Marginalia in Protests of the Lords against Repeal of the Stamp
Act: (II)
msnotations in the margins of a copy of
Second Protest, with a List of Voters against the Bill to
Repeal the American Stamp Act, of Last Session. A Paris,
Chez J. W. Imprimeur, Rue du Colombier Fauxbourg St. Germain, à
l’Hotel de Saxe. 1766, the property of Boies Penrose, Devon, Pa.,
1968.
Die Lunae, 17º Martii, 1766
The Order of the Day being read for the third reading of the
Bill, entituled An Act to repeal an act made in the last session of
parliament, entituled, An Act for granting and applying certain
stamp duties, and other duties in the British Colonies and
Plantations in America,...Then the said Bill was read a third Time,
and it being proposed to pass the Bill, the same was objected to.
After some Debate thereupon, the Question was put, Whether the said
Bill shall pass: it was resolved in the Affirmative.
First.
Dissentient, [because the protesting lords think that the
Declaratory Bill passed last week] cannot possibly obviate the
growing mischiefs in America, where it may seem calculated only to
deceive the people of Great Britain, by holding forth a
delusive and nugatory affirmance of the
Legislative Right of this Kingdom,
[bf:] It is indeed a nugatory Affirmance
and we Americans are oblig’d to your Lo[rdshi]ps for justifying our
Esteeming it such. If you had such Right before it was
unnecessary. If not, you could not give your selves a Right you had
not, without our Consent.
whilst the enacting part of it does no more than abrogate
the Resolutions of the House of Representatives in the North
American Colonies, [bf: It cannot abrogate
them] which have not in themselves the least colour
of authority; and declares, that which
is apparently and certainly criminal, only null and
void [bf: neither].
[bf:] I beg your Lps. Pardon. They are only
declaratory of their own Opinion of their own Rights, and are
certainly authentic; they may indeed like this Act be null and void
or as your Lps. call it nugatory. But I should think by no means
criminal.
Secondly.
[Because the particular objections made to the
Stamp Act in America and adopted in the course of the debates on
the repealing bill are contradicted by undeniable evidence before
us] First, that all the money to be collected by this Tax was to be
annually remitted hither, and that the North American Colonies
would thereby be drained of all their specie;
[bf:] Particular Colonies drained, all
drained, as it would all come home. Those that were to pay most of
the Tax would have least of it spent at home. It must go to the
conquer’d Colonies. The View of Maps deceives.
and Secondly, That the institution of Vice Admiralty Courts in
those Colonies, for the recovery of Penalties upon Revenue Laws
without Juries, is a novel practice, [whereby the colonists
would be deprived of trial by jury, “one of their most valuable
Liberties,” and would thereby be distinguished from fellow subjects
in Britain;]
[bf:] Talk with Bollan on this Head. Query,
Courts of Common Law.
[In reference to the first of these objections, it appears that
the Treasury had ordered that the revenue to be raised by the act
was to be paid over directly] to the Deputy Pay-master in
America, to defray the subsistence of the troops, and any
military expences incurred in the colonies.
[bf:] America not a Village; may not
England be drain’d by a War in Germany, tho’ the Money still in
Europe.
[In reference to the second objection, sundry acts of Parliament
show that a jurisdiction has been assigned to the judges of the
Admiralty Courts] for the recovery of penalties upon the Laws of
Revenue and of Trade, without Juries for near a
century past [and in some colonies these Admiralty judges] are the
only Judges not elected by the people:
[bf:] All a Breach of the Constitution.
Juries better to be trusted. Have rather an Interest in suppressing
Smugglers. Nature of Smuggling. It is Picking of Pockets. All
Oppressions take their Rise from some Plea of Utility, often in
Appearance only.
[The Americans are far from being distinguished by being
deprived of trials by jury, for the laws regarding stamp duties in
Great Britain provide that penalties are to be] recoverable also
without a Jury, before two Justices of the Peace, with the
like Powers in both cases;
[bf:] Gentlemen of Property, and Character.
No Profit. Arguing from one Evil to another.
[the Lords are glad to learn, moreover, that the Treasury
reported on July 4 last a plan to erect] three different Courts of
Vice Admiralty at the most convenient Places [in America], with
proper Districts annexed to each; and to give the Judges sufficient
and Honorable Salaries in lieu of all poundage and fees
whatsoever;
[bf:] well intended.
