Week 8: The Coercive Acts
Thomas Hutchinson, The Speeches of his Excellency …
The speeches of His Excellency Governor Hutchinson, to the General Assembly of the Massachusetts-Bay. At a session begun and held on the sixth of January, 1773. : With the answers of His Majesty’s Council and the House of Representatives respectively.
Thomas Hutchinson, et. al.
On Tuesday the 16th of February his Excellency was pleased to deliver the following Speech to both Houses in the Council Chamber, viz.
Gentlemen of the Council, and Gentlemen of the House of Representatives,
THE Proceedings of such of the Inhabitants of the Town of Boston as assembled together and passed and published their Resolves or Votes as the Act of the Town at a legal Town-Meeting, denying in the most express Terms the Supremacy of Parliament, and invit|ing every other Town and District in the Province to a•opt the same Principle and to establish Com|mittees of Correspondence to consult upon pro|per Measures to maintain it, and the Proceedings of divers other Towns, in Consequence of this Invitation, appeared to me to be so unwarranta|ble and of such a dangerous Nature and Ten|dency, that I thought myself bound to call upon you in my Speech at Opening the Session, to join with me in discountenancing and bearing a pro|per Testimony against such Irregularities and Innovations.
I stated to you fairly and truly, as I conceiv|ed, the Constitution of the Kingdom and of the Province so far as relates •o the Dependance of the latter upon the former; and I desired 〈◊〉, if you differed from me in Sentiments, to shew me with Candour my own Errors, and to g•ve your Reasons in support of your Opinions, so far as you might differ from me. I hoped that you would have considered my Speech by your joint Committees, and have given me a joint An|swer; but, as the House of Representatives have declined that Mode of Proceeding, and as your Principles in Government are very different, I am obliged to make separate and distinct replies.
I shall first apply myself to you,
Gentlemen of the Council,
The two first Parts of your Answer, which Respect the Disorders occasioned by the Stamp-Act and the general Nature of Supreme Autho|rity, do not appear to me to have a Tendency to invalidate any Thing which I have said in my Speech; for, however the Stamp-Act may have been the immediate Occasion of any Disorders, the Authority of Parliament was notwithstanding denied in Order to justify or excuse them. And, for the Nature of the Supreme Authority of Parliament, I have never given you any Reason to suppose that I intended a more absolute Pow|er in Parliament, or a greater Degree of active or passive Obedience in the People, than what is founded in the Nature of Government, let the Form of it be what it may. I shall, therefore, pass over those Parts of your Answer without any other Remark. I would also have saved you the Trouble of all those Authorities which you have brought to shew, that all Taxes upon English Subjects must be levied by Virtue of the Act not of the King alone but in Conjunction with the Lords and Commons, for I should very readily have allowed it; and I should as readily have allowed that all other Acts of Legislation must be passed by the same joint Authority, and not by the King alone.
Indeed, I am not willing to continue a Con|troversy with you upon any other Parts of your Answer. I am glad to find that Independence is what you have not in Contemplation; and that you will not presume to prescribe the exact Limits of the Authority of Parliament; only, as with due Deference to it, you are humbly of Opinion, that, as all human Authority in the Nature of it is and ought to be limited, it cannot constitutionally extend for the Reasons you have suggested, to the levying of Taxes in any Form on his Majesty’s Subjects of this Province.
I will only oberve, that your Attempts to draw a Line as the Limits of the Supreme Authority in Government, by distinguishing some natural Rights as more peculiarly exempt from such Au|thority than the rest, rather tend to evince the Impracticability of drawing such a Line; and that some Parts of your Answer seem to infer a Supremacy in the Province at the same Time that you acknowledge the Supremacy of Parlia|ment, for otherwise the Rights of the Subjects cannot be the same in all essential Respects▪ as you suppose them to be, in all Parts of the Do|minions, “under a like Form of Legislature.”
From these, therefore▪ and other Considerati|ons I cannot help flattering myself, that, upon more mature Deliberation and in Order to a more consistent Plan of Government, you will chuse rather to doubt of the Expediency of Parlia|ment’s Exercising its Authority in Cases that may happen▪ than to limit the Authority itself, espe|cially as you agree with me in the proper Me|thod of obtaining a Redress of Grievances by con|stitutional Representations, which cannot well consist with a Denial of the Authority to which the Representations are made; and, from the best Information I have been able to obtain, the Denial of the Authority of Parliament, expresly or by Implication in those Petitions to which you refer was the Cause of their not being admitted, and not any Advice given by the Minister to the Agents of the Colonies.
I must enlarge and be much more particular in my Reply to you,
Gentlemen of the House of Representatives,
I shall take no Notice of that Part of your Answer which attributes the Disorders of the Province to an undue Exercise of the Power of Parliament, because you take for granted, what can by no Means be admitted, that Parliament had exercised its Power without just Authority. The Sum of your Answer so far as it is pertinent to my Speech, is this.
You alledge that the Colonies were an Acqui|sition of Foreign Territory not annexed to the Realm of England, and therefore at the absolute Disposal of the Crown; the King having, as you take it, a constitutional Right to dispose of and alienate any Part of his Territories not annexed to the Realm—that Queen Elizabeth accordingly conveyed the Property, Dominion and Sove|reignty of Virginia to Sir Walter Raleigh to be held of the Crown by Homage and a certain Ren|der, without reserving any Share in the Legisla|tive and Executive Authority—that the subse|quent Grants of America were similar in this Respect, that they were without any Reservation for securing the Subjection of the Colonists to the Parliament and future Laws of England,—that this was the Sense of the English Crown, the Nation and our Predecessors when they first took Possession of this Country—that if the Co|lonies were not then annexed to the Realm they cannot have been annexed since that Time—that if they are not now annexed to the Realm they are not 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.
Now if this your Foundation shall fail you in every Part of it, as I think it will, the Fabrick which you have raised upon it must certainly fall.
Let me then observe to you that, as English Subjects, and agreeable to the Doctrine of Feudal Tenure, all our Lands and Tenements are held me•iately or immediately of the Crown, and although the Possession and Use or Profits be in the Subject, there still remains a Dominion in the Crown. When any new Countries are disco|vered by English Subjects, according to the gene|ral Law and Usage of Nations, they become Part of the State, and, according to the Feudal System, the Lordship or Dominion is in the Crown and a Right accrues of disposing of such Territories, under such Tenure or for such Services to be performed as the Crown shall judge proper, and whensoever any Part of such Territories, by Grant from the Crown, becomes the Possession or Property of private Persons, such Persons, thus holding under the Crown of England, remain or become Subjects of England to all Intents and Purposes, as fully as if any of the Royal Manors Forests or other Territory within the Realm had been granted to them upon the like Tenure. But that it is now, or was when the Plantations were first granted, the Prerogative of the Kings of England to alienate such Territories from the Crown, or to constitute a Number of new Go|vernments altogether independant of the Sove|reign Legislative Authority of the English Em|pire. I can by no Means concede to you. I have never seen any better Authority to support such an Opinion than an anonimous Pamphlet by which I fear you have too easily been mislead, for I shall presently shew you that the Declarations of King James the First, and of King Charles the First, admitting they are truly related by the Author of this Pamphlet, ought to have no Weight with you; nor does the Cession or Restoration, upon a Trea|ty of Peace, of Countries which have been lost or acquired in War militate with these Principles, nor may any particular Act of Power of a Prince in selling or delivering up any Part of His Do|minions to a foreign Prince or State against the general Sense of the Nation be urged to invali|date them, and upon Examination it will appear that all the Grants which have been made of America are founded upon them and are made to conform to them, even those which you have adduced in Support of very different Principles.
You do not recollect that, prior to what you call the first Grant by Q. Elizabeth to Sir Walter Raleigh, a Grant had been made, by the same Princess, to Sir Humphrey Gilbert of all such Countries as he should discover which were to be of the Allegiance of her, her Heirs and Suc|cessors but, he dying in the Prosecution of his Voyage, a second Grant was made to Sir Walter Raleigh which, you say, conveyed the Dominion and Sovereignty without any Reserve of Legisla|tive or Executive Authority being held by Homage and a Render. To hold by Homage, which im|plies Fealty, and a Render is Descriptive of So|cage Tenure as fully as if it had been said to hold as of our Manor of East Greenwich the Words in your Charter. Now this alone was a Reserve of Dominion and Sovereignty in the Queen her Heirs and Successors and, besides this, the Grant is made upon this express Condition, which you pass over, that the People remain sub|ject to the Crown of England, the Head of that Legislative Authority which, by the English Constitution, is equally extensive with the Autho|rity of the Crown throughout every Part of the Dominions. Now if we could suppose the Queen to have acquired separate from her Relations to her Subjects, or in her natural Capacity, which she could not do, a Title to a Country discover|ed by her Subjects and then to grant the same Country to English Subjects in her publick Ca|pacity as Queen of England, still by this Grant she annexed it to the Crown. Thus by not dis|tinguishing between the Crown of England and the Kings and Queens of England in their perso|nal or natural Capacities, you have been led in|to a fundamental Error which must prove fatal to your System. It is not material whether Vir|ginia reverted to the Crown by Sir Walter’s At|tainder or whether he never took any Benefit from his Grant, though the latter is most proba|ble seeing he ceased from all Attempts to take Possession of the Country after a few Years Trial. There were, undoubtedly, divers Grants made by King James the First of the Continent of A|merica in the Beginning of the 17th Century and similar to the Grant of Queen Elizabeth in this Respect, that they were dependant on the Crown. The Charter to the Council at Plimouth in De|von dated November 3d, 1620 more immedi|ately respects us, and of that we have the most authentick Remains.
