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Chapter 22:

Parliament Affirms its right to tax America—Rocking-Ham's administration continued.

The Third of February, 1766.

it was the third day of February, when the Duke of
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Grafton himself offered in the House of Lords the resolution, which was in direct contradiction to his wishes. At the same time he recommended lenient measures. Shelburne proposed to repeal the Stamp Act, and avoid a decision on the question of right.

‘If you exempt the American colonies from one statute or law,’ said Lyttelton, ‘you make them independent communities. If opinions of this weight are to be taken up and argued upon through mistake or timidity, we shall have Lycurguses and Solons in every coffee house, tavern, and gin shop in London. Many thousands in England who have no vote in electing representatives will follow their brethren in America in refusing submission to any taxes. The Commons will with pleasure hear the doctrine of equality being the natural right of all; but the doctrine of equality may be carried to the destruction of this monarchy.’

Lord Temple treated as a jest his brother-in-law's [403] distinction in regard to internal taxation. Did the

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colonies, ‘he continued,’ ‘when they emigrated, keep the purse only, and give up their liberties?’ And he cited Shakspeare to prove that ‘who steals a purse steals trash;’ then advising the Lords to firmness towards the colonies, he concluded with an admonition from Tacitus.

‘The question before your lordships,’ said Camden, the youngest baron in the house, ‘concerns the common rights of mankind. The resolution now proposed gives the legislature an absolute power of laying any tax upon America. In my own opinion, my lords, the legislature had no right to make this law. When the people consented to be taxed, they reserved to themselves the power of giving and granting by their representatives. The colonies, when they emigrated, carried their birthright with them; and the same spirit of liberty still pervades the whole of the New Empire.’1 He proceeded to show, from the principles and precedents of English law, that none could be taxed unless by their representatives; that the clergy, the Counties Palatine, Wales, Calais, and Berwick, were never taxed till they sent members to parliament; that Guernsey and Jersey send no members, and are not taxed; and dwelling particularly on the case of Ireland, he cited the opinion of Chief Justice Hale, that Great Britain had no power to raise subsidies in Ireland. But supposing the Americans had no exclusive right to tax themselves, he maintained it would be good policy to give it them. This he argued as a question of justice; for in the clashing interests of the mother country and the colonies, every Englishman would incline against them. [404] This, too, he supported, as the only means of main-

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taining their dependence; for America felt that she could better do without England than England without America; and he reminded the house, that inflexibility lost to the Court of Vienna the dominion of the Low Countries.2

Thus he reasoned in a strain of eloquence, which Pitt called divine.3 ‘I cannot sit silent,’ replied Northington, the. Lord Chancellor, speaking ‘very shortly;’ ‘I cannot sit silent,’ upon doctrines being laid down so new, so unmaintainable, and so unconstitutional. In every state there must be a supreme dominion; every government can arbitrarily impose laws on all its subjects, by which all are bound; and resistance to laws that are even contrary to the benefit and safety of the whole, is at the risk of life and fortune.

I seek for the constitution of this kingdom no higher up than the Revolution, as this country never had one before;4 and in the reign of King William an act passed, avowing the power of this legislature over the colonies. The king cannot suspend the Stamp Act; he is sworn by his coronation oath to do the contrary. But if you should concur as to the expediency of repeal, you will have twelve millions of your subjects of Great Britain and Ireland at your doors, not making speeches, but using club law.

My Lords, what have these favorite Americans done? They have sent deputies to a meeting of their states, at New-York, by which

(and, as he spoke, he appealed personally to Mansfield and Camden), ‘I [405] declare, as a lawyer, they have forfeited all their
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charters. My Lords, the colonies are become too big to be governed by the laws they at first set out with. They have, therefore, run into confusion, and it will be the policy of this country to form a plan of laws for them. If they withdraw allegiance, you must withdraw protection; and then the petty state of Genoa, or the little kingdom of Sweden, may run away with them.’

Benjamin Franklin5 stood listening below the bar, while the highest judicial magistrate of Great Britain was asserting the absolute, unconditional dependence of the colonies on parliament, and advising radical changes in their constitutions.

