have, may be led into temptation; all I think, is, that a prevention of evil is much cafier than a deliverance from it.

The fum of my argument is, that civil government is of God: that the adminitrators of it were originally the whole people that they might have devolved it on whom they pleased: that this devolution is fiduciary, for the good of the whole that by the British conftitution, this devolution is on the King, lords and commons, the fupreme, facred and un

STRUCTIONS for their REPRESENTATIVES.

The following Inftructions were reported by faid Committee, and unanimously Voted.

To Royal Tyler, James Otis, Thomas
Cufhing, and Oxenbridge Thacher,
Efars.
GENTLEMEN,

chofen by freehol

in the realm, but through the dominions: that by the abdication, the original compact was broken to pieces: that by the revolution, it was renewed, and more firmly established, and the rights and liberties of the fubject in all parts of the dominions, more fully explained and confirmed: that in confequence of this eftablishment and the acts of fucceffion and union, his Majefty GEORGE III. is rightful king and fovereign, and with his parliament, the fupreme legislative of Great Britain, France and Ireland, and the dominions thereunto belonging: that this conftitution is the most free one, and by far the best, now existing on earth: that by this conftitution, every man in the dominions is a free man: that no parts of his Majefty's dominions can be taxed without their confent: that every part has a right to be represented in the fupreme or fome fubordinate legislature; that the refufal of this, would feem to be a contradiction in practice to the theory of the conftitution: that the colonies are fubordinate dominions, and are now in fuch a state, as to make it beft for the good of the whole, that they should not only be continued in the enjoyment of fubordinate legiflation, but be alfo reprefented in fome proportion to their number and eftates in the grand legiflation of the nation: that this would firmly unite all parts of the British em pire, in the greatest peace and profperity; and render it invulnerable and perpe tual.

APPENDIX.

The City of Boflon, at their annual meeting in May, 1764, made choice of Richard Dana, Jofeph Green, Nathaniel Bethune, John Ruddock, Efqrs; and Mr. Samuel Adams, to prepare INJanuary, 1765,

Baftan, to reprefent them in the general affembly the ensuing year, affords you the ftrongeit teftimony of that confidence which they place in your integrity and capacity. By this choice they have delegated to you the power of acting in their public concerns in general, as your own prudence fhall direct you; always referving to themselves the conftitutional right of expreffing their mind, and giving you fuch instruction upon particular matters, as they at any time fhall judge proper,

We therefore, your conflituents, take this opportunity to declare our just expectations from you,

That you will constantly use your pow er and influence in maintaining the invaluable rights and privileges of the province, of which this town is fo great a part: As well thofe rights which are derived to us by the royal charter, as thofe which being prior to and independent on it, we hold effentially as freeborn fubjects of GreatBritain;

That you will endeavour, as far as you fhall be able, to preferve that independence in the house of reprefentatives, which characterises a free people; and the want of which may in a great measure prevent the happy effects of a free government: cultivating as you fhall have opportunity, that harmony and union there, which is ever defirable to good men, when founded on principles of virtue and public fpirit; and guarding against any undue weight which may tend to difadjust that critical balance upon which our happy conftitution, and the bleffings of it do depend. And for this purpofe, we particularly recommend it to you to use your endeavours to have a law paffed, whereby the feats of fuch gentle. men as fhall accept of pofts of profit from the crown, or the governor, while they

D

arc

are members of the houfe, fhall be vacated, agreeable to an act of the British parliament, ull their constituents thail have the opportunity of re-electing them, if they pleale, or of returning others in their

100:.

Being members of the legislative body, you will have a special regard to the morals of this people, which are the basis of public happiness? and endeavour to have fuch laws made, if any are still wanting, as fhall be bet adapted to fecure them: and we particularly delire you carefully to look into the laws of excile, that if the virtue of the people is endangered by the multiplicity of oaths therein enjoined, or their trade and bufincts is unreafonably impeded or embarreled thereby, the the grievance may be redreffed.

As the prefervation of morals, as well as property and right, fo much depends upon the impartial diftribution of juftice, agreeable to good and wholesome law And as the judges of the land do depend upon the fice grants of the general atmbly for fupport; it is incumbent upon you at all times to give your voice for their honourable maintenance, fo long as they having in their minds an indifference to all other affairs, fhall devote themfelves wholly to the duties of their own department, and the farther study of the law, by which their customs, precedents, proceedings and determinations are adjusted

and limited.

You will remember that this province hath been at a very great expence in carrying on the war; and that it till lies under a very grievous burden of deb;: you will therefore ule your utmott endeavour to promote public fugality as one means to leffen the public debt.

