'King's troops,—which, as it was adapted to the nature of the country, and to the circumstances of the people, fo it was univerfally fubmitted to, and (during the war) conftantly carried into execution. That, as I had been the author of this measure, and knew the effect of it, I was certain, that if that province law (adap ted to the stated circumstances of the colonies in general) was made a claufe in the act of parliament, allowing to the feveral provinces and colonies a proper la titude in the exccution of it, it would anfwer every purpose required, could meet with no objection here, and would meet with no oppofition in the colonies. I was defired to explain this measure to a certain office; but I am afraid I was fo unhappy in the effect of my explanation, as to be totally mifapprehended; becaufe I fee, that the act of parliament, which the propofed bill means to enforce, by its errors and defects, has mistaken and perverted every means of carrying the meafure into execution; and has, from the tenor of it, been the natural occafion of all the confufion and misconduct which government now complains of. The province law had in it every provifion neceffary for the carrying it into execution, and was accordingly conftantly and invariably executed. The act of parliament has neither any effectual claufe to enforce its execution, nor makes any fufficient provision for the expence incurred by the perfon who fhall carry it into execution. It neither confiders the various circumstances of the fervice in that country, as they arife and prefent themselves varioufly in various parts thereof; nor, as they must be perpetually changing, from time, in the fame parts; but directs particular modes, and eftablishes regulations to particular and fpecial points, which muft neceffarily be in compatible with the nature of the country, and circumstances of the people in many parts, and on many occafions. It endeavours to lay down general rules, which can never be applied to numberless particular cafes that muft arife; and, under this fpirit of impracticability, it allows no latitude in the execution thereof. And therefore, if there were full and effectual powers to enforce it, tuch powers could not produce an execution of this law, nor could produce any thing but confufion, fo far as respects the law, and Jan. 1770. an arbitrary quartering of the troops con trary to law; of which, if you have not already had inftances, you most certainly will have, whenever this law is attempted to be carried into execution. If you are determined to enforce this law, you ought, at least, to make it practicable. 1. Where the act directs, that the troops fhall be quartered in barracks, provided for that purpose, you should, at leaft, direct the manner of that quartering, fo that the barracks might answer the purpofe thereof; and not first put the people under a kind of compact and agreement to the expence of building barracks; and then, after such are built, leave it in the power of the commanding officer of your troops, to judge, or to fay, that thefe barracks do not anfwer the purpofe of quartering: and under that decifion, to demand quarters, either upon the inns or upon hired houfes, even before any troops are quartered in forch barracks as have been provided for them. 2. Where the act would mean to direct the quartering of the troops in ins, alehouses, &c. you should, at least, recollect the peculiar circumftances of those inns and alehoufes in that country, and whether they can answer the demands which the act makes upon them. You should confider, whether the officers which you direct to execute that bufinefs, can be required to do what is not practicable; and whether your act has provided any means adequate to the inforcing them to do, what they know is incompatible with the nature and circumftances of the country to perform. 3. Where the act directs that uninhabited houfes, out-houses, &c. fhall be hired for the accommodation and reception of the refidue of the troops, and provided with thofe fpecial and particular articles, which the faid act directs; you should, at leaft, confider, whether there be any fuch uninhabited houses, and unoccupied outhouses; and whether your act contains any thing that fhall oblige the people to lett them; or whether, when they are fo hired, they will fuit the purpose to which they are intended, or whether the circumitances af the people and country, where this fervice may be required to be performed, can fupply thole particular and fpecial articles which you require of them. When the act requnes a fervice, which (fuppofing it capable of being executed engages : engages the perfon who executes it in an expence, if you mean to enforce that act, you ought to provide effectually for his reimbursement and in this inftance, the act which you now propofe to inforce, is, in every point of confideration, abfurd and impracticable; as it neither provides itself for that reimbursement, nor puts the matter in any way of execution, that either can or will provide for it; but, on the contrary, entangles this bufinefs in a matter of controverfy, which would of itself, if nothing else did, obftruct and ftop it. The act of parliament for quartering his Majefty's troops in North-America, directs, that the expence incurred by that measure, shall be provided for by each respective colony, and raised in like manner, as the usual expences incurred by the province or colony are raifed, that is, by an act of Affembly. This was an original error; which did prevent, and muft for ever prevent, this act from being car ried into actual execution as an act of parliament. If it be prudent and adviseable, that parliament fhould charge any expence upon the colonies, by way of tax, originated in this Houfe; how fhall it direct that charge to be levied and paid? Shall parliament direct the Assembly of any province or colony, to make provifion and fupply for it? Or fhall parliament, directly and avowedly, imposing that fum upon the province or colony as a tax, fettle the ways and means of levying it, and appoint executive officers to collect it? Or fhall it direct the ufual executive officer of the colony to levy and collect that tax fo imposed ?