Marginalia in Protests of the Lords against Repeal of the Stamp Act
I. ms notations in the margins of a copy of Protest 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, in the collections of the New York Public Library. II. ms notations 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.
The second reading in the House of Lords, March 11, 1766, of the bill to repeal the Stamp Act carried by a vote of 105 to 71, including proxies on both sides. In accordance with a common practice in cases of highly controversial bills, some of the dissenting members prepared and signed a lengthy Protest, in which they stated and explained their reasons for opposing the action of the majority. In this instance a group of dissenters also prepared and signed a second protest following the third reading and passage of the bill on March 17. The next day the King gave his assent to several bills, including the repealing measure and its companion piece, the Declaratory Bill. The two Protests on the repealing bill were entered on the journals of the House of Lords, where they were ultimately printed.2
Meanwhile the Protests became public in another way. Two pamphlets appeared: the first contained the full text of each of the Protests, a list of the peers who had spoken on each side prior to the vote, and the names of those who signed the Protest; the second pamphlet contained a full list of the lords and bishops who had voted against the bill, personally or by proxy, at the earlier reading. In all these lists the names or titles of the individuals were given without any attempt at disguise, and in the last list information was even added as to the offices that some members held in the government, the armed forces, or the royal household. The titlepages of the pamphlets bear a Paris imprint; whether this was genuine or served as a cover for surreptitious printing in England is not certain.3
These pamphlets must have appeared within a very few weeks of the passage of the repealing act. The March 1766 issue of Gentleman’s Magazine, published early in April, printed as its first article a piece entitled “A Summary of the Arguments against repealing the Stamp-Act.”4 Although the magazine never identified the article with Parliament in any way, it was in fact a condensation of the two Protests in the House of Lords. The condenser may have procured private copies from the clerk of the House; more probably he used copies of these pamphlets. It is certain that the pamphlets were available in England early in April. Franklin sent copies of both Protests to the Pennsylvania Committee of Correspondence on April 12.5 David Hall and William Bradford printed the text of the first Protest in the Pennsylvania Gazette and the Pennsylvania Journal on May 29. The text they printed is unmistakably that found in the pamphlet, but both colonial printers were cautious enough to print only a few letters from each peer’s name or title in the lists, connecting them with enough hyphens to represent the omitted letters. The Journal printed the second Protest on June 12, but the Gazette delayed until the 19th. Again the pamphlet was clearly the source, but by now both printers had become so bold as to give in full all the names in the lists of peers.
Franklin acquired copies of both pamphlets, read them with great care, and wrote numerous comments, both long and short, in the margins. The nature of some of his notations and the phraseology of others makes it virtually certain that at the time of writing these comments he contemplated getting out a pamphlet that would have been, in part at least, a reply to the Protests. Such a pamphlet, however, was never published.
Just when Franklin wrote these marginal comments is unknown. It is natural and tempting to suppose that he did so very soon after the pamphlets appeared, that is, sometime in the spring of 1766. Probably he did, though a few of the ideas he expressed here will strike some readers as being rather too advanced to represent his general position this early in the great constitutional debate between Britain and her colonies. It is always dangerous to assume, without clear evidence, that marginalia such as these were written very soon after the publication of the work in which they appear. There are, for example, two other political pamphlets published in 1766, in copies of which Franklin wrote extended marginal comments. In his comments in one pamphlet he made an allusion to an event in 1768 and in the other an allusion to an event of 1770; clearly then, some years must have elapsed in each instance between the pamphlet’s publication and Franklin’s annotation of it.6 Similar delay could have occurred in connection with these two Protests of 1766. Such little evidence as there is, however, suggests an early dating: the notes themselves show his intention to write a reply to the Protests, and such a pamphlet, to be most effective, would have to be published within a few weeks or months after the Protests had appeared. For this reason, therefore, and to conform to the general editorial policy of this edition, the pamphlets and Franklin’s marginal comments are placed here at the end of March 1766, the earliest period during which he could have written his annotation. But the editors are not prepared to state unequivocally that he did so at this time.
