DEBATES ON THE DECLARA- TORY ACT AND THE REPEAL OF THE STAMP ACT, 1766 Contributed by CHARLES H. HULL and HAROLD W. V. TEMPERLEY REPRINTED FROM THE gtmerican gii^tonal §mtw VOL. XVII., NO. 3 APRIL, 1912 w [Reprinted from The American Historical Review, Vol. XVII., No. 3, April, 191 2.] DOCUMENTS Debates on the Declaratory Act and the Repeal of the Stamp .let. 1766 The following reports of debates are printed partly because of their intrinsic importance and interest, and partly as a means of drawing attention to an endeavor in which the Department of His- torical Research in the Carnegie Institution of Washington is at present actively engaged. As has been made known to some readers by the annual reports of that department, it has for some time been making preliminary preparations toward a compilation to be entitled American Proceedings and Debates in Parliament. This will include, on the one haii^, the items relating to North American affairs prior to 1783 contained in the Journals oi the Lords and Commons of Great Britain, the Scottish Parliament, and the Lords and Commons of Ireland ; and on the other hand, the best texts of the various debates on American subjects which can be obtained by careful editing of all existing original materials, printed or manuscript. Besides such manuscripts in the Public Record Office and the British Museum as, by the kindness of Professor Charles H. Hull of Cornell University and Mr. Harold W. V. Temperley, of Peterhouse, Cambridge, are presented in the following pages, the managing editor of this journal is warmly desirous to learn of all manuscript debates in less con- spicuous public repositories or in private hands, which contain any matter bearing upon the history of America before 1783. Informa- tion regarding such manuscripts will be cordially welcomed. Apart from materials preserved in England, it may be useful to mention the probability that others, not known to the editor, may be existent in America. Thus, it has lately been discovered by him that a manuscript volume in the library of the Massachusetts Plistorical Society, which had hitherto escaped careful examination, contains a most valuable record of proceedings and debates of the House of Commons in 1628-1629, while another contains a similar re- port for 1673-1674 and for 1678-1679, which can be proved to have been written by Sir Edward Dering, member successively for East Retford and Hythe. This record contains notes of proceedings during a dozen days which are omitted from the printed journal. In the Library of Congress, again, there is, in the Division of Manu- scripts, a set of 45 volumes of Irish parliamentary debates in short- (563) 564 Documents hand witli 37 volumes of transcri|)ts, constituting apparently much the most important record of debates in the Irish House of Com- mons from 1776 to 1789, aside from those in the printed Parlia- mentary Rcf^xstcr} Also, there are of course many transcripts made by George Bancroft from manuscript reports in England, preserved in the New York I'ublic Library. Of the reports herewith presented both relate to the same epi- sode in American history, but the first is a record of a debate in the Commons on the Declaratory Act, while the second records a debate in the Lords on the re()cal of the Stamp Act. The first, obtained by Professor Hull from the Public Record Office, Treasury Papers, year 1766, bundle 2,J2, is in the handwriting of Grey Cooper, who in the preceding July iiad become a secretary of the Treasury and in January, 1766, had, as a new member, taken his seat for the city of Rochester. The provenance and character of the second are suffi- ciently indicated in Mr. Tcmi)erley's introduction. It should per- haps be stated that, as the te.xt has come to us in a form marked by extreme abbreviation, the editor of this journal has thought fit, almost as if he were dealing with shorthand, to make the record easily in- telligible by expanding abbreviations. Grey Cooper's manuscript requires no such treatment. By way of explanation of both pieces, it may be useful to remind the reader tliat Parliament reassembled January 14 and that on that day Secretary Conway presented to the House various letters, peti- tions, and other papers relating to the disturbances in America caused by the passage of the Stamp Act.- These papers, with others of a similar character presented on the 22A, the 27th, and the 28th of January, were referred to the Committee of the \\'hole House and on January 28 were taken up by that committee, which sat from eight to ten hours on almost every day from that time until February 21, when the seven resolutions which constituted its report were completed.' On February 3 began the debate in committee on the first of these resolutions, introduced by Conway.* This debate, ' See the note on these volumes by Professor Marcus W. Jemegan in the English Historical Review, XXIV. 104-106. 'Journal of the House of Commons, XXX. 447-451. * Ibid., p. 602. * " That the King's Majesty, by and with the consent of the Lords spiritual and temporal, and Commons of Great Britain, in parliament assembled, had, hath, and oi right ought to have, 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." The first three resolu- tions are copied by Grey Cooper, in substance, at the beginning of his report, but are omitted below. Debates in Parliament 565 which is the one here presented, continued until nearly four in the morning, when the resolution passed with but few opposing voices. This resolution, when taken up by the House itself, February 24, was also the subject of some discussion, since, upon its second read- ing, a motion was made for its postponement, but after a debate the motion was lost and the resolution was adopted. On February 26 the bill for the Declaratory Act was brought in, and, without further debate, it was passed on March 4. No report of the debate here presented is to be found in the Parliamentary History of England,^ but a brief summary of it is given by Bancroft, drawn, as he states, from the report made by Charles Garth'' to South Carolina, February 9, 1766.' A much fuller account of the proceedings of the committee is to be found in a report addressed by Garth on i\Iarch 5 to the three delegates to the Stamp Act Congress from ]\Iaryland ; this report has lately been published in the Maryland Historical Magasine} The Declaratory Act and the act for the repeal of the Stamp Act were received by the Lords on the same day, March 5. The