Chapter III (1)

Mr. Grenville imposes a Duty on Stamps in the North American Colonies.--Examination of Dr. Franklin.--Lord Rockingham's Ministry Repeals the Duty.--Lord Mansfield affirms a Virtual Representation in the Colonies.--Mr. C. Townsend imposes Import Duties in America.--After some Years, the Civil War breaks out.--Hanoverian Troops are sent to Gibraltar.--The Employment of Hanoverian Regiments at Gibraltar and Minorca.--End of the War.--Colonial Policy of the Present Reign.--Complaints of the Undue Influence of the Crown.--Motions for Parliamentary Reform.--Mr. Burke's Bill for Economical Reform.--Mr. Dunning's Resolution on the Influence of the Crown.--Rights of the Lords on Money-bills.--The Gordon Riots.

But during these years another matter had been gradually forcing its way to the front, which, though at first it attracted but comparatively slight notice, when it came to a head, absorbed for several years the whole attention, not only of these kingdoms, but of foreign countries also. It was originally--in appearance, at least--merely a dispute between Great Britain and her Colonies in North America on the mode of obtaining a small revenue from them. But, in its progress, it eventually involved us in a foreign war of great magnitude, and thus became the one subject of supreme interest to every statesman in Europe. England had not borne her share in the seven years' war without a considerable augmentation of the national debt, and a corresponding increase in the amount of yearly revenue which it had become necessary to raise;[33] and Mr. Grenville, as Chancellor of the Exchequer, had to devise the means of meeting the demand. A year before, he had supported with great warmth the proposal of Sir Francis Dashwood, his predecessor at the Exchequer, to lay a new tax upon cider. Now that he himself had succeeded to that office, he cast his eyes across the Atlantic, and, on the plea that the late war had to a certain extent been undertaken for the defence of the Colonies in North America, he proposed to make them bear a share in the burden caused by enterprises from which they had profited. Accordingly, in March, 1764, he proposed a series of resolutions imposing a variety of import duties on different articles of foreign produce imported into "the British Colonies and plantations in America," and also export duties on a few articles of American growth when "exported or conveyed to any other place except to Great Britain." Another resolution affirmed "that, toward defraying the said expense, it might be proper to charge certain stamp-duties in the said Colonies and plantations."

The resolutions imposing import and export duties were passed by both Houses almost without comment. That relating to a stamp-duty he did not press at the moment, announcing that he postponed it for a year, in order to ascertain in what light it would be regarded by the Colonists themselves; and as most, if not all, of the Colonies had a resident agent in London, he called them together, explained to them the object and anticipated result of the new imposition (for such he admitted it to be), and requested them to communicate his views to their constituents, adding an offer that, if they should prefer any other tax likely to be equally productive, he should be desirous to consult their wishes in the matter.

He probably regarded such language on his part as a somewhat superfluous exercise of courtesy or conciliation, so entire was his conviction of the omnipotence of Parliament, and of the impossibility of any loyal man or body of men calling its power in question. But he was greatly deceived. His message was received in America with universal dissatisfaction. Of the thirteen States which made up the body of Colonies, there was scarcely one whose Assembly did not present a petition against the proposed measure, and against any other which might be considered as an alternative. Grenville, however, was not a man to be moved by petitions or remonstrances. He was rather one whom opposition of any kind hardened in his purpose; and, as no substitute had been suggested, at the opening of the session of 1765 he proposed a series of resolutions requisite to give effect to the vote of the previous year, and imposing "certain stamp-duties and other duties" on the settlements in America, perhaps thinking to render his disregard of the objections which had been made less unpalatable by the insertion of words binding the government to apply the sums to be thus raised to "the expenses of defending, protecting, and securing" the Colonies themselves. The resolutions were passed, as the "Parliamentary History" records, "almost without debate," on the 6th of March.[34] But the intelligence was received in every part of the Colonies with an indignant dissatisfaction, which astonished even their own agents in England.[35] Formidable riots broke out in several provinces. In Massachusetts the man who had been appointed Distributor of Stamps was burnt in effigy; the house of the Lieutenant-governor was attacked by a furious mob, who avowed their determination to murder him if he fell into their hands; and resolutions were passed by the Assemblies of the different States to convene a General Congress at New York in the autumn, to organize a resistance to the tax, and to take the general state of affairs into consideration.