Next rose Lord Mansfield, to whose authority the House of Lords paid greater deference than to that of any man living.6 To him belonged the sad office of struggling to preserve the past, in which success is impossible; for nature flows on, and is never at rest. He performed his office earnestly and sincerely; though he entered public life as a whig, he leaned towards an arbitrary government, was jealous of popular privileges or influence, and stood ready to serve the cause of power, even without sharing it. Cautious even to timidity, his understanding was clear, but his heart was cold. The childless man had been unsuccessful in love, and formed no friendships. His vast accumulations of knowledge, which a tenacious memory stored up in its hundred cells, were ever ready to come forward at his summons. The lucid order of his arrangement assisted to bring conviction; [406] and he would readily expound the most

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mysterious intricacies of law, or analyze the longest series of reasonings and evidence, with an intelligent smile on his features that spoke plainly the perfect ease with which he did it. In subtlety he had no equal; ornament seemed to flow so naturally from his subject, that while none could speak with more elegance, it seemed impossible for him to speak with less. His countenance was beautiful, inspiring reverence and regard; his eye gleaming with light; his voice acutely clear, yet varied and musical; his manner graceful and engaging. He had been a member of the cabinet when the plan of the Stamp Act was adopted; his legal opinion lay at its foundation; and now he came forward to vindicate its rightfulness, of which he saw clearly that the denial not merely invited America to independence, but also invoked changes in the British constitution.

‘My Lords,’ said he, speaking for two hours and a half, in reply to Camden, as he himself says, without special premeditation, and showing by his superior familiarity with the subject, as well as his taking the lead in the discussion, how intimately he was connected with the policy he defended:

My Lords, I shall speak to the question strictly as a matter of right. I shall also speak to the distinctions which have been taken, without any real difference, as to the nature of the tax; and I shall point out lastly the necessity there will be of exerting the force of the superior authority of government, if opposed by the subordinate part of it.

I am extremly sorry that the question has ever become necessary to be agitated, and that there should be a decision upon it. No one in this house [407] will live long enough to see an end put to the

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mischief which will be the result of the doctrine that has been inculcated; but the arrow is shot, and the wound already given.7

All arguments fetched from Locke, Harrington, and speculative men, who have written upon the subject of government, the law of nature, or of other nations, are little to the purpose, for we are not now settling a new constitution, but finding out and declaring the old one.8

The doctrine of representation seems ill founded; there are twelve millions of people in England and Ireland who are not represented. The parliament first depended upon tenures; representation by election came by the favor of the crown, and the notion now taken up, that every subject must be represented by deputy, is purely ideal. The doctrine of representation never entered the heads of the great writers in Charles the First's time against ship money or other illegal exertions of the prerogative, nor was the right of representation claimed in the Petition of Rights at the great era of the revolution.9

The colonists,

—thus he continued, after having answered one by one the writs and records quoted by Lord Camden, the arguments fetched from the Marches of Wales, from the counties palatine, from Guernsey and Jersey, from the case of the clergy, as well as those drawn from the colonies of antiquity, and from the states of Holland;—

the colonists, by the condition on which they migrated, settled and now exist, [408] are more emphatically subjects of Great Britain, than

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those within the realm; and the British legislature have, in every instance, exercised their right of legislation over them without any dispute or question, till the fourteenth of January last.

Our colonies emigrated under the sanction of the crown and parliament, upon the terms of being subjects of England. They were modelled gradually into their present forms, by charters, grants, and statutes; but they were never separated from the mother country, or so emancipated as to become their own masters. The very idea of a colony implies subordination and dependence, to render allegiance for protection. If they are not subjects, they ought to pay duties as aliens.10 The charter colonies had among their directors members of the privy council and of both houses of parliament, and were under the authority of the privy council. In the nineteenth year of James I. a doubt was thrown out in the House of Commons, whether parliament had any thing to do with America, and the doubt was immediately answered by Coke.11 The rights of Maryland were, by charter, coextensive with those of any Bishop of Durham in that county palatine, and the statute book shows that Durham was taxed by parliament before it was represented. The commonwealth parliament passed a resolution or act, and it is a question whether it is not in force now, to declare and establish the authority of England over its colonies. The charter of Pennsylvania, who have preposterously taken the lead,

and Franklin was present to hear this,
is stamped with every badge of subordination;12 and a [409] particular saving as to all English acts of parliament.
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Could the king's bench vacate the Massachusetts charter, and yet the parliament be unable to tax them? Do they say this, when they themselves acquiesced in the judgment, and took a new charter?13

