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Rome had not been lost upon Ferguson. During the voyage, he was urgent with the Commissioners, as I learnt afterwards from good Government-authority, to put to death man, woman, and child, as many as they could catch, as an inducement to the rest to take the benefit of the
proffered grace! As to Lind, that work of his, which brought him into favour with Lord North and Lord Mansfield, has been already mentioned. When I began this Letter, I had not received it back from a friend, to whom I had lent it. It bears date 1775: the plan of it he had from me. His design had originally embraced the whole of the Acts of the Parliament of that year, and eventually those of succeeding years. But the interest produced by those Acts, which laid the foundation of the American War, absorbed all other interests. The plan of the argument he had from me. Upon his mentioning the American part of his design, his plan not being as yet formed, I told him I had written two or three pages on the subject, which, such as they were, he was welcome to do what he pleased with ; they were my own private thoughts without any view to publication. When he had made some little advance, my surprise was not small at finding this page or two of scattered thoughts had been set in front of his work, and constituted
the plan, on which he was operating. They form pages xv, and xvi in the printed book.* Different parts of it fell incidentally under my revisal, and received additions and alterations, * These pages contain these words:
I. “AS TO THE POINT OF RIGHT: 1.“ As to the Crown alone, what is the power, with which the constitution invests that branch of the legislature over countries conquered, or otherwise acquired ?
2. “ As to the whole body of the legislature, whether its operations can be restrained by any acts of the aforenamed branch of it?
3. “ Again, as to the whole body of the legislature, whether on the particular point of taxation, there be any other principle in the constitution to restrain its operations ?
II. “AS TO THE POINT OF FACT : 1. “What were the privileges originally granted by the Crown to the Colonies ?
2. “What power preceding Parliaments exercised over them ?
“ When these questions are fairly discussed, and not before, we may venture to give our opinions. III. “ON THE MERITS OF THE PROCEEDINGS OF
THE LAST PARLIAMENT : 1..“ Whether they were consistent with the spirit of the constitution ?
2. “ Whether they were consistent with the dictates of sound policy?
“ To enter on the two last subjects of enquiry, before the other points are fully settled, would at least be preposterous. It would be to begin where we ought to end.
“ If the power vested in the Crown, over conquered or acquired countries, be circumscribed within certain bounds, by certain acknowledged rules, all acts done in the exercise of of which all memory has long been lost. One thing there is, and no more, of which I have something like a specific recollection, which is the section, that commences at p. 120, and has for title “Abstract of the Charters of Connecticut and Rhode Island.” - This I remember had more or less of mine in it: for aught I know, the whole; but neither time nor eyes allow of my attempting to draw a line anywhere. He would gladly have let me write on, as long as I chose: he had a sort of Epicurean nonchalance about him, the result of so many years he had been living in the grande monde. My opinions were at that time opposite to the American side: the turn they took, was the result of the bad arguments, by which I observed that side supported, no use being made of the only good one, viz. the impossibility of good Government at such a distance, and the advantage of separation to the interest and happiness of both parties. The Declaration of Rights presented itself to my conception from the first, as what it has always continued to be, a hodge-podge of confusion and absurdity, in which the thing to be proved is all along taken for granted. Some hints to this effect were, I believe, given towards the close, in a Note, of my Introduction to the Principles of Morals and Legislation.” I know not whether it was at that time, or some years after, that I made a dissection of it. The paper, I believe, was translated by M. Dumont, and made use of by him in his edition of my work on Political Tactics, t in the second volume, at the end of the list of Fallacies. I speak of that paper now with the less reserve, the author of it, (Jefferson,) who took it for the main foundation of his glory, being now no more : a man, whom, * [1t was published in 4to. 1789. E. H. B.] t[Traités de Legislation Civile et Penale; Precedes de Principes Généraur de Legislation, et d'une Vue d'un Corps complet de Droit, terminés par un Essai sur l'Influence des Tems et on other accounts, I hold in very high estimation, were it only on account of his having by his patience and forbearance under a long continuance of the most galling attacks, established upon a sure basis the liberty of the press. Absurdity, if I do not misrecollect, went so far on that side, as to pretend that, in point of fact, they had all along been in a state of independence on the British Parliament, the contrary of which was proved so plainly by such a number of Acts of Parliament, which were produced. English Lawyers, who, being in the opposition, took, as a matter of course, their side, — took, if possible, a more palpably absurd course. Lord Camden, who saw that it would never do to pretend, in the teeth of the Acts themselves, that Parliament had never taken upon itself to exercise the power of legislation over the Colonies, took a distinction between legislation and taration. Legislation, said he, is one thing, taration, another: to legislate, is to command; to tar, is not to command: it is only to give money. For proof, he brought forward the words give and grant, which he had picked up in some Act or Acts of Parliament, and for aught I know at this moment, (for it is not worth looking for,) in all taxing Acts: as if giving and granting other people's money by Sovereign authority, sword in hand, were not taring them. And even sup
that power, must be measured by those rules, on their conformity to which, their validity will depend. “If the acts done in the exercise of that power do not bind or restrain Parliament, it is in vain to cite those acts. On this supposition, charters are useless parchments, because ineffective. “If there be any principle in our constitution, by which the Americans can claim an exemption from Parliamentary Taxation, then, too, charters will be found but useless parchments, because unnecessary. “If there be no such principle, then allowing to charters their utmost force, the Colonists can plead no exemption from thence, till they have shewn it to be there, either specified, or of necessity implied. “If different interpretations be put on the same grants by the contending parties, we must then appeal to usage to decide between them. “If the proceedings of the last Parliament be questioned, we must exactly know the situation, in which the preceding Parliament had left it.”
des Lieur relativement aur Lois ; publiées en Francois d'apres MSS. par Etienne Dumont. Lond. 1802.3 vols. 8vo. E. H. B.]