remains but that the colonies must either change might think themselves losers in articles which their Constitution, and take some new form of they had no right to gain, as being prejudicial to government, or fall under some foreign power. the general and national system, yet I must obAt present the several forms of their Constitution serve, that the colonies, upon the whole, were are very various, having been produced, as all benefited by these laws. For these restrictive governments have been originally, by accident laws, founded upon principles of the most solid and circumstances. The forms of government policy, flung a great weight of naval force into in every colony were adopted, from time to time, the hands of the mother country, which was according to the size of the colony; and so have to protect its colonies. Without a union with been extended again, from time to time, as the her, the colonies must have been entirely weak numbers of their inhabitants and their commer- and defenseless, but they thus became relatively cial connections outgrew the first model. In great, subordinately, and in proportion as the some colonies, at first there was only a governor mother country advanced in superiority over the assisted by two or three counsel; then more rest of the maritime powers in Europe, to which were added; afterward courts of justice were both mutually contributed, and of which both erected; then assemblies were created. Some have reaped a benefit, equal to the natural and things were done by instructions from the secre- just relation in which they both stand recipro laries of state ; other things were done by order cally, of dependency on one side, and protection of the King and council; and other things by on the other. commissions under the great seal. It is obsery. There can be no doubt, my Lords, but that able, that in consequence of these establishments the inhabitants of the colonies are as 4. The colonies from time to time, and of the dependency of much represented in Parliament, as represented in these governments upon the supreme Legislature the greatest part of the people of En. Pari at home, the lenity of each government in the gland are represented; among nine millions of colonies has been extreme toward the subject; whom there are eight which have no votes in and a great inducement has been created for electing members of Parliament. Every objec. people to come and settle in them. But, if all tion, therefore, to the dependency of the colonies those governments which are now independent upon Parliament, which arises to it upon the of each other, should become independent of the ground of representation, goes to the whole presmother country, I am afraid that the inhabitants ent Constitution of Great Britain ; and I suppose of the colonies are very little aware of the con- it is not meant to new model that too. People sequences. They would feel in that case very may form speculative ideas of perfection, and in. soon the hand of power more heavy upon them dulge their own fancies or those of other men. in their own governments, than they have yet Every man in this country has his particular nodone, or have ever imagined.
tion of liberty; but perfection never did, and The Constitutions of the different colonies are never can exist in any human institution. To 3. The jaws to thus made up of different principles. what purpose, then, are arguments diawn from a which they sub They must remain dependent, from distinction, in which there is no real difference their pecuniary the necessity of things, and their re- of a virtual and actual representation ? A mem
* lations to the jurisdiction of the moth- ber of Parliament, chosen for any borough, rep er country; or they must be totally dismembered resents not only the constituents and inhabitants from it, and form a league of union among them- of that particular place, but he represents the selves against it, which could not be eflected inhabitants of every other borough in Great without great violences. No one ever thought Britain. Ile represents the city of London, and the contrary till the trumpet of sedition was all other the commons of this land, and the in blown. Acts of Parliament have been made, not habitants of all the colonies and dominions of only without a doubt of their legality, but with Great Britain ; and is, in duty and conscience. aniversal applause, the great object of which bound to take care of their interests.
I Have merlioned the cnstoms and the post tax. | Masaniello was mad. Nobody dcubts it; yen
This leads me to answer anota er dis- for all that, he overturned the government of tinction, as false as the above; the Naples. Madness is catching in all popular distinction of internal and external assemblies and upon all popular matters. The
taxes. The noble Lord who quoted book is full of wildness. I never read it till a so rauch law, and denied upon those grounds the few days ago, for I seldom look into such things. right of the Parliament of Great Britain to lay I never was actually acquainted with the con. internal taxes upon the colonies, allowed at the tents of the Stamp Act, till I sent for it on pur. same time that restrictions upon trade, and du- pose to read it before the debate was expected. ties upon the ports, were legal. But I can not With respect to authorities in another House, ] seo a real difference in this distinction; for I know nothing of them. I believe that I have hold it to be true, that a tax laid in any place is not been in that House more than once since 1 like a pebble falling into and making a circle in had the honor to be called up to this, and, if 1 a lake, till one circle produces and gives motion did know any thing that passed in the other to another, and the whole circumference is agi- | House, I could not, and would not, mention it as tated from the center. For nothing can be more an authority here. I ought not to mention any clear than that a tax of ten or twenty per cent. such authority. I should think it beneath my laid upon tobacco, either in the ports of Virginia own and your Lordships' dignity to speak of it. or London, is a duty laid upon the inland plant I am far from bearing any ill will to the Amer. ations of Virginia, a hundred miles from the sea, icans; they are a very good people, and I have wheresoever the tobacco grows.