Before, however, that time came, a series of events having no connection with these transactions had led to a change of ministry in England, and the new cabinet was less inclined to carry matters with a high hand. Indeed, even the boldest statesman could hardly have learned the state of feeling which had been excited in America without apprehension, and those who had the chief weight in the new administration were not men to imperil the state by an insistance on abstract theories of right and prerogative. Accordingly, when, after Lord Rockingham had become Prime-minister, Parliament met in December, 1765, the royal speech recommended the state of affairs in America to the consideration of Parliament (a recommendation which manifestly implied a disposition on the part of the King's advisers to induce the House of Commons to retrace its steps), papers were laid before Parliament, and witnesses from America were examined, and among them a man who had already won a high reputation by his scientific acquirements, but who had not been previously prominent as a politician, Dr. Benjamin Franklin. He had come over to England as agent for Pennsylvania, and his examination, as preserved in the "Parliamentary History," may be taken as a complete statement of the matter in dispute from the American point of view, and of the justification which the Colonists conceived themselves to have for refusing to submit to pay such a tax as had now been imposed upon them. At a later day he was one of the most zealous, as he was probably one of the earliest, advocates of separation from England; but as yet neither his language nor his actions afforded any trace of such a feeling.

He affirmed[36] the general temper of the Colonists toward Great Britain to have been, till this act was passed, the best in the world. They considered themselves as a part of the British empire, and as having one common interest with it. They did not consider themselves as foreigners. They were jealous for the honor and prosperity of this nation, and always were, and always would be, ready to support it as far as their little power went. They considered the Parliament of Great Britain as the great bulwark and security of their liberties and privileges, and always spoke of it with the utmost respect and veneration. They had given a practical proof of their goodwill by having raised, clothed, and paid during the last war nearly 25,000 men, and spent many millions; nor had any Assembly of any Colony ever refused duly to support the government by proper allowances from time to time to public officers. They had always been ready, and were ready now, to tax themselves. The Colonies had Assemblies of their own, which were their Parliaments. They were, in that respect, in the same situation as Ireland. Their Assemblies had a right to levy money on the subject, then to grant to the crown, and, indeed, had constantly done so; and he himself was specially instructed by the Assembly of his own State to assure the ministry that, as they always had done, so they should always think it their duty to grant such aids to the crown as were suitable to their circumstances and abilities, whenever called upon for the purpose in a constitutional manner; and that instruction he had communicated to the ministry. But the Colonies objected to Parliament laying on them such a tax as that imposed by the Stamp Act. Some duties, they admitted, the Parliament had a right to impose, but he drew a distinction between "those duties which were meant to regulate commerce and internal taxes." The authority of Parliament to regulate commerce had never been disputed by the Colonists. The sea belonged to Britain. She maintained by her fleets the safety of navigation on it; she kept it clear of pirates; she might, therefore, have a natural and equitable right to some toll or duty, on merchandise carried through that part of her dominions, toward defraying the expenses she was at in ships to maintain the safety of that carriage. But the case of imposition of internal taxes was wholly different from this. The Colonists held that, by the charters which at different times had been granted to the different States, they were entitled to all the privileges and liberties of Englishmen. They found in the Great Charters, and the Petition and Declarations of Right, that one of the privileges of English subjects is that they are not to be taxed but by their common consent; and these rights and privileges had been confirmed by the charters which at different times had been granted to the different States. In reply to a question put to him, he allowed that in the Pennsylvania charter there was a clause by which the King granted that he would levy no taxes on the inhabitants unless it were with the consent of the Colonial Assembly, or by an act of Parliament; words which certainly seemed to reserve a right of taxation to the British Parliament; but he also demonstrated that, in point of fact, the latter part of the clause had never been acted on, and the Colonists had, therefore, relied on it, from the first settlement of the province, that the Parliament never would nor could, by the color of that clause in the charter, assume a right of taxing them till it had qualified itself to exercise such right by admitting representatives from the people to be taxed. And, in addition to objections on principle, he urged some that he regarded as of great force as to the working of this particular tax imposed by the Stamp Act. It was not an equal tax, as the greater part of the revenue derived from it must arise from lawsuits for the recovery of debts, and be paid by the lower sort of people; it was a heavy tax on the poor, and a tax on them for being poor. In the back settlements, where the population was very thin, the inhabitants would often be unable to get stamps without taking a long journey for the purpose. The scarcity of specie, too, in the country would cause the pressure to be felt with great severity, as, in his opinion, there was not gold and silver enough in the Colonies to pay the stamp-duty for a single year. In reply to another question, whether the Colonists would be satisfied with a repeal of the Stamp Act without a formal renunciation of the abstract right of Parliament to impose it, he replied that he believed they would be satisfied. He thought the resolutions of right would give them very little concern, if they were never attempted to be carried into practice. The Colonies would probably consider themselves in the same situation in that respect as Ireland. They knew that the English Parliament claimed the same right with regard to Ireland, but that it never exercised it; and they might believe that they would never exercise it in the Colonies any more than in Ireland. Indeed, they would think that it never could exercise such a right till representatives from the Colonies should be admitted into Parliament, and that whenever an occasion arose to make Parliament regard the taxation of the Colonies as indispensable, representatives would be ordered.