By this Charter, upon the Petition of Sir Fer|dinando Gorges a Corporation was constituted to be and continue by Succession forever in the Town of Plimouth aforesaid, to which Corpora|tion that Part of the American Continent which lies between the 40° and 48° Degrees of Lati|tude was granted to be held of the King his Heirs and Successors as of the Manor of East Green|wich with Powers to constitute subordinate Go|vernments in America and to make Laws for such Governments, not repugnant to the Laws and Statutes of England. From this Corpora|tion your Predecessors obtained a Grant of the Soil of the Colony of Massachusets-Bay, in 1627, and, in 1628, they obtained a Charter from King Charles the First making them a distinct Corporation, also within the Realm, and giving them full Powers within the Limits of their Pa|tent; very like to those of the Council of Pli|mouth throughout their more extensive Territory.
We will now consider what must have been the Sense of the King of the Nation and of the Patentees at the Time of granting these Patents. From the Year 1602 the Banks and Sea Coasts of New-England had been frequented by Eng|lish Subjects for catching and drying Cod-Fish. When an exclusive Right to the Fishery was claimed, by Virtue of the Patent of 1620, the House of Commons was alarmed and a Bill was brought in for allowing a free Fishery, and it was upon this Occasion that one of the Secreta|ries of State declared perhaps as his own Opinion, that the Plantations were not annexed to the Crown and so were not within the Jurisdiction of Parliament. Sir Edwin Sandys, who was one of the Virginia Company and an eminent Lawyer, declared that he knew Virginia had been annexed and was held of the Crown as of the Manor of East Greenwich and he believed New-England was so also; and so it most certainly was. This Declaration, made by one of the King’s Servants, you say shewed the Sense of the Crown and, being not secretly but openly declared in Parlia|ment you would make it the Sense of the Na|tion also, notwithstanding your own Assertion that the Lords and Commons passed a Bill that shewed their Sense to be directly the contrary. But if there had been full Evidence of express Declarations made by King James the First, and King Charles the First, they were Declarations contrary to their own Grants, which declare this Country to be held of the Crown and conse|quently it must have been annexed to it. And may not such Declarations be accounted for by other Actions of those Princes who when they were solliciting the Parliament to grant the Du|ties of Tonnage and Poundage with other Aids and were, in this Way, acknowledging the Rights of Parliament, at the same Time were requiring the Payment of those Duties with Ship Money, &c. by Virtue of their Prerogative?
But to remove all doubt of the Sense of the Nation and of the Patentees of this Patent or Charter in 1620 I need only refer you to the Account published by Sir Ferdinando Gorges himself of the Proceedings in Parliament upon this Occasion. As he was the most active Mem|ber of the Council of Plimouth and as he re|lates what came within his own Knowledge and Observation his Narrative, which has all the Appearance of Truth and Sincerity, must carry Conviction with it. He says that soon after the Patent was passed and whilst it lay in the Crown-Office he was summoned to appear in Parliament to answer what was to be objected against it, and the House being in a Committee and Sir Edward Coke that great Oracle of the Law, in the Chair, he was called to the Bar and was told by Sir Edward that the House understood that a Patent had been granted to the said Sir •erdinando and divers other noble Persons for establishing a Colony in New-England, that this was d••med a Grievance of the Common-wealth 〈◊〉 to the Laws, and to the Privileges of the Subject, that it was a Monopoly, &c. and he required the Delivery of the Patent into the House. Sir Ferdinando Gorges made no Doubt of the Au|thority of the House but submitted to their Dis|posal of the Patent as in their Wisdom they thought good “not knowing, under Favour, how any Action of that King could be a Grievance to the Publick seeing it was undertaken for the Advancement of Religion, the Enlargement of the Bounds of our Nation. &c. He was willing, however, to submit the whole to their honorable Censures.” After divers Attendances he imagin|ed he had satisfied the House that the planting a Colony was of much more Consequence than a simple disorderly Course of Fishing. He was, notwithstanding, disappointed and, when the Pub|lick Grievances of the Kingdom were presented by the two Houses, that of the Patent for New-England was the first. I don’t know how the Parliament could have shewn more fully the Sense they then had of their Authority over this new acquired Territory, nor can we expect bet|ter Evidence of the Sense which the Patentees had of it, for I know of no historical Fact of which we have less Reason to doubt.
And now Gentlemen I will shew you how it appears from our Charter itself, which you say I have not yet been pleased to point out to you except from that Clause which restrains us from making Laws repugnant to the Laws of England, that it was the Sense of our Predecessors at the Time when the Charter was granted that they were to remain subject to the Supreme Authority of Parliament.
Besides this Clause, which I shall have Occa|sion further to remark upon before I finish, you will find that, by the Charter a Grant was made of Exemption from all Taxes and Impositions upon any Goods imported into New-England, or exported from thence into England for the Space of twenty-one Years, except the Custom of five per Cent upon such Goods as, after the Expiration of seven Years, should be brought into England. Nothing can be more plain than that the Charter, as well as the Patent to the Council of Plimouth, constitutes a Corporation in England with Powers to create a subordinate Government or Governments within the Plantation, so that there would always be Subjects of Taxes and Impositions both in the Kingdom and in the Plan|tation. An Exemption for twenty-one Years im|plies a Right of Imposition after the Expiration of the Term, and there is no Distinction between the Kingdom and the Plantation. By what Au|thority, then, in the Understanding of the Parties, were these Impositions to be laid? If any, to support a System, should say by the King rather than to acknowledge the Authority of Parliament, yet this could not be the Sense of one of our principal Patentees Mr. Samuel Vassall who at that Instant, 1628, the Date of the Charter, was suffering the Loss of his Goods rather than submit to an Imposition laid by the King without the Authority of Parliament; and to prove that a few Years after it could not be the Sense of the rest I need only to refer you to your own Records for the Year 1642 where you will find an Order of the House of Commons, conceived in such Terms as discover a plain Reference to this Part of the Charter, after fourteen Years of the Twenty-one were expired. By this Order the House of Commons declare that all Goods and Merchandize exported to New-England or imported from thence shall be free from all Tax|es and Impositions both in the Kingdom and in New-England until the House shall take further Order therein to the contrary. The Sense which our Predecessors had of the Benefit which they took from this Order evidently appears from the Vote of the General Court, acknowledging their humble Thankfulness, and preserving a grateful Remembrance of the Honorable Respect from that high Court, and resolving that the Order sent unto them under the Hand of the Clerk of the Honorable House of Commons shall be entered among their Publick Records to remain there unto Posterity: And, in an Address to Parliament, Nine Years after, they acknowledge, among other undeserved Favours that of taking off the Customs from them.
I am at a Loss to know what your Ideas could be when you say that if the Plantations are not Part of the Realm, they are not Part of the Kingdom, seeing the two Words can properly convey but one Idea and they have one and the same Signification in the different Languages from whence they are derived. I do not charge you with any Design, but the equivocal Use of the Word Realm in several Parts of your Answer makes them perplexed and obscure. Sometimes, you must intend the whole Dominion which is subject to the Authority of Parliament, sometimes only strictly the Territorial Realm to which other Dominions are or may be annexed. If you mean that no Countries but the ancient territorial Realm can constitutionally be subject to the Su|preme Authority of England, which you have very incautiously said is a Rule of the Common Law of England, this is a Doctrine which you will never be able to support. That the Com|mon Law should be controuled and changed by Statutes every Day’s Experience teaches, but that the Common Law prescribes Limits to the Extent of the Legislative Power, I believe has never been said upon any other Occasion. That Acts of Parliament for several Hundred Years past have respected Countries, which are not strictly within the Realm, you might easily have discovered by the Statute Books. You will find Acts for regulating the Affairs of Ireland, though a seperate and distinct Kingdom. Wales and Calais, whilst they sent no Representatives to Parliament, were subject to the like Regulations. So are Guernsey, Jersey, Alderney, &c. which send no Members to this Day. These Countries are not more properly a Part of the ancient Realm, than the Plantations, nor do I know that they can more properly be said to be annexed to the Realm, unless the declaring that Acts of Parliament shall extend to Wales, though not particularly named shall make it so, which I conceive it does not in the Sense you intend.
