The Writings of Samuel Adams Volume II Part 21

We heartily congratulate you on the return of that great Anniversary, the landing of the first Settlers at Plymouth, & on the religious & respectful Manner, in which it has been celebrated.

You may say without Vanity, and surely we may affirm without any such Imputation, that a handful of persecuted brave people, then made way for the extensive Settlement of New England: That had it not been for their Efforts, Virginia would have soon been abandoned: That the French who were then settled at Quebec; & the Dutch interloping in Hudsons River with the a.s.sistance they might have derived from the Natives, and the Aid at all times ready to be afforded, by the Crown of Spain, then in possession of South America, against the Crown of England, would have availd themselves of all the Continent of North America. And that at this very period Great Britain might have thought herself well off, with such trifling Islands as are now in the possession of the Dane. In pursuance of our Instruction from this Town to communicate any new Infractions of our Rights & Liberties we inclose an Extract of a Letter from Lord Dartmouth to the Governor of Rhode Island & shall take the earliest Opportunity to advise you of every thing Important that may occur to us.

1 Addressed to "Joseph Warren Esq & others a Committee of Correspondence for the Town of Plymouth."

TO DARIUS SESSIONS.

[MS., Samuel Adams Papers, Lenox Library.]

BOSTON Jan 2 1773.

SIR,

I wrote you on Monday last acknowledging the Receipt of a Letter directed to me from your self & other worthy Gentlemen in Providence.

The Question proposed was in what manner your Colony had best behave in this critical Situation & how the Shock that is coming upon it may be best evaded or sustaind. It appears to me probable that the Administration has a design to get your Charter vacated. The Execution of so extraordinary a Commission, unknown in your Charter & abhorrent to the principles of every free Government, wherein Persons are appointed to enquire into Offences committed against a Law of another Legislature, with the Power of transporting the persons they shall suspect beyond the Seas to be tryed, would essentially change your Const.i.tution; and a Silence under such a Change would be construed a Submission to it. At the same time it must be considerd that an open declaration of the a.s.sembly against the Appointment & order of the King, in which he is supported by an Act of the British Parliament, would be construed by the Law Servants of the Crown & other ministers such a Defiance of the Royal Authority, as they would advise proper to be recommended to the Consideration & Decision of Parliament. Should your Governor refuse to call the Commissioners together, or when called together, the civil magistrates refuse to take measures for arresting & committing to Custody such persons as upon Information made shall be chargd with being concernd in burning the Gaspee, or if they should issue their precepts for that purpose the Officers should refuse to execute them, the Event would be perhaps the same as in the Case of an open Declaration before mentiond, for in all these Cases it would be represented to the King & the parliament that it was to be attributed to what they will call the overbearing popularity of your Government, & the same pretence would be urgd for the Necessity of an Alteration in order to support the Kings Authority in the Colony. As the chiefe Object in the View of Administration seems to be the vacating your Charter, I cannot think the Commissioners in case they should meet together, would upon any of the aforementiond Occasions, chuse to call upon General Gage for the Aid of the Troops or make any more than the Shew of a Readiness to execute their Commission; for they might think the grand purpose would be sufficiently answerd without their Discussing such danger to their Reputation, if not their persons. If the foregoing Hypotheses are well grounded, I think it may be justly concluded that since the Const.i.tution is already destined to suffer unavoidable Dissolution, an open & manly Determination of the a.s.sembly not to consent to its ruin would show to the World & posterity that the people were virtuous though unfortunate, & sustaind the Shock with Dignity.

You will allow me to observe, that this is a Matter in which the whole American Continent is deeply concernd and a Submission of the Colony of Rhode Island to this enormous Claim of power would be made a Precedent for all the rest; they ought indeed to consider deeply their Interest in the Struggle of a single Colony & their Duty to afford her all practicable Aid. This last is a Consideration which I shall not fail to mention to my particular friends when our a.s.sembly shall sit the next Week.

Should it be the determination of a weak Administration to push this Measure to the utmost at all Events, and the Commissioners call in the Aid of troops for that purpose it would be impossible for me to say what might be the Consequence, Perhaps a most violent political Earthquake through the whole British Empire if not its total Destruction.