[The Lords observe with concern and surprise that this
representation was incorporated in a clause in the Stamp Act, and
was expressly calculated to relieve the American subjects] from
many unnecessary hardships and oppressions, to which they are now
liable by many other Laws still subsisting
[bf:] Query, What were the particulars. Ask
Mr. Cooper.
[but that this arrangement] should be totally disregarded for
several months, and be suffered to remain unexecuted in every part
of it even to this day; [and no notice of this plan has been sent
to the governors, although the matter had been fully “opened and
approved in Parliament” when the Stamp Act was proposed;] and as
the total neglect of it has given occasion to great Clamour
and Dissatisfaction in the Colonies.
[bf:] An Excuse however, for the Colonies.
Repeat all the other Articles of Excuse.
[The Stamp Act was not to take place until November 1; if
Parliament had been summoned early] their determinations, either
for enforcing or repealing that Law, would probably have delivered
the Merchants and Manufacturers here from all the difficulties and
distress to which they have been for so many months exposed;
nor would the disorders in America, where all government is
prostrate, have risen to so great a height, or taken so deep a
root.
[bf:] They were risen to the highest Pitch
before any Advice of Parli[amenta]ry Proceedings could have reach’d
them, tho’ the Parl[iamen]t had met in Novr. as usual.
Thirdly.
[Because the argument is “extremely ill
founded” that the experiment of a Stamp Act has failed; if it had
been properly tried] with the same zeal for its success with which
it was first proposed, it would not have failed in any of the
Colonies: and that this was the opinion of the greater
part of the Governors in North America;
[bf:] Their Opinion not to be relied on.
and of many of the most intelligent and respectable persons in
those provinces [is evidenced by letters from the governors now on
our table and from] the latter having applied for, and
accepted the Office of Distributor of the Stamps under that
Act, which they certainly would not have done [thereby exposing
their lives and fortunes, had they considered the success of the
act precarious:]
[bf:] Their Interest blinded them.
[and we have heard of no “impracticability” attending the act in
Jamaica, Barbados,] and some other of the West India islands,
or in those of our Colonies in North America, where it has
been executed.
[bf:] West India Islands. Jamaica
divided—Barbados weak. St. Kits and some others burnt the Stamps.
Canada, New Subjects and Soldiers, Halifax, few People. Georgia
Ditto. Both Parl[iamentar]y Colonies.
Fourthly.
Because, a Precedent of the two Houses of
Parliament, lending their Power, from motives of Fear or Impatience
under a present uneasiness, to overturn in one month a Plan of
Measures, undertaken with their warmest Approbation and
Concurrence, after the most mature deliberation of two years
together,
[bf:] but one year and no Deliberation, no
Debate in the Lords.
for the improvement of our Revenue, and the relief of our
People
[bf: Ay there!]
will effectually discourage all officers of the Crown in
America from doing their duty, and executing the Laws of
this Kingdom;
[bf:] Likely, ’till those Laws are more
reasonable or better founded.
and is enough to deter future Ministers, in any circumstances of
distress or danger to their Country, from opposing their fortitude
and zeal for the service of the Publick, to strong Combinations of
private and particular Interests, to the Clamour of
Multitudes, or the Malice of Faction [which will create such
weakness as will soon end in the downfall of the State].
[bf:] The Clamour of Multitudes. It is good
to attend to it. It is wise to foresee and avoid it. It is wise,
when neither foreseen nor avoided, to correct the Measures that
give Occasion to it. Glad the Majority have that Wisdom.
Lastly.
Because, the Repeal of this Law under the
present Circumstances, will, we fear,
[bf:] Do not fear, my Lords, this is an
unnecessary Timidity.
not only surrender the Honour and essential
Interests of the Kingdom now and for ever, both at home and
abroad,
[bf:] The Honour and essential Interests to
be maintained by Equity and Justice.
but will also deeply affect the fundamental Principles of our
Constitution;
[bf:] They are mistaken. Legislation over
the Colonies is not one of them.
for if we pass this Bill against our Opinion, from the Threats
and Compulsion publickly avowed in our Colonies, and enforced by
the most unjustifiable means within Great Britain, we disclaim that
Legislative Authority over the subjects, which we own
ourselves unable to maintain.