Thus, I think, I have made it appear that the Plantations, though not strictly within the Realm, have from the Beginning been constitutionally subject to the Supreme Authority of the Realm and are so far annexed to it as to be, with the Realm and the other Dependencies upon it, one intire Dominion; and that the Plantation or Co|lony of Massachusetts-Bay in particular is holden as feudatory of the Imperial Crown of England: Deem it to be no Part of the Realm it is imma|terial, for, to use the Words of a very great Authority in a Case in some Respects analogous, “being Feudatory the Conclusion necessary fol|lows, that it is under the Government of the King’s Laws and the King’s Courts in Cases pro|per for them to interpose, though (like Counties Palatine) it has peculiar Laws and Customs, Jura Regalia, and complete Jurisdiction at Home.”
Your Remark upon and Construction of the Words, not Repugnant to the Laws of England, are much the same with those of the Council; but can any Reason be assigned why the Laws of England as they stood just at that Period should be pitched upon as the Standard, more than at any other Period? If so, why was it not recur|ed to when the second Charter was Granted, more than sixty Years after the first? It is not improbable that the original Intention might be a Repugnancy in general and, a Fortiori, such Laws as were made more immediately to Respect us, but the Statute of 7th and 8th, of King Wil|liam and Queen Mary, soon after the second Charter, favours the latter Construction only, and the Province Agent, Mr. Dummer, in his much applauded Defence of the Charter, says that then a Law in the Plantations may be said to be repug|nant to a Law made in Great Britain, when it flatly contradicts it so far as the Law made there mentions and relates to the Plantations. But, Gentlemen, there is another Clause both in the first and second Charter which, I think will serve to explain this or to render all Dispute upon the Construction of it unnecessary.—You are ena|bled to impose such Oaths only as are warranta|ble by, or not repugnant to the Laws and Statutes of the Realm. I believe you will not contend that these Clauses must mean such Oaths only as were warrantable at the respective Times when the Charters were granted. It has often been found necessary, since the Date of the Charters, to alter the Forms of the Oaths to the Govern|ment by Acts of Parliament, and such Alterati|ons have always been conformed to in the Plan|tations.
Lest you should think that I admit the Authority of King Charles the Second in giving his Assent to an Act of the Assembly of Virginia, which you subjoin to the Authorities of James the First and Charles the First, to have any Weight, I must observe to you that I do not see any greater In|consistency with Magna Charta in the King’s giv|ing his Assent to an Act of a Subordinate Legi|slature immediately or in Person than when he does it mediately by his Governor or Substitute but, if it could be admitted that such an Assent discovered the King’s Judgment that Virginia was Independent, would you lay any Stress upon it when the same King was from Time to Time giving his Assent to Acts of Parliament which in|ferred the Dependence of all the Colonies, and had by one of those Acts declared the Plantations to be inhabited and peopled by his Majesty Subjects of England?
I gave you no Reason to Remark upon the Absurdity of a Grant to Persons born within the Realm of the same Liberties which would have belonged to them if they had been born within the Realm, but rather guarded against it by con|sidering such Grant as declaratory only, and in the Nature of an Assurance that the Plantations would be considered as the Dominions of Eng|land. But is there no Absurdity in a Grant from the King of England of the Liberties and Immu|nities of Englishmen to Persons born in and who are to inhabit other Territories than the Dominions of England, and would such Grant, whether by Charter or other Letters Patent, be sufficient to make them inheritable, or to intitle them to the other Liberties and Immunities of Englishmen, in any Part of the English Dominions?
As I am willing to rest the Point between us upon the Plantations having been, from their first Discovery and Settlement under the Crown, a Part of the Dominions of England, I shall not take up any Time in remarking upon your Ar|guments to shew that since that Time, they can|not have been made a Part of those Dominions.
The remaining Parts of your Answer are prin|cipally intended to prove that, under both Char|ters, it hath been the Sense of the People that they were not subject to the Jurisdiction of Parli|ament, and, for this Purpose, you have made large Extracts from the History of the Colony. Whilst you are doing Honor to the Book, by laying any Stress upon its Authority, it would have been no more than Justice to the Author if you had cited some other Passages which would have tended to reconcile the Passage, in my Speech to the History.—I have said that, except about the Time of the Anarchy which preceded the Restoration of King Charles the Second, I have not discovered that the Authority of Parliament had been called in Question even by particular Persons. It was, as I take it, from the Principles imbibed in those Times of Anarchy that the Per|sons of Influence, mentioned in the History, dis|puted the Authority of Parliament, but the Go|vernment would not venture to dispute it. On the contrary, in four or five Years after the Re|storation, the Government declared to the King’s Commissioners that the Act of Navigation had been for some Years observed here, that they knew not of it’s being greatly violated and that such Laws as appeared to be against it were repealed, It is not strange that these Persons of Influence should prevail upon great Part of the People to fall in, for a Time with their Opinions and to suppose Acts of the Colony necessary to give Force to Acts of Parliament; the Government, howe|ver, several Years before the Charter was vacated, more explicitly acknowledged the Authority of Parliament and voted that their Governor should take the Oath, required of him, faithfully to do and perform all Matters and Things enjoined him by the Acts of Trade. I have not recited in my Speech all these Particulars, nor had I them all in my Mind but, I think, I have said nothing inconsistent with them. My Principles in Go|vernment are still the same with what they ap|pear to be in the Book you refer to, nor am I conscious that, by any Part of my Conduct, I have given Cause to suggest the contrary.
Inasmuch as you say that I have not particu|larly pointed out to you the Acts and Doings of the General Assembly which relate to Acts of Parliament, I will do it now, and demonstrate to you that such Acts have been acknowledged by the Assembly, or submitted to by the People.
From your Predecessors Removal to America until the Year 1640 there was no Session of Parliament, and the first short Session of a few Days only in 1640, and the whole of the next Session, until the withdraw of the King, being taken up in the Disputes between the King and the Parliament, there could be no Room for Planta|tion Affairs. Soon after the King’s withdraw the House of Commons passed the memorable Order of 1642, and from that Time to the Restoration, this Plantation seems to have been distinguished from the rest, and the several Acts or Ordinances, which respected the other Plantations, were never enforced here, and, possibly, under Colour of the Exemption in 1642, it might not be intended they should be executed.
For 15 or 16 Years after the Restoration, there was no Officer of the Customs in the Colony, except the Governor annually elected by the People, and the Acts of Trade were but little regarded, nor did the Governor take the Oath required of Governors by the Act of the 12th of King Charles the Second, until the Time which I have mentioned. Upon the Revolution the Force of an Act of Parliament was evident in a Case of as great Importance as any which could happen to the Colony. King William and Queen Mary were proclaimed in the Colony, King and Queen of England, France and Ireland, and the Dominions thereunto belonging, in the Room of King James, and this not by Virtue of an Act of the Colony, for no such Act ever passed, but by Force of an Act of Parliament which altered the Succession to the Crown, and for which the People waited several Weeks with anxious Con|cern. By Force of another Act of Parliament, and that only, such Officers of the Colony as had taken the Oaths of Allegiance to King James deemed themselves at Liberty to take, and ac|cordingly did take the Oaths to King William and Queen Mary. And that I may mention other Acts of the like Nature together, it is by Force of an Act of Parliament that the Illustrious House of Hanover succeeded to the Throne of Britain and its Dominions, and by several other Acts, the Forms of the Oaths have from Time to Time, been altered, and by a late Act that Form was established which every one of us has complied with as the Charter in express Words requires and makes our Duty. Shall we now dispute whether Acts of Parliament have been submitted to when we find them submitted to in Points which are of the very Essence of our Constitu|tion? If you should disown that Authority which has Power even to change the Succession to the Crown, are you in no Danger of denying the Authority of our most gracious Sovereign, which I am sure none of you can have in your Thoughts?