Whatever the date of Franklin’s marginalia may have been, these notes and the dissenting peers’ statements with which they are connected form together a significant contribution to an understanding of the great constitutional debate. The lords who explained at such length why they opposed the repeal of the Stamp Act stated very clearly and forcefully the position many British political leaders held at this time and later. Franklin on his part, while not above scoring a few mere debater’s points in his comments, succeeded repeatedly in bringing out basic issues that divided British and American views on the constitutional status of the colonies. In their arguments the dissenting peers repeatedly set forth constitutional concepts, referred to institutions of government, and employed terminology that dated back many decades, or even centuries, to a time before the colonies had attained political or economic consequence, or to a period before they even existed. What the peers said was generally appropriate when stated with reference to the constitution of England itself, or to that of Great Britain after the union with Scotland. Franklin’s quarrel was in considerable part with the unmodified application of those concepts, institutions, and terminology to a much larger and geographically scattered domain that embraced politically and economically advanced colonies as well as Great Britain itself. As he put the matter succinctly in one of his comments on the first Protest, “The Agitation of the Question of Right makes it now necessary to settle a Constitution for the Colonies.” The provisions of such a constitution for the colonies became the central problem confronting the English-speaking world during the years immediately ahead.
Clear and adequate joint presentation of a printed text and its accompanying hand-written marginal comments raises some typographical problems, especially when, as in this instance, greater interest attaches to the words of the commentator than to those of the original text. The following statement explains the method used here:
The text of the Protest is printed full measure of the page without special identification. Words in the text that Franklin underlined are set in italics, and any word that he underlined twice for emphasis is printed in small capitals. With the exception of very short marginal notes, all Franklin’s comments are printed in separate lines indented at the left margin and are preceded by an identifying “[BF:].” A line of the printed text of the Protest may be interrupted at any point for the insertion of a Franklin comment; the Protest text then resumes, flush left, after the insertion at the point where it had been interrupted. Very brief notes by Franklin are not printed in separate lines, but are inserted directly into the Protest text, preceded by “BF:” and the whole set in brackets. In some places the lords went on at length without expressing any new ideas or saying anything on which Franklin thought it worthwhile to comment. In such cases the liberty is taken of substituting for the full text a condensed summary within brackets.
It is hoped that this method of presenting these annotated pamphlets will do justice to both writers and at the same time make clear to the reader the relationship of the marginalia to the printed text.
[BF, at the top of the titlepage, partly lost by trimming:] Mean by a thorough Disquisition of the Point to procure a Settlement of Rights.
[BF, on p. 2, where are printed lists of speakers against and for repeal:] General Sent.7
We have submitted to your Laws, no Proof of our acknowledging your Power to make them. Rather an Acknowledgment of their Reasonableness or of our own Weakness.
Post Office came as a Matter of Utility. Was aided by the Legislatures. Mean to take Advantage of our Ignorance. Children should not be impos’d on: Are not, even by honest Shopkeepers. A great and mag. Nation should disdain to govern by Tricks and Traps, that would disgrace a petty fogging Attorney.
Settlement of the Colonies stated. Parlt. not consulted. Not taken Notice of for 40 Years. had no Participation not till after Restoration, except by Rebel Parlt.
[Several lines illegible] at least can grant no greater Power than he had himself.
[BF, at the top of p. 3:] Die Mercurii 11th Martii, 1766.
The Order of the Day being read for the second 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 second Time, and it being proposed to commit the Bill, the same was objected to. After a long Debate thereupon, the Question was put, Whether the said Bill shall be committed: It was resolved in the Affirmative.
[BF:] Comp[limen]t the Lords. Not a wiser or better Body of Men on Earth. The deep Respect imprest on me by the Instance I have been witness to of their Justice. They have been mislead by misinformation. Proof of my Opinion of their Goodness is the Freedom with which I purpose to examine their Protests.
Because, as this House has in this Session by several resolutions most solemnly asserted and declared, first, “That the King’s Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons of Great Britain, in Parliament assembled, had, hath, and of right ought to have, [BF: Neg.] full power and authority, to make laws and statutes of sufficient force and validity to bind the Colonies, and people of America, subjects of the Crown of Great Britain, in all cases whatsoever:”8 [BF: Neg.] Secondly, “That tumults and insurrections of the most dangerous nature have been raised and carried on in several of the North American Colonies, in open defiance of the power and dignity of his Majesty’s Government, [BF: Neg.] and in manifest violation of the laws and legislative authority of this Kingdom:” Thirdly, “That the said tumults and insurrections have been encouraged and inflamed, by sundry votes and resolutions passed in several of the Assemblies of the said Provinces, derogatory to the honour of his Majesty’s Government,
[BF:] Neg. All acknowledge their Subjection to his Majesty.9
and destructive of the legal and constitutional dependency of the said Colonies, on the imperial Crown and Parliament of Great Britain”: [BF: Neg.] Which resolutions were founded on a full examination of the papers on our table, manifesting a [BF inserts: daring] denial of the legislative authority of the Crown and Parliament of Great Britain,
[BF:] Thrust yourselves in with the Crown in the Governmt. of the Colonies. [Struck out: Do your Lordships mean to call the Parliamt. imperial.]