[bf:] over the Subjects within the Realm
you have it. I do not disclaim. You are able to maintain it: for
the People are willing you should.
[If the lords give assent to this bill without conviction that
it is right, merely because it has passed the Commons,] we in
effect annihilate this branch of the Legislature, and vote
ourselves useless. Or if by passing this Bill, we mean to justify
those, who in America, and even in Great Britain, have treated a
series of British Acts of Parliament as so many Acts of Tyranny
and Oppression, which it is scarcely criminal to resist;
[bf:] They are such when extended beyond
the Realm to take Money without Consent.
[or to justify] those officers of the Crown, who, under the eye,
and with the knowledge of Government, have taken upon themselves,
whilst the Parliament was Sitting, without its Consent, to suspend
the Execution of the Stamp Act, by admitting Ships from the
Colonies, with unstampt Clearances, to an Entry, in direct
Violation of it,
[bf:] Would you seize your own Property?
Quy the Act.
[which appears to have been done;] we shall then give our
approbation to an open breach of the first Article of that great
Palladium of our Liberties, the Bill of Rights;* [which declares
the suspending of laws without the consent of Parliament to be
illegal].
*[bf:] Wish your Lordships had attended to
that other great Article of the Palladium “Taxes shall not be laid
but by common Consent in Parliament.” We Americans
were not there to give our Consent.
Lastly, If we ground our Proceedings upon the Opinion of those
who have contended in this House, that from the Constitution of our
Colonies they ought never to be taxed,†
†[bf:] meaning here. No body thinks they
ought not to tax themselves.
even for their own immediate Defence, we fear that such a
Declaration, by which near a fifth part of the subjects of Great
Britain, who by the Acts of Parliament to restrain the Pressing of
Seamen in America, are already exempted from furnishing Men to our
Navy, are to be for ever exempted from contributing their share
towards their own support in money likewise, will, from
the flagrant Partiality and Injustice of it,
[bf:] No, no. they never did or will desire
it. Fact wrongly Stated.
either depopulate this Kingdom, or shake the basis of Equality,
and of that Original Compact, upon which every Society is founded;
and as we believe, that there is no instance of such a
permanent Exemption
[bf: No Exemptions desired]
of so large a body of the subjects of any State in any History,
antient or modern, we are extremely apprehensive of the
fatal Consequences
[bf:] too apprehensive. No bad Consequences
will arise.
[bf: rather happy];
to which, for these Reasons, in addition to those contained in
the Protest of the 11th of this month, our Duty to the King,
and Justice to our Country, oblige us to enter this our Solemn
Dissent. [Here follow the names of 28 members of the
House of Lords who signed this Protest. As BF had done with
the first Protest, he underlined the names of the Earls of
Abercorn, Ker, and Eglintoun, as Scots of whose right to deal
with colonial matters he had there expressed
doubts.]
[bf:] My Duty to the King and Justice to my
Country, will I hope justify me if I likewise protest, which I do
with all Humility, in behalf of myself and of every American, and
of our Posterity, against your Declaratory Bill, that the
Parliament of Great Britain, hath not never had, and of Right never
can have without our Consent, given either before or after Power to
make Laws of sufficient Forces to bind the Subjects in America in
any Case, whatever and particularly in Taxation.
[On the next three pages appears “A List of the Lords who Voted
and Protested against the Repeal of the American Stamp Act, March
11, 1766,” that is, at the second reading. The list includes the
names of 71 individuals, 10 of whom acted by proxy. There were 7
dukes (including the King’s brother, the Duke of York), 33 earls, 6
viscounts, 17 barons, and 8 bishops.]
[bf, on the final blank page of the
pamphlet:] I can only judge of others by myself. I have some
little Property in America. I will freely spend 19 Shillings in the
Pound to defend my Right of giving or refusing the other Shi[lling]
and after all, if I cannot defend that Right, I can retire
chearfully with my little Family into the Boundless Woods of
America which are sure to afford Freedom and Subsistence to any Man
who can bait a Hook or pull a Trigger.
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