Chapter XII: Preface (11)

I have already shewn that the supposition of our being exempt from the authority of parliament, is pregnant with the grossest absurdities. Let us now consider this clause in connection with the other parts of the charter. It is a rule of law, founded in reason and common sense, to construe each part of an instrument, so as the whole may hang together, and be consistent with itself. If we suppose this clause to exempt us from the authority of parliament, we must throw away all the rest of the charter, for every other part indicates the contrary, as plainly as words can do it; and what is still worse, this clause becomes _felo de se_, and destroys itself; for if we are not annexed to the crown, we are aliens, and no charter, grant, or other act of the crown can naturalize us or entitle us to the liberties and immunities of Englishmen. It can be done only by act of parliament. An alien is one born in a strange country out of the allegiance of the king, and is under many disabilities though residing in the realm; as Wales, Jersey, Guernsey, Ireland, the foreign plantations, &c. were severally annexed to the crown, they became parts of one and the same empire, the natives of which are equally free as though they had been born in that territory which was the ancient realm. As our patriots depend upon this clause, detached from the charter, let us view it in that light. If a person born in England removes to Ireland and settles there, he is then no longer represented in the British parliament, but he and his posterity are, and will ever be subject to the authority of the British parliament. If he removes to Jersey, Guernsey, or any other parts of the British dominions that send no members to parliament, he will still be in the same predicament. So that the inhabitants of the American colonies do in fact enjoy all the liberties and immunities of natural born subjects. We are entitled to no greater privileges than those that are born within the realm; and they can enjoy no other than we do, when they reside out of it. Thus, it is evident that this clause amounts to no more than the royal assurance, that we are a part of the British empire; are not aliens, but natural born subjects; and as such, bound to obey the supreme power of the state, and entitled to protection from it. To avoid prolixity, I shall not remark particularly upon other parts of this charter, but observe in general, that whoever reads it with attention, will meet with irresistible evidence in every part of it, that our being a part of the English dominions, subject to the English crown, and within the jurisdiction of parliament, were the terms upon which our ancestors settled this colony, and the very tenures by which they held their estates.

No lands within the British dominions are perfectly allodial; they are held mediately or immediately of the king, and upon forfeiture, revert to the crown. My dear countrymen, you have many of you been most falsely and wickedly told by our patriots, that Great Britain was meditating a land tax, and seeking to deprive us of our inheritance; but had all the malice and subtilty of men and devils been united, a readier method to effect it could not have been devised, than the late denials of the authority of parliament, and forcible oppositions to its acts. Yet, this has been planned and executed chiefly by persons of desperate fortunes.

MASSACHUSETTENSIS.

ADDRESSED

_To the Inhabitants of the Province of Massachusetts Bay_,

January 23, 1775.