discussion of the disturbances in America had been going on in that house since February 10. The Declaratory Act reached its second reading in the Lords on ^larch 7 and passed on jNIarch 13. On March 11 the bill for the repeal of the Stamp Act was read for the second time and the debate presented on a later page by Mr. Tem- perley followed a motion to commit it. L Genl Con-vay moved that I glory that I have not advised the sending a force there. The Americans irritated by repeated Blows in their Trade and Property. New Modes of Taxation always irritate. Lumber, Melasses, Swarms of Cutters, exhausted by the War, in debt. We had just paid their Debt and then called upon them to contribute to ours. I think an internal Tax false in its principle and dangerous in its consequences. Mr Doudesivelf seconds it. Mr Stanley^" I wish to see the whole E.xtent of what I am doing wr." this Motion be only to give a specious Appearance to the Xeglect ' The account of the passage of the Declaratory Act. given in .Almon's Debates ■jnd Proceedings (1772) and in Debrett's History. Debates, and Proceedings VI792), is identical with that in Cobbett. * Charles Garth, member for Devizes, was agent for the colonies of South Carolina and Maryland. ■Bancroft, History of the United States (Boston, 1858), V. 413. ^ Md. Hist. Mag., VI. 291—302. * William Dowdeswell, chancellor of the exchequer, M.P. for Worcestershire " Hans Stanley, commissioner of the Admiralty, M.P. for Southampton. " Whether. AM. HtST. REV., VOL. XVII. •J?. 566 Documents of excrcisiiiR tlic Ri(»ht or the first Step towds the enforcing of it. In support of my former opinion some have reasoned as if the first Planters had recovered their State of Nature. This Doctrine mischievous to the Colonies. No British Subject can renounce his Allegiance, with respect to Representations wc are not Nobles: not feudal Tenants, not con- fined to a Profession but open to all Professions. The Commercial and landed Intst concerned in the Welfare of America: We have shewn them always .Attention. Copyr" nor Manufr not represented no more than the .American. No hardship upon cither. Rvery Man has Life and Liberty if he has not Property, if you rescind the BorouRhs you make an OliRarchy, if you throw them into the counties you will have no quiet Election, 80 candidates in Cornwall. Mr St John in his arRt on Ship Money argues that the power of laying Taxes and Laws are always in the same Legislature. If we have a seperatc Power as Representa- tives why not tax all but the Peers by ordnance. This a novel Doctrine I It was always talk'd of during the. War. Mr Legge" pointed out a Tax as a Cdcam of Comfort under our distress to support their army, reed with full approbation. My Principle is that my Country is sink- ing under a Burthen which she cant bear without assistance. If this be only a specious Preliminary we only deceive ourselves and shall in cfTect divide America. I am persuaded that enacting Laws and laying taxes so entirely go togr that if wc surrender the one we lose the others. The Americans have not made the futile Distinction between internal and external taxes. It would be arbitrary to raise the one if we ought not to raise the other. Massts Bay Resns, on Octr 1764. enact[ing] that the Courts shall proceed as if the .Act had never passed, is an Act of inde- pendant Legislature. They have exceeded what this House has ever done Meeting in a federal Union not to be dissolved by the Crown. They will soon become more useful Allies to France than to you as appears from the papers. Respect may continue but Obedience ceases, if the House cd do so frivolous an -Act as to vote the Right and repeal the .Act : The Repeal will not remedy the Disorders : They will argue Repn. further on your own .Admissions. All their Petitions are Insults on vour authority. No Resemblance to this and disputing your Juris[dictio]n. They have put the Mother Country under an Interdict and forbid Imports from hence. j1/r. YorUe^* I consider this as the Way of Proceeding most con- sistent with your Dignity separating the Q of Right from that of Ex- pediency. I shall be ready to repeal if I see Impracticability and will make free with my former Vote upon further Lights. The Roman Senate said inconsulto statuimus consultius revocamus. I wd. repeal not wantonly because it is asked, not timidly because it is resisted, but on being convinced of the Inexpediency, but I am clear on the Right. The sovereign Legislature must be supream. The Privileges of Lithuania and the Subdivisions of Holland are destructive of each country but we are governd by one Plan of uniform .Authority. The Colonists carried with them the Laws of their Mother Country. They wanted Protection and owed .Allegiance, they carried with them their " Copyholder. " Henry Bilson-Legge, chancellor of the exchequer during most of the Seven Years' War. "Charles Yorke. attorney-general, M.P. for Reigate. Debates in Parliament 567 personal Rights but they wanted the powers of Justice and of Mercy till given by the Crown. The Legislative Power of Parlt extends as far as the Power of the Crown : you have limited the Succession of the Crown, established martial Law, given Modes of Trial, and have com- municated the Jura Civitatis to foreigners (wch the Crown cannot do) in all parts of the Kings Dominions. Ireland had been lost in the civil Wars and at the Revolution but for the Supremacy of the Legislature. At the Revolution, you gave the Crown of Ireland, you abrogated oaths. establish'd new one's, absolv'd by 3 and 4 W. 3. from Penalties encured by Irish Acts for Debts to the Crown, you sold the forfeited Estates to be paid into the Exchr in Engld by 10 W. 3. established an Army to be provided for annually there, if they exceeded their Number you would say it was contrary to Law. The Proceedings agst. Mr. Moleneux" in this house, appd a Comte to examine the Book, voted them pernicious- and addressed the King to enquire after the Author. These all since the Revolution. James I. was anxious that Ireland shd hold only of the Crown and advised in vain with Mr. Selden upon it. I Ph. and M. The Parlt represent the whole Body of the Realm and all the Dominions of the same. The Colonies not like those from the North that great Seminary of Nations, they come out to seek Establishts without any Reference to the State they left, nor like those of Greece, they only carried with them only Respect and often turned agst. the Mother Countries as she rose and fell ; but yours are more like of Rome going out under a decree of the Senate non suis radicibus petuntur sed a civi- tate quasi propagati sunt jura et."