————— -If the impofing by a direct tax be the proper political mode, the latter ftep is all regular, and but confequential of it-is conformable to law.. -The people having no fhare in the will, or in the authority, muft fubmit to the power of the act, and have no duty left, but submission and implicit obedience. If parliament, the fupreme legislature, fhall order and impose a tax on a body of people, and fhall order the legislative part of that body to provide for the payiment of it. and to fee it paid, it muft confider the members of that affembly merely as commiffioners of taxes, appointed in fuch cafe to receive and regifter the act, to apportion and affefs the tax. Yet furely this courfe is fomewhat eccentric to If, on the other hand, we confider each of the affemblies of the provinces and colonies as what it is, as a legislative, deliberative body, as the will of that province or colony; it must have a right to deliberate, it must have a right to decide; if it has the free will to fay aye, it must have the fame power of will to fay no. You may properly order an executive power to execute, but how, and with what propriety, can you order this deliberative body to exert its will only in one prescribed direction. If any fupreme and fovereign will shall preordain what this inferior power of deliberation fball will, it will make the fame confufion in practice, which the divines and metaphyficians have made in theory, between predeftination and free-will abfolute.-If you mean to try this experiment of reducing thefe abfurdities and inconfiftences to practice; if this bill muft pafs, and you have not yet predetermined on the title of it, it feems to me the bill may justly be intituled, an act to render more effectual predefination over free-will. For as your measure now ftands, if the affemblies of the provinces and colonies will not in every mode, article, and particular provifion, decide in their deliberative capacity, as an act of parliament directs and preordains, you confider the colonies as denying the fovereignty of Great Britain, than which nothing can be more unjust, unless it were poffible to find any thing more abfurd. Are you determined from hence to direct 1 peo. rect and regulate the quartering of the King's troops in North America?do it in a way that brings it home to the executive power there, to carry your directions and regulations into execution; explain and amend your act; make it practicable; make it effective; and then you may fairly decide whether they deny your fovereignty or not. You will find they do not. If you think your way of making an adequate and certain provifion for the charge of this service, is by the parliament's impofing a tax upon the ple for that purpose; and that you have power, and it is advifeable to exert that power, to effectuate fuch fupply, by fuch tax, you need not hesitate to avow it openly and directly; for the people of the colonies, from one end of the continent to the other, do invariably confider the claufe in the act of parliament, directing how that charge fhall be fupplied, as an internal tax impofed upon them—It is from this idea, that every act of obedience, as well as of disobedience to your act of parliament, must be conftrued and explained. Those whom you are willing 10 understand as having obeyed your act, have contrived to do it in a mode which neither recognizes the act of parliament, nor fubmits to the taxation- -as fuch. And although you reprefent the affembly of the province of New-York alone, as having revolted against this power-believe me, there is not a province, a colony, or a plantation, that will fubmit to a tax thus imposed, more than New-York will. All have thewn their readiness to execute this fervice of quartering as an act of their own-all have, in their zeal to provide for it, by a grant of their own, provided a fupply to answer the expence; -but not one fingle affembly has, or ever will, act under the powers and provilions of this act, as acknowledging, and, in confequence thereof, apportion ing, affeffing, and levying, the fupply, as a tax impofed by parliament. They have either acted without taking notice at all of this act of parliament, or have contrived fome way or other to vary in fome particulars, fufficient to make the execution and the tax an act of their own. Try the conduct of every province and colony through by this rule, and you will find nothing particular in the cafe of New-York. Don't fancy that you can divide the people upon this point, and that you need only divide to govern-you will by this conduct only unite them the more infeparably-you will make the caufe of New-York a common cause——— and will call up every other province and