MY DEAR COUNTRYMEN,

If we carry our researches further back than the emigration of our ancestors, we shall find many things that reflect light upon the object we are in quest of. It is immaterial when America was first discovered or taken possession of by the English. In 1602 one Gosnold landed upon one of the islands, called Elizabeth islands, which were so named in honor of queen Elizabeth, built a fort, and projected a settlement; his men were discouraged, and the project failed. In 1606, king James granted all the continent from 34 to 45 degrees, which he divided into two colonies, viz. the southern or Virginia, to certain merchants at London, the northern or New England, to certain merchants at Plymouth in England. In 1607, some of the patentees of the northern colony began a settlement at Sogadahoc; but the emigrants were disheartened after the trial of one winter, and that attempt failed of success. Thus this territory had not only been granted by the crown for purposes of colonization, which are to enlarge the empire or dominion of the parent state, and to open new sources of national wealth; but actual possession had been taken by the grantees, previous to the emigration of our ancestors, or any grant to them. In 1620, a patent was granted to the adventurers for the northern colony, incorporating them by the name of _the council for the affairs of New Plymouth_. From this company of merchants in England, our ancestors derived their title to this territory. The tract of land called Massachusetts, was purchased of this company, by sir Henry Roswell and associates; their deed bears date March 19th, 1627. In 1628 they obtained a charter of incorporation, which I have already remarked upon. The liberties, privileges and franchises, granted by this charter, do not perhaps exceed those granted to the city of London and other corporations within the realm. The legislative power was very confined; it did not even extend to levying taxes of any kind; that power was however assumed under this charter, which by law worked a forfeiture; and for this among other things, in the reign of Charles the second, the charter was adjudged forfeited, and the franchises seized into the king's hands. This judgment did not affect our ancestors' title to their lands, that were not derived originally from the charter, though confirmed by it, but by purchase from the council at Plymouth, who held immediately under the crown. Besides, our ancestors had now reduced what before was a naked right to possession, and by persevering through unequalled toils, hardships and dangers, at the approach of which other emigrants had fainted, rendered New England a very valuable acquisition both to the crown and nation. This was highly meritorious, and ought not to be overlooked in adjusting the present unhappy dispute; but our patriots would deprive us of all the merit, both to the crown and nation, by severing us from both. After the revolution, our ancestors petitioned the parliament to restore the charter. A bill for that purpose passed the house of commons, but went no further. In consequence of another petition, king William and queen Mary granted our present charter, for uniting and incorporating the Massachusetts, New Plymouth, and several other territories into one province. More extensive powers of legislation, than those contained in the first charter, were become necessary, and were granted; and the form of the legislature made to approach nearer to the form of the supreme legislature. The powers of legislation are confined to local or provincial purposes and further restricted by these words, viz. _So as the same be not repugnant or contrary to the laws of this our realm of England._ Our patriots have made many nice distinctions and curious refinements, to evade the force of these words; but after all, it is impossible to reconcile them to the idea of an independent state, as it is to reconcile disability to omnipotence. The provincial power of taxation is also restricted to provincial purposes, and allowed to be exercised over such only as are inhabitants or proprietors within the province. I would observe here, that the granting subordinate powers of legislation, does not abridge or diminish the powers of the higher legislatures; thus we see corporations in England and the several towns in this province vested with greater or lesser powers of legislation, without the parliament, in one case, or the general court in the other, being restrained, from enacting those very laws, that fall within the jurisdiction of the several corporations. Had our present charter been conceived in such equivocal terms, as that it might be construed as restraining the authority of parliament, the uniform usage ever since it passed the seal, would satisfy us that its intent was different. The parliament, in the reign when it was granted, long before and in every reign since, has been making statutes to extend to the colonies, and those statutes have been as uniformly submitted to as authoritative, by the colonies, till within ten or a dozen years. Sometimes acts of parliament have been made, and sometimes have been repealed in consequence of petitions from the colonies. The provincial assemblies often refer to acts of parliament in their own, and have sometimes made acts to aid their execution. It is evident that it was the intention of their majesties, to grant subordinate powers of legislation, without impairing or diminishing the authority of the supreme legislature. Had there been any words in the charter, that precluded that construction, or did the whole taken together contradict it, lawyers would tell us, that the king was deceived in his grant, and the patentees took no estate by it, because the crown can neither alienate a part of the British dominions, nor impair the supreme power of the empire. I have dwelt longer on this subject, than I at first intended, and not by any means done it justice, as to avoid prolix narratives and tedious deduction, I have omitted perhaps more than I have adduced, that evinces the truth of the position, that we are a part of the British dominions, and subject to the authority of parliament. The novelty of the contrary tenets, will appear by extracting a part of a pamphlet, published in 1764, by a Boston gentleman, who was then the oracle of the whigs, and whose profound knowledge in the law and constitution is equalled but by few.

"I also lay it down as one of the first principles from whence I intend to deduce the civil rights of the British colonies, that all of them are subject to, and dependent on Great Britain; and that therefore as over subordinate governments, the parliament of Great Britain has an undoubted power and lawful authority to make acts for the general good, that by naming them, shall and ought to be equally binding, as upon the subjects of Great Britain within the realm. Is there the least difference, as to the consent of the colonists, whether taxes and impositions are laid on their trade, and other property by the crown alone, or by the parliament? As it is agreed on all hands, the crown alone cannot impose them, we should be justifiable in refusing to pay them, _but must and ought to yield obedience to an act of parliament, though erroneous, till repealed_."

"It is a maxim, that the king can do no wrong; and every good subject is bound to believe his king is not inclined to do any. We are blessed with a prince who has given abundant demonstrations, that in all his actions, he studies the good of his people, and the true glory of his crown, which are inseperable. It would therefore be the highest degree of impudence and disloyalty, to imagine that the king, at the head of his parliament, could have any but the most pure and perfect intentions of justice, goodness and truth, that human nature is capable of. All this I say and believe of the king and parliament, in all their acts; even in that which so nearly affects the interests of the colonists; and that a most perfect and ready obedience is to be yielded to it while it remains in force. The power of parliament is uncontroulable but by themselves, and we must obey. They only can repeal their own acts. There would be an end of all government, if one or a number of subjects, or subordinate provinces should take upon them so far to judge of the justice of an act of parliament, as to refuse obedience to it. If there was nothing else to restrain such a step, prudence ought to do it, for forcibly resisting the parliament and the king's laws is high treason. Therefore let the parliament lay what burdens they please on us, we must, it is our duty to submit and patiently bear them, till they will be pleased to relieve us."

The Pennsylvania Farmer, who took the lead in explaining away the right of parliament to raise a revenue in America, speaking of regulating trade, tells us, that "he who considers these provinces as states distinct from the British empire, has very slender notions of justice, or of their interest; we are but parts of a whole, and therefore there must exist a power somewhere to preside, and preserve the connection in due order. This power is lodged in parliament, and we are as much dependant on Great Britain as a perfectly free people can be on another." He supposes that we are dependant in some considerable degree upon Great Britain; and that that dependance is nevertheless consistent with perfect freedom.