° The great Virginia Charter comprehends the whole, they are licensed to deduce a Colony. The others are derived out of it. No distinction between the several Sorts of Charter; the Tenures are not from the Crown but from the Soil within the Realm. The Legisl Power given to the Colonies is to be exercised after the manner of corpns in England. The Law can grant no other. He cannot grant away any part of the Supream Legislative, are the Privileges of Pensylvania less than those of the Colonies? The Exempt [ion] there expressed is implied in all the rest." New York 1713. Bill to raise a Revenue was prepared by Sr. E. Northey and Sr. R. Raymond. In 1716" on the Disorders in Carolina Lord Stanhope prepared a Bill for resuming the Judicial Powers in the Charter Govts and was twice read. In 1625 the first Virginia Charter vacated and on petition of the Agents they desired Exemption from Impositions except by Assembly and were answered that they shd not unless by the King in Parliament, !. c. not to the King '"William Molyneux, author of The Case of Ireland being bound by Acts of Parliament in England stated (i6g8), condemned by the English House of Commons. Journals of the House of Commons, XII. 331. '" Qu. ? non suis radicibus ponuntur sed a civitate quasi propagatae sunt jure et institutis patriae. "The clause in the Pennsylvania charter of 16S1 reads as follows: "That Wee, our heires and Successors, shall at no time hereafter sett or make, or cause to be sett, any impossition, custome or other taxation, rate or contribution what- soever, in and upon the . . . inhabitants of the aforesaid Province . . . unless the same be with the consent of the Proprietary, or chiefe governor, or assembly, or by act of Parliament in England ". " 1715. See Miss L. P. Kellogg in the American Historical .Association's Annual Report, 1903, I. 309-310. j 568 Docunienls without Parlts. In the case of the Massachusets their first Charter gave no power of taxation, in 1684 vacated, held to be legal: applied to have it rcvirscd: the Sr. G. Trcby before Lord Somers Holt and Pollexfen loKI thcni that if they took their old Charter and imposed Taxes and calt'd assemblies their Charter might again be repeal'd. This proves that all those powers are derived from the Crown. Want of Kepres. is Consion of liquity of Right. Preamble 10 the Act of Durham. The old Subsidy Acts have express Words to bind all the King's Dominions. The Exceptions are not want of Representn for some actually repre- sented as Wales, the Northern Counties. Exemptions of Individuals then usual tho' not always allowed. The Subsidies were then con- sidered as Crown Revenue: the Appropriation Clause was introduced since the Revolution. Why are Copylirs excluded on a speculative Dis- tinction: Why lay any tax in the Colonies? In 1672 on the Conference on an Impost Bill," Tunnage and Poundage are considered the same as Impns" on Land tho' then material the Lands not being concerned in Merchandize. In 1755 Complaint of the Neglect of Pensylvania to the Council as a Breach of Trust. The Language of the Resolutions is subversive of all legislative Authority. In Politics as in Religion an Offence agst one part is an Offence agst the whole. Unless you assert your legislative Authority no friend will trust you no Enemy will fear you. Mr. Bcckford." L. Coke says in Dr. Bonnoms Case 1 18 that the common Law in many cases controuls Acts of Parlt." The Cases of New York and Carolina were both on their refusal to provide for Neces- sary Services. The Case of Jamaica was the Parlt or the Assembly and if the Assemblies will not the great controuling Power shall. Ireland is a conquerred Country, Pensylvania a Grant to a private Man. The dernier Resort of the colonsts is to the K. in Council. I positively deny the Right. Are the Colonies to be taxed by their own assemblies and Parlt. Mr. Nugent.'^ I am sorry that the American who has carried the Privileges has left behind him the obligations of Britons; he is not entitled to one without the other: if he is not obliged to pay obedience wherever he goes he is an alien : he is indeed conquered. Your Resolu- tion ought not to be so generaly. Specific words shd point out the specific cause of Resistance. GcnI. Comuay. I have no doubt on the Right because I cannot dis- tinguish between internal and external cases but I doubt of the Justice, Equity and Expediency. The Americans have denied the whole and I say that we have a right to bind them in all. Mr. Blackstonc." I approve of the Proposition because it is con- ceived in the most general and universal Words that can possibly be imagined. As to the Objt. of Representations if we taxed only in our representative capacity the Commons wd have the sole right of taxing for we are the only Representatives: but the other Parts of the Leg. must consent or our Vote has no Effect. Magna Charta and the Stat. " See Pari. Hist., IV. 480-495. " Impositions. "Alderman William Beckford. M.P. for the City of London. "8 Coke's Retorts, ii8a, case of Dr. Bonham. =■ Robert Nugent, M.P. for Bristol. " Sir William Blackstonc, author of the Commentaries, M.P. for Hindon. Debates in Parliament 5^9 of E. I. and E. 3. refered to in the Pet. of Right say that Taxes are to be laid per commune consilium. No Tallage shall be imposed without Consent of Nobles, Knights, Burgesses and other Freemen of the Realm. Pet of Right without common Consent by Act of Parlt. The Commons have the sole Right of proposing and regulating the Mode because perhaps tliis is a temporary Body and, not so influenced by the Crown. In the Conferences 1671 the Managers directed not to enter into the Question and compare it to the Judicature of the Lords.