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Letter from Thomas Whately to John Temple, 2 May 1767
London, 2d May, 1767. Dear Sir, I again trouble you by your Brother's Permission with a at present under Consideration, such as Duties upon Wine, Oil, Fruit, Raisins & Currants, allowing the Carriage of them at the same Time to be direct from the Places of their Growth to America. A Salt Tax is also talk'd of, with a Drawback upon such as shall be used in the Fisheries. A Tonnage upon Shipping is another ; but all of these, I suppose, will not take place at once; & which of them will be laid this year is not yet absolutely settled; but will be in a very few days, when the plan of fAdministration for ye Colonies will be laid before Parliament. Nothing has yet been done in either House; but in the House of Lords a Motion was made for an Address to submit to his Majesty's Consideration the proper Proceeding to be held in regard to the Act of Indemnity annexed to the Act of Compensation by the Assembly of Massachusets Bay. I can hardly say who spoke of it with the most Indignation, & none attempted to vindicate it ; but the Ministers opposed y mode of taking Notice of it in an Address, because they said that it seem'd to reflect a Suspicion on the King's Servants, as if they could be wanting in their Duty, which they understood to be to advise the Crown to Disallow it. The Answer to this Objection was that the Inexpediency of an Act of Assembly was alone a sufficient Reason for Disallowing it; but the Illegality of this Act required more than a meer Reversal. That it was an Encroachment on the Prerogative; an Infringement of the Constitution: an Usurpation of Powers which neither House of Parliament pretended to exercise, for that the Power of Pardon was rested solely in the Crown; the Lords nor the Commons never attempted to indemnify without the Concurrence of the Crown; & that Concurrence could not be had to this Act of Assembly; for the Governor was only a Corporation Magistrate & not the King's Representative in the Province of Massachusets Bay. That in Virginia, after Bacon's Rebellion, the Assembly there having passed such an Act of Indemnity, the Privy Council declared it null; & in the stead of it, sent over an Act ready drawn up & under the Great Seal, with Orders to the Assembly to pass it, & it is now in their Statute Book. That this should be treated in the same manner: & the rather because a meer Reversal would answer no purpose whatsoever; for that a Criminal once pardon'd is pardon'd for ever. The Grace cannot be recalled if it had been ever granted, & that therefore if this Act of Indemnity should be admitted to have existed a Moment as a legal Act, all the purposes intended by it would be obtain'd, & all the operations design'd by the Reversal would be defeated. The previous question was carried for the reasons I have given ; but as the Principles held by those who were for ye Motion were not controverted, I make no Doubt that the Measure suggested by them of declaring ye Act null & void ab initio will be adopted. In the Course of this & other Debates many Reflections have been drop'd upon past Transactions, & upon the present State of Affairs in America. The Distinction between internal and external Taxes frequently occurs, not now as a Subject of Debate, but a matter of reproach to those who maintain'd last year that Parliament had not a Right to lay the former as well as the latter. I told you in my last that that Doctrine was then always call'd nonsensical; It has been since said to be criminal and treasonable: & they who defended it then, disclaim it now, by alledging that the Declaratory Act has put an end to the Question, & determin'd the law. I overpower you with Politicks: if I do, you Ever yours.
Thomas Whately
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