I think I have before shewn you, Gentlemen, what must have been the Sense of our Predeces|sors at the Time of the first Charter, let us now, whilst we are upon the Acts and Doings of the Assembly, co••••er what it must have been at the Time of the second Charter. Upon the first Advice of the Revolution in England, the Au|thority which assumed the Government instructed their Agents to petition th• Parliament to restore the first Charter, and a Bill for that Purpose pas|sed the House of Commons, but went no farther. Was not this owning the Authority of Parliament? By an Act of Parliament, passed in the first Year of King William and Queen Mary, a Form of Oaths was established to be taken by those Prin|ces and by all succeeding Kings and Queens of of England at their Coronation, the first of which is, that they will govern the People of the King|dom and the Dominions thereunto belonging, ac|cording to the Statutes in Parliament agreed on, and the Laws and Customs of the same. When the Colony directed their Agents to make their humble Application to King William to grant the second Charter, they could have no other Pretence than as they were Inhabitants of Part of the Do|minions of England, and they also knew the Oath the King had taken to govern them according to the Statutes in Parliament; surely then, at the Time of this Charter also, it was the Sense of our Prede|cessors, as well as of the King and of the Nation that there was and would remain a Supremacy in the Parliament. About the same Time, they acknowledge, in an Address to the King, that they have no Power to make Laws repugnant to the Laws of England. And, immediately after the Assumption of the Powers of Government by Virtue of the new Charter, an Act passed to re|vive for a limitted Time all the Local Laws of the Colonies of Massachusetts-Bay and New-Plimouth, respectively, not repugnant to the Laws of England. And, at the same Session, an Act passed establishing Naval Officers in several Ports of the Province, for which this Reason is given, that all undue Trading contrary to an Act of Parliament made in the 15th Year of King Charles the Second may be prevented in this their Majesty’s Province. The Act of this Province passed so long ago as the second Year of King George the first, for stating the Fees of the Custom-House Officers, must have relation to the Acts of Par|liament by which they are constituted, and the Provision made in that Act of the Province for extending the Port of Boston to all the Roads as far as Cape-Aod, could be for no other Purpose than for the more effectual carrying the Acts of Trade into Execution. And, to come nearer to the present Time, when an Act of Parliament had passed in 1741, for putting an End to certain unwarrantable Schemes in this Province, did the Authority of Government, or those Persons more immediately affected by it, ever dispute the Vali|dity of it? On the contrary, have not a Num|ber of Acts been passed in the Province, that the Burdens to which such Persons were subjected might be equally apportioned, and have not all those Acts of the Province been very carefully framed to prevent their militating with the Act of Parliament? I will mention also an Act of Parliament made in the first Year of Queen Ann; altho’ the Proceedings upon it more immediately respected the Council. By this Act no Office Civil or Military shall be void by the Death of the King, but shall continue six Months, unless suspended or made void by the next Successor. By Force of this Act, Governor Dudley conti|nued in the Administration six Months from the Demise of Queen Ann, and immediately after, the Council assumed the Administration and con|tinued it until a Proclamation arrived from King George, by Virtue of which Governor Dudley reassumed the Government. It would be tedious to enumerate the Addresses, Votes and Messages of both the Council and House of Re|presentatives to the same Purpose. I have said enough to shew that this Government has sub|mitted to Parliament from a Conviction of it’s constitutional Supremacy, and this not from In|consideration, nor meerly from Reluctance at the Idea of contending with the Parent State.
If then I have made it appear, that both by the first and second Charters we hold our Lands and the Authority of Government not of the King but of the Crown of England, that being a Dominion of the Crown of England, we are consequently subject to the Supreme Authority of England, that this hath been the Sense of this Plantation, except in those few Years when the Principles of Anarchy which had prevailed in the Kingdom had not lost their Influence here; and if, upon a Review of your Principles, they shall appear to you to have been delusive and errone|ous, as I think they must, or if you shall only be in Doubt of them, you certainly will not draw that Conclusion which otherwise you might do, and which I am glad you have hitherto avoided; especially when you consider the obvious and in|evitable Distress and Misery of Independence upon our Mother Country, if such Independence could be allowed or maintained, and the Probabi|lity of much greater Distress, which we are not able to foresee.
You ask me if we have not Reason to fear we shall soon be reduced to a worse Situation than that of the Colonies of France, Spain or Holland. I may safely affirm that we have not; that we have no Reason to Fear any Evils from a Sub|mission to the Authority of Parliament, equal to what we must feel from its Authority being dis|puted, from an uncertain Rule of Law and Go|vernment. For more than seventy Years toge|ther the Supremacy of Parliament was acknow|ledged without Complaints of Grievance. The Effect of every Measure cannot be foreseen by human Wisdom. What can be expected more from any Authority than when the Unfitness of a Measure is discovered, to make it void? When upon the united Representations and Complaints of the American Colonies any Acts have appeared to Parliament to be unsalutary, have there not been repeated Instances of the Repeal of such Acts? We cannot expect these Instances should be carried so far as to be equivalent to a Disavowal or Relinquishment of the Right itself. Why thenPage 83shall we fear for ourselves and our Posterity, greater rigour of Government for seventy Years to come than what we and our Predecessors have felt in the seventy Years past.
You must give me Leave, Gentlemen, in a few Words to vindicate myself from a Charge, in one Part of your Answer, of having, by my Speech, reduced you to the unhappy Alternative of appearing by your Silence to acquiesce in my Sentiments, or of freely discussing this Point of the Supremacy of Parliament. I saw, as I have before observed, the Capital Town of the Pro|vince, without being reduced to such an Alter|native, voluntarily not only discussing but de|termining this Point, and inviting every other Town and District in the Province to do the like. I saw that many of the principal Towns had fol|lowed the Example, and that there was imminent Danger of a Compliance in most if not all the Rest, in Order to avoid being distinguished. Was not I reduced to the Alternative of rendering myself justly obnoxious to the Displeasure of my Sovereign by acquiescing in such Irregularities, o• of calling upon you to join with me in sup|pressing them? Might I not rather have expected from you an Expression of your Concern that any Persons should project and prosecute a Plan of Measures which would lay me under a Ne|cessity of bringing this Point before you? It was so far from being my Inclination, that nothing short of a Sense of •uty to the King, and the Obligations I am under to consult your true In|terest could have compelled me to it.
Gentlemen of the Council, and Gentlemen of the House of Representatives▪
We all profess to be the loyal and dutiful Sub|jects of the King of Great-Britain. His Majesty considers the British Empire as one entire Do|minion, subject to one Supreme Legislative Power, a due Submission to which is essential to the Maintenance of the Rights, Liberties and Privi|leges of the several Parts of this Dominion. We have abundant Evidence of his Majesty’s tender and impartial Regard to the Rights of his Subjects; and I am authorized to say that “his Majesty will most graciously approve of every Constitutional Measure that may contribute to the Peace, the Happiness, and Prosperity of his Co|lony of Massachusetts-Bay, and which may have the Effect to shew to the World that he has no Wish beyond that of reigning in the Hearts and Affections of his People.”
To this Speech His Majesty’s Council on the 25th of February sent to his Excel|lency the following Answer, by Harrison Gray, James Russell, James Pitts, Ste|phen Hall, and James Humphry, Esq’rs; viz.
May it please your Excellency,
AS a small Part only of your Excellency’s last Speech to both Houses is addressed to the Board, there are but a few Clauses on which we shall Remark.
With Regard to the Disorders that have arisen, your Excellency and the Board have assigned different Causes. The Cause you are pleased to assign, together with the Disorders themselves, we suppose to be Effects arising from the Stamp-Act, and certain other Acts of Parliament. If we were not mistaken in this, which you do not assert, it so far seems to invalidate what is said in your Speech on that Head.
We have taken Notice of this, only because it stands connected with another Matter, on which we would make a few further Observations. What we refer to is the general Nature of Su|preme Authority. We have already offered Reasons, in which your Excellency seems to ac|quiesce, to shew that, though the Term Supreme sometimes carries with it the Idea of unlimitted Authority, it cannot, in that Sense, be applied to that which is human. What is usually denomi|nated the Supreme Authority of a Nation must nevertheless be limitted in it’s Acts to the Objects that are properly or c•nstitutionally cognizable by it. To illustrate our Meaning, we beg Leave to quote a Passage from your Speech, at the Open|ing of this Session, where your Excellency says, “so much of the Spirit of Liberty breathes through all Parts of the English Constitution, that although from the Nature of Government there must be one Supreme Authority over the whole, yet this Constitution will admit of Subordinate Powers with Legislative and Executive Authoriy, greater or less, according to Local and other Cir|cumstances.”—This is very true, and implies, that the Legislative and Executive Authority granted to the Subordinate Powers should extend and operate as far as the Grant allows; and that, if it does not exceed the Limits prescribed to it, and no Forfeiture be incurred, the Supreme Power has no rightful Authority to take away or diminish it, or to substitute its own Acts of Cases wherein the Acts of the Subordinate Power can, according to its Constitution, operate. To suppose the contrary is to suppose, that it has no Property in the Privileges granted to it, for if it holds them at the Will of the Supreme Power, which it must do by the above Supposition, it can have no Property in them: upon which Principle, which involves the Contradiction, that what is granted is in Reality not granted, no Subordinate Power can exist. But as in Fact the two Powers are not incompatible, and do sub••st together, each restraining its Acts to their Constitutional Objects, can we not from hence see how the Supreme Power may supervise, regulate, and make general Laws for the Kingdom, without interfering with the Privileges of the Subordinate Powers within it? And also see how it may extend its Care and Protection to its Colonies, without injuring their Constitutional Rights?—What has been here said concerning Supreme Authority has no Reference to the Manner in which it has been in Fact ex|ercised, but is wholly confined to its general Nature; and if it conveys any just Idea of it, the Inferences that have been at any Time de|duced from it, injurious to the Rights of the Co|lonists, are not well founded; and have proba|bly arisen from a Misconception of the Nature of that Authority.