*' They did not insist upon their Representative Capacity. It is the Representative of the Nation and not of Individuals. The Counties Palatine bound a large Body of Freehds a i6th part of the whole — the Towns of Birmingham and Manchester: if we were now to form a new Constitution Reasons might be given for admitting Leasehds. and I had rather have our old Constitution. It is a Contradn to say that the inferior must send Repres. to the superior: it then becomes a part of that superior and is both Subject and Sovereign. The Colonies are not part of the Realm but of the Dominions not bound unless named because they have Legislatures of their own. Sovereignty and Legislature go always together. They may dispute one Law as well as another. All the Dominions of G. B. are bound by Acts of Parlt — Calais, Guienne, Jersey, Guernsey, Ireland — and never contended that they must be represented. Calais only represented. H. 8 capriciously gave them Representatives but he gave none to others. Calais bound by Subsidy Acts before that time. In the Usurpation the House of Commons never pretended that all must be represented but declared that all in Ireland and Jersey shd be bound by the Representatives of this Kingdom tho' they declared that all right of Govt belonged to those Representatives. This was in 1648. In 1650 on passing the Act of Navigation declared all American Colonies subject to England. Preamble to the same. In the Subsidy Acts Calais, Guernsey, Jersey, Guianne, are expected as necessarily from all the King's Dominions. In 1621 and 1623 free fishery declared (Journals) objd that it ought not to make Laws for Virginia because it encroached the K. Prerogative pass'd and resolved 17th March 1763. 5. G. 2. c. 7. Paper Currency. Q. Ann's Act for cutting down trees. All Penalties are Taxations, the Stamp Act is but a penal Law as almost all Revenue Laws are. The Law for quartering Soldiers is a Tax. Post Office Act voted by the Comee of Ways and Means and is an internal Taxation. Mr. T. Pitt^ The first Settlers owed obedience, at what distance did it cease, but better deny the Right than assert it and say that in fact we have it not whatever we say or that we dare not. does the Expediency arise from their Resistence. Mr. Htissey.'" The Colonies are annex'd unalienably to the Crown. The Sovereign power has a right to permit the Departure of the Sub- jects on whatever Conditions it pleases and if they make no Conditions he carries with him the common Law. To that he owes Obedience and receives Protection. The common Law says he shall be bound by an Act of Parlt. The Fact was K. J. i. assumed all Sovereign Power. The Lawyers then thought he might give them what Laws he pleased. It was said so in this house by the Secy of State. The Charters gave powers a King of Engd cannot. Hence arises the obscurity about the -''Pari. Hist.. IV. 4S0-495. == Thomas Pitt, M.P. for Old Sarum. '" Richard Hussey, M.P. for St. Mawes. 5 70 Documents Constitution of the Colonics, the mistake w.is that no part can delegate its Supremacy witliout Consent nf the others: It miglit have been done by Act of I'arlt ant that ever was and this was the Grievance. The \'irginia Pamphlet States the .Xct of Navn. as a Tax. The Americans believed St. Act wd be repealed: have they been deceived? Every Country wd do the same. Is it difficult for Ministers to get Petns agst Taxes. I opposed the Tax upon Beer, could not I first Comr of Treasy have got Petns from all the Mughouses in London and gained Popularity, but my Dissent was precluded by the Wisdom of Park. As to what he said of using force, has he not order'd all the Govrs. to send to Genl. Gage for a military force. We must account for it by knowing tliat Genl Gage had none to send. So resolve not to give up the right but for fear this shd. do no good in .America he thinks the Act contrary to Equity. No Cutters sent to W. Indies, no orders given to interrupt the Spanish Trade. No power in the original Charters to call assemblies. The learned Gentleman did not quote any proof that the Right of raising internal taxes exclusively was ever recognized. The Right to tax has been recognized and the same right has been recognized in the City of London. 8 W. 3. forfeits Charters if the due means be not taken to punish Piracies. The printed Case for Mass. Bay in 1715 desires to be put on the foot of all other in Englad. and desires that their Charters may not be taken away unless they have been guilty. I do not know that any Requisitions to raise Money: certainly not by Park then by a Secretary of State, does he consider that all Loans and Benevolences except by Consent of Park is illegal. That Doctrine of Requisn may one day put the King out of the power of Parlt. One Gentleman has compared this to a poetical fiction and a Question of Theory: We have then sat too long. If you have no right the Repeal is a necessary Consequence and I had rather agree in this than meanly attempt to deceive Mankind into a Belief that we mean to establish a Right we avow we do not mean to exercise. The Rebellion of 171 5 was bee an Act cd not overule the divine indefeasible Right of Kings. .Xt no time were so great commercial taxes given to the Colonies as in the two years of these taxes. I wish the Law were more wrong than it is that Eng. might give way to Justice and Reason not to force and Resistance. Mr Pitt. If Liberty be not countenanced in America it will sicken fade and die in this Country. I rise to second the Amendment. It is "1715- "Jeremiah Dummer, Defence of the .V«f England Charters (London, 1721). " George Grcnville, M.P. for Buckingham. Debates in Parliament 573 absurd to vote the Right in order not to exercise it. If they have a Right they have it on all Grounds, on Compact amongst them : there is not a Man readier than I am to punish the Violence but redress the Grievances. It imports the Dignity of this Country to see some of the Offenders brought to Punishmt. I think them deprived of a Right: but by an authority they ought not to question. The first Settlers carried with them every Right consistent with their Situation and the Parit has not a right to lay internal taxations. Repn. and Taxation go together and always have in this Country. Counties Palatine did tax themselves and Writs of Requisition were sent to them from the Crown. In the Patent for erecting Lancaster it is reserved. An Act of R. 2 affirms the Exception in favour of the Counties palatine the it includes the Cinque Ports. Not look into foundations ! What wd this doctrine have con- cluded when prer. was thought fundamental. Machievel says look often into your Principles: What else produced the Reformation? What revived Libertv in this Country? In the time of E. 2. the Clergy taxed themselves tho' the great Clergy sat in the Legislature. The Conven- tion who laid the Taxes were not the Legislature. In the Conference 1671 the Commons say the Clergy have a right to tax themselves. The upper house never alter the Acts of the lower nor does Parlt ever alter them. It proves that Legislature and Taxation were seperable. To impose the Tax belongs to the Legislature but this house only grants