This last question put to the witness, like several others in the course of his examination, had been framed with the express purpose of eliciting an answer to justify the determination on the subject to which Lord Rockingham and his colleagues had come. It could not be denied that the government was placed in a situation of extreme difficulty-- difficulty created, in part, by the conduct of the Colonists themselves. That, as even their most uncompromising advocate, Mr. Pitt, admitted, had been imprudent and intemperate, though it was the imprudence 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 was divided into two acts, one known as the Declaratory Act, asserting the absolute and universal authority of Parliament; the other repealing the Stamp Act of the preceding year. And both were passed without alteration, though the Lords divided against them on both the second and third readings of the bill for repeal founded on them,[40] some of them entering long protests in the journals of the House. The right to tax was asserted, but the tax itself was repealed. And Franklin's estimate of the feelings on the subject entertained by his countrymen was fully verified by the reception which the intelligence met with in the Colonies. To quote the description of Lord Stanhope: "In America the repeal of the Stamp Act was received with universal joy and acclamation. Fireworks and festivals celebrated the good news, while addresses and thanks to the King were voted by all the Assemblies.... The words of the Declaratory Act, indeed, gave the Americans slight concern. They fully believed that no practical grievance could arise from it. They looked upon it merely as a salve to the wounded pride of England; as only that 'bridge of gold' which, according to the old French saying, should always be allowed to a retreating assailant."[41]

A recent writer, however, has condemned the addition of the declaration of the abstract right to tax with great vehemence. "Nothing," says Lord Campbell,[42] "could exceed the folly of accompanying the repeal of the Stamp Act with the statutable declaration of the abstract right to tax." But it does not seem difficult to justify the conduct of the ministry in this particular. For, besides the great weight deservedly attached to Franklin's assurance that the declaration would not be objected to by the Colonists, and besides the consideration that, on a general view, it was desirable, if not indispensable, to impress on all classes of subjects, whether at home or abroad, the constitutional doctrine of the omnipotence of Parliament, the line of argument adopted by Mr. Pitt and Lord Camden, in denying that omnipotence, left the ministers no alternative but that of asserting it, unless they were prepared to betray their trust as guardians of the constitution. Forbearance to insist on the Declaratory Act could not fail to have been regarded as an acquiescence on their part in a doctrine which Lord Campbell in the same breath admits to be false. It may be added, as a consideration of no small practical weight, that, without such a Declaratory Act, the King would have been very reluctant to consent to the other and more important Repealing Act. And, on the whole, the conduct of the ministry may, we think, be regarded as the wisest settlement both of the law and of the practice. It asserted the law in a manner which offended no one; and it made a precedent for placing the spirit of statesmanship above the letter of the law, and for forbearing to put forth in its full strength the prerogatives whose character was not fully understood by those who might be affected by them, and also could plead that Parliament itself had contributed to lead them to misunderstand it by its own conduct in never before exerting it.