You will join in any propofals which may be made for the better cultivating the lands, and improving the hufbandry of the province and as you reprefent a town which lives by its trade, we expect in a very particular manner, that you make it the obje& of your attention, to fupport our commerce in all its jutt rights, to vindicate it from all unreafonable impofitions, and promote its profperity.-Our trade has for a long time laboured under great difcouragements; and it is with the deepest concern that we fe fuch farther difficulties coming upon it, as will reduce it to the lowelt ebb, if not totally obtruct and ruin it. We cannot help expreffing our furprize that when fo early

notice was given by the agent, of the intentions of the miniftry, to burthen us with new taxes, fo little regard was had to this molt interesting matter, that the court was not even called together to confult about it till the latter end of the year; the confequence of which was that inftructions could not be fent to the agent, though folicited by him, till the evil had got beyond an eaty remedy.

There is now no room for farther delay: We therefore expect that you will use your earlicht endeavours in the General Affembly, that fuch methods may be taken as will effectually prevent these proceedings againit us. By a proper reprefentation, we apprehend it may eafily be made to appear that fuch severities will prove detrimental to Great-Britain

felf; upon which account we have reason to hope that an application, even for a repeal of the act, fhould it be already paled, will be fuccefsful. It is the trade of the colonies that renders them beneficial to the mother country: Our trade, as it now, and always has been conducted, centers in Great Britain, and in return for her manufactures, affords her more ready cafh, beyond any comparison, that can poffibly be expected by the most fanguine promoters of thefe extraordinary methods. We are in fhort ultimately yielding large fupplies to the revenues of the mother country, while we are labouring for a very moderate fubfistence for ourselves. But if our trade is to be curtailed in its most profitable branches, and burdens beyond all poffible bearing laid upon that which is fuffered to remain, we fhali e fo far from being able to take off the manufactures of Great-Britain, that it will be fcarce poflible for us to earn our bread.

But what ftill heightens our apprehenfions is, that thefe unexpected proceedings may be preparatory to new taxations upon us: For if our trade may be taxed, why not our lands? Why not the produce of our lands, and every thing we poffefs or make ufe of? This we apprehend annihilates our charter right to govern and tax ourfelves-It frikes at our British privileges, which as we have never forfeited them, we hold in common with our fellow-fubjects who are natives of Britain: If taxes are laid upon us in any fhape without our having a legal reprefentation where they are laid, are we not

reduced

berties of the colonies, are but in affirmance of the common law, and law of nature in this point. There are, fays my Lord Coke, regularly three incidents to fubjects born. (1.) Parents under the actual obedience of the King. (2.) That the place of his birth be within the King's dominions. (3.) The time of his birth to be chiefly confidered: For he cannot be a fubject born of one kingdom, that was born under the allegiance of the King of another kingdom; albeit afterwards the kingdom defcends to the King of the other kingdom. See Calvin's cafe, and the feveral acts of parliament and decifions on naturalization, from Edward the Third to this day. The common law is received and practifed upon here, and in the rest of the colonies; and all antient and modern acts of parliament that can be confidered as part of, or in amendment of the common law, together with all fuch acts of parliament as exprefly name the plantations; fo that the power of the British parliament is held as facred and as uncontroulable in the colonies as in England. The question is not upon the general power or right of the parliament, but whether it is not circumfcribed within fome equitable and reasonable bounds? It is hoped it will not be confidered as a new doctrine, that even the authority of the parliament of Great-Britain is circumfcribed by certain bounds, if exceeded, their acts become thofe of meer power without right, and confequently void. The judges of England have declared in favour of these fentiments, when they exprefly declare, that acts of parliament against natural equity are void. That acts against the fundamental principles of the British conflitution are void*. This

"A very important queftion here prefents itself. It effentially belongs to the fociety to make laws both in relation to the manner in which it defires to be governed, and to the conduct of the citizens: This is called the Legislative Power. The nation may entrust the exercise of it to the Prince, or to an aflembly, or to the affembly and the Prince jointly; who have then a right of making new, and abrogating old laws. It is here demanded whether, if their power extends fo far as to the fundamental laws, they may change the conftitution of the eftate? The principles we have laid down

lead us to decide this point with certainty, that the authority of thefe legislators does not extend fo far, and that they ought to confider the fundamental laws as facred, if the nation has not in very express terms given them the power to change them. For the conftitution of the state ought to be fixed; and fince that was first established by the nation, which afterwards trufted certain perfons with the legislative power, the fundamental laws are excepted from their commiffion. It appears that the fociety had only resolved to make provifion for the ftate's being always furnished with laws fuited to particular conjunctures, and gave the legiflature for that purpofe, the power of abrogating the antient civil and political laws, that were not fundamental, and of making new ones: but nothing leads us to think that it was willing to fubmit the conftitution itself to their pleasure.