the Money. That is the ground-work on which the Legislature proceeds. Your first Act is to vote that a Supply be granted and till that is done the whole Legislature stagnates. The Speaker presents it as a Grant of the Commons. America was of mean Beginnings so was Rome but the scanty fountain is now become a large Stream covered with Sails and floated with Commerce and nothing should prevent my using an Effort bevond my force to avert the Dangers of such an express and full Declaration. I think you have not the Right. I mean to waive it by Silence and the most magnanimous Exertion of Power is often in the Non Exertion of it. I wish this to be an Empire of Freemen: it will be the stronger for it and it will be the more easily governed. Let the Premises and Consequences agree therefore, decline the Right, do not let Lenity be misapplied nor Rigour unexecuted: take not the worst of both. The Colonies are too great an object to be grasped but in the arms of affection. Sr. F. Norton.^'' He assumed the Proposition that Taxation and Repres. go together. I thought that Argt had been beat out of the house. There never was a time when that Idea was true. It is not true before the Norman Period: Men were call'd to the Council by virtue of Tenure. No House of Commons till H. 3. In Magna Charta a Petn. to the Crown that Taxes [should] not be levied without the Consent of the whole of the Great Council. They claim'd the Right common to all Legislatures that Taxation and Legislation go together. Magna Charta gi'^es and grants and yet it was only declaratory, so that the Give and Grant of the Commons proves too much. The Clergy taxed themselves because the Popes exempted the Clergy from Taxation, I mean the beneficed Taxation [Clergy?]. Their Lands were exempted and not their Goods and that introduced the tenths and fifteenths instead of Sub- sidies. Exceptions in the Subsidy Acts not only for the Counties Pala- ^'' Sir Fletcher Norton. M.P. for Wigan. 574 Doc um en Is line ami tlic N'orthcrn Counties Ik-cs tlic latter liorc large I'.iirthcns as frontiers and bcc the latter taxed themselves and thereby answered the same purposes. Lord Coke, Lord Ch. J. Anderson, and in Meeting of the twelve ludges, it has been determined that all the Kings Dominions shd be subject to the Laws. I think the Declaration unnecessary but if it must be the more general the better. If you follow the Dccln by a Repeal it is a Mockery of Parlt. The assembly of Boston is on a better footing, they will enjoy their Declaration, we shall not. I wd receive the American with open arms but I would receive him penitent and if something is not done to support this Law it will be the last you will pass upon North .•\merica. II. The following reixjrt of the debate in the House of Lords on the second reading of the Repeal of the Stamp Act is drawn from the Ilardwicke Papers in tlie Hritisli Museum, Add. MSS. 35912 (Hardwicke Papers, vol. DLXI\'., fT. 76 ct seq.). Miss Kate Hot- black, B..\. of Dublin University, has greatly assisted the writer in the deciphering of this manuscript and in commenting on it. Cobbett in' Parliamentary History. X\'I. i8i, note, states that these debates have been nowhere preserved. It seems well there- fore to deal with this report from the point of view, first of its authenticity, secondly of its value. I. Authenticity. Cobbett printed several of his debates from the Hardwicke Papers,'" but had not access to this one. The reason is fairly obvious: this report was taken down by Hardwicke when the House was cleared of all outsiders, and was no doubt carefully locked up afterwards by him. Of its genuineness in the sense of being Hardwicke's own report of the debate tliere can be no doubt. It is unmistakably in his own handwriting and has all the marks of being a report written during the actual debate. The handwriting is hurried, there are mistakes, abbreviations, some missing and some illegible words. The writing is on both sides of the paper and blotted as though with hasty folding. How far it genuinely repre- sents the views of the speakers is perhaps a fair question. Some- times there is only a summary, sometimes a few broken and detached sentences, sometimes a fairly full report. On the other hand, wc have in another instance a means of finding out if Hardwicke was a good reporter. Hardwicke's report of the speeches at Pitt's last cabinet has been published and may be compared with Newcastle's.'" **£. g., the debate of February 10. 1766. in the House of Lords on the power of the king to make laws and statutes to bind the colonies, and the debate of Decemlwr 15, 1768, in the Lords on Discontents in .America, both printed in Cob- bett. Parliamentary History, XV'I. 163—177, 476—477. "English Historical Rciicu; XXI. ijo-132. 329-330 (19061; extracts pub- lished by \V. Hunt and by myself. Debates in Parliament 575 A comparison shows that, while Newcastle's is the more length)', Hardwicke's is the more real and vivid, and that there is no reason to suppose that the latter missed anything vital or essential in the speeches which he abbreviates. On the whole, therefore, it seems probable that the Stamp Act Debate is adequately reported by Hardwicke. 2. J'aluc. The real advantage of this report is that the Lords spoke behind closed doors and therefore could express their minds freely. The Chancellor, Lord Xorthington, openly says, " As the House is cleared and none of the House of Commons here — I will tell your lordships ", etc. The Lords shunned conflicts with the House of Commons in this era, and the Chancellor gives an inter- esting explanation of why they did so. Yet the Lords were, in a real sense, the rulers of England at this juncture, and this debate undoubtedly reveals their true feelings at this momentous crisis of policy. It is of some interest that the speech of Lord Shelburne here given, like his speech on the first reading, was silent on the question of legal right, and emphasized the commercial side of the question. It appears also that he spoke in this case as the direct mouthpiece of Pitt.^^ Newcastle's attitude on the Stamp Act ques- tion is consistent throughout, and he distinguished himself at least as much by his knowledge of commerce and by his disin- terested conduct on this occasion as upon any in his career.^'' Lord Camden's argument follows the same lines as in his speech on the Declaratory Bill*" but relies less on natural right. Lord Mansfield is much more interesting than in his speech on the first reading, because his words are exceedingly forcible, and betray those real feel- ings which were so often disguised in his public utterances.