I have long feard that this unhappy Contest between Britain & America will end in Rivers of Blood; Should that be the Case, America I think may wash her hands in Innocence; yet it is the highest prudence to prevent if possible so dreadful a Calamity. Some such provocation as is now offerd to Rhode Island will in all probability be the immediate Occasion of it. Let us therefore consider whether in the present Case the Shock that is coming upon you may not be evaded which is a distinct part of the Question proposed. For this purpose, if your Governor should omit to call the Commissioners together, in Consequence of a representation made to him by the a.s.sembly, that the Innovation appears to them of a most dangerous Tendency; and altogether needless, inasmuch as the same Enquiry might be made as effectually (and doubtless would be) by a Grand Jury, as is proposed to be made by the Commissioners; which would be agreable to the Const.i.tution & in the ordinary Course of Justice. A representation of this kind made by the a.s.sembly to the Governor, would afford him a reasonable plea for suspending the Matter till he could fully state the Matter to Lord Dartmouth & the odious light in which the Commission is viewd by that & the other Colonies as a measure incompatible with the English Const.i.tution & the Rights of the Colonists together with the fatal Consequences of which it might probably be productive. This perhaps could not be done till the rising of Parliament, & before the next Session a war or some other important Event might take place which would bury this Affair in Oblivion. Or if it should ever come before Parliament in this Manner, the Delay on the part of the Governor would appear to be made upon motives of sound prudence & the best Advice which would tend to soften their Spirits.

And besides, its appearing to be founded not directly on the principles of Opposition to the Authority of Parliament, the sacred Importance of Charters upon which many of the Members hold their Seats, might be considerd without prejudice, & the Matter might subside even in Parliament. Should that be the Case it would disappoint the designs & naturally abate the Rigour of Administration & so the Shock might be evaded.

If, without being called together by Governor Wanton who is first named, the rest of the Commissioners should meet upon the Business of their Commission, which I cannot suppose they will do, especially if the Governor should acquaint them with the Reason of his not calling them, it would show a forward Zeal to execute an order new arbitrary & universally odious, & how far that might justly insence the people against them personally, & lessen them in the Esteem of all judicious Men, they would do well calmly to consider; and how far also they would be answerable for the fatal Effects that might follow such a forwardnesss all the world and Posterity will judge: For such an Event as this will a.s.suredly go down to future Ages in the page of History, & the Colony & all concernd in it will be characterizd by the part they shall act in the Tragedy. Upon the whole it is my humble Opinion, that the grand Purpose of Administration is either to intimidate the Colony into a Compliance with a Measure destructive of the freedom of their Const.i.tution, or to provoke them to such a Step as shall give a pretext for the Vacation of their Charter which I should think must sound like Thunder in the Ears of Connecticutt especially. Whatever Measures the Wisdom of your a.s.sembly may fix upon to evade the impending Stroke, I hope nothing will be done which may by the Invention of our Adversarys, be construed as even the Appearance of an Acquiescence in so grasping an Act of Tyranny.

Thus I have freely given my Sentiments upon the Question proposed; which I should not have vent.u.r.d to do had it not been requested. I have done it with the greatest Diffidence because I think I am fully sensible of my Inability to enter into a Question of so delicate a Nature & great Importance especially as I have not had that opportunity to consult my friends which I promisd my self. I hope the a.s.sembly of Rhode Island will in their Conduct exhibit an Example of true Wisdom Fort.i.tude & Perseverance. And with the greatest Respect to the Gentlemen to whose superior Understanding this and my former Letter to you is submitted, I

remain Sir Your a.s.sured friend & humble servant

P.S. I beg just to propose for Consideration whether a circular Letr from your a.s.sembly on this Occasion, to those of the other Colonies might not tend to the Advantage of the General Cause & of R Island in particular; I should think it would induce each of them, at least to injoyn their Agents in Great Britain to represent the Severity of your Case in the strongest terms.

To the Hon Darius Sessions Esqr to be communicated

THE HOUSE OF REPRESENTATIVES OF Ma.s.sACHUSETTS TO THE GOVERNOR. JANUARY 26, I773.1

[Ma.s.sachusetts State Papers, pp. 351-364; also printed in the Boston Gazette, February 1, 1773, and in The Speeches of His Excellency Governor Hutchinson (Boston, 1773), pp. 33-58.]

May it please your Excellency,

Your Excellency's speech to the General a.s.sembly, at the opening of this session,2 has been read with great attention in this House.