colony to ftand forth in their juftification while New-York, learning from the complexion of your measure, how to avoid or evade the purport of your enfor cing bill, will fufpend the force of it, inftead of it fufpending the affembly of that province, agamft whom it is brought forward. But we are told, that there is fomething fo peculiar in the spirit with which the House of Reprefentatives in Bolton have oppofed the authority of this act of parliament, extending to the oppugning of all authority of parliament whatsoever that that particular cafe will demand the particular confideration of this Houfe. We are told that they have charged the Governor and Council with unwarrantable and unconftitutional proceedings, for acting in confequence of an act of parliament. This is fo total a mifapprehenfion and mifreprefentation of the cafe, as it doth actually ftand, that a bare narrative of the circumstances and proceedings on the matter, will convince Miniftry that they need not put themfelves to the unneceffa ry and difagreeable pain of any further confideration of it, nor give this Houfe any trouble about the affair. Some troops unexpectedly, and by accident, put into the harbour of Boston-Some expences arofe in confequence of the neceffity of providing for a temporary reception of them-The general affembly not having yet, from any occafion, been called upon to make provifion for the quartering of troops by an act of the province, and not being fitting at this particular time, the Governor, with the advice of Council, incurred the expence. When the affembly met, the house of reprefentatives confidering, that the act of parliament requires an act of the general court, in order to fupply or reimburse any expence incurred by providing quarters, and fo forth, and that no fuch act did as yet exift, and that therefore the Governor was not authorized, either by any act of parliament, nor as yet by an act of the province, to incur and fupply fuch expence, did, with a jealoufy and attention not unworthy even our imitation, object to D 2 the the involving the treasury in any fuch without participation in the deliberation, charge, except what they authorised by or the will, bound implicitly to obey the their juft power of appropriation. The orders of this fovereign, and implicitly Governor, with great prudence, founded to enact, regifter, and carry into execu in a knowledge and acknowledgment of tion those grants, which we by our acts the conftitutional mode of proceeding, have made of their property-they fay, imputed the charge incurred to the necef- that this fovereign (however free within fity of the unforeseen occurrence, and itself) is an abfolute fovereign, an arbiapologized for his proceeding, as confo- trary lord, and that their obedience and nant to the ufual practice in the like ca- fubjection, without the interpofition of fes. Although fome of that ill-tem- their own free will, is (as to the subject per, which always mixes in with business fo flated) abfolute flavery. We have by when people are not well together, did act of parliament declared our right, and mix in with this, yet here it ended; and thus their apprehenfions feel the effect from this plain narrative, I dare fay, this of it. House will never be troubled with any thing more about it. But to return: This claufe in the quartering act, directing that the fupply for reimburfing the expence of quartering the troops, fhall be raised by the respective affemblies of the provinces or colonies-which is, by all the people of America, confidered as (and is indeed) a tax imposed by parliament, has brought, in fact, into difcuffion, that question of the right of taxation, which the cautious and (what I think) imprudent wisdom of many have endeavoured to keep wrapped up and fulpended in theory.What fchemes of policy wished to hold in question-acts and deeds will bring into decifion. You have, on one hand, by your declaratory law, afferted your right and power of taxation aver the colonies, and fo far as this act goes, you have exerted that power. On the other hand, it is a fact which this Houfe ought to be apprized of, in all its extent, That the people of America, univerfally, unitedly, and unalterably, are refolved not to fubmit to any internal tax impofed upon them by any legislature, in which they have not a fhare by reprefentatives of their own election. This claim must not be understood, as though it were only the pretences of party-leaders and demagogues; as though it were only the vifions of fpeculative enthufiafts; as though it were the mere ebullition of a faction which muft fubfide; as though it were only temporary or partial-it is the cool, deliberate, principled maxim of every man of bufinefs in the country. They fay, that while we confider the nation, the realm, the government of Great-Britain, collectively taken, as the Sovereign, and the colonies as the fubject, They fay, that fupplies are of good will, and not of duty; are the free and voluntary a&t of the giver, having a right to give, not obligations and fervices to be complied with, which the fubject cannot in right refuse-they therefore main tain, claim, and infift upon, that whatever is given out of the lands or property of the people of the colonies, fhould be given and granted by their own act. They fay that the true ground of justice, whereon the House of Commons grants fupplies, and may lay taxes on the lands of themselves and their conftituents, is, that