*^ No speech is more emphatic on the gravity of the decision to the unity of the empire. The whole tenor of the speeches, and the fact that at least one unusual speaker intervened specially in the debate, show that the Lords at least were thoroughly alarmed by the crisis. It is also remarkable that they divined the real nature of the opposition and resistance created by the Stamp Act. Only two of the speeches deal with the matter from a purely legal standpoint, and in one of these legal speeches Lord Camden says, " the true connection between '* See Fitzmaurice, Life of Shelburne, I. 3J2-323, 364-377. 384-387. Shel- burne's speech on the first reading is in Parliamentary History, XVI. 165—166. ^ Newcastle's assertion that the trade of England was declining everywhere except in America is supported by Public Record Office Trade Bundle C. O. 388, 48 ; for his general attitude, see Winstanley, Personal and Party Government (Cambridge, 1910), pp. 244-264. "Pari. Hist., XVI. 177-181. *' Mansfield's speech on the first reading is in Pari. Hist., XVI. 172-177. 576 Documents the colonics and Great Britain is commercial ", wliilc in the other Lord Mansfield sums up his argument by saying, " The Americans may think they have a right to an open trade and estahlisliment of manufactures. What tlien would become of us?" A perusal of the summary of the debate in both Houses, given in Parliaweiilary history, XVI. 193-206, shows that while the arguments of the Com- mons are fairly reproduced, those of the Lords are imperfectly given. In fact the judgment of the Lords in the crisis was more accurate than that of the Commons and, by concerning themselves mainly with the commercial question, they anticipated the view of modern historians." H. \V. \'. Temperley. [Extract from Cobbctt's Parliamentary History, W'l. i8i, for March II. 1766. " The order of the day being read for the second reading of the Bill, intitlcd, " An Act to repeal an act made in the last session of parlia- ment, intitlcd. An .Act for granting and applying certain Stamp Duties, and other duties in the British colonics and plantations in America, towards farther defraying the expences of defending, protecting, and securing the same, and for amending such parts of the several acts of parliament relating to the trade and revenues of the said colonies and plantations, as direct the manner of determining and recovering the penalties and forfeitures therein mentioned:' " Then the said Bill was read a second time, and it being proposed to commit the Bill, the same was objected to, Content ~2i '■ Proxies 32 ; Total 105: Not Contents 61; Proxies 10; Total 71: Majority 34. "After a long debate thereupon, the question was put, whether the said Bill shall be committed? It was resolved in the affirmative. "Speakers on the second reading: For the Bill. D. of Newcastle. Duke of Grafton. D. of Richmond. Earl Poulet. Earl of Pom fret. Lord Chancellor. Earl of Shclburne Lord Camden. " The speeches of these noble lords have not been anv where per- served ".] "The voting in the Lords on the Repeal, ii March, 1766. was 105 to 71. Of the latter 19 were placemen, who were presumably influenced by the king. See Winstanley. p. 307. On the subject of court influence in the Lords see also Fitz- maurice. Shclburne, L 366. Against the Bill. I. Earl of Coventry. 2, 3- Earl of Sandwich. 4 5- Earl of Halifax. 6. 9- Lord Botetourt. 7- 10. Earl of Suffolk. 8. 12. Lord Lyttelton. II. M- Lord Mansfield. 13 16. Vise. Townshend. 15- 17- Earl Temple. 18. Duke of Bedford. Debates in Parliament 577 Monday in a Committee upon the Bill declaring the Right etc. Preamble read. Lord Dartmouth. This Bill My Lords is of great and National Im- portance. It declares a Right to Exist in the Supreme Legislature of Great Britain which has been disputed all over America. The Tendency of the Bill in the Light I consider it is to restore Tranquillity to America and Great Britain. In the Observations I mean to make at present I will confine myself to the Preamble which has been just now read but I hope that in both the Preamble and Enacting part Noble Lords will all give their Assist- ance in making the Bill as perfect as possible as it is a Bill of so great Importance. It has been said by a Noble Lord that the Preamble is founded on a Mistake, that is such part of it as says that Several of the Assemblies have taken on themselves to assert or assume their Sole and Exclusive Right of Taxation which, it is said, is not a Fact warranted by the Papers on Your Lordships Table. I confess, my Lords, from the Inaccuracy with which the American Resolutions have been penned it is very natural that a Difference of Opinion should arise upon the Import and Meaning of these Resolutions, but yet I can't help saying that my Opinion is that this Preamble, as it at present stands, is well warranted upon the true and genuine Con- struction of Resolutions of the Assemblies of Virginia and Pensylvania. These Resolutions assert that they have the Exclusive and sole Right to lay Taxes on the respective Provinces, but it occurs to me that by the Insertion of a few Words all Disputes will cease. I therefore move after the Words " claim to themselves " that the Words " or to the General Assemblies of the same " may be inserted. Preamble amended by inserting these Words. Enacting part read . . . Lord Marchmont. I have reason to hope by the Appearance of the House that Nothing need be said in Support of this which I will call the Enacting part of the Bill. [The] Noble Lord has said that there is a Mistake in this part of the Bill and supposes it to have been copied from a Precedent which had No Resemblance to this, but I hope to shew Your Lordships from the Journals of both Houses that the cases are the same. In order to do that, it is necessary to give the History of that Matter. In the year 1697 7 Jan. a Committee of the House of Lords was ap- pointed to enquire how Appeals were brought from Ireland, on the House of Lords there" claiming a Right of Appeal to them. In 1698 Plantation of Ulster with Bishop of Derry. But at this Time Ireland did not only dispute the Jurisdiction of Your Lordships as a Court of Appeall but likewise the Authority of [the] Legislature of this Country to bind that. And therefore as soon as House of Lords had asserted their Jurisdiction the [English] House of Commons on Account of Molyneux's Book and Resolutions of House of Commons in Ireland thought proper to assert the Jurisdiction of the Legislature. And made a Representation to the King which may be found in the Journals. This Address prevented the Irish from going any further, but upon the House of Lords finding that what had been done by them in the Bishop of Derry's case was not sufficient to prevent the House of Lords " /. e., the Irish House of Lords. 