In 1724, the assembly of Jamaica having refused to raise taxes for their necessary support, the late Lord Hardwicke, then Attorney-General, and Sir Clement Wearg, Solicitor-General, gave their opinion that if Jamaica is to be considered as a conquered country, the king may tax it by his own authority; if otherwise, it must be by the British legislature.

Let the advocates for America draw their line. Let them move their exception, and say how far the sovereignty of the British parliament should go, and where it should stop? Did the Americans keep the right of the purse only, and not of their persons and their liberties?14

But if there was no express law or reason founded upon any necessary inference from an express law, yet the usage alone would be sufficient to support that authority of England over its colonies; for have they not submitted, ever since their first establishment, to the jurisdiction of the mother country? In all questions of property, the appeals from them have been to the privy council here; and such causes have been determined, not by their laws, but by the lawof England. They have been obliged to recur very frequently to the jurisdiction here to settle the disputes among their own governments.

The colonies must remain dependent upon the jurisdiction of the mother country, or they must be totally dismembered from it, and form a league of [410] union among themselves against it, which could not

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be effected without great violences. No one ever thought the contrary, till now the trumpet of sedition has been blown. It is sufficient to turn over the index to the statute book, to show that acts of parliament have been made not only without a doubt of their legality, but with universal applause, the great object of which has been ultimately to fix the trade of the colonies, so as to centre in the bosom of that country, from which they took their original. The Navigation Act shut up their intercourse with foreign countries. Their ports have been made subject to customs and regulations, which have cramped and diminished their trade; and duties have been laid affecting the very inmost parts of their commerce. Such were the post-office acts; the act for recovering debts in the plantations; the acts for preserving timber and white pines; the paper currency act. The legislature have even gone so low as to restrain the number of hatters' apprentices in America, and have, in innumerable instances, given the forfeitures to the king. Yet all these have been submitted to peaceably, and no one ever thought till now of this doctrine, that the colonies are not to be taxed, regulated, or bound by parliament. This day is the first time we have heard of it in this house.

There can be no doubt, my lords, but that the inhabitants of the colonies are as much represented in parliament as the greatest part of the people of England are represented; among nine millions of whom there are eight who have no votes in electing members of parliament. Every objection, therefore, to the dependency of the colonies upon parliament, which arises to it upon the ground of representation, goes to [411] the whole present constitution of Great Britain; and

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I suppose it is not meant to new model that too! People may form their own speculative ideas of perfection, and indulge their own fancies, or those of other men. Every man in this country has his particular notions of liberty; but perfection never did and never can exist in any human institution. For what purpose, then, are arguments drawn from a distinction in which there is no real difference, of a virtual and actual representation? A member of parliament, chosen by any borough, represents not only the constituents and inhabitants of that particular place, but he represents the inhabitants of every other borough in Great Britain. He represents the city of London and all other the commons of this land, and the inhabitants of all the colonies and dominions of Great Britain; and is in duty and in conscience bound to take care of their interests.

The noble lord, who quoted so much law, and denied upon those grounds the right of the parliament of Great Britain to lay internal taxes upon the colonies, allowed at the same time, that restrictions upon trade and duties upon the ports were legal. But I cannot see a real difference in this distinction; for I hold it to be true, that a tax laid in any place is like a pebble falling into, and making a circle in a lake, till one circle produces and gives motion to another, and the whole circumference is agitated from the centre. A tax on tobacco, either in the ports of Virginia or London, is a duty laid upon the inland plantations of Virginia, a hundred miles from the sea, wheresoever the tobacco grows. [412]

The legislature properly interposed for the pur-

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pose of a general taxation, as the colonies would never agree to adjust their respective proportions amongst themselves.