Your Excellency represents us as introducing a Number of Authorities merely to shew, that “all Taxes upon English Subjects must be levi|ed by Virtue of the Act, not of the King alone, but in Conjunction with the Lords and Com|mons.” and are pleased to add, that “you should very readily have allowed it; and you should as readily have allowed, that all other Acts of Legislation must be passed by the same joint Authority, and not by the King alone.”—Your Excellency “would have saved us the Trouble of all those Authorities:” and on our Part we should have been as willing to have sav|ed your Excellency the Trouble of dismember|ing our Argument, and from thence taking Oc|casion to represent it in a disadvantageous Light, or rather totally destroying it.
In Justice to ourselves it is necessary to Reca|pitulate that Argument adduced to prove, that the Inhabitants of this Province are not constitu|tionally subject to Parliamentary Taxation. In order thereto we recurred to Magna Charta and other Authorities. And the Argument abridged stands thus—That from those Authorities it ap|pears an Essential Part of the English Constitution, “that no Tallage, or Aid, or Tax, shall be laid or levied, without the Good-will and Assent of the Freemen of the Commonalty of the Realm.” That from Common Law, and the Province Charter, the Inhabitants of this Province are clearly intitled to all the Rights of free and na|tural Subjects within the Realm: That among those Rights must be included the essential one just mentioned concerning Aids and Taxes; and therefore that no Aids or Taxes can be levied on us constitutionally without our own Consent signified by our Representatives. From whence the Conclusion is clear, that therefore the Inha|bitants of this Province are not constitutionally subject to Parliamentary Taxation.
We did not bring those Authorities to shew that Tax Acts, or any other Acts of Parliament, in order to their Validity, must have the Con|currence of the King, Lords, and Commons; but to shew, that it has been, at least from the Time of Magna Charta, an essential Right of free Subjects within the Realm, to be free from all Taxes but such as were laid with their own Consent. And it was proper to shew this, as the Rights and Liberties, granted by the Province Charter, were to be equally extensive, to all In|tents and Purposes, with those enjoyed by free and natural Subjects within the Realm. There|foreto shew our own Rights in Relation to Taxes, it was necessary to shew the Rights of Freemen within the Realm, in Relation to them: and for this Purpose those Authorities were brought, and not impertinently, as we humbly apprehend. Nor have we seen Reason to change our Sen|timents with Respect to this Matter or any other contained in our Answer to your Excellency’s Speech.
In the last Clause of your Speech, your Ex|cellency informs the two Houses, “you are Au|thorized to say, that his Majesty will most gra|ciously approve of every Constitutional Measure, that may contribute to the Peace, the Happiness and Prosperity of his Colony of Massachusetts-Bay.”—We have the highest Sense of his Ma|jesty’s Goodness in his gracious Disposition to ap|prove of such Measures, which, as it includes his Approbation of the Constitutional Rights of his Subjects of this Colony, manifests his Inclination to protect them in those Rights; and to remove the Incroachments that have been made upon them. Of this Act of Royal Goodness they are not wholly unworthy, as in Regard to Loyalty, Duty and Affection to his Majesty, they stand among the foremost of his faithful Subjects.
And on Tuesday March 2d, Mr. Hancock, Mr. Gorham, Major Fuller, Capt. Green|lease, Capt. Heath, Mr. Phillips, Capt. Nye, Capt. Brown of Watertown, and Capt. Gardner, a Committee of the House of Representatives, waited on the Governor with their Answer as follows, Viz.
May it please your Excellency,
IN your Speech at the Opening of the pre|sent Session, your Excellency express’d your Displeasure at some late Proceedings of the Town of Boston, and other principal Towns in the Province. And in another Speech to both Houses we have your repeated Exceptions at the same Proceedings as being “unwarrantable,” and of a dangerous Nature and Tendency; “against which you thought yourself bound to call upon us to join with you in bearing a proper Testimony.” This House have not discovered any Principles advanced by the Town of Boston, that are unwarrantable by the Constitution; nor does it appear to us that they have “invited every other Town and District in the Province to adopt their Principles.” We are fully con|vinced that it is our Duty to bear our Testimony against “Innovations of a dangerous Nature and Tendency:” But is clearly our Opinion, that it is the indisputable Right of all or any of his Majesty’s Subjects in this Province, regularly and orderly to meet together to state the Grie|vances they labor under; and to propose and unite in such constitutional Measures as they shall judge necessary or proper to obtain Redress. This Right has been frequently exercised by his Majesty’s Subjects within the Realm; and we do not recollect an Instance, since the happy Revo|lution, when the two Houses of Parliament have been called upon to discountenance or bear their Testimony against it, in a Speech from the Throne.
Your Excellency is pleased to take Notice of some things which we “alledge” in our Answer to your first Speech; and the Observation you make, we must confess, is as natural and as un|deniably true, as any one that could have been made, that “if our Foundation shall fail us in e|very Part of it, the Fabrick we have rais’d upon it, must certainly fall.” You think, this Foun|dation will fail us; but we wish your Excellency has condesended to a Consideration of what we have “a•duced in Support of our Principles.” We might then perhaps have had some things offered for our Conviction, more than bare Af|firmations; which, we must beg to be excused if we say, are far from being sufficient, though they came with your Excellency’s Authority, for which however we have a due Regard.
Your Excellency says that “as English Subjects and agreeable to the Doctrine of the Feudal Tenure all our Lands are held mediately or immediately of the Crown.” We trust your Excellency does not mean to introduce the Feudal System in it’s Per|fection; which to use the Words of one of our greatest Historians, was “a State of perpetual War, Anarchy and Confusion; calculated solely for Defence against the Assaults of any foreign Power, but in it’s Provision for the interior Order and Tranquility of Society extremely defective.” “A Constitution so contradictory to all the Prin|ciples that govern Mankind, could never be brought about but by foreign Conquest or na|tive Usurpation:” And a very celebrated Writer calls it “that most iniquitous and absurd Form of Government by which human Nature was so shamefully degraded.” This System of Ini|quity by a strange Kind of Fatality, “though originally form’d for an Encampment and for Military Purposes only, spread over a great Part of Europe:” and to serve the Purposes of Op|pression and Tyranny “was adopted by Princes and wrought into their Civil Constitutions;” and aided by the Canon Law, calculated by the Ro|man Pontiff, to exalt himself above all that is called God, it prevailed to the almost utter Ex|tinction of Knowledge, Virtue, Religion and Li|berty from that Part of the Earth. But from the Time of the Reformation, in Proportion as Knowledge, which then darted its Rays upon the benighted World, increas’d and spread among the People, they grew impatient under this heavy Yoke: And the most virtuous and sensible a|mong them, to whose Stedfastness we in this dis|tant Age and Climate are greatly indebted, were determined to get rid of it: And tho’ they have in a great Measure subdued it’s Power and Influ|ence in England, they have never yet totally eradicated its Principles.
Upon these Principles the King claimed an absolute Right to and a perfect Estate in all the Lands within his Dominions; but how he came by this absolute Right and perfect Estate is a Mystery which we have never seen unravelled, nor 〈◊〉 our Business or Design at present to en|quire. •e granted Parts of Parcels of it to his Friends the Great Men, and they granted lesser Parcels to their Tenants: All therefore derived their Right and held their Lands, upon these Principles, mediately or immediately of the King; which Mr. Blackstone however calls “in Reality a meey Fiction of our English Tenures.”