We fully agree with your Excellency, that our own happiness, as well as his Majesty's service, very much depends upon peace and order; and we shall at all times take such measures as are consistent with our const.i.tution, and the rights of the people, to promote and maintain them. That the government at present is in a very disturbed state, is apparent. But we cannot ascribe it to the people's having adopted unconst.i.tutional principles, which seems to be the cause a.s.signed for it by your Excellency. It appears to us, to have been occasioned rather by the British House of Commons a.s.suming and exercising a power inconsistent with the freedom of the const.i.tution, to give and grant the property of the colonists, and appropriate the same without their consent.

It is needless for us to inquire what were the principles that induced the councils of the nation to so new and unprecedented a measure. But, when the Parliament, by an act of their own, expressly declared, that the King, Lords, and Commons, of the nation "have, and of 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 whatever," and in consequence hereof, another revenue act was made, the minds of the people were filled with anxiety, and they were justly alarmed with apprehensions of the total extinction of their liberties.

The result of the free inquiries of many persons, into the right of the Parliament, to exercise such a power over the colonies, seems, in your Excellency's opinion, to be the cause, of what you are pleased to call the present "disturbed state of the government;" upon which, you "may not any longer, consistent with your duty to the King, and your regard to the interest of the province, delay communicating your sentiments." But that the principles adopted in consequence hereof, are unconst.i.tutional, is a subject of inquiry. We know of no such disorders arising therefrom, as are mentioned by your Excellency. If Grand Jurors have not, on their oaths, found such offences, as your Excellency, with the advice of his Majesty's Council, have ordered to be prosecuted, it is to be presumed, they have followed the dictates of good conscience. They are the const.i.tutional judges of these matters, and it is not to be supposed, that moved from corrupt principles, they have suffered offenders to escape a prosecution, and thus supported and encouraged them to go on offending. If any part of authority shall, in an unconst.i.tutional manner, interpose in any matter, it will be no wonder if it be brought into contempt; to the lessening or confounding of that subordination, which is necessary to a well regulated state. Your Excellency's representation that the bands of government are weakened, we humbly conceive to be without good grounds; though we must own, the heavy burdens unconst.i.tutionally brought upon the people, have been, and still are universally, and very justly complained of, as a grievance.

You are pleased to say, that, "when our predecessors first took possession of this plantation, or colony, under a grant and charter from the Crown of England, it was their sense, and it was the sense of the kingdom, that they were to remain subject to the supreme authority of Parliament;" whereby we understand your Excellency to mean, in the sense of the declaratory act of Parliament afore mentioned, in all cases whatever. And, indeed, it is difficult, if possible, to draw a line of distinction between the universal authority of Parliament over the colonies, and no authority at all. It is, therefore, necessary for us to inquire how it appears, for your Excellency has not shown it to us, that when, or at the time that our predecessors took possession of this plantation, or colony, under a grant and charter from the Crown of England, it was their sense, and the sense of the kingdom, that they were to remain subject to the authority of Parliament. In making this inquiry, we shall, according to your Excellency's recommendation, treat the subject with calmness and candor, and also with a due regard to truth.

Previous to a direct consideration of the charter granted to the province or colony, and the better to elucidate the true sense and meaning of it, we would take a view of the state of the English North American continent at the time, when, and after possession was first taken of any part of it, by the Europeans. It was then possessed by heathen and barbarous people, who had, nevertheless, all that right to the soil, and sovereignty in and over the lands they possessed, which G.o.d had originally given to man. Whether their being heathen, inferred any right or authority to christian princes, a right which had long been a.s.sumed by the Pope, to dispose of their lands to others, we will leave your Excellency, or any one of understanding and impartial judgment, to consider. It is certain, they had in no other sense, forfeited them to any power in Europe. Should the doctrine be admitted, that the discovery of lands owned and possessed by pagan people, gives to any christian prince a right and t.i.tle to the dominion and property, still it is vested in the Crown alone. It was an acquisition of foreign territory, not annexed to the realm of England, and, therefore, at the absolute disposal of the Crown. For we take it to be a settled point, that the King has a const.i.tutional prerogative, to dispose of and alienate, any part of his territories not annexed to the realm. In exercise of this prerogative, Queen Elizabeth granted the first American charter; and, claiming a right by virtue of discovery, then supposed to be valid, to the lands which are now possessed by the colony of Virginia, she conveyed to Sir Walter Rawleigh, the property, dominion, and sovereignty thereof, to be held of the Crown, by homage, and a certain render, without any reservation to herself, of any share in the Legislative and Executive authority.