to impose duties and taxes on our North American Colonies; [BF: Not our, the King’s]1 and a criminal resistance [BF: Qu.] there made to the execution of the commercial and other regulations of the Stamp Act, and of other acts of parliament: we are of opinion, that the total repealing of that law, especially while such resistance continues, would (as Governor Barnarde says is their intention) “make the authority of Great Britain contemptible hereafter:” [BF: Not the King’s] and that such a submission of King, Lords, and Commons, under such circumstances, in so strange and unheard of a contest, would in effect, surrender their antient, unalienable rights of supreme jurisdiction, [BF: They have no such Rights.] and give them exclusively to the subordinate Provincial Legislatures established by prerogative; [BF: Glad this is acknowledg’d.] which was never intended or thought of, and is not in the power of prerogative to bestow;
[BF:] Dispute this with the King my Lords, he has done it.
as they are inseparable from the Three Estates of the Realm assembled in Parliament.
[BF:] Quy, Agreed, within the Realm.2
Because the law, which this Bill now proposes to repeal, was passed in the other House with very little opposition, and in this without one dissentient voice, during the last session of Parliament, which we presume, if it had been wholly and fundamentally wrong, could not possibly have happened; as the matter of it is so important,
[BF:] Strange that a Matter of so much Importance should be pass’d over so lightly. Wise Men happening to get wrong do not therefore think it right to continue so.
and as the intention of bringing of it in, had been communicated to the Commons by the first Commissioner of the Treasury the year before, and a resolution relating and preparatory*
*[BF:] Much has been said of this Notice given the Colonies.
to it was then agreed to in that House, without any division.†
†[BF:] Petitions not recd after made on the Part of Pensa. and other Colonies, not accepted.
[BF:] All this shows how very insignificant to the Colonies is the virtual Representation that has been so much talk’d of.
A thing wholly and fundamentally wrong may easily pass when it is not opposed, when it is not considered, when it is not debated. But after the full strong Opposition given to the Repeal, after repeated long Debates upon it in both Houses, where the fullest Consideration was given to it, the most able Statesmen and Lawyers arguing the Point on both Sides; if after all this a very considerable Majority voted the Repeal, Does not this Argument of your Lordships revers’d prove the Repeal fundamentally right?
Because, if any particular parts of that law, the principle of which has been experienced and submitted to in this country, without repining,
[BF:] The Principle differs when extended to America, toto caelo.
for near a century past, had been found liable to just and reasonable objections, [these might have been altered by a bill for the purpose, and had the Commons sent the Lords such an amending bill, it would have been our duty to give it] a most serious consideration, with a warm desire of relieving our countrymen in America from any grievance or hardship;
[BF:] Applaud this. Thanks for the Acknowledgment that we are your Countrymen. We desire always to be considered as such, &c.
but with proper care to enforce their submission and obedience to the law so amended,
[BF:] This would have been wrong if the Law not well founded in Right.
and to the whole legislative authority of Great Britain, without any reserve or distinction whatsoever.
[BF:] This is encroaching on the Royal Power.
Because, it appears to us, that a most essential branch of that authority, the power of Taxation, cannot be properly, equitably or impartially exercised, if it does not extend itself to all the members of the state in proportion to their respective abilities;
[BF:] Right, but we are different States, Subject to the King.
but suffers a part to be exempt from a due share of those burthens, which the public exigencies require to be imposed upon the whole:
[BF:] If we were Parts of the State, we are not exempt from a Share of the Burthen.
Repeat on this Head all that has been done and paid by America. King’s Message, Parl[iamen]t, Grants, &c.
a partiality which is directly and manifestly repugnant to the trust reposed by the people in every legislature, and destructive of that confidence on which all government is founded.