Having settled this point, let us reflect upon the resolves and proceedings of our patriots. We often read resolves denying the authority of parliament, which is the imperial sovereign, gilded over with professions of loyalty to the king, but the golden leaf is too thin to conceal the treason. It either argues profound ignorance or hypocritical cunning.

We find many unsuspecting persons prevailed on openly to oppose the execution of acts of parliament with force and arms. My friends, some of the persons that beguiled you, could have turned to the chapter, page and section, where such insurrections are pronounced rebellion, by the law of the land; and had not their hearts been dead to a sense of justice, and steeled against every feeling of humanity, they would have timely warned you of your danger. Our patriots have sent us in pursuit of a mere _ignis fatuus_, a fascinating glare devoid of substance; and now when we find ourselves bewildered, with scarce one ray of hope to raise our sinking spirits, or stay our fainting souls, they conjure up phantoms more delusive and fleeting, if possible, than that which first led us astray. They tell us, we are a match for Great Britain. The twentieth part of the strength that Great Britain could exert, were it necessary, is more than sufficient to crush this defenceless province to atoms, notwithstanding all the vapouring of the disaffected here and elsewhere. They tell us the army is disaffected to the service. What pains have our wretched politicians not taken to attach them to it? The officers conceive no very favourable opinion of the cause of the whigs, from the obloquy with which their General hath been treated, in return for his humanity, nor from the infamous attempts to seduce the soldiers from his majesty's service. The policy of some of our patriots has been as weak and contemptible, as their motives are sordid and malevolent; for when they found their success, in corrupting the soldiery, did not answer their expectations, they took pains to attach them firmer to the cause they adhered to, by preventing the erecting of barracks for their winter quarters, by which means many contracted diseases, and some lives were lost, from the unwholesome buildings they were obliged to occupy; and, as though some stimulus was still wanting, some provocation to prevent human nature revolting in the hour of battle, they deprived the soldiers of a gratification never denied to the brute creation; straw to lie on. I do not mention this conduct to raise the resentment of the troops; it has had its effect already; and it is proper you should know it; nor should I have blotted paper in relating facts so mortifying to the pride of man, had it not been basely suggested that there would be a defection should the army take the field. Those are matters of small moment, compared to another, which is the cause they are engaged in. It is no longer a struggle between whigs and tories, whether these or those shall occupy posts of honour, or enjoy the emoluments of office, nor is it now whether this or the other act of parliament shall be repealed. The army is sent here to decide a question, intimately connected with the honour and interest of the nation, no less than whether the colonies shall continue a part of, or be for ever dismembered from the British empire. It is a cause in which no honest American can wish our politicians success, though it is devoutly to be wished, that their discomfiture may be effected without recourse being had to the _ultima ratio_--the sword. This, our wretched situation, is but the natural consequence of denying the authority of parliament, and forcibly opposing its acts.

Sometimes we are amused with intimations that Holland, France or Spain, will make a diversion in our favour. These, equally with the others, are suggestions of despair. These powers have colonies of their own, and might not choose to set a bad example, by encouraging the colonies of any other state to revolt. The Dutch have too much money in the English funds, and are too much attached to their money to espouse our quarrel. The French and Spaniards have not yet forgot the drubbing they received from Great Britain last war; and all three fear to offend that power which our politicians would persuade us to despise.

Lastly, they tell us that the people in England will take our part, and prevent matters from coming to extremity. This is their fort, where, when driven from every other post, they fly for refuge.

Alas, my friends! our congresses have stopped up every avenue that leads to that sanctuary. We hear, by every arrival from England, that it is no longer a ministerial, (if it ever was) but a national cause. My dear countrymen, I deal plainly with you. I never should forgive myself if I did not. Are there not eleven regiments in Boston? A respectable fleet in the harbour? Men of war stationed at every considerable port along the continent? Are there not three ships of the line sent here, notwithstanding the danger of the winter coast, with more than the usual complement of marines? Have not our congresses, county, provincial, and continental, instead of making advances for an accommodation, bid defiance to Great Britain? _He that runs may read._

If our politicians will not be pursuaded from running against the thick bosses of the buckler, it is time for us to leave them to their fate, and provide for the safety of ourselves, our wives, our children, our friends, and our country.

I have many things to add, but must now take my leave, for this week, by submitting to your judgment whether there be not an absolute necessity of immediately protesting against all traitorous resolves, leagues, and associations, of bodies of men, that appear to have acted in a representative capacity. Had our congresses been accidental or spontaneous meetings, the whole blame might have rested upon the individuals that composed them; but as they appear in the character of the people's delegates, is there not the utmost danger of the innocent being confounded with the guilty, unless they take care timely to distinguish themselves?

MASSACHUSETTENSIS.

ADDRESSED

_To the Inhabitants of the Province of Massachusetts Bay_,

January 30, 1775.