For the moment, then, contentment and tranquillity were restored in the Colonies. Unhappily, they were not lasting. The same year which saw the triumph of the Rockingham administration in the repeal of the Stamp Act, witnessed also its fall before a discreditable intrigue. And the ministry which succeeded it had not been a year in office before the new Chancellor of the Exchequer, Charles Townsend, revived the discontents in America which Lord Rockingham had appeased. It cannot be said, however, that the blame should all belong to him; or that the Rockingham party in the House of Commons were entirely free from a share in it. They were--not unnaturally, perhaps--greatly irritated at the intrigue by which Lord Chatham had superseded them, and were not disinclined to throw difficulties in the way of their successors, for which the events of the next year afforded more than one opportunity. Lord Chatham, as has been mentioned, was universally recognized as the chief of the new ministry, though he abstained from taking the usual office of First Lord of the Treasury, and contented himself with the Privy Seal; but he had constructed it of such discordant elements[43] that no influence but his own could preserve consistency in its acts or harmony among its members, as nothing but his name could give it consideration either in Parliament or in the country. In the first months of the next year, 1767, he was attacked with an illness which for a time disabled him from attending the cabinet, being, apparently, the forerunner of that more serious malady which, before the end of the summer, compelled his long retirement from public life; and the Opposition took advantage of the state of disorganization and weakness which his illness caused among his colleagues, to defeat them on the Budget in the House of Commons, by an amendment to reduce the land-tax, which caused a deficiency in the supplies of half a million. This deficiency it, of course, became necessary to meet by some fresh tax; and Townsend--who, though endowed with great richness of eloquence, was of an imprudent, not to say rash, temper, and was possessed of too thorough a confidence in his own ingenuity and fertility of resource ever to be inclined to take into consideration any objections to which his schemes might be liable--proposed to raise a portion of the money which was needed by taxes on glass, paper, tea, and one or two other articles, to be paid as import duties in the American Colonies. His colleagues, and especially the Duke of Grafton himself, the First Lord of the Treasury, and as such the nominal Prime-minister, having been also, as Secretary of State, a member of Lord Rockingham's ministry, which had repealed the former taxes, did not consent to the measure without great and avowed reluctance; but yielded their own judgment to the strong feeling in its favor which notoriously existed in the House of Commons.[44] Indeed, that House passed the clauses imposing these import duties without hesitation, being, probably, influenced in no small degree by the evidence given in the preceding year by Dr. Franklin, who, as has been already seen, had explained that the Colonists drew a distinction between what he called "internal taxes" and import duties "intended to regulate commerce," and that to the latter class they were not inclined to object. And a second consideration was, that these new duties were accompanied and counterbalanced by a reduction of some other taxes; so that the ministry contended that the effect of these financial measures, taken altogether, would be to lower to the Colonists the price of the articles affected by them rather than to raise it. But one of the resolutions adopted provided that the whole of the money to be raised from these taxes should not be spent in America, but that, after making provision for certain Colonial objects specified, "the residue of such duties should be paid into the receipt of his Majesty's Exchequer, and there reserved, to be from time to time disposed of by Parliament toward defraying the necessary expenses of defending, protecting, and securing the said Colonies and plantations." And this clause seems to have been understood as designed to provide means for augmenting the number of regular troops to be maintained in the Colonies, whose employment in the recent disturbances had made them more unpopular than formerly.[45]

At all events, the intelligence of these new taxes, though only import duties, found the Colonists in a humor to resist any addition of any kind to their financial burdens. The events of the last two years had taught them their strength. It was undeniable that the repeal of the Stamp Act had been extorted by the riots in Boston and other places, and the success of this system of intimidation could not fail to encourage its repetition. Accordingly, the news of this fresh attempt at taxation was met by a unanimous determination to resist it. Newspaper writers and pamphleteers denounced not only the duties but the ministry which imposed them. Petitions from almost every State were sent over to England, addressed to the King and to the Parliament; but the violent temper of the leaders of the populace was not content to wait for answers to them. Associations were at once formed in Boston and one or two other cities, where resolutions were adopted in the spirit of retaliation (as their framers avowed), to desist from the importation of any articles of British commerce, and to rely for the future on American manufactures. The principal Custom-house officers at Boston were badly beaten, and others were compelled to seek refuge in a man-of-war which happened to be in the harbor.

