stability within themselves." This is so great a mistake, that there
is not more order, or stability in any government upon the globe,
than there ever has been in that of Connecticut. The same may be
said of the Massachusetts and Pennsylvania; and indeed of the others
very nearly. "That these constitutions in turbulent times would
become wholly monarchial, or wholly republican;" they must be such
times as would have a similar effect upon the constitution at home.
But in order to avoid the danger of this, what is to be done? Not
give us an English constitution, it seems, but make sure of us at
once, by giving us constitutions wholly monarchical, annihilating
our houses of representatives first, by taking from them the support
of government, &c. and then making the councils and judges wholly
dependant on the crown.
That a representation in parliament is impracticable we all agree:
but the consequence is, that we must have a representation in our
supreme legislatures here. This was the consequence that was drawn by
kings, ministers, our ancestors, and the whole nation, more than a
century ago, when the colonies were first settled, and continued to
be the general sense until the last peace; and it must be the general
sense again soon, or Great Britain will lose her colonies.
This is apparently the meaning of that celebrated passage in Gov.
Hutchinson's letter, that rung through the continent, viz. "There
must be an abridgment of what is called English liberties." But all
the art and subtlety of Massachusettensis will never vindicate or
excuse that expression. According to this writer, it should have
been "there is an abridgment of English liberties, and it cannot
be otherwise." But every candid reader must see that the letter
writer had more than that in his _view_ and in his _wishes_. In the
same letter, a little before, he says, "what marks of resentment
the parliament will shew, whether they will be upon the province in
general, or particular persons, is extremely uncertain; but that they
will be placed somewhere is most certain, and I add, _because I think
it ought to be so_." Is it possible to read this without thinking
of the port bill, the charter bill, and the resolves for sending
persons to England by the statute of Henry VIII. to be tried! But
this is not all. "This is most certainly a crisis," says he, &c. "If
no measure shall have been taken to secure this dependence, (i.e.
the dependence which a colony ought to have upon the parent state)
it is all over with us." "The friends of government will be utterly
disheartened; and the friends of anarchy will be afraid of nothing,
be it ever so extravagant." But this is not all. "I never think of
the measures necessary for the peace and good order of the colonies
without pain." "There must be an abridgment of what are called
English liberties." What could he mean? Any thing less than depriving
us of trial by jury? Perhaps he wanted an act of parliament to try
persons here for treason by a court of admiralty. Perhaps an act that
the province should be governed by a governor and a mandamus council,
without an house of representatives. But to put it out of all doubt
that his meaning was much worse than Massachusettensis endeavors to
make it, he explains himself in a subsequent part of the letter. "I
wish," says he, "the good of the colony, _when I wish to see some
further restraint of liberty_." Here it is rendered certain, that he
is pleading for a further restraint of liberty, not explaining the
restraint, he apprehended the constitution had already laid us under.
My indignation at this letter, has sometimes been softened by
compassion. It carries on the face of it evident marks of _madness_.
It was written in such a transport of passions, _ambition_ and
_revenge_ chiefly, that his reason was manifestly overpowered. The
vessel was tost in such a hurricane, that she could not feel her
helm. Indeed, he seems to have had a confused consciousness of this
himself. Pardon me this excursion, says he, it really proceeds from
the state of mind into which our perplexed affairs often throws me."
"It is our highest interest to continue a part of the British
empire; and equally our duty to remain subject to the authority of
parliament," says Massachusettensis.
We are a part of the British dominions, that is of the king of Great
Britain, and it is our interest and duty to continue so. It is
equally our interest and duty to continue subject to the authority
of parliament, in the regulation of our trade, as long as she shall
leave us to govern our internal policy, and to give and grant our own
money, and no longer.
This letter concludes with an agreeable flight of fancy. The time
may not be so far off, however, as this writer imagines, when the
colonies may have the balance of numbers and wealth in her favour.
But when that shall happen, if we should attempt to rule her by an
American parliament, without an adequate representation in it, she
will infallibly resist us by her arms.
NOVANGLUS.
ADDRESSED
_To the Inhabitants of the Colony of Massachusetts Bay_,
March 13, 1775.