578 Documents in Ireland from assuminf; the right of Appeal, a? in the year 1717 in Mr. Anneslcy's Case they did it again, the House of Lords then thought proper to go further than in the former Case, and therefore (Jrdcred a Bill to be brought in. History of that Bill as brought in by Judges, altered by Commons and passed by Lords.** The Bill [that was) past on this occasion [was] very like the present. [The] Noble- Lord objected that there is no Enacting Clause. At the time of the Revolution this Objection was taken when our Great De- liverer was declared King of this Realm. Every Lawyer knows that the word Declare is tantamount to Enact. In the Debate on [the] Revolution an Attempt was made to insert the Word Adjudge (following in this the Idea of the Civil Law) but it was thought proper to reject this word as tending to avow in Parlia- ment a power of judging and determining in this .\rduous Matter. The.se were the Mi.stakcs supposed to be in the Bill which willing to give Your Lordships My Idea of. As to the present Bill, does not look at it in any other Liglit but as a preliminary Measure — has always thought that Administration must go farther and has given his Sentiments on that Head to a Noble Lord in Administration. Lord Mansfield. When [he] made Observation last Friday — declared that He would propose No Amendment. After paying great .■\ttention to Noble Lord my Doubt still remains. The Object of the Bill as it at present stands is not [to deal with] persons denying the Authority of British Legislature, which thinks ought to be the Object. .Asks Lord M[archmont] whether Irish in 1698 in the Bill sent denied [the] Authority of Parliament. Ans. 12 V[ol.] Journals of House of Commons page 331 the whole proceeding may be seen — the Authority of Parliament was there denied.** As to what Noble Lord says that Declare and Enact are synonimous, agrees with this Lord, but My Objection is that this Act enacts Votes to be void. Now that I think unnecessary. Duke of Nni'castle reads the Declaratory part of the Act made on Occasion of Ireland's behaving in same Way as America — the Enacting or Declaratory Words in the Irish Act [are the] same as those in the Act at present before Committee. [He] could have wished that this Question had never come before House but it was the fault of Americans who by their Resolutions and their opposition to Law first made the Question. [He] has heard with great pleasure the Arguments on the Subject of Right — thinks the Supreme power must have a Right to bind its Subjects wherever they are by Laws and Statutes. Lord Temple has often declared his opinion that present Act Nugatory. The Act 7-S. W. 3 much stronger than the present. [He] reads -Act and afterwards Preamble. All the Provinces [that are] Corporations may forfeit their Charters — the Chief Justice of England their \'isitor. No Reason for this Act, the Americans will scout so will all the Kingdom but the Privy Councill. Your Lordships may for their Sake Enact it if you will. "See Pari. Hist.. VII. 642-64.1. "Commons Journals [of Great Britain], XII. 331. June 27, 1698. Debates in Parliament 579 G[overnor] Fauquier in a Letter received July 1757 sends the Reso- lutions of Assembly of Virginia. In August following Board of Trade makes a Representation to the King on this Head. On 6th September This Re-presentation referred to the Councill together with Resolutions of Massachusets Bay. On 8th of October Councill report that it was a Matter too high for Privy Councill to determine and was vv'orthy the Consideration of Parliament. When Parliament assembled not till December — and then not to do Business. The only reason therefore for enacting what is at present desired is to tell the Privy Councill what the Law of their Country is, which they ought to have known before. Duke of Richmond. Do not conceive why we're brought into a long Debate by what is absolutely out of Order. The Orders of Councill have been brought into Debate affectedly in order to lengthen the Debate unnecessarily. Let the Noble Lord move for a Day to take the Orders of Councill in this Matter under their Consideration and I'll second him — but let us not waste our time. No proposal made for Amendment — the Bill ought to be read through and the Committee to report it. Lord Pomfrct moves that Governors Judges and Justices of Peace etc. in America before they act may take an Oath acknowledging the Supremacy of Legislature of Great Britain and that a Clause to that purpose may be inserted in the Act. Question put whether such Clause should be added to the Act. Lord Sandys thinks the Clause informal — never saw an etc. in an Act of Parliament. Duke of Neivcastle moves that the Petition of JNIerchants of London trading to North America be read. Petition read. Duke of Grafton moves the Bill may be committed. Lord Coventry. I seldom trouble Your Lordships but in an Affair of such Consequence shouild think myself unworthy of a Seat in this House could I sit here without giving my Reasons for my Dissenting to the further proceeding in this Bill. The reasons He has heard for this Bill are all such as Nothing but Imbecillity and Impotence could adopt. As I can't find any Reason for the Repeal, will give your Lordships what I think a good Reason for not repealing it. You have come into a Resolution asserting your Right and at the same time you're doing an Act by which you give up that Right. I speak from Principle. I have not varied my thoughts on this Matter 3 or 4 times during the Dependance of the Bill. Duke of Newcastle. Have never varied my opinion during the Progress of this Bill and shall upon the present occasion give Your Lordships my Reasons for wishing the Repeal of this Bill. With Regard to the Commercial Interests of this Country — from [the] best Intelligence I can receive the Trade of this Country is declining in Every other part of the World but America. The Turkey Trade our Rivals the French have taken a great part from us. Our Mediteranean Trade is much lessened. Our Portugal notwithstanding the immense sums We have Expended on their account has been 5 So Documents dcminishing for several years past and is now in a state I'm sorr)- to see it in. [He] alludes to the London Petition and other Petitions to House of Commons and the General Stale of the American Trade from which (if Nothing else was considered) [there] would be sufficient to shew the Inexpediency of continuing the Stamp Act in America. Lord Satid-i'ich. Differs so totally with the Noble Duke in what He has said that lie chooses to take it up on his Ground. 