It would be painful, and at the present day useless, to trace the steps by which these local disturbances gradually grew into one general insurrection. The spirit of resistance was undoubtedly fanned by a party which from the first contemplated a total separation from England as its ultimate result,[46] if, indeed, they had not conceived the design even before Grenville had given the first provocation to discontent. But the Colonists were not without advocates in England, even among the members of the government. The Duke of Grafton, while he remained Prime-minister, was eager to withdraw all the duties of which they complained; but he was overruled by the majority of his colleagues. He prevailed, however, so far that Lord Hillsborough, the Secretary of State, was authorized to write a circular-letter to the governors of the different provinces, in which he disowned, in the most distinct language possible, "a design to propose to Parliament to lay any farther taxes upon America for the purpose of raising a revenue," and promised for the next session a repeal of all the taxes except that on tea; and when the Duke retired from the Treasury, and was succeeded by Lord North, that statesman himself brought forward the promised repeal in an elaborate speech,[47] in which he explained that the duty on tea, which he alone proposed to retain, had been originally a boon to the Americans rather than an injury, as being accompanied by the removal of a far heavier tax. But he admitted that even that consideration was not the one which influenced him in his opinion that that duty should be maintained, so greatly was the perception that the real object of those who complained of it was, not the redress of a grievance, but the extinction of a right which was an essential part of "the controlling supremacy of England." The fact that the right to tax had been denied made it a positive duty on the part of the English minister to exert that right. "To temporize would be to yield, and the authority of the mother country, if now unsupported, would be relinquished forever." And he avowed his idea of the policy proper to be pursued to be "to retain the right of taxing America, but to give it every relief that might be consistent with the welfare of the mother country." He carried his resolution, though the minority--which on this occasion was led by Mr. Pownall, who had himself been Governor of Massachusetts, and who moved an amendment to include tea in the list of taxes proposed to be repealed--was stronger than usual.[48] But the concession failed to conciliate a single Colonist; it had become, as Burke said four years afterward, a matter of feeling,[49] and the irritation fed on itself, till, in 1773, a fresh act, empowering the East India Company to export tea to the Colonies direct from their own warehouses without its being subject to any duty in England--which Lord North undoubtedly intended as a boon to the Colonists--only increased the exasperation. The ships which brought the tea to Boston were boarded and seized by a formidable body of rioters disguised as native savages, and the tea was thrown into the sea. The intelligence was received in England with very different feelings by the different parties in the state. The ministers conceived themselves forced to assert the dignity of the crown, and proposed bills to inflict severe punishment on both the City of Boston and the whole Province of Massachusetts. The Opposition insisted on removing the cause of these disturbances by a total repeal of the tea-duty. The minister prevailed by a far larger majority than before, but his success only increased the exasperation in the Colonies; and it was an evil omen for peace that the leaders of the resistance began to search the records of the English Long Parliament "for the revolutionary precedents and forms of the Puritans of that day."[50] The next year saw fresh attempts to procure the repeal of the obnoxious tax rejected by the House of Commons; but, before the news of this division reached America, blood had already been shed.[51] Civil war began. The next year the Colonies, now united in one solid body, asserted their Independence, taking the title of the United States; and, though the government at home made more than one effort to recall the Colonists to their allegiance, and sent out commissioners of high rank, with large powers of concession; and though in one remarkable instance the mission of Mr. Penn, in the summer of 1775, with the petition to the King known as "the Olive Branch," seemed to show a desire for a maintenance of the union on the part of the Colonial Congress,[52] from the moment that the sword was drawn all hope of preserving the connection of the Colonies must have been seen by all reasonable men to be at an end.