[BF:] The Trust of Taxing America was never reposed by the People of America in the Legislature of Gr. Britain.
They had one kind of Confidence indeed in that Legislature, that it would never attempt to tax them without their Consent, the Law was destructive of that Confidence among them. No body of Men on Earth more worthy of such Confidence, i e, the Power of Taxing, &c. The Repeal shows it.
Because, the ability of our North American Colonies, to bear without inconveniency the proportion laid on them by the Stamp Act of last year, appears to us most unquestionable, for the following reasons:
[BF:] Ability to pay gives no Right to demand.
First, That the estimated produce of this Tax, amounting to sixty thousand pounds per Annum, [BF: far too short] if divided amongst twelve hundred thousand people (being little more than one half of the subjects of the Crown in North America) would be only one shilling per head a year; which is but a third of the wages usually paid to every labourer or manufacturer there for one day’s labour:
[BF:] Ship Money3 might have been easily paid. Carrying the Money out of the Province where raised to the Prejudice of their Trade.
Secondly, That it appears by the accounts that have been laid before this House from the Commissioners of Trade and Plantations, that of the debt contracted by those Colonies in the last war, above £1,755,000 has already been discharged during the course of three years only, by the funds provided for that purpose in the several Provinces;
[BF:] These Accounts defective and short. Much easier to discharge being done by Paying in their Paper Bills to be Burnt, no Silver as the Stamp Act requird.
and the much greater part of the remaining incumbrance, which in the whole is about 760,000 pounds, will be paid in two years more: [BF: A Mistake] We must likewise observe, that the bounties and advantages given to them by Parliament in 1764 and 1765,
[BF, at the top of a page, partly lost by trimming:] the Dearness of Labour that you may obtain what you could not otherwise have.
[BF:] Quy. The Principle of these Bounties. The Quantity. Why give with one hand to take away with the other?
and the duties thereby lost to Great Britain for their service, and in order to enable them the more easily to pay this Tax,
[BF:] How? Strange Policy! Lay an odious Tax and give Bounties to enable People to pay it!
must necessarily amount in a few years to a far greater sum than the produce thereof. It is also evident, that such produce being wholly appropriated to the payment of the army maintained by this Kingdom in our Colonies,
[BF:] The Stamp Revenue would necessarily have carried in Proportion. In the conquer’d Colonies. Unnecessary. Would cost as much at home. The Colonies will maintain as many as are necessary.
at the vast expence of almost a shilling in the pound land tax, annually remitted by us for their special defence and protection;
[BF:] Unnecessary. Give a Civil Govt. to Canada.4
not only no money would have been actually drawn by it out of that country,
[BF:] Drawn out of different Parts.
but the ease given by it to the people of Great Britain, who are labouring under a debt of seventy millions, contracted by them to support a very dangerous war, entered into for the interest and security of those Colonies,
[BF:] The fact deny’d. State the Cause and Effect of the War. The expensive Manner of Carrying it on &c.
would have redounded to the benefit of the Colonies themselves in their own immediate safety, by contributing to deliver them from the necessary expence, which many of them have hitherto always borne, in guarding their frontiers against the savage Indians.
[BF:] true; they have always borne it, and never desir’d you to bear any Part of it.
The frontiers still as open to Inds. as ever. Troops posted at Fort William in Scotland as useful to protect Travellers from Highwaymen on Hounslow Heath.5
Because, not only the right, but the expediency and necessity of the supreme legislature,
[BF:] There is yet no such Thing. It is indeed wanted and to be wish’d for. But then it should be properly qualified, by Repn.
exerting its authority to lay a general tax on our American Colonies, whenever the wants of the public make it fitting and reasonable, that all the Provinces should contribute in a proper proportion to the defence of the whole, appear to us undeniable, from these considerations: First, that every Province being separate and independent on the others, and having no Common Council
[BF:] Why do you not give them a Common Council. They pland one.6 You rejected it. They would have carried on the War without any Expence to you.
