of filling all the offices of Government especially those of the Revenue, and when his Majesty and the Nation are at the Expense of sending Troops for the Protection of these Colonies, You refuse to furnish them with Provisions and necessary Carriages tho' your country is full of both, unless You can at the same Time encroach upon the Rights of the Crown and increase your own Power, already too great for a Branch of a Subordinate dependant Government so remote from the principal Seat of Power.

In an address delivered before the Historical Society of Pennsylvania, in 1882, upon "Pennsylvania's Formative Influence upon Federal Institutions," Mr. William A. Wallace presented some facts which may well be given a place in connection with the subject of taxation without representation :

The earliest instance that I can find in which the issue of no taxation without representation was sharply defined in America was that of 1740, between the city of Philadelphia and the Provincial Assembly. The city corporation, consisting of the mayor and common council, possessed extensive powers of taxation, and it was proposed to take them away and vest them in commissioners and assessors, to be elected by the people. A bill for that purpose was passed by the Assembly, but the Governor refused to sign it. The quarrel was really between the proprietary party and the people. The city corporation was a close body, originally composed of persons nominated by William Penn, and keeping up succession by the election of councilmen and aldermen by those already in office, so that the policy of the corporation guarded from the interference of persons whose views might have differed from the councilmen. In the controversy the Assembly struck the key-note which sounded thirty-six years afterward in the Declaration of Independence. The ground was taken that as the inhabitants of the city had no right to choose members of the city corporation, the latter should not have the power of taxing the people without their own consent; that the King claimed no power of levying taxes without the consent of Parliament, and that there should be no taxation without representation."

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This action was twenty-five years before the resolutions of the House of Burgesses of Virginia, introduced by Patrick Henry, were passed, and, whilst it may be true, as Mr. Jefferson states, that Mr. Henry certainly gave the "first impulse to the ball of the Revolution" by these resolutions, yet the people of the colonies were familiar with the controversies in Pennsylvania, and these and the teachings of Franklin prepared the public mind for its final attitude of resistance to the death. Mr. Graham, in his history of the colonies, says that when in the beginning of 1764, Lord Granville informed the colonies of his purpose to procure an Act of Parliament, imposing a stamp duty on the colonies, which ultimately was carried into execution, and aroused the patriotic fervor and indignation of all of the people, the Pennsylvania Assembly "was distinguished above all others by the temperate, firm, dignified, and consistent strain of its debates and proceedings." It was declared there that this proposition was a deviation from national usage, unconstitutional, unjust, and unnecessary, and that Parliament had no right to tax the colonies at all. They recognized the right of the Crown to ask for supplies, and expressed their willingness to grant them, but utterly denied the power and authority of the ministers and Parliament to tax them. Virginia and New York also gave positive contradiction to this claim of right to tax the colonies, and affirmed its

unconstitutionality. Differing from Pennsylvania in her dignified silence, they sent petitions to both King and Parliament, but that of Virginia weakened its force by distinguishing between the power and the right to tax, for, while denying the right, the exertion of the supposed power was deprecated in a manner which indicated that no opposition beyond remonstrance was intended. They denied the right, recognized the power, and breathed not a syllable that implied either the power or the will to resist the infliction. The petition of New York was not presented. No member of Parliament was found willing to present it, and it reached England after the Stamp Act was in progress.

Massachusetts, on the contrary, amid her divided councils, not only did not boldly stand against the right to tax, but addressed the House of Commons by a petition imploring for favor. The practical effect was to sanction the pretensions of Parliament to enforce its right to enact and execute the Stamp Act, and to place the hope of the colonies upon the lenity and indulgence of the British Government. The bold and unhesitating declaration announced in our Assembly under the lead of Dickinson and Franklin against the right, and the denial of the power by its record, was followed by no other of the colonies, but Franklin in advocating the doctrine thus laid down, in his controversy with British authority, as our representative, quoted Philip De Comines and the famous declaration : "There is neither King nor sovereign lord on earth, who has beyond his own domain power to lay the imposition of one farthing on his subjects, without the consent of those who pay it, unless he does it by tyranny and violence." Here, as in other things, we find Pennsylvania and her sons in the advance, and this, too, in face of the fact that the charter to Penn at least impliedly recognized the right of Parliament to tax. When this first step in the oppressive statutes of the mother country, which ultimately brought armed resistance and independence, was taken, and the Stamp Act was a fixed fact, Virginia, under the fiery lead of Henry, declared through a small majority of its House of Burgesses that "the most substantial and distinguished part of their political birthright was the privilege of being taxed exclusively by themselves, or their representatives," and thus primarily voiced the universal thought. Massachusetts, following Otis, Adams, and Hancock, at the same hour initiated her call for a convention of the colonies for unity and resistance. Our Assembly with unanimous voice placed upon record their protest, that "the only legal representatives of the people were the persons elected to serve as members of the Assembly, and that the taxation of the Province by any other persons whatsoever was unconstitutional, unjust, subversive of liberty, and destructive of happiness."