I do not deny but that a tax may be laid injudiciously and injuriously, and that people in such a case may have a right to complain; but the nature of the tax is not now the question: whenever it comes to be one, I am for lenity. I would have no blood drawn. There is, I am satisfied, no occasion for any to be drawn. A little time and experience of the inconveniences and miseries of anarchy may bring people to their senses. Anarchy always cures itself; but the fermentation will continue so much the longer, while hot-headed men there find that there are persons of weight and character to support and justify them here.

Indeed, if the disturbances should continue for a great length of time, force must be the consequence: an application, adequate to the mischief, and arising out of the necessity of the case; for force is only the difference between a superior and subordinate jurisdiction. In the former, the whole force of the legislature resides collectively, and when it ceases to reside, the whole connection is dissolved. It will indeed be to very little purpose, that we sit here enacting laws or making resolutions, if the inferior will not obey them, or if we neither can nor dare enforce them; for then, of necessity, the matter comes to the sword. If the offspring are grown too big and too, resolute to obey the parent, you must try which is the strongest, and exert all the powers of the mother country to decide the contest.

Time and a wise and steady conduct may prevent [413] those extremities which would be fatal to both.

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Interest very soon divides mercantile people; and although there may be some mad, enthusiastic, or illde-signing people in the colonies, yet I am convinced that the greatest bulk, who have understanding and property, are still well affected to the mother country. The resolutions in the most of the assemblies have been carried by small majorities, and in some by one or two only. You have, my lords, many friends still in the colonies; take care that you do not, by abdicating your own authority, desert them and yourselves, and lose them for ever.

You may abdicate your right over the colonies: take care, my lords, how you do so, for such an act will be irrevocable. Proceed, then, my lords, with spirit and firmness, and when you shall have established your authority, it will then be a time to show your lenity. The Americans, as I said before, are a very good people, and I wish them exceedingly well; but they are heated and inflamed. I cannot end better than by saying, in the words of Maurice, Prince of Orange, concerning the Hollanders, God bless this industrious, frugal, well-meaning, but easily deluded people!

The House of Lords accepted the argument of Mansfield as unanswerable, and when the house divided, only five peers, Camden, Shelburne, and the young Cornwallis——destined to a long and chequered career, —Torrington, and Paulet, went down below the bar. With these five, stood the invisible genius of popular reform; they began a strife which the child that was unborn would rue or would bless. The rest of the peers, one hundred and twenty-five15 in number, saw [414] with derision the small number of the visionaries. As

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for Camden himself, they said Mansfield had utterly prostrated him.16

Even while Mansfield was explaining to the House of Lords, that the American theory of representation included in its idea a thorough reform of the British House of Commons, George the Third was led to offer a pension of a hundred guineas a year to the Genevese republican, Jean Jacques Rousseau, who had just then arrived in England, a fugitive from France, where his works were condemned to be burned by the hands of the executioner, and he himself was in peril of arrest and indefinite imprisonment. The drift of his writings was not well understood, and no one foreboded the extent of their influence. But he was come among a people very unlike himself, and the illusion that hung round the celebrated author soon gave way to disgust at his vile connections, and indifference to the sorrows of his sensitive and suspicious nature. Some, even, who should have spared the infirmities of the wretched man, ungenerously exposed him to public contempt. So he pined in neglect, no object of terror to the aristocracy or the crown. Yet the exile, then writhing under the pangs of wounded vanity, was to stand forth in the world's history more conspicuously than Mansfield. The one cherished feudalism as the most perfect form of government that had ever been devised; the other pleaded for its destruction, as an unjust and absurd system, in which the human race was degraded, and the name of man was in dishonor. Both hurried forward revolution; the counsels of the former drove America to form for the world's example [415] a government truly representing the people; the other

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was so to touch the French nation in Convention with the flame of his humane, but jealous, impatient, and dogmatic spirit, as to light up European wars between the New and the Old, continuously for a generation.