MY DEAR COUNTRYMEN,

As the oppugnation to the king in parliament tends manifestly to independence, and the colonies would soon arrive at that point, did not Great Britain check them in their career; let us indulge the idea, however extravagant and romantic, and suppose ourselves for ever separated from the parent state. Let us suppose Great Britain sinking under the violence of the shock, and overwhelmed by her ancient hereditary enemies; or what is more probable, opening new sources of national wealth, to supply the deficiency of that which used to flow to her through American channels, and perhaps planting more loyal colonies in the new discovered regions of the south, still retaining her pre-eminence among the nations, though regardless of America.

Let us now advert to our own situation. Destitute of British protection, that impervious barrier, behind which, in perfect security, we have increased to a degree almost exceeding the bounds of probability, what other Britain could we look to when in distress? What succedaneum does the world afford to make good the loss? Would not our trade, navigation, and fishery, which no nation dares violate or invade, when distinguished by British colours, become the sport and prey of the maritime powers of Europe? Would not our maritime towns be exposed to the pillaging of every piratical enterprise? Are the colonies able to maintain a fleet, sufficient to afford one idea of security to such an extensive sea-coast? Before they can defend themselves against foreign invasions, they must unite into one empire; otherwise the jarring interests, and opposite propensities, would render the many headed monster in politics, unwieldly and inactive. Neither the form or seat of government would be readily agreed upon; more difficult still would it be to fix upon the person or persons, to be invested with the imperial authority. There is perhaps as great a diversity between the tempers and habits of the inhabitants of this province, and the tempers and habits of the Carolinians, as there subsists between some different nations; nor need we travel so far; the Rhode-Islanders are as diverse from the people of Connecticut, as those mentioned before. Most of the colonies are rivals to each other in trade. Between others there subsist deep animosities, respecting their boundaries, which have heretofore produced violent altercations, and the sword of civil war has been more than once unsheathed, without bringing these disputes to a decision. It is apparent that so many discordant, heterogeneous particles could not suddenly unite and consolidate into one body. It is most probable, that if they were ever united, the union would be effected by some aspiring genius, putting himself at the head of the colonists' army (for we must suppose a very respectable one indeed, before we are severed from Britain) and taking advantage of the enfeebled, bleeding, and distracted state of the colonies, subjugate the whole to the yoke of despotism. Human nature is every where the same; and this has often been the issue of those rebellions, that the rightful prince was unable to subdue. We need not travel through the states of ancient Greece and Rome, or the more modern ones in Europe, to pick up the instances, with which the way is strewed; we have a notable one in our own. So odious and arbitrary was the protectorate of Cromwell, that when death had delivered them from the dread of the tyrant, all parties conspired to restore monarchy; and each one strove to be the foremost in inviting home, and placing upon the imperial throne, their exiled prince, the son of the same Charles, who, not many years before, had been murdered on a scaffold. The republicans themselves now rushed to the opposite extreme, and had Charles 2d. been as ambitious, as some of his predecessors were, he might have established in England a power more arbitrary, than the first Charles ever had in contemplation.

Let us now suppose the colonies united, and moulded into some form of government. Think one moment of the revenue necessary to support this government, and to provide for even the appearance of defence. Conceive yourselves in a manner exhausted by the conflict with Great Britain, now staggering and sinking under the load of your own taxes, and the weight of your own government. Consider further, that to render government operative and salutary, subordination is necessary. This our patriots need not be told of; and when once they had mounted the steed, and found themselves so well seated as to run no risk of being thrown from the saddle, the severity of their discipline to restore subordination, would be in proportion to their former treachery in destroying it. We have already seen specimens of their tyranny, in their inhuman treatment of persons guilty of no crime, except that of differing in sentiment from the whigs. What then must we expect from such scourges of mankind, when supported by imperial power?

To elude the difficulty resulting from our defenceless situation, we are told that the colonies would open a free trade with all the world, and all nations would join in protecting their common mart. A very little reflection will convince us that this is chimerical. American trade, however beneficial to Great Britain, while she can command it, would be but as a drop of the bucket, or the light dust of the balance, to all the commercial states of Europe. Besides, were British fleets and armies no longer destined to our protection, in a very short time, France and Spain would recover possession of those territories, that were torn, reluctant and bleeding from them, in the last war, by the superior strength of Britain. Our enemies would again extend their line of fortification, from the northern to the southern shore; and by means of our late settlements stretching themselves to the confines of Canada, and the communications opened from one country to the other, we should be exposed to perpetual incursions from Canadians and savages. But our distress would not end here; for when once these incursions should be supported by the formidable armaments of France and Spain, the whole continent would become their easy prey, and would be parcelled out, Poland like. Recollect the consternation we were thrown into last war, when Fort William Henry was taken by the French. It was apprehended that all New England would be overrun by their conquering arms. It was even proposed, for our own people to burn and lay waste all the country west of Connecticut river, to impede the enemies march, and prevent their ravaging the country east of it. This proposal come from no inconsiderable man. Consider what must _really_ have been our fate, unaided by Britain last war.

