U.S. History

CHAPTER XXIII—THE STAMP ACT CONTROVERSY

A Colonist’s Defence of Taxation (1765)

BY MARTIN HOWARD

. . . DEPEND upon it, my Friend, a people like the English, arrived to the highest pitch of glory and power, the envy and admiration of surrounding slaves, who hold the balance of Europe in their hands, and rival in arts and arms every period of ancient or modern story; a nation who, for the defence and safety of America only, staked their all in the late war; this people, I say, justly conscious of their dignity, will not patiently be dictated to by those whom they have ever considered as dependant upon them. Happy will it be for the colonies, yea happy for the honourable author, if his pamphlet should meet with nothing more than contempt and neglect; for should it catch the attention of men in power, measures may be taken to stifle in the birth "the low murmurs of submissive fear," and crush in embryo "the mingled rage," which now so prettily adorns the head of his honour’s pamphlet.

However disguised, polished or softened the expression of this pamphlet may seem, yet every one must see, that its professed design is sufficiently prominent throughout, namely, to prove, that the colonies have rights independant of, and not controulable by, the authority of parliament. It is upon this dangerous and indiscreet position I shall communicate to you my real sentiments. . . .

The several New-England charters ascertain, define and limit the respective rights and privileges of each colony, and I cannot conceive how it has come to pass that the colonies now claim any other or greater rights than are therein expressly granted to them. I fancy when we speak, or think of the rights of free-born Englishmen, we confound those rights which are personal, with those which are political: There is a distinction between these, which ought always to be kept in view.

Our personal rights, comprehending those of life, liberty and estate, are secured to us by the common law, which is every subject’s birthright, whether born in Great-Britain, on the ocean, or in the colonies; and it is in this sense we are said to enjoy all the rights and privileges of Englishmen. The political rights of the colonies, or the powers of government communicated to them, are more limited, and their nature, quality and extent depend altogether upon the patent or charter which first created and instituted them. As individuals, the colonists participate of every blessing the English constitution can give them: As corporations created by the crown, they are confined within the primitive views of their institution. Whether therefore their indulgence is scanty or liberal, can be no cause of complaint; for when they accepted of their charters, they tacitly submitted to the terms and conditions of them.

The colonies have no rights independant of their charters, they can claim no greater than those give them, by those the parliamentary jurisdiction over them is not taken away, neither could any grant of the king abridge that jurisdiction, because it is founded upon common law, as I shall presently shew, and was prior to any charter or grant to the colonies: Every Englishman, therefore, is subject to this jurisdiction, and it follows him wherever he goes. It is of the essence of government, that there should be a supreme head, and it would be a solecism in politicks to talk of members independant of it. . . .

I am aware that the foregoing reasoning will be opposed by the maxim, "That no Englishman can be taxed but by his own consent, or by representatives."

It is this dry maxim, taken in a literal sense, and ill understood, that, like the song of Lillibullero, has made all the mischief in the colonies: And upon this, the partizans of the colonies rights chiefly rest their cause. I don’t despair, however, of convincing you, that this maxim affords but little support to their argument, when rightly examined and explained.

It is the opinion of the house of commons, and may be considered as a law of parliament, that they are the representatives of every British subject, wheresoever he be. In this view of the matter then, the aforegoing maxim is fully vindicated in practice, and the whole benefit of it, in substance and effect, extended and applied to the colonies. Indeed the maxim must be considered in this latitude, for in a literal sense or construction it ever was, and ever will be, impracticable. Let me ask, is the isle of Man, Jersey, or Guernsey, represented? What is the value or amount of each man’s representation in the kingdom of Scotland, which contains near two millions of people, and yet not more than three thousand have votes in the election of members of parliament? But to shew still further, that, in fact and reality, this right of representation is not of that consequence it is generally thought to be, let us take into the argument the moneyed interest of Britain, which, though immensely great, has no share in this representation; a worthless freeholder of forty shillings per annum can vote for a member of parliament, whereas a merchant, tho’ worth one hundred thousand pounds sterling, if it consist only in personal effects, has no vote at all: But yet let no one suppose that the interest of the latter is not equally the object of parliamentary attention with the former. . . .

The jurisdiction of parliament being established, it will follow, that this jurisdiction cannot be apportioned; it is transcendant and entire, and may levy internal taxes as well as regulate trade; there is no essential difference in the rights: A stamp duty is confessedly the most reasonable and equitable that can be devised, yet very far am I from desiring to see it established among us, but I fear the shaft is sped, and it is now too late to prevent the blow. . . .

Enlarging the power of the court of admiralty, is much complain’d of by the honourable author. I shall open my mind to you freely on this head.

It is notorious, that smuggling, which an eminent writer calls a crime against the law of nature, had well nigh become established in some of the colonies. Acts of parliament had been uniformly dispensed with by those whose duty it was to execute them; corruption, raised upon the ruins of duty and virtue, had almost grown into a system; courts of admiralty, confined within small territorial jurisdictions, became subject to mercantile influence; and the king’s revenue shamefully sacrificed to the venality and perfidiousness of courts and officers.—If, my friend, customs are due to the crown; if illicit commerce is to be put an end to, as ruinous to the welfare of the nation:—If, by reason of the interested views of traders, and the connivance of courts and custom-house officers, these ends could not be compassed or obtained in the common and ordinary way; tell me, what could the government do, but to apply a remedy desperate as the disease: There is, I own, a severity in the method of prosecution, in the new established court of admiralty, under

Doctor SPRY, here; but it is a severity we have brought upon ourselves. When every mild expedient, to stop the atrocious and infamous practice of smuggling, has been try’d in vain, the government is justifiable in making laws against it, even like those of Draco, which were written in blood. . . .

Believe me, my Friend, it gives me great pain to see so much ingratitude in the colonies to the mother country, whose arms and money so lately rescued them from a French government. I have been told, that some have gone so far as to say, that they would, as things are, prefer such a government to an English one.—Heaven knows I have but little malice in my heart, yet, for a moment, I ardently wish that these spurious, unworthy sons of Britain could feel the iron rod of a Spanish inquisitor, or a French farmer of the revenue; it would indeed be a punishment suited to their ingratitude. . . .

. . . I am very sure the loyalty of the colonies has ever been irreproachable; but from the pride of some, and the ignorance of others, the cry against mother country has spread from colony to colony; and it is to be feared, that prejudices and resentments are kindled among them which it will be difficult ever, thoroughly, to sooth or extinguish. It may become necessary for the supreme legislature of the nation to frame some code, and therein adjust the rights of the colonies, with precision and certainty, otherwise Great-Britain will always be teazed with new claims about liberty and privileges.

A Letter from a Gentleman at Halifax, to his Friend in Rhode-Island, containing Remarks upon a Pamphlet, entitled, The Rights of Colonies Examined (Newport, 1765), 5–22 passim.