impowered by the constitution of the Colonies to act for all, or bind all, such a tax cannot regularly, or without infinite difficulty, be imposed upon them* at any time,
*[BF:] but they may as they did last War give voluntarily; Defend Marylanders.7
even for their immediate defence or protection, by their own provincial assemblies; but requires the intervention and superintending power of the Parliament of Great Britain. Secondly, That in looking forwards to the possible contingency of a new war, a contingency perhaps not far remote, the prospect of the burthens which the gentry and people of this Kingdom must then sustain, in addition to those, which now lie so heavy upon them, is so melancholy and dreadful,
[BF:] The Colonies will contribute voluntarily. Ask ’em. Why were they not ask’d before tax’d.
that we cannot but feel it, a most indispensible duty to ease them [BF: There’s the Rub] as much as is possible, by a due and moderate exertion of that great right, which the constitution of this realm has vested in the Parliament, [BF: Neg.] to provide for the safety of all, by a proportionable charge upon all, equally and indifferently laid. We likewise apprehend, that a partial exemption of our Colonies from any exercise of this right by the British Legislature, would be thought so invidious, and so unjust [BF: If they paid no Taxes] to the other subjects of the Crown of Great Britain, as to alienate the hearts of these from their Countrymen residing in America,
[BF:] Great Pains has been taken to do this. The folly of it. As it will likewise necessarily alienate the Hearts of Americans.
to the great detriment of the latter, who have on many occasions received, and may again want assistance, from the generous warmth of their affection.
[BF:] England has on some Occasions received Assistance from America. Affection of America full as great, or greater.
Because, the reasons assigned in the public resolutions of the Provincial Assemblies, in the North American Colonies, for their disobeying the Stamp Act, viz. “That they are not represented in the Parliament of Great Britain,” extends to all other laws, of what nature soever,
[BF:] It is so reason’d here, not there, but in time they may be convinc’d.8
which that Parliament has enacted, or shall enact, to bind them in times to come, and must (if admitted) set them absolutely free from any obedience to the power of the British Legislature;
[BF:] but not to the Power of the Crown.
we likewise observe, that in a letter to Mr. Secretary Conway, dated the 12th of October 1765; the commander in chief of his Majesty’s forces in North America has declared his opinion, “That the Question is not of the inexpediency of the Stamp Act, or of the inability of the Colonies to pay the Tax; but that it is unconstitutional and contrary to their Rights, supporting the independency of the Provinces, and not subject to the legislative power of Great Britain.” 9 It is moreover affirmed, in a letter to Mr. Conway, dated 7th November, “That the people in general are averse to Taxes of any kind;
[BF:] Never refuse to pay Taxes laid by their own Representatives.
and that the merchants of that place think they have a right to every freedom of trade which the subjects of Great Britain now enjoy.” 1
[BF:] If Subjects of Great Britain, not merely Subjects of the King, Why not?
This opinion of theirs strikes directly at the Act of Navigation, and other subsequent laws, which from time to time have been made in the wise policy of that Act;
[BF:] The Policy wise with regard to foreigners. Selfish with Regd. to Colonies.
and should they ever be encouraged to procure for themselves that absolute freedom of trade, which they appear to desire, our plantations would become, not only of no benefit, [BF: Quy.] but in the highest degree prejudicial to the commerce and welfare of their Mother-country;
[BF:] Other Advantages of Colonies besides Commerce. Selfishness of Commercial Views.
nor is it easy to conceive a greater encouragement, than the repealing of a law opposed by them on such principles, and with so much contempt of the Sovereignty of the British Legislature.
[BF:] The Sovereignty of the Crown I understand. The Sov[ereignt]y of the British Legislature out of Britain, I do not understand.2
Because, the appearance of weakness and timidity in the Government and Parliament of this kingdom, which a concession of this nature may too probably carry with it,
[BF:] Govt. and Parlt. seem here to be distinguish’d.
The Fear of being thought weak is a Timidity and Weakness of the worst Sort, as it betrays into a Persisting in Errors, that may be much more mischievous than the Appearance of Weakness. A great and Powerful State like this has no Cause for such Timidity. Acknowledging and correcting an Error, shows great Magnanimity. Small States and small Reputations [remainder lost by trimming at the bottom of the page.]
has a manifest tendency to draw on further insults, and by lessening the respect of all his Majesty’s subjects to the dignity of his Crown,
[BF:] Dignity of the Crown not concern’d in this.
and authority of his Laws,
[BF:] It was upon Laws of Parlt.
