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lony, and illegal: that all force employed to carry such unjust and illegal attempts into execution, is force without authority: that it is the right of British subjects to resist such force: that this right is founded both upon the letter and the spirit of the British constitution.”
To prove, at this time, that those acts are unconstitutional and void is, I apprehend, altogether unnecessary. The doctrine has been proved fully, on other occasions, and has received the concurring assent of British America. It rests upon plain and indubitable truths. We do not send members to the British parliament: we have parliaments, (it is immaterial what name they go by,) of our own.
That a void act can confer no authority upon those, who proceed under color of it, is a self-evident proposition.
Before I proceed to the other clauses, I think it useful to recur to some of the fundamental maxims of the British constitution; upon which, as upon a rock, nur wise ancestors erected that stable fabric, against which the gates of hell have not hitherto prevailed. Those maxims I shall apply fairly, and, I flatter myself, satisfactorily to evince every particular contained in the resolution.
The government of Britain, sir, was never an arbitrary government; our ancestors were never inconsiderate enough to trust those rights, -which God and nature had given them, unreservedly into the hands of their princes. However difficult it may be, in other states, to prove an original contract subsisting in any other manner, and on any other conditions, than are naturally and necessarily implied in the very idea of the first institution of a state; it is the easiest thing imaginable, since the revolution of 1688, to prove it in our constitution, and to ascertain some of the màterial articles, of which it consists. It has been often appealed to: it has been often broken, at least on one part: it has been often renewed: it has been often
confirmed: it still subsists in its full force: 6 it binds the king as much as the meanest subject.” The measures of his power, and the limits, beyond which he cannot extend it, are circumscribed and regulated by the same authority, and with the same precision, as the measures of the subject's obedience; and the limits, beyond which he is under no obligation to practise it, are fixed and ascertained. Liberty is, by the constitution, of equal stability, of equal antiquity, and of equal authority with prerogative. The duties of the king and those of the subject are plainly reciprocal: they can be violated on neither side, unless they be performed on the other. The law is the common standard, by which the excesses of prerogative, as well as the excesses of liberty, are to be regulated and reformed.
Of this great compact between the king and his people, one essential article to be performed on his part is, that, in those cases where provision is expressly made and limitations set by the laws, his government shall be conducted according to those provisions, and restrained according to those limitations; that, in those cases, which are not expressly provided for by the laws, it shall be conducted by the best rules of discretion, agreeably to the general spirit of the laws, and subserviently to their ultimate end—the interest and happiness of his subjects; that, in no case, it shall be conducted contrary to the express, or to the implied principles of the constitution.
These general maxims, which we may justly consider as fundamentals of our government, will, by a plain and obvious application of them to the parts of the resolution remaining to be proved, demonstrate them to be strictly agreeable to the laws and constitution.
We can be at no loss in resolving, that the king cannot, by his prerogative, alter the charter or constitution of the colony of Massachusetts Bay. Upon what principle could such an exertion of prerogative be justified? On the acts of parliament? They are already proved to be void. On the discretionary power which the king has of acting where the laws are silent? That power must be subservient to the interest and happiness of those, concerning whom it operates. But I go further. Instead of being supported by law, or the principles of prerogative, such an alteration is totally and absolutely repugnant to both It is contrary to express law. The charter and constitution, we speak of, are confirmed by the only legislative power capable of confirming them; and no other power, but that which can ratify, can destroy. If it is contrary to express law, the consequence is necessary, that it is contrary to the principles of prerogative; for prerogative can operate only when the law is silent.
In no view can this alteration be justified, or so much as excused. It cannot be justified or excused by the acts of parliament; because the authority of parliament does not extend to it: it cannot be justified or excused by the operation of prerogative; because this is none of the cases, in which prerogative can operate: it cannot be justified or excused by the legislative authority of the colony; because that authority never has been, and, I presume, never will be given for any such purpose.
If I have proceeded hitherto, as I am persuaded I have, upon safe and sure ground, I can, with great confidence, advance a step further and say, that all attempts to alter the charter or constitution of thạt colony, unless by the authority of its own legislature, are violations of its rights, and illegal.
If those attempts are illegal, must not all force, employed to carry them into execution, be force employed against law, and without authority? The conclusion is unavoidable.
Have not British subjects, then, a right to resist such force-force acting with authority-force employed contrary to law-force employed to destroy the very existence of law and of liberty? They have, sir, and this right is secured to them both by the letter and the spirit of the British constitution, by which the measures and the conditions of their obedience are appointed. The British liberties, sir, and the means and the right of defending them, are not the grants of princes; and of what our princes never granted they surely can never deprive us.
I beg leave, here, to mention and to obviate some plausible but ill founded objections, that have been, and will be held forth by our adversaries, against the principles of the resolution now before us. It will be observed, that those, employed for bringing about the proposed alteration in the charter and constitution of the colony of Massachusetts Bay, act by virtue of a commission for that purpose from his majesty; that all resistance of forces, commissioned by his majesty, is resistance of his majesty's authority and government, contrary to the duty of allegiance, and treasonable. These objections will be displayed in their most specious colors; every artifice of chicanery and sophistry will be put in practice to establish them; law authorities, perhaps, will be quoted and tortured to prove them. Those principles of our constitution, which were designed to preserve and to secure the liberty of the people, and, for the sake of that, the tranquillity of government, will be perverted on this, as they have been on many other occasions, from their true intention, and will be made use of for the contrary purpose of endangering the latter, and destroying the former. The names of the most exalted virtues, on one hand, and of the most atrocious crimes, on the other, will be employed in direct contradiction to the nature of those virtues, and of those crimes ; and, in this manner, those, who cannot look beyond names, will be deceived; and those, whose aim it is to deceive by names, will have an opportunity of accomplishing it. But, sir, this disguise will not impose upon us. We will look to things as well as to names; and, by doing so, we shall be fully satisfied, that all those objections rest upon mere ver
bal sophistry, and have not even the remotest alliance with the principles of reason or of law.
In the first place, then, I say, that the persons who allege, that those, employed to alter the charter and constitution of Massachusetts Bay, act by virtue of a commission from his majesty for that purpose, speak improperly, and contrary to the truth of the case. I say, they act by virtue of no such commission; I say, it is impossible they can act by virtue of such a commission. What is called a commission either contains particular directions for the purpose mentioned; or it contains no such particular directions. In either case can those, who act for that purpose, act by virtue of a commission? In one case, what is called a commission is void; it has no legal existence; it can communicate no authority. In the other case, it extends not to the purpose mentioned. The latter point is too plain to be insisted on; I prove the former.
66 Id rer potest,” says the law, " quod de jure potest.” The king's power is a power according to law. . His commands, if the authority of lord chief justice Hale may be depended upon, are under the directive power of the law; and consequently invalid, if unlawful. 6. Commissions,” says my lord Coke," are legal; and are like the king's writs; and none are lawful, but such as are allowed by the common law, or warranted by some act of parliament."
Let us examine any commission expressly directing those to whom it is given, to use military force for carrying into execution the alterations, proposed to be made in the charter and constitution of Massachusetts Bay, by the foregoing maxims and authorities; and what we have said concerning it will appear obvious and conclusive. It is not warranted by any act of parliament, because, as has been mentioned on this, and has been proved on other occasions, any such act is void. - It is not warranted, and I believe it will not be pretended that it is warranted, by the common law. It is not warranted by the royal prerogative, because, as