When a nation takes poffeffion of a diftant country, and fettles a colony there, that country though feperated from the principal establishment, or mother country, naturally becomes a part of the state, equally with its antient poffeffions. Whenever the political laws, or treaties, make no diftinction between them, every thing faid of the territory of a nation, ought allo to extend to its colonies." D' Vattel.

"An act of parliament made against natural equity, as to make a man judge in his own caufe, would be void: For jura naturæ funt immutabilia, Hob. 87. Trin. 12. Jac Day v. Savage S. C. and P. cited Arg. 10. Mod. 115 Hill. 11. Ann. C. B. in the cafe of Thornby and Fleetwood, "but fays, that this must be a clear cafe, and judges will strain hard rather than interpret an act void, ab initio." This is granted, but fill their authority is not boundless, if subject to the controul of the judges in any cafe.

"Holt, Chief justice, thought what Lord Coke fays in Doctor Bonham's cafe a very reasonable and true saying, that if

an

have a right to do as they pleafe. In other words, that those who are invefted with power to protect the people, and fupport their rights and liberties, have a right to make flaves of them. This is not very remote from a flat contradiction. Should the parliament of Great-Britain follow the example of fome other foreign ftate", and vote the King abfolute and defpotic; would fuch an act of parliament make him fo? Would any minifter in his fenfes advife a Prince to accept of fuch an offer of power? It would be unfafe to accept of fuch a donation, because the parliament or donors would grant more than was ever in their power lawfully to give. The law of nature never invested them with a power of furrendering their own liberty; and the people certainly never intrufted any body of men with a power to furrender theirs in exchange for flavery t.

NOTE.

our

an act of parliament should ordain that the fame perfon fhould be both party and judge in his own caufe, it would be a void act of parliament, and an act of parliament can do no wrong, though it may do feveral things that look pretty odd; for it may discharge one from the allegiance he lives under,and restore to the ftate of nature; but it cannot make one that lives under a government both judge and party, per Holt C. J. 12 Modi. 687, 688. Hill. 13. W. 3. B. R. in the cafe of the city of London v. Wood-It appears in books, that in feveral cafes the common law fhall controul acts of parliament, and fometimes adjudge them to be utterly void; for when an act of parliament is against common right and reason, or repugnant or impoffible to be performed, the common law fhall controul it, and adjudge it to be void, and therefore 8 E. 3. 30. Thomas Tregor's cafe upon the ftatute of W. 2. Cap. 38. and Art. Sup. Chart. Herle faid that fometimes ftatutes made contrary to law and right, which the makers of them preceiving will not put them in execution, 8 Rep, 118 Hill. 7. J. Dr. Bonham's cafe.

* Sweden, Denmark, France, &c.

9.

"But if the whole ftate be conquered, if the nation be fubdued, in what manner can the victor treat it without tranfgreffing the bounds of justice? What are his rights over the conqueft? Some

have dared to advance this monstrous principle, that the conqueror is abfolute master of his conqueft; that he may difpofe of it as his property, treat it as he pleases, according to the common expreffion of treating a ftate as a conquered country; and hence they derive one of the fources of defpotic government: But enough of thofe that reduce men to the state of tranfferable goods, or use them like beasts of burthen, who deliver them up as the property or patrimony of another man. Let us argue on principles countenanced by reafon and becoming humanity. The whole right of the conqueror proceeds from the just defence of himself, which contains the fupport and profecution of his rights. Thus when lie has totally fubdued a nation with whom he had been at war, he may without difpute caufe juftice to be done him, with regard to what gave rife to the war, and require payment for the expence and damage he has fuitained; he may according to the exigency of the cafe impofe penalties on it as an example, he may, fhould prudence fo dictate, difable it from undertaking any pernicious defigns for the future. But in fecuring all thefe views the mildeft means are to be preferred. We are always to remember, that the law of nature permits no injury to be done to an enemy, unless in taking measures neceffary for a juft defence, and a reasonable security. Some princes have only impofed a tribute on it of fome privileges, difinembering a proit; others have been fatisfied of striping vince, or keeping it in awe by fortreffes; others as their quarrel was only with the fovereign in perfon, have left a nation in the full enjoyment of all its rights, only fetting a fovereign over it. But if the conqueror thinks proper to retain the fohas fuch a right; the manner in which he vereignty of the vanquished state, and is to treat the state still flows from the fame principles. If the fovereign be only the just object of his complaint, reafon declares that by his conqueft he acquires only fuch rights as actually belonged to the dethroned fovereign, and on the fub. miffion of his people he is to govern it

according