throw the whole British empire into a miserable state of confusion and anarchy, with which it seems by many symptoms to be dangerously threatned; and this is the more to be feared, as the plea of our North American Colonies, that not being represented in the Parliament of Great Britain, they ought not to pay Taxes imposed or levied upon them by the authority thereof, may by the same reasoning be extended to all persons in this Island, who do not actually vote for Members of Parliament;
[BF:] Case widely different, as has been often shown. But if wrong here, rectify it.
nor can we help apprehending, that the opinion of some countenance being given to such notions by the Legislature itself, in consenting to this Bill, for the Repeal of the Stamp Act, may greatly promote the contagion of a most dangerous doctrine, destructive to all Government,
[BF:] The Danger safely removed.
which has spread itself over all our North American Colonies, that the obedience of the subject is not due to the Laws and Legislature of the Realm, farther than he in his private judgment shall think it comformable to the ideas he has formed of a free constitution.
[BF:] The Subject in America only. America not in the Realm of England or G.B. No Man in America thinks himself exempt from the Jurisdiction of the Crown and their own Assemblies —or has any such private Judgment.
Because, we think it no effectual guard, or security against this danger, that the Parliament has declared in the resolutions of both Houses, passed during this session, and now reduced into a Bill,3 That such notions are ill founded; as men will always look more to deeds than words, and may therefore incline to believe, that the insurrections in our Colonies, excited by those notions, having so far proved successful, as to attain the very point, at which they aimed, the immediate repeal of the Stamp Act, without any previous submission on the part of the Colonies; the Legislature has in fact submitted to them, and has only more grievously injured its own dignity and authority, by verbally asserting that Right, which it substantially yields up to their Opposition.
[BF:] It is to be wish’d it had not asserted it, or asserted it with some Limitation as when qualified, &c.
The reasons assigned for this concession render it still more alarming, as they arise from an illegal and hostile combination of the people of America,
[BF:] Surely there is nothing illegal in People’s resolving to work for themselves. Every Man in Britain may do it.
to distress and starve our Manufacturers, and to with-hold from our Merchants the payment of their just debts:
[BF:] No such Combination to with hold the Payment of just Debts. The Ldps. are misinform’d and ought to be highly displeas’d with those who led them to give Countenance to so horrible a Calumny.
the former of which measures has only been practised in open war between two States; and the latter, we believe, not even in that situation, either by the public or by individuals, among the civilized nations of Europe, in modern times. If this unprecedented plan of intimidation shall meet with success, [BF: No such Plan.] it is easy to foresee, that the practice of it for other and still greater objects will frequently be renewed,
[BF:] It is pity to give such a Hint to the Colonies, that in your Ldps. Opinion, the Act was repeal’d on Intimidation.
and our manufacturers and merchants reduced to the like, and more permanent distress;
[BF:] The Merchts. may avoid Distress by not giving such extensive Credit. Hope they will. The Credit ruinous to the Colonies.
we cannot therefore but wish, that some more eligible method, consistent with their future safety and our dignity, had been taken by Parliament, to shew our tender concern and compassion for their sufferings, and to discourage any other such unwarrantable attempts;
[BF:] Query what can that be? Pride Force
which we are fully persuaded would have been very practicable, with due care and attention, and at an expence very inferior to the importance of the object.
[BF:] Charge of Troops to subdue the Colonies.
And do your Lordships really think Force and Bloodshed more eligible than rectifying an Error?
Because, we are convinced from the unanimous testimony of the Governors, and other officers of the Crown in America,
[BF:] Strange Testimony to rely on. The Nature of it.
that if, by a most unhappy delay and neglect to provide for the due execution of the law, and arming the Government there with proper orders and powers, repeatedly called for in vain,
[BF:] Governors always complain for want of Power. Paint them.4
these disturbances had not been continued and encreased, they might easily have been quieted before they had attained to any dangerous height; and we cannot, without feeling the most lively sense of grief and indignation, hear arguments drawn from the progress of evils, which should and might have been stopped in their first and feeble beginnings, [BF: A Mistake] used for the still greater evil of sacrificing to a present relief the highest permanent interests, and the whole Majesty, Power, and Reputation of Government: This afflicts us the more deeply, because it appears from many letters, that this law, if properly supported by Government, would from the peculiar circumstances attending the disobedience to it, execute itself without bloodshed.