After the attainder of Sir Walter, King James the I. created two Virginian companies, to be governed each by laws, transmitted to them by his Majesty, and not by the Parliament, with power to establish, and cause to be made, a coin to pa.s.s current among them; and vested with all liberties, franchises and immunities, within any of his other dominions, to all intents and purposes, as if they had been abiding and born within the realm. A declaration similar to this, is contained in the first charter of this colony, and in those of other American colonies, which shows that the colonies were not intended, or considered to be within the realm of England, though within the allegiance of the English Crown. After this, another charter was granted by the same King James, to the Treasurer and Company of Virginia, vesting them with full power and authority, to make, ordain, and establish, all manner of orders, laws, directions, instructions, forms and ceremonies of governments, and magistracy, fit and necessary, and the same to abrogate, &c. without any reservation for securing their subjection to Parliament, and future laws of England. A third charter was afterwards granted by the same King, to the Treasurer and Company of Virginia, vesting them with full power and authority to make laws, with an addition of this clause, "so, always, that the same be not contrary to the laws and statutes of this our realm of England." The same clause was afterwards copied into the charter of this and other colonies, with certain variations, such as, that these laws should be "consonant to reason," "not repugnant to the laws of England," "as nearly as conveniently may be to the laws, statutes and rights of England," &c. These modes of expression, convey the same meaning, and serve to show an intention, that the laws of the colonies should be as much as possible, conformable in the spirit of them, to the principles and fundamental laws of the English const.i.tution, its rights and statutes then in being, and by no means to bind the colonies to a subjection to the supreme authority of the English Parliament. And that this is the true intention, we think it further evident from this consideration, that no acts of any colony Legislative, are ever brought into Parliament for inspection there, though the laws made in some of them, like the acts of the British Parliament, are laid before the King for his dissent or allowance.

We have brought the first American charters into view, and the state of the country when they were granted, to show, that the right of disposing of the lands was, in the opinion of those times, vested solely in the Crown; that the several charters conveyed to the grantees, who should settle upon the territories therein granted, all the powers necessary to const.i.tute them free and distinct states; and that the fundamental laws of the English const.i.tution should be the certain and established rule of legislation, to which, the laws to be made in the several colonies, were to be, as nearly as conveniently might be, conformable, or similar, which was the true intent and import of the words, "not repugnant to the laws of England,"

"consonant to reason," and other variant expressions in the different charters. And we would add, that the King, in some of the charters, reserves the right to judge of the consonance and similarity of their laws with the English const.i.tution, to himself, and not to the Parliament; and, in consequence thereof, to affirm, or within a limited time, disallow them.

These charters, as well as that afterwards granted to Lord Baltimore, and other charters, are repugnant to the idea of Parliamentary authority; and, to suppose a Parliamentary authority over the colonies, under such charters, would necessarily induce that solecism in politics, imperium in imperio. And the King's repeatedly exercising the prerogative of disposing of the American territory by such charters, together with the silence of the nation thereupon, is an evidence that it was an acknowledged prerogative.

But, further to show the sense of the English Crown and nation, that the American colonists, and our predecessors in particular, when they first took possession of this country, by a grant and charter from the Crown, did not remain subject to the supreme authority of Parliament, we beg leave to observe, that when a bill was offered by the two Houses of Parliament to King Charles the I. granting to the subjects of England, the free liberty of fis.h.i.+ng on the coast of America, he refused his royal a.s.sent, declaring as a reason, that "the colonies were without the realm and jurisdiction of Parliament."

In like manner, his predecessor, James the I. had before declared, upon a similar occasion, that "America was not annexed to the realm, and it was not fitting that Parliament should make laws for those countries." This reason was, not secretly, but openly declared in Parliament. If, then, the colonies were not annexed to the realm, at the time when their charters were granted, they never could afterwards, without their own special consent, which has never since been had, or even asked. If they are not now annexed to the realm, they are not a part of the kingdom, and consequently not subject to the Legislative authority of the kingdom. For no country, by the common law, was subject to the laws or to the Parliament, but the realm of England.

