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of men who "had been driven to madness by injustice." On the one hand, to repeal an act the opposition to which had been marked by fierce riots, such as those of Boston, and even in the Assemblies of some of the States by language scarcely short of treason,[37] seemed a concession to intimidation scarcely compatible with the maintenance of the dignity of the crown or the legitimate authority of Parliament. On the other hand, to persist in the retention of a tax which the whole population affected by it was evidently determined to resist to the uttermost, was to incur the still greater danger of rebellion and civil war. In this dilemma, the ministers resolved on a course calculated, as they conceived, to avoid both evils, by combining a satisfaction of the complaints of the Colonists with an assertion of the absolute supremacy of the British crown and Parliament for every purpose. And on February 24, 1766, the Secretary of State brought in a bill which, after declaring, in its first clause, "that the King's Majesty, by and with the consent of the Lords spiritual and temporal, and Commons of Great Britain, in Parliament assembled, had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the Colonists and people of America, subjects of the crown of Great Britain, in all cases whatsoever," proceeded to repeal the Stamp Act, giving a strong proof of the sincerity of the desire to conciliate the Colonists by the unusual step of fixing the second reading of the bill for the next day.

      But in its different clauses it encountered a twofold opposition, which he had, probably, not anticipated. It is unnecessary to notice that which rested solely on the inexpediency of repealing the Stamp Act, "the compulsory enforcement of which was required by the honor and dignity of the kingdom." But the first clause was even more strenuously resisted, on grounds which its opponents affirmed to rest on the fundamental principles of the constitution. It was urged in the House of Commons by Mr. Pitt that, "as the Colonies were not represented in Parliament, Great Britain had no legal right nor power to lay a tax upon them—that taxation is no part of the governing or legislative power. Taxes," said the great orator, "are the voluntary gift and grant of the Commons alone. In legislation the three estates of the realm are alike concerned; but the concurrence of the peers and the crown to a tax is only necessary to clothe it with the form of a law; the gift and grant is in the Commons alone. … The distinction between legislation and taxation is essentially necessary to liberty."

      Mr. Pitt had no claim to be considered as a great authority in the principles of constitutional law. George II., slight as was his political knowledge or wisdom, complained on one occasion of the ignorance of a Secretary of State who had never read Vattel; and in this very debate he even boasted of his ignorance of "law-cases and acts of Parliament." But his coadjutor in the House of Lords (Lord Camden, at this time Chief-justice of the Common Pleas) owed the chief part of the respect in which he was held to his supposed excellence as a constitutional lawyer, and he fully endorsed and expanded Pitt's arguments when the bill came up to the House of Lords. He affirmed that he spoke as "the defender of the law and the constitution; that, as the affair was of the greatest consequence, and in its consequences might involve the fate of kingdoms, he had taken the strictest review of his arguments, he had examined and re-examined all his authorities; and that his searches had more and more convinced him that the British Parliament had no right to tax the Americans. The Stamp Act was absolutely illegal, contrary to the fundamental laws of nature, contrary to the fundamental laws of this constitution—a constitution governed on the eternal and immutable laws of nature. The doctrine which he was asserting was not new; it was as old as the constitution; it grew up with it; indeed, it was its support. Taxation and representation are inseparably united. God hath joined them; no British government can put them asunder. To endeavor to do so is to stab our very vitals." And he objected to the first clause (that which declared the power and right to tax), on the ground that if the ministers "wantonly pressed this declaration, although they were now repealing the Stamp Act, they might pass it again in a month." He even argued that "they must have future taxation in view, or they would hardly assert their right to enjoy the pleasure of offering an insult." He was answered by Lord Northington (the Chancellor) and by Lord Mansfield (the Chief-justice), both of whom supported the motion to repeal the tax, but who also agreed in denying the soundness of his doctrine that, as far as the power was concerned, there was any distinction between a law to tax and a law for any other purpose; and Lord Mansfield farther denied the validity of the argument which it had been attempted to found on the circumstance that the Colonies were not represented in Parliament, propounding, on the contrary, what Lord Campbell calls "his doctrine of virtual representation." "There can," said he, "be no doubt but that the inhabitants of the Colonies are represented in Parliament, as the greatest part of the people of England are represented, among nine millions of whom there are eight who have no votes in electing members of Parliament. Every objection, therefore, to the dependency of the Colonies upon Parliament which arises upon the ground of representation goes to the whole present constitution of Great Britain. … For what purpose, then, are arguments drawn from a distinction in which there is no real difference of a virtual and an actual representation? A member of Parliament chosen for any borough represents not only the constituents and inhabitants of that particular place, but he represents the inhabitants of every other borough in Great Britain. He represents the City of London and all the other Commons of the land, and the inhabitants of all the colonies and dominions of Great Britain, and is in duty and conscience bound to take care of their interests."

      Lord Mansfield's doctrine of a virtual representation of the Colonies must be admitted to be overstrained. The analogy between the case of colonists in a country from no part of which representatives are sent to Parliament, and that of a borough or county where some classes of the population which may, in a sense, be regarded as spokesmen or agents of the rest form a constituency and return members, must be allowed to fail; yet the last sentences of this extract are worth preserving, as laying down the important constitutional principle, subsequently expanded and enforced with irresistible learning and power of argument by Burke, that a member of the House of Commons is not a delegate, bound, under all circumstances, to follow the opinions or submit to the dictation of his constituents, but that from the moment of his election he is a councillor of the whole kingdom, bound to exercise an independent judgment for the interests of the whole people, rather than to guide himself by the capricious or partial judgments of a small section of it. But in its more immediate objects--that of establishing the two principles, that the constitution knows of no limitation to the authority of Parliament, and of no distinction between the power of taxation and that of any other kind of legislation--Lord Mansfield's speech is now universally admitted to have been unanswerable.[38]

      The abstract right was unquestionably on the side of the minister and the Parliament who had imposed the tax. But he is not worthy of the name of statesman who conceives absolute rights and metaphysical distinctions to be the proper foundation for measures of government, and pays no regard to custom, to precedent, to the habits and feelings of the people to be governed; who, disregarding the old and most true adage, summum jus summa injuria, omits to take into his calculations the expediency of his actions when legislating for a nation which he is in the daily habit of weighing in his private affairs. The art or science of government are phrases in common use; but they would be void of meaning if all that is requisite be to ascertain the strict right or power, and then unswervingly to act upon it in all its rigor. And, therefore, while it must be admitted that the character of the power vested in King, Lords, and Commons assembled in Parliament is unlimited and illimitable, and that the legal competency to enact a statute depends in no degree whatever on the wisdom or folly, the justice or wickedness, of the statute, the advice given to a constitutional sovereign by his advisers must be guided by other considerations. To quote by anticipation the language addressed to the Commons on this subject by Burke eight years afterward, the proper policy was "to leave the Americans as they anciently stood … To be content to bind America by laws of trade. Parliament had always done it. And this should be the reason for binding their trade. Not to burden them by taxes; Parliament was not used to do so from the beginning; and this should be the reason for not taxing. These are the arguments of states and kingdoms."[39]

      The ministry were strong enough to carry their resolutions through both Houses. Their measure

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