Great Britain aside, what earthly power could stretch out the compassionate arm to shield us from those powers, that have long beheld us with the sharp, piercing eyes of avidity, and have heretofore bled freely, and expended their millions to obtain us? Do you suppose their lust of empire is satiated? Or do you suppose they would scorn to obtain so glorious a prize by an easy conquest? Or can any be so visionary or impious, as to believe that the Father of the Universe will work miracles in favour of rebellion? And after having, by some unseen arm, and mighty power, destroyed Great Britain for us, will in the same mysterious way defend us against other European powers? Sometimes we are told, that the colonies may put themselves under the protection of some one foreign state; but it ought to be considered, that to do that, we must throw ourselves into their power. We can make them no return for protection, but by trade; and of that they can have no assurance, unless we become subject to their laws. This is evident by our contention with Britain.

Which state would you prefer being annexed to; France, Spain, or Holland? I suppose the latter, as it is a republic. But are you sure, that the other powers of Europe would be idle spectators; content to suffer the Dutch to engross the American colonies, or their trade? And what figure would the Dutch probably make in the unequal contest? Their sword has been long since sheathed in commerce. Those of you that have visited Surinam, and seen a Dutch governor dispensing at discretion his own opinions for law, would not suddenly exchange the English for Dutch government.

I will subjoin some observations from the Farmer's letters. "When the appeal is made to the sword, highly probable it is, that the punishment will exceed the offence, and the calamities attending on war outweigh those preceding it. These considerations of justice and prudence, will always have great influence with good and wise men. To these reflections it remains to be added, and ought forever to be remembered, that resistance in the case of the colonies against their mother country, is extremely different from the resistance of a people against their prince. A nation may change their king, or race of kings, and retaining their ancient form of government, be gainers by changing. Thus Great Britain, under the illustrious house of Brunswick, a house that seems to flourish for the happiness of mankind, has found a felicity unknown in the reigns of the Stewarts. But if once we are separated from our mother country, what new form of government shall we adopt, or where shall we find another Britain to supply our loss? Torn from the body, to which we are united by religion, laws, affection, relation, language and commerce, we must bleed at every vein. In truth, the prosperity of these provinces is founded in their dependance on Great Britain."

MASSACHUSETTENSIS.

ADDRESSED

_To the Inhabitants of the Province of Massachusetts Bay_,

February 6, 1775.

MY DEAR COUNTRYMEN,

When we reflect upon the constitutional connection between Great Britain and the colonies, view the reciprocation of interest, consider that the welfare of Britain, in some measure, and the prosperity of America wholly depends upon that connection; it is astonishing, indeed, almost incredible, that one person should be found on either side of the Atlantic, so base, and destitute of every sentiment of justice, as to attempt to destroy or weaken it. If there are none such, in the name of Almighty God, let me ask, wherefore is rebellion, that implacable fiend to society, suffered to rear its ghastly front among us, blasting, with haggard look, each social joy, and embittering every hour?

Rebellion is the most atrocious offence, that can be perpetrated by man, save those which are committed more immediately against the supreme Governor of the Universe, who is the avenger of his own cause. It dissolves the social band, annihilates the security resulting from law and government; introduces fraud, violence, rapine, murder, sacrilege, and the long train of evils, that riot, uncontrouled, in a state of nature. Allegiance and protection are reciprocal. The subject is bound by the compact to yield obedience to government, and in return, is entitled to protection from it; thus the poor are protected against the rich; the weak against the strong; the individual against the many; and this protection is guaranteed to each member, by the whole community. But when government is laid prostrate, a state of war, of all against all commences; might overcomes right; innocence itself has no security, unless the individual sequesters himself from his fellowmen, inhabits his own cave, and seeks his own prey. This is what is called a state of nature. I once thought it chimerical.

The punishment inflicted upon rebels and traitors, in all states, bears some proportion to the aggravated crime. By our law, the punishment is, "That the offender be drawn to the gallows, and not be carried, or walk; that he be hanged by the neck, and then cut down alive; that his entrails be taken out and burned while he is yet alive; that his head be cut off; that his body be divided into four parts; that his head and quarters be at the king's disposal." The consequences of attainder, are forfeiture and corruption of blood.

"Forfeiture is two-fold, of real and personal estate; by attainder in high treason a man forfeits to the king all his lands and tenements of inheritance, whether fee simple, or fee tail; and all his rights of entry on lands and tenements, which he had at the time of the offence committed, or at any time afterwards to be for ever vested in the crown. The forfeiture relates back to the time of the treason being committed, so as to avoid all intermediate sales and incumberances; even the dower of the wife is forfeited. The natural justice of forfeiture, or confiscation of property, for treason, is founded in this consideration, that he, who has thus violated the fundamental principles of government, and broken his part of the original contract between king and people, hath abandoned his connections with society; hath no longer any right to those advantages, which before belonged to him purely as a member of the community, among which social advantages the right of transferring or transmitting property to others, is one of the chief. Such forfeitures, moreover, whereby his posterity must suffer, as well as himself, will help to restrain a man, not only by the sense of his duty and dread of personal punishment, but also by his passions and natural affections; and will influence every dependant and relation he has to keep him from offending." 4 Black. 374. 375.