By what Right in Nature and Reason the Christian Princes in Europe claimed the Lands of Heathen People, upon a Discovery made by any of their Subjects, is equally mysterious: Such however was the Doctrine universally prevailing when the Lands in America were discovered; but as the People of England upon those Prin|ciples held all the Lands they possessed by Grants from the King, and the King had never granted the Lands in America to them, it is certain they could have no Sort of Claim to them: Upon the Principles advanced, the Lordship and Dominion like that of the Lands in England, was in the King solely: and a Right from thence accrued to him of disposing such Territories under such Tenure and for such Servies to be performed, as the King or Lord thought proper. But how the Grantees became Subjects of England, that is the Supreme Authority of the Parliament, your Excellency has not explained to us. We con|ceive that upon the Feudal Principles all Power is in the King; they afford us no Idea of Parlia|ment. “The Lord was in early Times the Le|gislator and Judge over all his Feudatories,” says Judge Blackstone. By the Struggles for Liberty in England from the Days of King John to the last happy Revolution, the Constitution has been gradually changing for the better; and upon the more rational Principles that all Men by Nature are in a State of Equality in Respect of Jurisdic|tion and Dominion, Power in England has been more equally divided. And thus also in America, though we hold our Lands agreeably to the Feu|dal Principles of the King; yet our Predecessors wisely took care to enter into Compact with the King that Power here should also be equally divi|ded agreeable to the original fundamental Princi|ples of the English Constitution, declared in Magna Charter, and other Laws and Statutes of England, made to confirm them.
Your Excellency says, “you can by no Means concede to us that it is now or was when the Plantations were first granted the Prerogative of the Kings of England to constitute a Number of new Governments altogether independent of the Sovereign Authority of the English Empire.” By the Feudal Principles upon which you say “all the Grants which have been made of Ame|rica are founded” “the Constitutions of the Emperor have the Force of Law.” If our Go|vernment be considered as merely Feudatory, we are subject to the King’s absolute Will, and there is no Room for the Authority of Parliament, as the Sovereign Authority of the British Em|pire. Upon these Principles, what could hinder the King’s constituting a Number of independent Governments in America? That King Charles the First did actually set up a Government in this Colony▪ conceding to it Powers of making and executing Laws, without any Reservation to the English Parliament, of Authority to make future Laws binding therein, is a Fact which your Excellency has not disproved if you have denied it. Nor have you shewn that the Par|liament or Nation objected to it, from whence we have inferred that it was an acknowledged Right. And we cannot conceive, why the King has not the same Right to alienate and dis|pose of Countries acquired by the Discovery of his Subjects, as he has to “restore upon a Treaty of Peace Countries which have been acquired in War,” carried on at the Charge of the Nation; or to “sell and deliver up any Part of his Do|minions to a foreign Prince or State, against the General Sense of the Nation” which is “an Act of Power” or Prerogative which your Excellency allows. You tell us that “when any New Coun|tries are discovered by English Subjects, accord|ing to the general Law and Usage of Nations, they become Part of the State.” The Law of Nations is or ought to be founded on the Law or Reason. It was the Saying of Sir Edwin Sandis, in the great Case of the Union of the Realm of Scotland with England, which is applicable to our present Purpose, that “there being no Precedent for this Case in the Law, the Law is deficient; and the Law being deficient, Recourse is to be had to Custom; and Custom being insufficient, we must recur to natural Reason,” the greatest of all Authorities, which he adds “is the Law of Nations.” The Opinions therefore, and De|terminations of the greatest Sages and Judges of the Law in the Exchequer Chamber ought not to be considered as decisive or binding in our pre|sent Controversy with your Excellency, any further than they are consonant to natural Reason. If however we were to recur to such Opinions and Determinations we should find very great Authorities in our Favour, to show that the Sta|tutes of England are not binding on those who are not represented in Parliament there. The Opinion of Lord Coke that Ireland was bound by Statutes of England wherein they were named, if compared with his other Writings, appears manifestly to be grounded upon a Supposition, that Ireland had by an Act of their own, in the Reign of King John, consented to be thus bound, and upon any other Supposition this Opinion would be against Reason; for Consent only gives human Laws their Force. We beg Leave, upon what your Excellency has observed of the Colo|ny becoming a Part of the State, to subjoin the Opinions of several learned Civilians, as quoted by a very able Lawyer in this Country; “Colo|nies, says Puffendorf, are settled in different Methods. For either the Colony continues a Part of the Common Wealth it was set out from; or else is obliged to pay a dutiful Regard to the Mother Common Wealth, and to be in Readiness to defend and vindicate its Honor, and so is united by a Sort of unequal Confederacy; or lastly, is erected into a seperate Common Wealth and assumes the same Rights, with the State it descended from.” And King Tullius, as quoted by the same learned Author from Grotius, says “We look upon it to be neither Truth nor Justice that Mother Cities ought of Necessity and by the Law of Nature to rule over the Colonies.”
Your Excellency has misinterpreted what we have said, “that no Country by the Common Law, was subject to the Laws or the Parliament but the Realm of England,” and are pleased to tell us that we have expressed ourselves “Incautiously.” We beg Leave to recite the Words of the Judges of Eng|land in the before mentioned Case to our Purpose. “If a King go out of England with a Company of his Servants, Allegiance remain•th among his Subjects and Servants, altho’ he be out of his Realm whereto his Laws are confined,” We did not mean to say, as your Excellency would sup|pose, that “the Common Law prescribes Limits to the Extent of the Legislative Power,” though we shall always affirm it to be true of the Law of Reason and natural Equity. Your Excellency thinks you have made it appear, that the Colony of Massachusetts-Bay is holden as feudatory of the Imperial Crown of England;” and therefore you say, “to use the Words of a very great Au|thority in a Case in some Respects analogous to it,” being feudatory it necessarily follows, that it is under the Government of the King’s Laws.” Your Excellency has not named this Authority: but we conceive his Meaning must be, that be|ing Feudatory, it is under the Government of the King’s Law•absolutely; for as we have before said the Feudal System admits of no Idea of the Authority of Parliament, and this would have been the Case of the Colony but for the Com|pact with the King in the Charter.
Your Excellency says, that “Persons thus hold|ing under the Crown of England remain or be|come Subjects of England;” by which we sup|pose your Excellency to mean, subject to the Su|preme Authority of Parliament “to all Intents and Purposes as fully as if any of the Royal Ma|nors, &c. within the Realm had been Granted to them upon the like Tenure.” We apprehend with Submission, your Excellency is Mistaken in supposing that our Allegiance is due to the Crown of England. Every Man swears Allegiance for himself to his own King in his Natural Person. “Every Subject is presumed by Law to be Sworn to the King, which is to his Natural Person,” says Lord Coke. Rep. on Calvins Case. “The Allegiance is due to his Natural Body.” And he says “in the Reign of Edward II. the Spen|cers, the Father and the Son, to cover the Trea|son hatched in their Hearts, invented this dam|nable and damned Opinion, that Homage and Oath of Allegiance was more by Reason of the King’s Crown, that is of his politick Capacity, than by Reason of the Person of the King; upon which Opinion they infer’d execrable and detestable Consequents.” The Judges of Eng|land, all but one, in the Case of the Union be|tween Scotland and England, declared that “Allegiance fol•oweth the natural Person not the politick;” and “to prove the Allegiance to be tied to the Body natural of the King, and not to the Body politick, the Lord Coke cited the Phrases of diverse Statutes, mentioning our natural liege Sovereign.”—If then the Homage and Allegiance is not to the Body politick of the King, then it is not to him as the Head or any Part of that Legislative Authority, which your Excellency says “is equally extensive with the Authority of the Crown throughout every Part of the Dominion;” and your Excellency’s Observations thereupon must fail. The same Judges mention the Allegiance of a Subject to the Kings of England who is out of the Reach and Extent of the Laws of England; which is perfectly reconcil•able with the Principles of our Ancestors quoted before from your Excellency’s History, but upon your Excellency’s Principles appears to us to be an Absurdity. The Judges, speaking of a Subject, say, “although his Birth was out of the Bounds of the Kingdom of Eng|land, and out of the Reach and Extent of the Laws of England, yet if it were within the Allegiance of the King of England, &c. Nor|mandy, Acquitain, Gascoign, and other Places within the Limits of France, and consequently out of the Realm or Bounds of the Kingdom of England, were in Subjection to the Kings of England. And the Judges say, “Rex et Reg|num be not so Relatives, as a King can be King but of one Kingdom, which clearly hold•th not but that his Kingly Power extending to divers Nations and Kingdoms, all owe him equal Sub|jection and are equally born to the Benefit of his Protection, and altho’ he is to govern them by their distinct Laws, yet any one of the People coming into the other is to have the Benefit of the Laws wheresoever he cometh.” So they are not to be deemed Aliens, as your Excellen|cy in your Speech supposes in any of the Do|minions; all which accords with the Principles our Ancestors held. “And he is to bea• the Burden of Taxes of the Place where he cometh, but living in one or for his Livelihood in one, he is not to be taxed in the other, because Laws ordain Taxes, Impositions and Charges as a Dis|cipline of Subjection particularized to every par|ticular Nation;” Nothing we think can be more clear to our Purpose than this Decision, of Judges, perhaps as learned as ever adorned the English Nation; or in Favor of America in her present Controversy with the Mother State.