In the Commons, the resolution was presented by Conway, who himself at the time of passing the Stamp Act, had publicly and almost alone denied the right of parliament to impose the tax, and twice within twenty days had publicly reiterated that opinion. He now treated the question of power as a point of law, which parliament might take up. For himself, he should never be for internal taxes. He would sooner cut off his right hand than sign an order for sending out a force to maintain them. Yet he begged not to be understood to pledge himself for future measures, not even for the repeal of the Stamp Act. ‘When he comes to move resolutions of repeal,’ said Grenville's friends, ‘he will have in his pocket another set of resolutions of an opposite character.’

Dowdeswell, the Chancellor of the Exchequer, defended the proposition in its fullest extent. Parliament might change the charters of the colonies, and much more, might tallage them; though, in point of policy, justice, or equity, it was a power that ought to be exercised in the most extraordinary cases only.17

Barre moved to strike out from the resolution the words, ‘in all cases whatsoever.’ He was seconded by Pitt, and, sustained by Beckford. They contended that American taxation by parliament was against the spirit of the British constitution; against the authority [416] of Locke, and the principles of the revolution of 1688,

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against the right of the colonists to enjoy English liberty; against the inherent distinction between taxation and legislation, which pervaded modern history; against the solemn compacts which parliament itself had recognised as existing between the crown and the colonies; against the rights of the American assemblies, whose duty it ever is to obtain redress of material grievances, before making grants of money, and whose essence would be destroyed by a transfer from them of the powers of taxation; against justice, for Great Britain could have interests conflicting with those of the colonies; against reason, for the assemblies of the colonists could know their own abilities and circumstances better than the Commons of England; against good policy, which could preserve America only as Rome had preserved her distant colonies, not by the number of its legions, but by lenient magnanimity.

Only three men, or rather Pitt alone, ‘debated strenuously the rights of America’ against more than as many hundred;18 and yet the House of Commons, half-conscious of the fatality of its decision, was so awed by the overhanging shadow of coming events that it seemed to shrink from pronouncing its opinion. Edmund Burke, eager to add glory as an orator to his just renown as an author, argued for England's right in such a manner, that the strongest friends of power declared his speech to have been ‘far superior to that of every other speaker;’ while Grenville, Yorke, and all the lawyers, the temperate Richard Hussey, who yet was practically for humanity and justice, [417] Blackstone, the commentator on the laws of England,

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who still disliked internal taxation of America by parliament, the selfish, unscrupulous, unrelenting Wedderburn, filled many hours with solemn arguments for England's unlimited supremacy. They persuaded one another and the house, that the charters which kings had granted were, by the unbroken opinions of lawyers, from 1689, subordinate to the good will of the houses of parliament; that parliament, for a stronger reason, had power to tax—a power which it had been proposed to exert in 1713, while Harley was at the head of the treasury, and again at the opening of the Seven Years War.

It was further contended, that representation was not the basis of the authority of parliament; that its legislative power was an absolute trust; that the kingdom and colonies were one empire; that the colonies enjoyed the opportunity of taxing themselves, as an indulgence; that the exemption from taxation, when conceded to the Counties Palatine, Chester, Durham, and Lancaster, or Wales, or Ireland, or the clergy, was exceptional; that duties and impositions, taxes and subsidies were all one; and as kingdom and colonies were one body, parliament had the right to bind the colonies by taxes and impositions, alike internal and external, in all cases whatsoever.

So the watches of the long winter's night wore away, and at about four o'clock in the morning, when the question was called, less than ten voices, some said five, or four, some said but three, spoke out in the minority: ‘and the resolution passed for England's right to do what the treasury pleased with three millions of freemen in America.’ The Americans were henceforward excisable and taxable at the mercy of [418] parliament. Grenville stood acquitted and sustained,

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the rightfulness of his policy was affirmed; and he was judged to have proceeded in conformity with the constitution.