It is remarkable, however, that this offence, notwithstanding it is of a crimson colour, and the deepest dye, and its just punishment is not confined to the person of the offender, but beggars all his family, is sometimes committed by persons, who are not conscious of guilt. Sometimes they are ignorant of the law, and do not foresee the evils they bring upon society; at others, they are induced to think that their cause is founded in the eternal principles of justice and truth, that they are only making an appeal to heaven, and may justly expect its decree in their favour. Doubtless many of the rebels, in the year 1745, were buoyed up with such sentiments, nevertheless they were cut down like grass before the scythe of the mower; the gibbet and scaffold received those that the sword, wearied with destroying, had spared; and what loyalist shed one pitying tear over their graves? They were incorrigible rebels, and deserved their fate. The community is in less danger, when the disaffected attempt to excite a rebellion against the person of the prince, than when government itself is the object, because in the former case the questions are few, simple, and their solutions obvious, the fatal consequences more apparent, and the loyal people more alert to suppress it in embryo; whereas, in the latter, a hundred rights of the people, inconsistent with government, and as many grievances, destitute of foundation, the mere creatures of distempered brains, are pourtrayed in the liveliest colours, and serve as bugbears to affright from their duty, or as decoys to allure the ignorant, the credulous and the unwary, to their destruction. Their suspicions are drowned in the perpetual roar for liberty and country; and even the professions of allegiance to the person of the king, are improved as means to subvert his government.

In mentioning high treason in the course of these papers, I may not always have expressed myself with the precision of a lawyer; they have a language peculiar to themselves. I have examined their books, and beg leave to lay before you some further extracts, which deserve your attention. To levy war against the king, was high treason by the common law, 3 inst. 9. This is also declared to be high treason by the stat. of 25 Edw. 3. c. 2. and by the law of this province, 8 W. 3. c. 5. Assembling in warlike array, against a statute, is levying war against the king, 1 Hale 133. So to destroy any trade generally, 146. Riding with banners displayed, or forming into companies; or being furnished with military officers; or armed with military weapons, as swords, guns, &c. any of these circumstances carries the _speciem belli_, and will support an indictment for high treason in levying war, 150. An insurrection to raise the price of servants' wages was held to be an overt-act of this species of treason, because this was done _in defiance of the statute_ of labourers; it was done in defiance of the _king's authority_, 5 Bac. 117 cites 3 inst. 10. Every assembling of a number of men, in a warlike manner, with a design to redress any _public grievance_, is likewise an overt-act of this species of treason, because this being an attempt to do that by _private authority_, which only ought to be done by the king's authority, is an invasion of the prerogative, 5 Bac. 117 cites 3 inst. 9. Ha. p. c. 14. Kel. 71. Sid. 358. 1. Hawk. 37. Every assembling of a number of men in a warlike manner, with an intention to reform the government, or the law, is an overt-act of this species of treason, 5 Bac. 117. cites 3 inst. 9. 10. Poph. 122. Kel. 76. 7. 1 Hawk. 37. Levying war may be by taking arms, not only to dethrone the king, but under pretence to reform religion, or the laws, or to remove evil councellors, or other grievances, whether _real_ or _pretended_, 4 Black. 81. Foster 211. If any levy war to expulse strangers; to deliver men out of prison; to remove councellors, or against any statute; or to any other end, pretending reformation of their own heads, without warrant, this is levying war against the king, because they take upon them royal authority, which is against the king, 3 inst. 9. If three, four, or more, rise to pull down an inclosure, this is a riot; but if they had risen of purpose to alter religion, established within the realm, or laws, or to go from town to town generally, and cast down inclosures, this is a levying of war (though there be no great number of conspirators) within the purview of this statute; because the pretence is public and general, and not private in particular, 3 inst. 9. Foster 211. If any, with strength and weapons, invasive and defensive, do hold and defend a castle or fort, against the king and his power, this is levying of war against the king, 3 inst. 10. Foster 219. 1 Hale 149. 296.