Your Excellency says, that by our not •istin|guishing between the Crown of England and the Kings and Queens of England in their personal of natural Capacities, we have been led into a fun|damental Error.” Upon this very Distinction we have availed ourselves. We have said that our Ancestors considered the Land which they took Possession of in America as out of the Bounds of the Kingdom of England, and out of the Reach and Extent of the Laws of England; and that the King also even in the Act of grant|ing the Charter, considered the •errit•ry as not within the Realm; that the King had an abso|lute Right in himself to dispose of the Lands, and that this was not disputed by the Nation; nor could the Lands on any solid Grounds be claimed by the Nation, and therefore our An|cestors received the Lands by Grant from the King▪ and at the same Time compacted with him and promised him Homage and Allegiance, not in his publick or politick but natural Capacity only.—If it be difficult for us to show how the King acquired a Title to this Country in his natural Capacity, or separate from his Relation to his Subjects, which we confess, yet we conceive it will be equally difficult for your Excellency to show how the Body Politick and Nation of England acquired it. Our Ance|stors supposed it was acquired by neither; and therefore they declared, as we have before quo|ted from your History, that saving their actual Purchase from the Natives, of the Soil, the Do|minion, the Lordship, and Sovereignty, they had in the Sight of God and Man, no Right and Title to what they poss•ssed. How much clear|er •hen in natural Reason and Equity must our Title be, who hold Estates dearly p••chased at the Expence of our own as well as our Ancestors Labour, and defended by them with •reasure and Blood.
Your Excellency has been pleased to co•firm, rather than deny or confute a Piece of History which you say we took from an anonimous Pam|phlet, and by which you “•ear we have been too easily m•sled.” It may be gathered from your own Declaration and other Authorities be|sides the 〈◊〉 Pamphlet, that the House of Commons took Exception, not at the King’s having made an absolute Grant of the Territory▪ but at the Claim of an exclusive Right to the Fishery on the Banks and Sea Coast, by Virtue of the Patent. At this you say “the •ouse of Commons was ala•med, and a B•ll was brought in for allo•ing a free Fishery.” And upon this Occasion •our Excellency allows, that “one of the Secretaries of State declared that the Plan|tations were not annexed to the Crown, and so were not within the Jurisdiction of Parliament.” If we should concede to what your Excellency supposes might possibly or “perhaps” be the Case, that the Secretary made this Declaration “as his own Opinion,” the Event showed that it was the Opinion of the King too; for it is not to be accounted for upon any other Principle, that he would have denied his Royal Assent to a Bill formed for no other Purpose, but to grant his Subjects in England the Privilege of Fishing on the Sea Coasts in America. The Account published by Sir Ferdinando Gorges himself, of the Proceedings of Parliament on this Occasion, your Excellency thinks will remove all Doubt of the Sense of the Nation and of the Patentees of this Patent or Charter in 1620. “This Nar|rative, you say, has all the Appearance of Truth and Sincerity,” which we do not deny: And to us it carries this Conviction with it, that “what was objected” in Parliament was, the exclusive Claim of Fishing only. His imagining that he had satisfied the House after divers Attendances, that the Planting a Colony was of much more Consequence than a simple disorderly Course of Fishing, is sufficient for our Conviction. We know that the Nation was at that Time alarmed with Apprehensions of Monopolies; and if the Patent of New-England was presented by the two Houses as a Grievance, it did not show▪ as your Excellency supposes, “the Sense they then had of their Authority over this new-acquired Ter|ritory,” but only their Sense of the Grievance of a Monopoly of the Sea.
We are happy to hear your Excellency say, that “our Remarks upon and Construction of the Words not repugnant to the Laws of England, are much the same with those of the Council.” It serves to confirm us in our Opinion, in what we take to be the most important Matter of Difference between your Excellency and the two Houses. After saying, that the Statute of 7th and 8th of William and Mary favors the Construction of the Words as intending such Laws of England as are made more immediately to respect us, you tell us, that “the Province Agent Mr. Dummer in his much applauded Defence, says that then a Law of the Plantations may be said to be repug|nant to a Law made in Great-Britain, when it flatly contradicts it so far as the Law made there mentions and relates to the Plantations.” This is plain and obvious to common Sense, and there|fore cannot be denied. But if your Excellency will read a Page or two further in that excellent Defence, you will see that he mentions this as the Sense of the Phrase, as taken from an Act of Parliament, rather than as the Sense he would chuse himself to put upon it; and he expresly designs to shew, in Vindication of the Charter, that in that Sense of the Words, there never was a Law made in the Plantations repugnant to the Laws of Great-Britain. He gives another Con|struction much more likely to be the true Intent of the Words; namely, “that the Patentees shall not presume under Colour of their particular Char|ters to make any Laws inconsistent with the Great Charter and other Laws of England, by which the Lives, Liberties, and Properties of English|men are secure•.” This is the Sense in which our Ancestors understood the Words; and there|fore they were unwilling to conform to the Acts of Trade, and disregarded them till they made Provision to give them Force in the Colony by a Law of their own; saying, that “the Laws of England did not reach America: And those Acts were an Invasion of their Rights, Liberties and Properties,” because they were not “represented in Parliament.” The Right of being governed only by Laws which were made by Persons in whose Election they had a Voice, they looked up|on as the Foundation of English Liberties. By the Compact with the King in the Charter, they were to be as free in America, as they would have been if they had remained within the Realm; and therefore they freely asserted that they “were to be governed by Laws made by themselves and by Officers chosen by themselves.” Mr. Dummer says, “It seems reasonable enough to think that the Crown,” and he might have added our An|cestors, “intended by this Injunction to provide for all its Subjects, that they might not be op|pressed by Arbitrary Power—but—being still Subjects, they should be protected by the same mild Laws and enjoy the same happy Govern|ment as if they continued within the Realm.” And considering the Words of the Charter in this Light, he looks upon them as designed to be a Fence against Oppression and despotic Power. But the Construction which your Excellency puts upon the Words, reduces us to a State of Vassal|lage, and exposes us to Oppression and despotic Power, whenever a Parliament shall see fit to make Laws for that Purpose and put them in Ex|ecution.
We flatter ourselves that from the large Ex|tracts we have made from your Excellency’s Hi|story of the Colony, it appears evidently, that under both Charters it hath been the Sense of the People and of the Government that they were not under the Jurisdiction of Parliament. We pray you again to recur to those Quotations and our Observations upon them: And we wish to have your Excellency’s judicious Remarks. When we adduced that History to prove that the Sentiments of private Persons of Influence, four or five Years after the Restoration, were very different from what your Excellency apprehend|ed them to be when you delivered your Speech, you seem to concede to it by •elling us “it was, as you take it, from the Principles imbibed in those Times of Anarchy (preceeding the Resto|ration) that they disputed the Authority of Par|liament;” but you add, “the Government would not venture to dispute it.” We find in the same History 〈◊〉 Quotation from a Letter of Mr. Stoughton, dated 17 Years after the Resto|ration, mentioning “the Country’s not taking Notice of the Acts of Navigation to observe them.” And it was, as we take it, after that Time, that the Government declared in a Letter to their Agents, that they had not submitted to them; and they ventured to “dispute” the Jurisdiction, asserting that they apprehended the Acts 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 that “the Laws of England did not reach America.” It very little avails in Proof that they conceded to the Supreme Authority of Parliament, their telling the Commissioners “that the Act of Na|vigation had for some Years before been observ|ed here, that they knew not of its being greatly violated, and that such Laws as appeared to be against it were repealed.” It may as truly be said now, that the Revenue Acts are observed by some of the People of this Province; but it can|not be said that the Government and People of this Province have conceded that the Parliament had Authority to make such Acts to be observed here. Neither does their Declarations to the Commissioners that such Laws as appeared to be against the Act of Navigation were repealed, prove their Concession of the Authority of Parliament, by any means so much as their making Provision for giving Force to an Act of Parliament within this Province, by a deliberate and solemn Act or Law of their own, proves the contrary.