We would, if your Excellency pleases, subjoin an instance of conduct in King Charles the II. singular indeed, but important to our purpose, who, in 1769, framed an act for a permanent revenue for the support of Virginia, and sent it there by Lord Culpepper, the Governor of that colony, which was afterwards pa.s.sed into a law, and "enacted by the King's most excellent Majesty, by, and with the consent of the General a.s.sembly of Virginia." If the King had judged the colony to be a part of the realm, he would not, nor could he, consistently with Magna Charta, have placed himself at the head of, and joined with any Legislative body in making a law to tax the people there, other than the Lords and Commons of England.

Having taken a view of the several charters of the first colony in America, if we look into the old charter of this colony, we shall find it to be grounded on the same principle; that the right of disposing the territory granted therein, was vested in the Crown, as being that Christian Sovereign who first discovered it, when in the possession of heathens; and that it was considered as being not within the realm, but being only within the Fee and Seignory of the King. As, therefore, it was without the realm of England, must not the King, if he had designed that the Parliament should have any authority over it, have made special reservation for that purpose, which was not done?

Your Excellency says, "it appears from the charter itself, to have been the sense of our predecessors, who first took possession of this plantation, or colony, that they were to remain subject to the authority of Parliament." You have not been pleased to point out to us, how this appears from the charter, unless it be in the observation you make on the above mentioned clause, viz.: "that a favorable construction has been put upon this clause, when it has been allowed to intend such laws of England only, as are expressly made to respect us," which you say, "is by charter, a reserve of power and authority to Parliament, to bind us by such laws, at least, as are made expressly to refer to us, and consequently is a limitation of the power given to the General Court." But, we would still recur to the charter itself, and ask your Excellency, how this appears, from thence, to have been the sense of our predecessors? Is any reservation of power and authority to Parliament thus to bind us, expressed or implied in the charter? It is evident, that King Charles the I. the very Prince who granted it, as well as his predecessor, had no such idea of the supreme authority of Parliament over the colony, from their declarations before recited. Your Excellency will then allow us, further to ask, by what authority, in reason or equity, the Parliament can enforce a construction so unfavorable to us. Quod ab initio injustum est, nullum potest habere juris efectum, said Grotius. Which, with submission to your Excellency, may be rendered thus: whatever is originally in its nature wrong, can never be sanctified, or made right by repet.i.tion and use.

In solemn agreements, subsequent restrictions ought never to be allowed. The celebrated author, whom your Excellency has quoted, tells us, that, "neither the one or the other of the interested, or contracting powers, hath a right to interpret at pleasure." This we mention, to show, even upon a supposition, that the Parliament had been a party to the contract, the invalidity of any of its subsequent acts, to explain any clause in the charter; more especially to restrict or make void any clause granted therein to the General Court.

An agreement ought to be interpreted "in such a manner as that it may have its effect." But, if your Excellency's interpretation of this clause is just, "that it is a reserve of power and authority to Parliament to bind us by such laws as are made expressly to refer to us," it is not only "a limitation of the power given to the General Court" to legislate, but it may, whenever the Parliament shall think fit, render it of no effect; for it puts it in the power of Parliament, to bind us by as many laws as they please, and even to restrain us from making any laws at all. If your Excellency's a.s.sertions in this, and the next succeeding part of your speech, were well grounded, the conclusion would be undeniable, that the charter, even in this clause, "does not confer or reserve any liberties," worth enjoying, "but what would have been enjoyed without it;" saving that, within any of his Majesty's dominions, we are to be considered barely as not aliens. You are pleased to say, it cannot "be contended, that by the liberties of free and natural subjects," (which are expressly granted in the charter, to all intents, purposes and constructions, whatever,) "is to be understood, an exemption from acts of Parliament, because not represented there; seeing it is provided by the same charter, that such acts shall be in force." If, says an eminent lawyer, "the King grants to the town of D. the same liberties which London has, this shall be intended the like liberties." A grant of the liberties of free and natural subjects, is equivalent to a grant of the same liberties. And the King, in the first charter to this colony, expressly grants, that it "shall be construed, reputed and adjudged in all cases, most favorably on the behalf and for the benefit and behoof of the said Governor and Company, and their successors - any matter, cause or thing, whatsover, to the contrary notwithstanding." It is one of the liberties of free and natural subjects, born and abiding within the realm, to be governed, as your Excellency observes, "by laws made by persons, in whose elections they, from time to time, have a voice." This is an essential right.