The firm and decided attitude of the colonies, and the representations and genius of Franklin, then the agent of Pennsylvania at London, so prevailed upon Pitt and those in power, that the Stamp Act was repealed within two years from its enactment, and the opening of the bloody drama of the Revolution was postponed for further contests between prerogative and arbitrary power on the one hand, and patriotic independence and personal right on the other. They soon came, and in them we trace the spirit of feudal control combating the rights of the individual, which, since the foundation of the colony, had been struggling for the mastery.

'P. 59, 25th edition.

NOTES TO CHAPTER IV.

In his conversation with Webster in 1824, Jefferson pronounced a further eulogy on the character of Patrick Henry in these words: 'It is not now easy to say what we should have done without Patrick Henry. He was far before all in maintaining the spirit of the Revolution. His influence was most extensive with the members from the upper counties; and his boldness and their votes overawed and controlled the more timid and aristocratic gentlemen of the lower part of the State. . . After all, it must be allowed

that he was our leader in the measures of the Revolution in Virginia, and in that respect more is due to him than to any other person. If we had not had him we should have got on pretty well as you did by a number of men of nearly equal talents but he left all of us far behind."- Curtis, Life of Daniel Webster, vol. i., p. 585.

3 Works, vol. x., pp. 244, 245, 247.

• See, also, Works of John Adams, vol. x., pp. 274, 277, 279, 280, 282, 289, 292, 298, 314, 317, 320.

' Works, vol. x., p. 272.

"The influence of this controversy [over the Writs of Assistance in 1761] in producing the Revolution, is not wholly due to the fiery eloquence of Otis, whose words, said John Adams, "breathed into the nation the breath of life," nor to the range of his argument

but to their effect upon the commercial interest - then the leading one-of New England; for if the latent powers of these writs were set free and used by the revenue officers, the commerce of Boston, Salem, and Newport would have been effectually crippled. Narrative and Critical History of America, vol. vi., pp. 11, 12. Chamberlain, The Revolution Impending.

Mellen

In the debate in the Commons on the Boston Port Bill and the infraction of the charter of Massachusetts, Sir Richard Sutton said that "even in the most quiet times the disposition to oppose the laws of this country was strongly ingrafted in the Americans, and all their actions conveyed a spirit and wish for independence. If you ask an American who is his master, he will tell you he has none, nor any governor but Jesus Christ." (Adolphus, ii., 108) N. and C. Hist., vi., p. 232, note.

* Life and Writings of James Madison, vol. iii., p. 105.

* See Franklin's Works, vol. ii., pp. 376, 377; and for the whole history of his plan of union and its attendant circumstances, ibid., pp. 343 to 387, and his Autobiography, ch. ix. The number of taxables in Lancaster, Cumberland, York, Northampton, and Berks counties in 1760 was 15,437, and in Bucks, Chester, and Philadelphia, 16,230.

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10 See Parkman, Conspiracy of Pontiac, ch. xxv., and his Appendix E.

11 On this subject see also Appendix E (Examination of Joseph Galloway).

12 See Colonial Records of Pennsylvania, vol. iv., pp. 375-420. The principle is laid down in a message from the Assembly to the Governor in May, 1740, as follows (p. 408): "Nor would any part of the bill, if passed into a law, debar them from levying money on the inhabitants to these purposes, if they were authorized by their charter so to do, altho' in our opinion, it ought not nor cannot give any such power, for the following reasons: 1. The members of the corporation were originally named by the Proprietor, and have since chosen their successors; and as the inhabitants of the city have not any right to chuse them, it is not reasonable they should have the power of levying money on the inhabitants without their consent. 2. The King himself claims no power of laying and levying taxes on his subjects but by common consent in Parliament; and as all the powers of government in this province are derived under him, they cannot be greater in this respect than those from which they are derived," etc.