they give what is their own, or that of others, for whom they are fpecially impowered to confent; that they lay no taxes which do not affect themselves and their constituents; that therefore, they are not only the proper givers, but also the best and safest judges, as to the extent and the mode of the gift. But that where any legislature shall give and grant out of lands and property, in which they have no fhare or concern; where they have no tax impofed upon others to fupply that gift in eate of themfelves and their constituents, the cafe labours with every effect, if not with every circumstance of injustice. Thus this question is brought in iffue, and must be decided; however much the policy of ministry may with and labour to wave it, cafes which conftantly arife must bring it into difcuffion, and neceflity will force it into decifion. Is it the intent of government to exert the power that it hath declared to be its right—is it determined to put this matter in contet-to put in conteft the interest, the peace, and perhaps the being of this country-with the certain effect of ruin to our commercial intereft--and to ους or colonies, as commercial accretions the ftate Certainly no. Does miniftry mean to propofe the mealure of impofing taxes on the colomes, and to force into execution the collection of them? —The whole fyftem of the ftate, government, and interwoven interet of the colonies, is gone too far for that to be practicable. Does it mean to unite this by any mode of policy, fyftem, which is in fact inter woven and incorporated into the very being of the British empire?—I am afraid not. Matters are not yet gone far enough to point out the practicability and neceffity of fuch political union. What then remains, but that we muft return again, and re-establish the fyftem of our poucks on that bafis whereon they flood, before fome late innovations in our fyftem fhook that basis?—What remains, but that we act, as to external taxes, with that commercial fpirit and prudence, which the wifdom of parliament hath alway's exercifed towards the colonies, fince their first establishment: and that as to further firpplies, when they become neceffary, the colonies are properly applied to by requifitions in the old accuftomed, known mode, which bath always fucceeded and been found effe&tual. As this is my opinion on this question in general, fo on the particular matter of this debate on the propofed bill, I will clofe what I with to offer in recommend ing it to the Houfe, either fo to amend and explain its act, as that both the mode of quartering, and the act of making the fupply for the expence of it, may origi. nate with the people of the colonies, and be an act of their own affemblies-in which cafe, this enforcing bill will become unneceflary-or let it be confidered as a fervice which the crown requires of them, and for which, without the interpofition of parliament, it makes the proper requifitions. This will reftore peace, this will effect the business. The contrary measure of this enforcing bill will be the beginning of a feries of mischiefs, and therefore I fhall be against the bringing it in. This fpeech was followed by one from Sir Thomas Sewell, who was anfwered by the late Right Hon. Charles Townfhend; after whom fpoke, in anfwer to hat Governor Pownall had faid, Mr. Secretary Conway, Sir Gilbert Elliot, the Right Hon. Hans Stanley. The Right Hon. George Stanley arofe on the fame account, alfo the Right Hon. Wellbore Ellis, who were anfwered by Mr. Alderman Beckford. Lord Chief Jufice. Charge to the Jury on a late popular Tryal. Gentlemen of the Jury, THIS is an action wherein ! n Wkes, Efq, is plaintiff, and the Right Hon. G-ge M-t-u D―nk, E-1 of H-1-x, is the defendant. It is an action of trefpafs for falfe imprifonment, brought by the plaintiff; it is in the form of a declaration, for breaking and entering his dwelling house, and there making a noife and difturbance, breaking open locks, and taking away his papers, and likewife for faltely imprifoning his perfon several days in the Tower. The fubftantial part of the claim in this action is for feizing his papers and perfon without a legal authority. Gentlemen, to this declaration, the defendant has pleaded, he is not guilty of the fact; and the whole matter to be tried in this action is, whether he is guilty or not guit ty, in order to affefs fuch damages as you fhall think proper. It has been proved, over and over again, and there is no manner of doubt, that the imprifonment was illegal, and likewife the feizing of the plaintiff's papers. comes now fingly before you to affefs the damages, which you think the plaintiff ought to recover under all the circumftances. The plaintiff has called feveral witneffes to maintain his case set out in his declaration. On the part of the defendant, it is admitted, and fo it moft certainly appears to be to every body that ever heard a caufe, that the warrant whereby the plaintiff was imprisoned, and his papers feized, was an illegal warrant; it has undergone the confideration of this court, and likewise of the court of King's Bench, and has been deemed illegal, and very properly fo, by every judge who has feen it, therefore it is im poffible to justify it; and there is no pretence or foundation for the defendant in this caufe to make any fort of ftand against this action, by way of juftification, in the way he has done, because it clearly and manifestly is an illegal war It rant, |