For nothing is more evident, than, that any people, who are subject to the unlimited power of another, must be in a state of abject slavery.

It was easily and plainly foreseen, that the right of representation in the English Parliament, could not be exercised by the people of this colony. It would be impracticable, if consistent with the English const.i.tution. And for this reason, that this colony might have and enjoy all the liberties and immunities of free and natural subjects within the realm, as stipulated in the charter, it was necessary, and a Legislative was accordingly const.i.tuted within the colony one branch of which, consists of Representatives chosen by the people, to make all laws, statutes, ordinances, &c. for the well ordering and governing the same, not repugnant to the laws of England, or, as nearly as conveniently might be, agreeable to the fundamental laws of the English const.i.tution. We are, therefore, still at a loss to conceive, where your Excellency finds it " provided in the same charter, that such acts," viz, acts of Parliament, made expressly to refer to us, " shall be in force " in this province. There is nothing to this purpose, expressed in the charter, or in our opinion, even implied in it. And surely it would be very absurd, that a charter, which is evidently formed upon a supposition and intention, that a colony is and should be considered as not within the realm; and declared by the very Prince who granted it, to be not within the jurisdiction of Parliament, should yet provide, that the laws which the same Parliament should make, expressly to refer to that colony, should be in force therein. Your Excellency is pleased to ask, "does it follow, that the government, by their (our ancestors) removal from one part of the dominion to another, loses its authority over that part to which they removed; and that they are freed from the subjection they were under before?" We answer, if that part of the King's dominions, to which they removed, was not then a part of the realm, and was never annexed to it, the Parliament lost no authority over it, having never had such authority; and the emigrations were consequently freed from the subjection they were under before their removal. The power and authority of Parliament, being const.i.tutionally confined within the limits of the realm, and the nation collectively, of which alone it is the representing and Legislative a.s.sembly. Your Excellency further asks, "will it not rather be said, that by this, their voluntary removal, they have relinquished, for a time, at least, one of the rights of an English subject, which they might, if they pleased, have continued to enjoy, and may again enjoy, whenever they return to the place where it can be exercised?" To which we answer; they never did relinquish the right to be governed by laws, made by persons in whose election they had a voice. The King stipulated with them, that they should have and enjoy all the liberties of free and natural subjects, born within the realm, to all intents, purposes and constructions, whatsoever; that is, that they should be as free as those, who were to abide within the realm: consequently, he stipulated with them, that they should enjoy and exercise this most essential right, which discriminates freemen from va.s.sals, uninterruptedly, in its full sense and meaning; and they did, and ought still to exercise it, without the necessity of returning, for the sake of exercising it, to the nation or state of England.

We cannot help observing, that your Excellency's manner of reasoning on this point, seems to us, to render the most valuable clauses in our charter unintelligible: as if persons going from the realm of England, to inhabit in America, should hold and exercise there a certain right of English subjects; but, in order to exercise it in such manner as to be of any benefit to them, they must not inhabit there, but return to the place where alone it can be exercised. By such construction, the words of the charter can have no sense or meaning. We forbear remarking upon the absurdity of a grant to persons born without the realm, of the same liberties which would have belonged to them, if they had been born within the realm.

Your Excellency is disposed to compare this government to the variety of corporations, formed within the kingdom, with power to make and execute bylaws, &c.; and, because they remain subject to the supreme authority of Parliament, to infer, that this colony is also subject to the same authority: this reasoning appears to us not just. The members of those corporations are resident within the kingdom; and residence subjects them to the authority of Parliament, in which they are also represented; whereas the people of this colony are not resident within the realm. The charter was granted, with the express purpose to induce them to reside without the realm; consequently, they are not represented in Parliament there. But, we would ask your Excellency, are any of the corporations, formed within the kingdom, vested with the power of erecting other subordinate corporations? of enacting and determining what crimes shall be capital? and const.i.tuting courts of common law, with all their officers, for the hearing, trying and punis.h.i.+ng capital offenders with death? These and many other powers vested in this government, plainly show, that it is to be considered as a corporation, in no other light, than as every state is a corporation. Besides, appeals from the courts of law here, are not brought before the House of Lords; which shows, that the peers of the realm, are not the peers of America: but all such appeals are brought before the King in council, which is a further evidence, that we are not within the realm.