It is beside our present purpose to recapitulate the military operations of the war, though they verified another of Burke's warnings, that, supposing all moral difficulties to be got over, the ocean remained--that could not be dried up; and, as long as it continued in its present bed, so long all the causes which weakened authority by distance must continue. In fact, distance from England was one of the main circumstances which decided the contest. The slowness of communication--almost inconceivable to the present generation--rendered impossible that regularity in the transport of re-enforcements and supplies which was indispensable to success; and, added to the strange absence of military skill shown by every one of the British generals, soon placed the eventual issue of the war beyond a doubt. But one measure by which Lord North's government endeavored to provide for the strengthening of the army employed in America was so warmly challenged on constitutional grounds, that, though the fortunate separation of Hanover from Great Britain has prevented the possibility of any recurrence of such a proceeding, it would be improper to pass it over.

In his speech at the opening of the autumnal session of 1775, the King announced to the Houses that, in order to leave a larger portion of the established forces of the kingdom available for service in North America, he "had sent a part of his Electoral troops to the garrisons of Gibraltar and Port Mahon." And the announcement aroused a vehement spirit of opposition, which found vent in the debates of both Houses on the address, and in two substantive motions condemning the measure as a violation of the constitution as established by the Bill of Rights and the Act of Settlement. It was strenuously maintained that both these statutes forbade the raising or keeping on foot a standing army in the kingdom in time of peace, and also the introduction of foreign troops into this kingdom, without the previous consent of Parliament, on any pretence whatever; and that "the fact that Gibraltar and Minorca were detached from these islands did not exclude them from the character of forming a part of the British dominion." And on these grounds Lord Shelburne, who supported Lord Rockingham on an amendment to the address, did not hesitate to denounce this employment of the Hanoverian regiments, as "fundamentally infringing the first principles of our government," and to declare it "high-treason against the constitution." He asked, "if there were a settled plan to subdue the liberties of this country, what surer means could be adopted than those of arming Roman Catholics and introducing foreign troops?"[53] and compared the measure under discussion to the case of the Dutch regiments of William III., "which the Parliament wisely refused to allow him to retain." In the House of Commons, the Opposition was led by Sir James Lowther and Governor Johnstone, the latter of whom "appealed to the clause in the Act of Settlement which enacted that no person born of other than English parents should enjoy any office or place of trust, civil or military, within the kingdom;" and argued that to employ foreign officers in the protection of a British fortress was to place them in an "office of great military trust."

The discussion brought to light strange divisions and weakness in the ministry. The ministerial lawyers differed on the grounds on which they relied, the Attorney-general, Thurlow, denying that the expression "this kingdom" in the Bill of Rights included the foreign dependencies of the crown[54] (a narrowing of its force which the Chancellor, Lord Bathurst, wholly repudiated), while the argument on which he himself insisted most strongly, that the existence of rebellion in America put end to all conditions which supposed the kingdom to be at peace, could not obtain the support of any one of his colleagues. But a plea urged by an independent member, Lord Denbigh, was regarded by some of the speakers with greater favor; his contention being that neither the Bill of Rights nor the Act of Settlement had been violated, since both those great statutes must be interpreted with reference to the time at which they were framed, and to the recent acts of James II. and William III., the recurrence of which they had been designed to prevent, acts to which the present proceeding bore no resemblance.

A stronger justification, however, might have been found in very recent precedents. In 1745 the ministers had brought over six thousand Dutch troops to re-enforce the army of the Duke of Cumberland, and their act had been subsequently approved by Parliament. And in 1756, at the commencement of the seven years' war, when the loss of Minorca had led to such a distrust of our fleets that a French invasion was very generally apprehended, both Houses presented addresses to George II., begging him to bring over some Hanoverian regiments; and, in the course of the next year, other addresses to thank him for compliance with their entreaty.