long known them. I began life with them, and I do not deny but that a tax may be laid in-owe much to them, having been much concerned judiciously and injuriously, and that people in in the plantation causes before the privy coun. such a case may have a right to complain. But cil; and so I became a good deal acquainted the nature of the tax is not now the question ; with American affairs and people. I dare say, whenever it comes to be one, I am for lenity. their heat will soon be over, when they come to I would have no blood drawn. There is, I am feel a little the consequences of their opposition satisfied, no occasion for any to be drawn. A to the Legislature. Anarchy always cures it. little time and experience of the inconveniences self; but the ferment will continue so much the and miseries of anarchy, may bring people to longer, while hot-headed men there find that their senses.
there are persons of weight and character 10 With respect to what has been said or written support and justify them here. srce upon this subject, I differ from the Indeed, if the disturbances should continue for
noble Lord, who spoke of Mr. Otis a great length of time, force must be force must be and his book with contempt, though he maintain the consequence, an application ad- medance
turbances con ed the same doctrine in some points, while in equate to the mischief, and arising uinue. others he carried it farther than Otis himself, out of the necessity of the case; for force is only who allows every where the supremacy of the the difference between a superior and subordin. Crown over the colonies. No man, on such a ate jurisdiction. In the former, the whole force subject, is contemptible. Otis is a man of con- of the Legislature resides collectively, and when sequence among the people there. They have it ceases to reside, the whole connection is dis. chosen him for one of their deputies at the Con- solved. It will, indeed, be to very little purpose gress and general meeting from the respective that we sit here enacting laws, and making resgovernments. It was said, the man is mad. Olutions, is the inferior will not obey them, or if What then? One madman often makes many. we neither can nor dare enforce them; for then,
and then, I say, of necessity, the matter comes • The celebrated James Otis is here referred to, to the sword. If the offspring are grown too whu in 1764 published a pamphlet, wbich was re- big and too resolute to obey the parent, you must printed in England, entitled The Rights of the Brit. try which is the strongest, and exert all the powish Colonies. In this pamphlet, while he admitted ers of the mother country to decide the contest. the supremacy of the Crown over the colonies, he
| I am satisfied, notwithstanding, that time and strenuously maintained, with Lord Chatham, that
a wise and steady conduct may pre- Examples of as long as America remained unrepresented in the House of Commons, Parliament had no right to tax
vent those extremities which would likes on oth the colonies.
be fatal to both. I remember well er subjects. Mr. Otis, who was a man of fervid eloquence, ex. when it was the violent humor of the times to pressed himself so strongly respecting the rights of decry standing armies and garrisons as danger. America, that some persons (as Lord Mansfield men- ous, and incompatible with the liberty of the subtions) treated him as a madman. There is a speech ject. Nothing would do but a regular militia. (to be found in most of our collections of eloquence) The militia are embodied; they march; and no which bears his name, and begins, “England may sooner was the militia law thcs put into execu. as well dam up the waters of the Nile with bulrush.
tion, but it was then said to be an intolerable es, as fetter the step of freedom," &c. It first ap
uared in a work entitled The Rebels, writies by burden upon the subject, and that it would fall, Mrs. Child, and was designed as a fancy sketch, like sooner or later, into the hands of the Crown. the speeches put by Mr. Webster int, the mouth of That was the language, and many counties peAdams and Hancock, in his oration (!. tbe death of titioned against it. This may be the case with John Adams and Thomas Jefferson,
! the colonies. In many places they begin alreads