1st. Jle thinks that the Reall Commercial Interests of this Country will be greatly attected if this Act repealed. The present Bill, the most destructive that Ever came into this House, has forced its way through another House by means of that Democratic Interest which this House was constituted to restrain. In this Assembly Men have a Seat by Birth not Election so that No Influence by Electors can be here used. [It is] Not enough to say you've a Right to lay a Tax — if you don't levy it. In order to consider the Matter fairly — State what the Americans expect from you and what they're willing to give in Return. The Americans want to get loose from the Act of Navigation. All the Complaints made against the ships stationed on their Coasts to pre- vent illicit Trade tend to this purpose. The Stamp Act [is] not the Object of their Sedition but to try their ground whether by Resistance they can get themselves loose from other Acts more disagreeable and detrimental to them. Till now I thought the Peace of Fountainbleau One of the greatest Acts ever done for this Countrj- — And that the Persons who Negotiated and planned it deserved the highest Honours from their Country. But if this Act passes I shall alter my Opinion of it. If the Increase of Territory is not increase [of] the Public Revenue we should give it up again in order to save the Expcnce of defending it. Does not France when She adds Alsace or any other conquered Province add to her Revenue by laying Duties or Taxes on such Provinces? But will America come to a Compromise in this Matter? Will She on our giving up the Stamp Act give up the Bounties and other Com- mercial Advantages they have from this Country ? Before I conclude allow me to declare it is my firm Resolution steadily to oppose this and Every other Mode of Partial and unequal Taxation. I have heard of Another Attempt intended to lay a Tax of this kind. If [the] Majority should be for passing this Act [I] will enter a public protest. Duke of Grafton. One Point that all agree in — that the Stamp Act as it now is [is] improper to Stand as a Statute. If the Dignity of Legislature is to be maintained it is not to be maintained by supporting a Law full of Imperfections and Absurdities. If the late Ministry had laid before this and the other House the Intelligence they were possessed of I really think this .Act such as it is never would have past. If not then It is much more proper now that it Should continue no longer, as the Americans who were then much disconnected are now totally connected on this point. It is computed that there are now loo.ooo Manufacturers out of Employ in Great Britain waiting for the Event of this Act. What must Debates in Parliament 5 8 1 be the Consequence of not repealing it? An Increase of Poor Rates. A Diminution of the Revenues of Excise. A Loss of the Great Debt from America to England. It is said that America is not taxed. I answer they pay Taxes in taking your Manufactures. In different Colonies they have various Taxes for internal purposes which in sotne of the provinces are very high. If however America is not sufficiently taxed, there are other Means by which they may be taxed — don't tax them universally. By that means you join them when you should keep them asunder. Lord HaHfax. [The] Noble Duke has not in the Course of his Speech pointed out any Defects of the Stamp Act. [He] knows none except as to the Admiralty Court, which might have been obviated if the present Administration had given proper Attention. If we repeal this Bill we give up the Dignity of this House and the Commerce of the Kingdom. If we amend it in the parts which want amendment we shall preserve both. Bv the Papers on your Table and by Accounts I have seen out Doors it appears that this Act will execute itself if the Administration had Spirit enough to enforce it. Instead of sending loooo Men to enforce I've alwayes [believed that] 2 or 3 20 Gun-Ships properly stationed would enforce it. Another Thing I would propose — to alter the Duty and take it off as far as relates from [to] clearing out or coming in of Ships and leave it to operate in all internal Cases which I doubt not would make it go down. But the Fact is, as it appears from the Papers on your Lordships Table, that it is not the Stamp Act that is opposed but the Authority of this Legislature. Blame has been thrown on the late Administration of which I was a Part for not laying the Resolutions of [the] American Assemblies before Parliament. [He] refers to the Order of Council on that Head which Shews that Several Members of Councell thought it improper to lay these Papers before Parliament, among whom I was one. I am against the passing of this Bill, for the sake of Every one of the Bodies of Men for the sake of whom it is pretended to be ushered in here. As to the Merchants they may receive a Present immediate Advan- tage by touching the Money at present due to them, but the Blow which will be given to Commerce will be felt by them and their posterity. As to the Manufacturers — Let them be Employed at the Expence of the Publick for the Advantage of publick till Things become more settled, which would not be long. As to the Americans. Take from them the Advantage of the British Legislature, they would in a Short time be totally ruined. Duke of Richmond. Thinks the Principle of the Bill absurd. That America should be Taxed. The Ballance of Trade with America is in our favour. [The taxing means] the taking away from them the Money with which She was to pay that Ballance. [It] has been said that Americans were returning to their Duty. How is that reconcileable with the Letters read this Day which say that they are now sending out Emissaries from Town to Town in order to spread the Discontent? *M. HIST, REV., VOL. XVU. — 38. 58 2 Documents [He] tliinks the N'oblc Lord [Halifax] has not at all justified himself for not laying the Papers before Parliament at the time the Stamp Act was under the fonsi