Looking at the strict law of the question, few lawyers doubt that the expression "this kingdom" in the Bill of Rights includes the entire dominions of the crown, or that that great statute was undoubtedly intended to protect the privileges of all their inhabitants, whether within the four seas or in foreign settlements. But it also seems that the clause against raising and keeping on foot a standing army without the consent of Parliament was not more violated by keeping a mixed garrison in Gibraltar and Port Mahon than garrisons consisting of native soldiers only; and undoubtedly the keeping of an armed force in both these fortresses had been sanctioned by Parliament. Nor could the colonel of a foreign regiment in garrison under the command of a British governor be fairly said to be in an office of great military trust. So far, therefore, the charge against the ministry may be thought to have failed. But the accusation of having transgressed the clause which prohibits "the introduction of foreign troops into this kingdom without the previous consent of Parliament on any pretence whatever," must, on the other hand, be regarded as proved. And, indeed, Lord North himself may be taken to have shown some consciousness that it was so, since he justified his conduct in omitting to procure that previous consent by the necessity of the case, by the plea that, as Parliament was in vacation, the time which would have been consumed in waiting for its sanction would have neutralized the advantage desired from the employment of the Hanoverians, since the regiments which they were to replace at Gibraltar and Port Mahon could not, after such delay, have reached America in time to be of service; and since he also consented eventually to ask Parliament for an Act of Indemnity, the preamble of which affirmed the existence of doubts as to the legality of the step which had been taken. And the fate of this act afforded a still more striking proof of the divisions in the ministry, since, after Lord North himself had proposed it in the House of Commons, and it had been passed there by a large majority, it was rejected in the House of Lords, where his own colleagues, Lord Gower, Lord Suffolk, and Lord Weymouth, spoke and voted against it as needless, because, in their judgment, no doubt of the state of the law on the subject could exist.

From a statesman-like point of view, the employment of the Hanoverians seems abundantly defensible, if force were still to be employed to bring back the Colonists to their obedience. The circumstance of their being subjects of our sovereign in his other character of Elector of Hanover, clearly distinguished it from the hiring of the Hessian and Brunswick mercenaries, which has been deservedly condemned. And, as the entire number fell short of two thousand,[55] Lord Shelburne's expression of fear for the liberties and religion of Englishmen was an absurd exaggeration. Moreover, the warm approval which, less than twenty years before, Parliament had given to the introduction of a far larger body of the same troops into England itself, justified the anticipation that a similar sanction would now be cheerfully given. That sanction--which, indeed, might have been thought to be invited by the announcement of the measure in the King's speech--was undoubtedly requisite. And, if it was, a Bill of Indemnity for having acted without it was equally necessary. But, as has been seen in the last chapter, for an administration, on urgent occasions, to take action on its own responsibility, and then to apply for indemnity, is a course in strict harmony with the practice of the constitution; and if in this instance the ministers are in any respect blamable, their error would seem to have been limited to their abstaining from instantly calling Parliament together to sanction their act, and being contented to wait for the ordinary time of the Houses meeting.

The war, therefore, went on. The assertion of their independence by the Colonies divided, and, so far, weakened, the advocates of their cause in Parliament, one section of whom, led by Lord Chatham, regarded any diminution of our dominion as not only treasonable, but ruinous; on the other hand, it procured them the alliance of France and Spain. But it cannot be said that either of these incidents produced any practical effect on the result of the war. Lord Chatham's refusal to contemplate their independence could not retard its establishment; and the alliance of France and Spain, which brought nothing but disaster to those countries, could not accelerate it by a single moment. For nearly six years the war continued with alternations of success, the victories gained by the British arms being the more numerous, the triumphs of the Americans being incomparably the more important, involving as they did the surrender of two entire armies, the latter of which, that of Lord Cornwallis, in 1781, did, in fact, terminate the war, and with the war the existence of the ministry which had conducted it. A singularly rapid succession of new administrations ensued--so rapid that the negotiations for peace which the first, that of Lord Rockingham, opened, were not formally completed till the third,[56] known as the Coalition Ministry, was on the point of dismissal. It would be beside our purpose to enter into the details of the treaty which constituted the United States, as they were now called, a nation by our formal recognition of their independence. Even in that recognition, which was the most important article of the treaty, no constitutional principle was involved, though it affords the only instance in our history which can seem to throw a doubt on our inheritance of that capacity for government which the Roman poet claimed as, in ancient times, the peculiar attribute of his own countrymen. It presents the only instance of a loss of territory peopled by men who came of our blood, and who still spoke our language. It was a stern and severe lesson; and yet, fraught with discredit and disaster as it was, it nevertheless bore fruit in a later age which we may be excused for regarding as an example of the generally predominating influence of sober practical sense in our countrymen, when not led away by the temporary excitement of passion, as shown in our capacity to take home to ourselves and profit by the teachings of experience. The loss of the American Colonies was caused by the submission of the Parliament and nation to men of theory rather than of practice; ideologists, as Napoleon called them; doctrinaires, to use the modern expression; men who, because Parliament had an abstract right of universal legislation, regarded it as a full justification for insisting on its exercise, without giving a thought to the feelings, or prejudices, or habits of those who might be affected by their measures. Abstractedly considered, Lord Chatham and Lord Camden were undoubtedly wrong in denying the power of Parliament to tax the Colonies; but there was better judgment in their counsels, though founded on false premises, than in those of Grenville and Townsend, though theirs was the more correct view of the constitutional power of legislation. The two peers were wrong in their principle; the two Chancellors of the Exchequer were unwise in their application of their principle; and the practical error was the more disastrous one.