We conceive enough has been said, to convince your Excellency, that, "when our predecessors first took possession of this plantation, or colony, by a grant and charter from the Crown of England, it was not, and never had been the sense of the kingdom, that they were to remain subject to the supreme authority of Parliament. We will now, with your Excellency's leave, inquire what was the sense of our ancestors, of this very important matter.

And, as your Excellency has been pleased to tell us, you have not discovered, that the supreme authority of Parliament has been called in question, even by private and particular persons, until within seven or eight years past; except about the time of the anarchy and confusion in England, which preceded the restoration of King Charles the II. we beg leave to remind your Excellency of some parts of your own history of Ma.s.sachusetts Bay. Therein we are informed of the sentiments of "persons of influence," after the restoration; from which, the historian tells us, some parts of their conduct, that is, of the General a.s.sembly, "may be pretty well accounted for." By the history, it appears to have been the opinion of those persons of influence, "that the subjects of any prince or state, had a natural right to remove to any other state, or to another quarter of the world, unless the state was weakened or exposed by such remove; and, even in that case, if they were deprived of the right of all mankind, liberty of conscience, it would justify a separation, and upon their removal, their subjection determined and ceased." That "the country to which they had removed, was claimed and possessed by independent princes, whose right to the lords.h.i.+p and sovereignty thereof had been acknowledged by the Kings of England," an instance of which is quoted in the margin. "That they themselves had actually purchased, for valuable consideration, not only the soil, but the dominion, the lords.h.i.+p and sovereignty of those princes;" without which purchase, "in the sight of G.o.d and men, they had no right or t.i.tle to what they possessed." They had received a charter of incorporation from the King, from whence arose a new kind of subjection, namely, "a voluntary, civil subjection;" and by this compact, "they were to be governed by laws made by themselves." Thus it appears to have been the sentiments of private persons, though persons by whose sentiments the public conduct was influenced, that their removal was a justifiable separation from the mother state, upon which, their subjection to that state, determined and ceased. The supreme authority of Parliament, if it had then ever been a.s.serted, must surely have been called in question, by men who had advanced such principles as these.

The first act of Parliament, made expressly to refer to the colonies, was after the restoration. In the reign of King Charles the II.

several such acts pa.s.sed. And the same history informs us, there was a difficulty in conforming to them; and the reason of this difficulty is explained in a letter of the General a.s.sembly to their Agent, quoted in the following words; "they apprehended them to be an invasion of the rights, liberties and properties of the subjects of his Majesty, in the colony, they not being represented in Parliament, and according to the usual sayings of the learned in the law, the laws of England were bounded within the four seas, and did not reach America: However, as his Majesty had signified his pleasure, that those acts should be observed in the Ma.s.sachusetts, they had made provision, by a law of the colony, that they should be strictly attended."3 Which provision, by a law of their own, would have been superfluous, if they had admitted the supreme authority of Parliament. In short, by the same history it appears, that those acts of Parliament, as such, were disregarded; and the following reason is given for it: "It seems to have been a general opinion, that acts of Parliament have no other force, than what they derived from acts made by the General Court, to establish and confirm them."

But, still further to show the sense of our ancestors, respecting this matter, we beg leave to recite some parts of a narrative, presented to the Lords of Privy Council, by Edward Randolph, in the year 1676, which we find in your Excellency's collection of papers lately published.4 Therein5 it is declared to be the sense of the colony, "that no law is in force or esteem there, but such as are made by the General Court; and, therefore, it is accounted a breach of their privileges, and a betraying of the liberties of their commonwealth, to urge the observation of the laws of England." And, further, "that no oath shall be urged, or required to be taken by any person, but such oath as the General Court hath considered, allowed and required." And, further, "there is no notice taken of the act of navigation, plantation or any other laws, made in England for the regulation of trade." "That the government would make the world believe, They are a free state, and do act in all matters accordingly." Again, "these magistrates ever reserve to themselves, a power to alter, evade and disannul any law or command, not agreeing with their humor, or the absolute authority of their government, acknowledging no superior."