[BF:] It has executed it self;5 that is, it has been felo de se. Observe how in some of the Colonies that there was no Occasion to execute their Laws, they died of themselves. A Law universally odious can never be executed in any Govt.
And it is said in one of the letters to Mr. Secretary Conway,6 “That the principal view is to intimidate the Parliament; but that if it be thought prudent to enforce their authority, the people dare not oppose a vigorous resolution of the Parliament of Great Britain.”
[BF:] The People had indeed a high Respect for Parlt.
That vigorous resolution has not yet been found in the Parliament; and we greatly fear, that the want of it will certainly produce one of these two fatal consequences; either that the repeal of this law will in effect annull and abrogate all other laws and statutes*
*[BF:] The Agitation of the Question of Right makes it now necessary to settle a Constitution for the Colonies.
relating to our Colonies, and particularly the Acts that restrain or limit their Commerce, of which they are most impatient,†
†[BF:] Restrictions should be only for the General Good. Endeavour to convince reasonable Creatures by Reason. Try your Hands with me.
or, if we should hereafter attempt to enforce the execution of those laws against their will,
[BF:] Never think of it. They are reasonable Creatures. Reasonable Laws will not require Force!
and by virtue of an authority, which they have dared to insult with impunity and success, that endeavour will bring upon us all those evils and inconveniencies, to the fear of which we now sacrifice the Sovereignty of the Realm;
[BF:] This should not have been suppos’d.
and this at a time when the strength of our Colonies, as well as their desire of a total independence on the Legislature and Government of their Mother-country, [BF: a Mistake] may be greatly augmented, and when the circumstances and dispositions of the other powers of Europe, may render the contest far more dangerous and formidable to this Kingdom. [Here follow the names of 33 peers who signed the Protest. BF underlined the names of two Scottish representative peers, the Earls of Eglintoun and Abercorn, and that of the Earl of Ker, whose British earldom entitled the Scottish Duke of Roxburghe to sit in the House of Lords.]
[BF:] I observe two or three Scotch Lords Prot[estor]s. Many more voted agst. the Repeal. Colonies settled before the Union. Query. If the Parlt. had a Jurisdiction over the Colonies by the first Settlement Had they a Right to introduce new Legislators? could they sell or commute the Right with other Nations? Can they introd[uce] the Peers of Ireland, and Commons, and the States of Holland and make them Legislators of the Colonies. How could Scotland acquire a Right to any Legislation over English Colonies, but by Consent of the Colonies themselves.
I am a Subject of the Crown of Great Britain have ever been a loyal one, have partaken of its Favours:7 I write here with Freedom relying on the Magnanimity of the Parlt. I say nothing to your Ldps. that I have not been indulg’d to say to the Commons. Your Lordps Names are to your Protest therefore I think I ought to put mine to the Answer. Desire what I have said may not be imputed to the Colonies. I am a private Person and do not write by their Direction. I came over here to solicit in Behalf of my Colony a closer Connection with the Crown. Burning Glass.
Die Lunae, 17° 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.
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.8
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.
[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.9 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.1
[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.2
[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.3
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.
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 maintaind 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,4 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.
of this unhappy Measure [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.5
2. Journals of the House of Lords, xxxi, 303–5, 311–13.
3. Yale Univ. Lib. contains two different printings of the First Protest, three of the Second Protest, and one pamphlet entitled Correct Copies of the two Protests. . ., all bearing the same Paris, 1766, imprint. The copy of the Second Protest in which BF’s marginalia appear has an errata list not found in any of the Yale copies. It is perhaps significant that the Paris imprint on these Protests is the same as that on one of the pamphlets reporting Pitt’s speech of January 14; above, p. 40.
4. Gent. Mag., xxxvi (1766), 107–9.
5. Below, p. 240.
6. In Good Humor: or, A Way with the Colonies . . . (London, 1766), p. 30, BF wrote: “There was no Posture of Hostility in America. But Britain put herself in a Posture of Hostility against America: Witness the Landing of Troops in Boston. 1768.” In Josiah Tucker’s A Letter from a Merchant in London to His Nephew in North America . . . (London, 1766), p. 53, where Tucker had mentioned British troops in America to defend the colonies, BF exclaimed in the margin: “To oppress, insult and murder them, as at Boston!” How much after the events alluded to here BF wrote these comments it is impossible now to say.