You tell us, that “the Government four or five Years before the Charter was vacated more explicitly,” that is than by a Conversation with the Commissioners, “acknowledged the Autho|rity of Parliament, and voted that their Gover|nor should take the Oath required of him faith|fully to do and perform all Matters and Things enjoined him by the Acts of Trade.” But does this, may it please your Excellency, show their explicit Acknowledgment of the Authority of Parliament? Does it not rather show directly the contrary: For, what need could there be for their Vote or Authority to require him to take the Oath already required of him by the •ct of Parliament, unless both he and they judged that an Act of Parliament was not of Force sufficient to bind him to take such Oath? We do not de|ny, but on the contrary are fully persuaded that your Excellency’s Principles in Government are still of the same with what they appear to be in the History; for you there say, that “the pass|ing this Law plainly shows the wrong Sense they had of the Relation they stood in to England.” But we are from hence convinced that your Ex|cellency when you wrote the History was of our Mind in this Respect, that our Ancestors in passing the Law discovered their Opinion that they were without the Jurisdiction of Parliament: For it was upon this Principle alone that they shewed the wrong Sense they had in your Excel|lency’s Opinion, of the Relation they stood in to England.
Your Excellency in your second Speech con|descends to point out to us the Acts and Doings of the General Assembly which relates to Acts of Parliament, which you think “demonstrates that they have been acknowledged by the Assem|bly or submitted to by the People:” Neither of which in our Opinion shows that it was the Sense of the Nation, and our Predecessors when they first took Possession of this Plantation or Colony by a Grant and Charter from the Crown, that they were to remain subject to the supreme Au|thority of the English Parliament.
Your Excellency seems chiefly to rely upon our Ancestors▪ after the Revolution “proclaiming King William and Queen Mary in the Room o• King James,” and taking the Oaths to them, “the Alteration of the Form of Oaths from Time to Time,” and finally “the Ebablishment of the Form which every one of us has complied with, as the Charter in express Terms requires and makes our Duty.” We do not know that it has ever been a Point in Dispute whether the Kings of England were ipso facto Kings in and over this Colony or Province. The Compact was made between King Charles the First, his Heirs and Successors, and the Governor and Company, their Heirs and Successors. It is easy upon this Principle to account for the Acknow|ledgment of and Submission to King William and Queen Mary as Successors of Charles the First, in the Room of King James: Besides it is to be considered, that the People in the Colony as well as in England had suffered under the TYRANT James, by which he had alike for|feited his Right to reign over both. There had been a Revolution here as well as in England. The Eyes of the People here were upon William and Mary, and the News of their being pro|claimed in England was as your Excellency’s History tells us, “the most joyful News ever received in New-England.” And if they were not ploclaimed here “by virtue of an Act of the Colony,” it was, as we think may be con|cluded from the Tenor of your History; with the general or universal Consent of the People as apparently as if “such Act had passed.” It is Consent alone, that makes any human Laws bind|ing; and as a learned Author observes, a purely voluntary Submission to an Act, because it is highly in our Favor and for our Benefit, is in all Equity and Justice to be 〈◊〉 as not at all proceeding from the Right we include in the Legislators, that they thereby obtain an Authority over us, and that ever hereafter we must obey them of Duty. We would observe that one of the first Acts of the General Assembly of this Province since the presen• Charter, was an Act requiring the taking the Oaths mentioned in an Act of Parliament, to which you refer us: For what Purpose was this Act of the Assembly passed, if it was the Sense of the Legislators that the Act of Parliament was in Force in the Province. And at the same Time another Act was made for the Establishment of other Oaths necessary to be taken; both which Acts have the Royal Sanction, and are now in Force. Your Excellency says, that when the Colony applied to King William for a second Charter, they knew the Oath the King had taken, which was to govern them ac|cording to the Statutes in Parliament, and (which your Excellency here omits) the Laws and Customs of the same. By the Laws and Customs of Parliament, the People of England freely debate and consent to such Statutes as are made by themselves or their chosen Represen•a|tives. This is a Law or Custom which all Man|kind may justly challenge as their inherent Right. According to this Law the King has an undoubted Right to govern us. Your Excellency upon Recollection surely will not infer from hence, that it was the Sense of our Predecessors that there was to remain a Supremacy in the English Parliament, or a full Power and Authority to mak• Laws binding upon us in all Cases whatever, in that Parliament where we cannot debate and deliberate▪upon the Necessity or Expediency of any Law, and consequently without our Consent and as it may probably happen destructive of the first Law of Society, the Good of the Whole. You tell us that “after the Assumption of all the Powers of Government, by Virtue of the new Charter, an Act passed for the reviving for a limited Time all the local Laws of the Massa|chusetts-Bay and New-Plymouth respectively, not repugnant to the Laws of England. And at the same Session an Act passed establishing Naval Officers, that all undue Trading contrary to an Act of Parliament—may be prevented.” Among the Acts that were then revived we may reason|ably suppose was that whereby Provision was made to give Force to this Act of Parliament in the Province. The Establishment thereof of the Naval Officers w•s to aid the Execution of an Act of Parliament for the Observance of which within the Colony the Assembly had before made P••vision after free Debates with their own Con|sent and by their own Act.
The Act of Parliament passed in 1741, for putting 〈◊〉 to several unwarrantable Schemes, mentioned •y your Excellency was designed for the •••eral Good, and if the Validity of it was not disputed, it cannot be urged as a Concession of the supreme Authority, to make Laws binding on us in all Ca•es whatever: But if the Design of it was for the general Benefit of the Province, it was in one Respect at least greatly complained of by the Persons more immedia•ely affected by it▪ and to remedy the Inconvenience, the Le|gislative of this Province pass’d an Act, directly 〈◊〉 with it. Which is the strongest evi|dence, that altho’ they may have submitted sub si•entio to some •cts of Parliament that they con|ceived might operate for their Benefit, they did not conceive themselves bound by any of its Acts which they judged would operate to the Injury even of Individuals.
Your Excellency has not thought proper to attempt to confute the Reasoning of a learned Writer on the Laws of Nature and Nations, quo|ted by us on this Occasion, to shew that the Au|thority of the Legislature does not extend so far as the Fundamentals of the Constitution. We are unhappy in not having your Remarks upon the Reasoning of that great Man; and until it is confuted, we shall remain of the Opinion, that the Fundamentals of the Constitution being ex|cepted from the Commission of the Legislators, none of the Acts or Doings of the General As|sembly, however deliberate and solemn, could avail to change them, if the People have not in very express Terms given them the Power to do it; and that much less ought their Acts and Do|ings however numerous, which barely refer to Acts of Parliament made expresly to relate to us, to be taken as an Acknowledgment that we are subject to the Supreme Authority of Parlia|ment.
We shall sum up our own sentiments in the Words of that learned Writer Mr. Hooker, in his Ecclesiastical Policy, as quoted by Mr. Locke, “The lawful Power of making Laws to com|mand whole political Societies of Men, belong|ing so properly to the same intire Societies, that for any Prince or Potentate of what Kind soever, to exercise the same of himself, and not from express Commission immediately and personally received from God, is no better than mere Tyranny. Laws therefore they are not which publick •p|probation hath not made so, for “Laws human of what Kind soever are available by Consent.” “Since Men naturally have no full and perfect Power to command whole politick Multitudes of Men, therefore, utterly without our Consent we could in such Sort be at no Man’s Command|ment living. And to be commanded we do not consent, when that Society whereof we be a Part, hath at any Time before consented.” We think your Excellency has not proved, either that the Colony is a Part of the politick Society of Eng|land, or that it has ever consented that the Par|liament of England or Great Britain should make Laws binding upon us in all Cases whatever, whether made expresly to refer to us or not.
We cannot help before we conclude, expressing our great Concern, that your Excellency has thus repeatedly, in a Manner insisted upon our free Sentiments on Matters of so delicate a Na|ture, and weighty Importance. The Question appears to us to be no other, than Whether we are the Subjects of absolute unlimitted Power, or of a free Government formed on the Principles of the English Constitution. If your Excellen|cy’s Doctrine be true the People of this Province hold their Lands of the Crown and People of England, and their Lives, Liberties and Proper|ties are at their Disposal▪ and that even by Compact and their own Consent. They are sub|ject to the King as the Head alterius Populi of another People, in whose Legislative they have no Voice or Interest. They are indeed said to have a Constitution and a Legislative of their own, but your Excellency has explained it into a mere Phantom; limitted, controuled, super|ceded and nullified at the Will of another. Is this the Constitution which so charmed our An|cestors, that as your Excellency has informed us, they kept a Day of solemn Thanksgiving to Al|mighty God when they received it? And were they Men of so little Discernment, such Children in Understanding, as to please themselves with the Imagination that they were blessed with the same Rights and Liberties which natural born Subjects in England enjoyed, when at the same Time they had fully consented to be ruled and ordered by a Legislative a Thousand Leagues distant from them, which cannot be supposed to be sufficiently acquainted with their Circumstan|ces, if concerned for their Interest, and in which they cannot be in any Sense represented.