CHAPTER V

LIBERTY OF SPEECH AND CONSCIENCE DEFINITELY ESTABLISHED IN AMERICA BY MEN OF SCOTTISH BLOOD

WE

E have now cited some authentic instances of vigorous and prolonged resistance to the monarchical principle of taxing the many for the benefit of the few, as well as the promulgation of the doctrine of no taxation without representation, all of which occurred many years before the passage of the Stamp Act. We have also had the example of an armed demonstration on the part of the Scotch-Irish of Pennsylvania in opposition to the firstnamed principle, at a time when the Massachusetts Independence “infant " was yet in its swaddling clothes.

Nor are these all. The early pages of American colonial history contain numerous like instances of resistance to arbitrary power ever since the time of the first great outbreak of the American spirit in opposition to oldworld traditions and oppressions which took place in 1676 in the revolt of the English Nathaniel Bacon and the Scottish William Drummond and their followers against the royal government as then administered by Governor Berkeley in Virginia.

Let us now consider another of these vital principles of human liberty, one in the development of which Americans boast themselves as being foremost among the nations of the world,— that is, liberty of speech and the freedom of the press.

This principle was, perhaps, first effectively contended for and successfully established in the hearts of the American public twenty-six years before James Otis's speech at Boston, in the trial of John Peter Zenger, a printer of New York, and it was then done chiefly by the eloquence and persistence of the Scottish Attorney-General of Pennsylvania, a man named Andrew Hamilton, who was aided by two Presbyterian lawyers of New York, James Alexander and William Smith. Hamilton was the chief actor in this affair, which has been cited by Gouverneur Morris as the beginning of American liberty, and no early moulder of public opinion on the questions involved in that struggle deserves a higher place in the affections of the American people than this Scotch attorney, the first "Philadelphia lawyer" to give that appellation international renown.'

The occasion of his appearance was a memorable one, and the incident is not unlike that narrated by John Adams in telling of the argument over the Writs of Assistance in Massachusetts; the scene in this case being the highest court of the neighboring colony of New York, and the leading actors the chief justice and attorney-general of that province with the aged and fearless lawyer from the Quaker colony. Its action took place on August 4, 1735, and the

incident is narrated at length in a pamphlet issued soon afterwards by two of the defendant's attorneys. Zenger's defence was undertaken by the Presbyterian Junta, which later became so famous in the Revolutionary history of New York.'

Zenger was the publisher of the New York Journal, and had printed in its columns some strictures on William Cosby, the royal governor of the province. These criticisms were for the most part true, and for that reason very unpalatable to their subject. As a warning to others, as much as for his own offences, Zenger was arrested. It was proposed to deal summarily with the prisoner, but public interest was aroused in his case, and it was seen that if he was convicted all hope of free speech would for the time be gone. As the public became interested, the authorities became determined and harsh. In pursuance of his rights, Zenger's counsel made an objection to the judges who were to try the case, and they were promptly disbarred, while a lawyer was assigned by the Court to carry on the defence. When Zenger was finally called on to face a jury, the authorities were confident of making short work of his case, and of establishing a precedent which would crush out in the future what they termed "sedition." Through the instrumentality of James Alexander and William Smith, who were the chief spirits in a society known as the "Sons of Liberty," Andrew Hamilton was induced to appear as counsel for the prisoner. The fame of this venerable attorney, his standing at the bar, the prominent offices he had held, and his position as a member of the Pennsylvania Assembly, forbade his being treated in the summary fashion of Zenger's earlier counsel, so the representatives of the prosecution could do nothing but submit. They had hopes from the jury, and knew that the judges were with them.

The prosecution claimed that all the jury had to determine was, whether the publication which was scheduled as libellous had appeared, and that they had nothing to do with the truth or falsity of the libel. Hamilton demurred from this, saying he was prepared to admit the publication of the strictures, and to prove their truth, leaving the issue to the jury to be whether truth was a libel or not. He was overruled by the Court on the inferred ground that anything reflecting on the King was a libel. Hamilton then denied that the King's representative had the same prerogatives as the sovereign himself, and claimed the right of proving the truth of every statement that had been made in Zenger's paper. This the Court again overruled, and Hamilton then confined his attention to the jury, and made a glowing speech on behalf of personal liberty and the right of free criticism, which still ranks as one of the masterpieces of American eloquence. "His speech," says Dr. Peter Ross, whose account has been chiefly followed,' was productive of effect far beyond the limits of the court-room in which it was delivered, or the case in which it was used. It started a train of thought which fired men's minds, and did more than anything else to give expression to the popular desire for freedom." Hamilton admitted again the

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