7. What follows here may have been an outline for part of BF’s contemplated pamphlet.
8. The chief substance of what became the Declaratory Act.
9. The first of several notes indicating that BF fully acknowledged the colonists’ subordination to the Crown, although he denied similar subordination to Parliament.
1. Few small matters more seriously annoyed Americans in England than to have people there refer to the King’s possessions overseas as “our” colonies, as if the colonies belonged to the people of Great Britain rather than to the common sovereign of both British and American subjects.
2. An important part of BF’s view was that the colonies were not part of the Realm of England (or Great Britain), hence were not subject to any authority that was operative only within that Realm.
3. A tax levied by Charles I in 1634–35 during time of peace, resisted by John Hampden and others, and proscribed by statute in 1640.
4. Quebec had no elective, representative Assembly at this time.
5. Fort William is situated in Inverness-shire at the northeastern end of Loch Linnhe, near Ben Ness. Hounslow Heath, on the outskirts of London, is about 12 miles west-southwest of BF’s house on Craven St. The two places are a little more than 400 miles apart, air line.
6. At the Albany Congress. To be strictly fair BF should have said that both the British government and the colonial Assemblies rejected the Albany Plan with its provision for a “Common Council.”
7. For BF’s defense of the Marylanders in his Examination before the House of Commons, see above, pp. 141–2.
8. This note echoes BF’s answer to a question on much the same point in his Examination; above, p. 156.
9. This letter from Gen. Thomas Gage is printed in full in Clarence E. Carter, ed., The Correspondence of General Thomas Gage with the Secretaries of State 1763–1775 (New Haven, 1931), i 69–70.
1. Cadwallader Colden to Conway, Nov. 9 (not 7), 1765, Colden Letter Books, ii (N.-Y. Hist. Soc. Colls., 1877), 62.
2. The peers and BF may have meant different things by the term “British Legislature” here. The peers may have meant King, Lords, and Commons acting together, while BF meant only the two Houses of Parliament. The distinction could be regarded as constitutionally important in the context of “sovereignty.”
3. The Declaratory Bill.
4. BF was walking on rather thin ice here, considering that his son was one of the governors. In London Chron., April 7–9, 1767, however, he printed a piece in which he did “paint” the governors and other officers as being highly unreliable as reporters. He said in his first paragraph that what followed had been written the year before. It has been identified as a segment of his intended Stamp Act pamphlet; above, pp. 79–81. After he laid that project aside he may have thought of using it in the answer to the Protests. He finally settled for quoting it in his letter to the Chronicle in 1767.
5. BF’s friend, the inveterate punster Hugh Roberts, would have liked the double entendre in this comment.
6. Colden to Conway, Nov. 9, 1765, as cited in a previous note.
7. There appears to be no valid reason for questioning the sincerity of this statement. While in his comments on this Protest BF had repeatedly expressed doubts about the authority of Parliament in relation to the colonies, he had scrupulously refrained from challenging the authority of the King.
8. In answer to questions in his Examination concerning the “declaratory resolutions” of Parliament BF had said at one point that he believed the colonists would “think them unconstitutional, and unjust”; but a little later he said he thought the resolutions would give the colonists “very little concern, if they are never attempted to be carried into practice.”
9. William Bollan (c. 1710–c. 1776), born in England, moved to Massachusetts as a youth, trained in law there, and was agent for the province in England, 1745–62. In the latter year the more radical leaders of the House of Representatives brought about his dismissal as agent for the colony, though he continued to act as agent for the Council. He was regarded as an able lawyer. DAB. Quite naturally BF would want to consult an American-trained lawyer on this matter of jury trial before dealing with it in a pamphlet.
1. BF’s friend, the barrister Grey Cooper (above, X, 185 n), who was M.P. for Rochester and secretary to the Treasury, and was therefore thoroughly familiar with “the particulars” of this Treasury plan. On the reorganization of the Vice-Admiralty Courts, see Gipson, British Empire, xi, 120–7, 130–5.
2. The Stamp Act disturbances had begun in August 1765.
3. Nova Scotia and Georgia were “Parliamentary Colonies” in the sense that the major parts of their governmental expenses were paid from parliamentary appropriations, not from locally voted taxes.
4. The italics here reflect the original typography, not BF’s underlining.
5. With such a conclusion as this all drafted, it is a pity that BF never completed and published his pamphlet.