It is now generally admitted that the true statesman-like course toward the Colonies was that adopted by Lord Rockingham and his colleagues in 1765--to avoid weakening the supreme power of Parliament by any disavowal of the right to tax but to avoid imperilling the sovereign authority of the King by a novel exertion of it. As much of our common English law is made up of precedent, so, in a still greater degree, are our feelings and ideas of our rights and privileges regulated by precedent. And we lost America because in 1764 and 1767 neither minister nor Parliament took men's feelings and prejudices into account. The loss of the United States, therefore, was a lesson not undeserved; and by our statesmen since that day it has been taken in the right spirit of profiting by its teaching as a guide to their own conduct. Since that day the enterprise of our people has planted our flag in regions far more distant, and has extended the dominion of our sovereign over provinces far more extensive than those which we then lost. And on some of the administrations of the present reign the duty has fallen of framing schemes of government for those new acquisitions, as also for some of those previously possessed. In how different a spirit from that which actuated the early ministers of George III.[57] those to whom the task was committed by Queen Victoria applied themselves to their task may be seen in a maxim laid down by the present Lord Grey, when he presided at the Colonial Office (1846-1852), that "the success of free institutions in any country depends far less upon the particular form of those institutions than upon the character of the people on whom they are conferred." But how he and others in the same office carried out that principle must be reserved for a later chapter.

Besides the numerous motions which were brought forward by the Opposition respecting the continuance and conduct of the war, there were several also which were indirectly prompted by it. The Opposition claimed to be on this subject not only the champions of the real interests of the nation, but also its spokesmen, who expressed the opinions and feelings of all the thinking and independent portion of the people. That their efforts were overborne they attributed to the subservience of the Parliament to the ministers, and of the ministers to the crown.[58] And consequently several motions were made by members of that party, the object of which was, in one way or another, to diminish what they regarded as the undue influence of the crown. In one instance, and that the most successful, a direct denunciation of that influence was employed, but the earlier and more frequent proposals were directed to the purification of the House of Commons, and to the strengthening of its independence. It is remarkable that of these the two which related to a subject of which the Commons are usually most especially and most rightly jealous, the interference of peers in elections, had the worst fortune. In 1780 complaints were made and substantiated that the Duke of Bolton and the Duke of Chandos (who was also Lord-lieutenant of the county) had exerted themselves actively in the last election for Hampshire. And, in support of motions that these peers "had been guilty of a breach of the privileges of the House, and an infringement of the liberties and privileges of the Commons of Great Britain," a case was adduced in which Queen Anne had dismissed the Bishop of Worcester from the office of Almoner for similar interference. Nor did Lord Nugent, a relative of the Duke of Chandos, deny the facts alleged; on the contrary, he avowed them, and adopted a line of defence which many must have thought an aggravation of the charge, since it asserted that to prevent such interference was impossible, and therefore the House would but waste its time in trying. However, on this occasion the House took the view which he thus suggested to it, postponing all farther consideration of the matter for four months; and the charge the Duke of Bolton was shelved in a somewhat similar manner.