Thus did Edmund Burke and the Rockingham ministry on that night lead Mansfield, Northington, and the gentlemen of the long robe, to found the new tory party of England, and recover legality for its position, stealing it away from the party that hitherto, under the revolution, had possessed it exclusively. It was decided as a question of law, that irresponsible taxation was not a tyranny, but a vested right; that parliament held power, not as a representative body, but in absolute trust. Under the decision, no option was left to the colonies but extreme resistance, or unconditional submission. It had grown to be a fact, that the House of Commons was no longer responsible to the people; and this night it was held to be the law, that it never had been, and was not responsible; that the doctrine of representation was not in the bill of rights. The tory party, with George the Third at its head, accepted from Burke and Rockingham the creed which Grenville claimed to be the whiggism of the revolution of 1688, and Mansfield the British constitution of his times.

In England, it was all over with the Middle Age. There was to be no more Jacobitism, no more zeal for legitimacy at home, no more union of the Catholic church and the sceptre. The new toryism was the child of modern civilization. It carried its pedigree no further back than the revolution of 1688, and was but a coalition of the king and the aristocracy upon the basis of the established law. By law the House of [419] Hanover held the throne; by law the English

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church was established, with a prayer-book and a creed as authorised by parliament, and with such bishops as the crown gave leave to choose; by law the Catholics and Dissenters were disfranchised, and none but conformers to the worship of the legal church could hold office or sit in the legislature; by law the House of Commons was lifted above responsibility to the people; by law the colonies were ‘bound’ to be taxed at mercy. The tory party took the law as it stood, and set itself against reform. Henceforward its leaders and lights were to be found, not among the gallant descendants of ancient houses; not among the representatives of mediaeval traditions. It was a new party, of which the leaders and expounders were to be new men. The moneyed interest, so firmly opposed to the legitimacy and aristocracy of the Middle Age, was to become its ally. Mansfield was its impersonation, and would transmit it, through Thurlow and Wedderburn, to Eldon.

It is the office of law to decide questions of possession. The just judge is appointed to be the conservator of society. Woe hangs over the land where the absolute principles of private law are applied to questions of public law; and the effort is made to bar the progress of the undying race .by the despotic rules which ascertain the rights of property of evanescent mortals. Humanity smiled at the parchment chains which the lawyers threw around it, even though those chains were protected by a coalition of the army, the navy, the halls of justice, a corrupt parliament, and the crown. The new tory party created a new opposition. The non-electors of Great Britain were to become as little content with virtual representation [420] as the colonists. Even while Mansfield was speaking,

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the press of London gave to the world a very sensible production, showing the equity and practicability of a more equal representation throughout the whole British dominions;19 and also a scheme20 for a general parliament, to which every part of the British dominions should send one member for every twenty thousand of its inhabitants.

1 H. Hammersley to Sharpe.

2 H. Hammersley to Sharpe.

3 Chatham Correspondence, II. 368. The editor erroneously dates the letter 15 Jan. It was of 4 February.

4 H. Hammersley's Report Ms.

5 Campbell's Chancellors, v. 204.

6 Newton's Life of himself, 108.

7 Mansfield's Own Report of his Speech, in Holliday, 242. See, too, the Abstract of the General Argument, in the Annual Register, where Mansfield's words are adopted.

8 Letters of Hammersley.

9 From H. Hammersley's Report.

10 H. Hammersley's Report.

11 Hansard, XVI. 176.

12 H. Hammersley.

13 Ibid.

14 Ibid.

15 H. Hammersley. Garth to South Carolina, 9 Feb. 1766.

16 De Guerchy au Duc de Praslin, 4 Fevrier, 1766.

17 Garth to South Carolina, 9 Feb. 1756. I have an exceedingly copious abstract of this debate, made by Garth for South Carolina.

18 Garth to South Carolina: ‘A fuller house I don't recollect to have seen.’ Garth was a member.

19 Monthly Review for Feb. 1766, XXXIV. 155.

20 An Account of a Conference on the Occurrences in America, in a letter to a friend, 1766, 38-40.

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