It was resolved by all the judges of England in the reign of Henry the 8th, that an insurrection against the statute of labourers, for the enhancing of salaries and wages, was a levying of war against the king, because it was generally against the _king's law_, and the offenders took upon them the reformation thereof, which subjects by gathering of power, ought not to do, 3 inst. 10. All risings in order to effect innovations of a _public_ and _general_ concern, by an armed force, are, in construction of law, high treason within the clause of levying war. For though they are not levelled at the person of the king, they are against his royal majesty. And besides, they have a direct tendency to dissolve all the bonds of society, and to destroy all property, and all government too, by numbers and an armed force, Foster 211. In Benstead's case, Cro. car. 593. At a conference of all the justices and barons, it was resolved, that going to Lambeth house, in warlike manner, to surprize the archbishop, who was a privy counsellor (it being with drums and a multitude) to the number of three hundred persons, was treason; upon which Foster, page 212, observes, that if it did appear by the libel, which he says was previously posted up at the exchange, exhorting the apprentices to rise and sack the bishop's house, upon the Monday following, or by the cry of the rabble, at Lambeth house, that the attempt was made on account of measures _the king had taken, or was then taking at the instigation, as they imagined, of the archbishop_, and that the rabble had _deliberately_ and upon a _public invitation_, attempted by _numbers_ and open force, to take a _severe revenge_ upon the _privy counsellor_ for the measures the sovereign had taken or was pursuing, the _grounds and reasons_ of the resolutions would be sufficiently explained, without taking that _little_ circumstance of the _drum_ into the case. And he delivers as his opinion, page 208, that no great stress can be laid on that distinction taken by Ld. C. J. Hale, between an insurrection with, and one without the appearance of an army formed under leaders, and provided with military weapons, and with drums, colours, &c. and says, the _want_ of these circumstances weighed nothing with the court in the cases of Damaree and Purchase, but that it was supplied by the _number_ of the insurgents. That they were provided with axes, crows, and such like tools, _furor arma ministrat_; and adds, page 208, the true criterion in all these cases, is, _quo animo_, did the parties assemble, whether on account of some _private_ quarrel, or, page 211, to effect innovations of a _public_ and _general_ concern, by an armed force. Upon the case of Damaree and Purchase, reported 8 stat. in. 218. to 285. Judge Foster observes, page 215, that "since the meeting houses of protestant dissenters are, by the _toleration act_ taken under _protection_ of the _law_, the insurrection in the present case, being to pull down all dissenting protestant meeting-houses, was to be considered as a public declaration of the rabble _against that act_, and an attempt to render it _ineffectual_ by _numbers_ and open force."

If there be a conspiracy to levy war, and afterwards war is levied, the conspiracy is, in every one of the conspirators, an overt act of this species of treason, for there can be no accessary in high treason, 5 Bac. 115. cites 3 inst. 9. 10. 138 Hales P. C. 14. Kel. 19. 1 Hawk. 38. A compassing or conspiracy to levy war is no treason, for there must be a levying of war _in facto_. But if many conspire to levy war, and some of them do levy the same according to the conspiracy, this is high treason in all, for in treason all are principals, and war is levied, 3 inst. 9. Foster 213.

The _painful_ task of applying the above rules of law to the several transactions that we have been eye witnesses to, will never be mine. Let me however intreat you, to make the application in your own minds; and those of you that have continued hitherto faithful among the faithless, Abdiel like, to persevere in your integrity; and those of you that have been already ensnared by the accursed wiles of designing men, to cast yourselves immediately upon that mercy, so conspicuous through the British constitution, and which is the brightest jewel in the imperial diadem.

MASSACHUSETTENSIS.

ADDRESSED

_To the Inhabitants of the Province of Massachusetts Bay_,

February 13, 1775.

MY DEAR COUNTRYMEN,

I offered to your consideration, last week, a few extracts from the law books, to enable those that have been but little conversant with the law of the land, to form a judgment, and determine for themselves, whether any have been so far beguiled and seduced from their allegiance, as to commit the most aggravated offence against society, high treason. The whigs reply, riots and insurrections are frequent in England, the land from which we sprang; we are bone of their bone, and flesh of their flesh.--Granted; but at the same time be it remembered, that in England the executive is commonly able and willing to suppress insurrections, the judiciary to distribute impartial justice, and the legislative power to aid and strengthen the two former if necessary; and whenever these have proved ineffectual to allay intestine commotions, war, with its concomitant horrors, have passed through the land, marking their rout with blood. The bigger part of Britain has at some period or other, within the reach of history, been forfeited to the crown, by the rebellion of its proprietors.