And, further, "he (the Governor) freely declared to me, that the laws made by your Majesty and your Parliament, obligeth them in nothing, but what consists with the interests of that colony; that the Legislative power and authority is, and abides in them solely." And in the same Mr. Randolph's letter to the Bishop of London, July 14., 1682, he says, "this independency in government is claimed and daily practised."6 And your Excellency being then sensible, that this was the sense of our ancestors, in a marginal note, in the same collection of papers, observes, that, "this, viz, the provision made for observing the acts of trade, is very extraordinary, for this provision was an act of the colony, declaring the acts of trade shall be in force there." Although Mr. Randolph was very unfriendly to the colony, yet, as his declarations are concurrent with those recited from your Excellency's history, we think they may be admitted, for the purpose for which they are now brought.

Thus we see, from your Excellency's history and publications, the sense our ancestors had of the jurisdiction of Parliament, under the first charter. Very different from that, which your Excellency in your speech, apprehends it to have been.

It appears by Mr. Neal's History of New England, that the agents, who had been employed by the colony to transact its affairs in England, at the time when the present charter was granted, among other reasons, gave the following for their acceptance of it, viz. "The General Court has, with the King's approbation, as much power in New England, as the King and Parliament have in England; they have all English privileges, and can be touched by no law, and by no tax but of their own making."7 This is the earliest testimony that can be given of the sense our predecessors had of the supreme authority of Parliament, under the present charter. And it plainly shows, that they, who having been freely conversant with those who framed the charter, must have well understood the design and meaning of it, supposed that the terms in our charter, "full power and authority," intended and were considered as a sole and exclusive power, and that there was no "reserve in the charter, to the authority of Parliament, to bind the colony" by any acts whatever.

Soon after the arrival of the charter, viz, in 1692, your Excellency's history informs us,8 "the first act" of this Legislative, was a sort of Magna Charta, a.s.serting and setting forth their general privileges, and this clause was among the rest; "no aid, tax, tallage, a.s.sessment, custom, loan, benevolence, or imposition whatever, shall be laid, a.s.sessed, imposed, or levied on any of their Majesty's subjects, or their estates, on any pretence whatever, but by the act and consent of the Governor, Council, and Representatives of the people a.s.sembled in General Court." And though this act was disallowed, it serves to show the sense which the General a.s.sembly, contemporary with the granting the charter, had of their sole and exclusive right to legislate for the colony. The history says, "the other parts of the act were copied from Magna Charta;" by which, we may conclude that the a.s.sembly then construed the words, "not repugnant to the laws," to mean, conformable to the fundamental principles of the English const.i.tution. And it is observable, that the Lords of Privy Council, so lately as in the reign of Queen Anne, when several laws enacted by the General a.s.sembly were laid before her Majesty for her allowance, interpreted the words in this charter, "not repugnant to the laws of England," by the words, "as nearly as conveniently may be agreeable to the laws and statutes of England." And her Majesty was pleased to disallow those acts, not because they were repugnant to any law or statute of England, made expressly to refer to the colony, but because divers persons, by virtue thereof, were punished, without being tried by their peers in the ordinary "courts of law," and "by the ordinary rules and known methods of justice," contrary to the express terms of Magna Charta, which was a statute in force at the time of granting the charter, and declaratory of the rights and liberties of the subjects within the realm.

You are pleased to say, that "our provincial or local laws have, in numerous instances, had relation to acts of Parliament, made to respect the plantations, and this colony in particular." The authority of the Legislature, says the same author who is quoted by your Excellency, "does not extend so far as the fundamentals of the const.i.tution. They ought to consider the fundamental laws as sacred, if the nation has not in very express terms, given them the power to change them. For the const.i.tution of the state ought to be fixed; and since that was first established by the nation, which afterwards trusted certain persons with the Legislative power, the fundamental laws are excepted from their commission." Now the fundamentals of the const.i.tution of this province, are stipulated in the charter; the reasoning, therefore, in this case, holds equally good. Much less, then, ought any acts or doings of the General a.s.sembly, however numerous, to neither of which your Excellency has pointed us, which barely relate to acts of Parliament made to respect the plantations in general, or this colony in particular, to be taken as an acknowledgment of this people, or even of the a.s.sembly, which inadvertently pa.s.sed those acts, that we are subject to the supreme authority of Parliament; and with still less reason are the decisions in the executive courts to determine this point. If they have adopted that "as part of the rule of law," which, in fact, is not, it must be imputed to inattention or error in judgment, and cannot justly be urged as an alteration or restriction of the Legislative authority of the province.