Let us now take a view of American grievances, and try, by the sure touchstone of reason and the constitution, whether there be any act or acts, on the part of the king or parliament, that will justify the whigs even in _foro conscientiæ_, in thus forcibly opposing their government. Will the alteration of the mode of appointing one branch of our provincial legislature furnish so much as an excuse for it, considering that our politicians, by their intrigues and machinations, had rendered the assembly incapable of answering the purpose of government, which is protection, and our charter was become as inefficacious as an old ballad? Or can a plea of justification be founded on the parliament's giving us an exact transcript of English laws for returning jurors, when our own were insufficient to afford compensation to the injured, to suppress seditions, or even to restrain rebellion? It has been heretofore observed, that each member of the community is entitled to protection; for this he pays taxes, for this he relinquishes his natural right of revenging injuries and redressing wrongs, and for this the sword of justice is placed in the hands of the magistrate. It is notorious that the whigs had usurped the power of the province in a great measure, and exercised it by revenging themselves on their opponents, or in compelling them to enlist under their banners. Recollect the frequency of mobs and riots, the invasions and demolitions of dwelling houses and other property, the personal abuse, and frequent necessity of persons abandoning their habitations, the taking sanctuary on board men of war, or at the castle, previous to the regulating bill. Consider that these sufferers were loyal subjects, violators of no law, that many of them were crown officers, and were thus persecuted for no other offence, than that of executing the king's law. Consider further, that if any of the sufferers sought redress in a court of law, he had the whole whig interest to combat; they gathered like a cloud and hovered like harpies round the seat of justice, until the suitor was either condemned to pay cost to his antagonist, or recovered so small damages, as that they were swallowed up in his own. Consider further, that these riots were not the accidental or spontaneous risings of the populace, but the result of the deliberations and mature councils of the whigs, and were sometimes headed and led to action by their principals. Consider further, that the general assembly lent no aid to the executive power. Weigh these things, my friends, and doubt if you can, whether the act for regulating our government did not flow from the parental tenderness of the British councils, to enable us to recover from anarchy, without Britain being driven to the necessity of inflicting punishment, which is her strange work. Having taken this cursory view of the convulsed state of the province, let us advert to our charter form of government, and we shall find its distributions of power to have been so preposterous, as to render it next to impossible for the province to recover by its own strength. The council was elective annually by the house, liable to the negative of the chair, and the chair restrained from acting, even in the executive department, without the concurrence of the board. The political struggle is often between the governor and the house, and it is a maxim with politicians, that he that is not for us is against us. Accordingly, when party run high, if a counsellor adhered to the governor, the house refused to elect him the next year; if he adhered to the house, the governor negatived him; if he trimmed his bark so as to steer a middle course between Scylla and Charybdis, he was in danger of suffering more by the neglect of both parties, than of being wrecked but on one.

In moderate times, this province has been happy under our charter form of government; but when the political storm arose, its original defect became apparent. We have sometimes seen half a dozen sail of tory navigation unable, on an election day, to pass the bar formed by the flux and reflux of the tides at the entrance of the harbour, and as many whiggish ones stranded the next morning on Governor's Island. The whigs took the lead in this game, and therefore I think the blame ought to rest upon them, though the tables were turned upon them in the sequel. A slender acquaintance with human nature will inform, experience has evinced, that a body of men thus constituted, are not to be depended upon to act that vigorous, intrepid and decisive part, which the emergency of the late times required, and which might have proved the salvation of the province. In short, the board which was intended to moderate between the governor and the house, or perhaps rather to support the former, was incapable of doing either by its original constitution. By the regulating act, the members of the board are appointed by the king in the council, and are not liable even to the suspension of the governor; their commissions are _durante bene placito_, and they are therefore far from independence. The infant state of the colonies does not admit of a peerage, nor perhaps of any third branch of legislature wholly independent. In most of the colonies, the council is appointed by mandamus, and the members are moreover liable to be suspended by the governor, by which means they are more dependant, than those appointed according to the regulating act; but no inconvenience arises from that mode of appointment. Long experience has evinced its utility. By this statute, extraordinary powers are devolved upon the chair, to enable the governor to maintain his authority, and to oppose with vigor the daring spirit of independance, so manifest in the whigs. Town meetings are restrained to prevent their passing traitorous resolves. Had these and many other innovations contained in this act, been made in moderate times, when due reverence was yielded to the magistrate, and obedience to the law, they might have been called grievances; but we have no reason to think, that had the situation of the province been such that this statute would ever have had an existence--nor have we any reason to doubt, but that it will be repealed, in whole or part, should our present form of government be found by experience to be productive of rapine or oppression. It is impossible that the king, lords or commons could have any sinister views in regulating the government of this province. Sometimes we are told that charters are sacred. However sacred, they are forfeited through negligence or _abuse_ of their franchises, in which cases the law judges that the body politic has broken the condition, upon which it was incorporated.

There are many instances of the negligence and abuse, that work the forfeiture of charters, delineated in law books. They also tell us, that all charters may be vacated by act of parliament. Had the form of our provincial legislature been established by act of parliament, that act might have been constitutionally and equitably repealed, when it was found to be incapable of answering the end of its institution. Stronger still is the present case, where the form of government was established by one branch of the legislature only, viz. the king, and all three join in the revocation. This act was however a fatal stroke to the ambitious views of our republican patriots. The monarchial part of the constitution was so guarded by it, as to be no longer vulnerable by their shafts, and all their fancied greatness vanished, like the baseless fabric of a vision. Many that had been long striving to attain a seat at the board, with their faces thitherward, beheld, with infinite regret, their competitors advanced to the honors they aspired to themselves. These disappointed, ambitious, and envious men, instil the poison of disaffection into the minds of the lower classes, and as soon as they are properly impregnated, exclaim, _the people_ never will submit to it. They now would urge them into certain ruin, to prevent the execution of an act of parliament, designed and calculated to restore peace and harmony to the province, and to recal that happy state, when year rolled round on year, in a continual increase of our felicity.