MY FRIENDS,
It has been often observed by me, and it cannot be too often
repeated, that _colonization_ is _casus omissus_ at common law. There
is no such title known in that law. By common law, I mean that system
of customs, written and unwritten, which was known and in force in
England, in the time of king Richard 1st. This continued to be the
case, down to the reign of Elizabeth, and king James 1st. In all that
time, the laws of England were confined to the realm, and within the
four seas. There was no provision made in this law for governing
colonies beyond the Atlantic, or beyond the four seas, by authority
of parliament, no nor for the king to grant charters to subjects
to settle in foreign countries. It was the king's prerogative to
prohibit the emigration of any of his subjects, by issuing his writ
_ne exeat regno_. And therefore it was in the king's power to permit
his subjects to leave the kingdom. 1 Hawk. P.C. c. 22. § 4. "It is a
high crime to disobey the king's lawful commands, or prohibitions,
as not returning from beyond sea, upon the king's letters to that
purpose; for which the offender's lands shall be seized until he
return; and when he does return, he shall be fined, &c. or going
beyond sea, against the king's will, expressly signified, either
by the writ _ne exeat regno_, or under the great or privy seal, or
signet, or by proclamation." When a subject left the kingdom, by the
king's permission, and if the nation did not remonstrate against
it, by the nation's permission too, at least connivance, he carried
with him, as a man, all the rights of nature. His allegiance bound
him to the king, and entitled him to protection. But how? not in
France; the king of England was not bound to protect him in France,
nor in America; not in the dominions of Lewis, nor of Passachus, or
Massachusetts. He had a right to protection, and the liberties of
England upon his return there, not otherwise. How then do we, New
Englandmen, derive our laws? I say, not from parliament, not from
common law, but from the law of nature, and the compact made with the
king in our charters. Our ancestors were entitled to the common law
of England, when they emigrated, that is, to just so much of it as
they pleased to adopt, and no more. They were not bound or obliged to
submit to it, unless they chose it. By a positive principle of the
common law, they were bound, let them be in what part of the world
they would, to do nothing against the allegiance of the king. But
no kind of provision was ever made by common law, for punishing or
trying any man, even for treason, committed out of the realm. He must
be tried in some county of the realm, by that law, the county where
the overt-act was done, or he could not be tried at all. Nor was
any provision ever made, until the reign of Henry VIII. for trying
treasons committed abroad, and the acts of that reign were made on
purpose to catch cardinal Pole.
So that our ancestors, when they emigrated, having obtained
permission of the king to come here, and being never commanded to
return into the realm, had a clear right to have erected in this
wilderness a British constitution, or a perfect democracy, or any
other form of government they saw fit. They indeed, while they lived,
could not have taken arms against the king of England, without
violating their allegiance, but their children would not have been
born within the king's allegiance, would not have been natural
subjects, and consequently not entitled to protection, or bound to
the king.
Massachusettensis, Jan. 16, seems possessed of these ideas, and
attempts in the most aukward manner, to get rid of them. He is
conscious that America must be a part of the realm, before it can
be bound by the authority of parliament; and therefore is obliged
to suggest, that we are annexed to the realm, and to endeavour to
confuse himself and his readers, by confounding the realm, with the
empire and dominions.
But will any man soberly contend, that America was ever annexed to
the realm? to what realm? When New England was settled, there was a
realm of England, a realm of Scotland, and a realm of Ireland. To
which of these three realms was New England annexed? To the realm
of England, it will be said. But by what law? no territory could be
annexed to the realm of England, but by an act of parliament. Acts
of parliament have been passed to annex Wales, &c. &c. to the realm.
But none ever passed to annex America. But if New-England was annexed
to the realm of England, how came she annexed to the realm of, or
kingdom of Great Britain? The two realms of England and Scotland
were, by the act of union, incorporated into one kingdom by the name
of Great Britain: but there is not one word about America in that act.
Besides, if America was annexed to the realm, or a part of the
kingdom, every act of parliament that is made, would extend to
it, named or not named. But every body knows that every act of
parliament, and every other record, constantly distinguishes between
this kingdom, and his majesty's other dominions. Will it be said
that Ireland is annexed to the realm, or a part of the kingdom of
Great Britain? Ireland is a distinct kingdom, or realm, by itself,
notwithstanding British parliament claims a right of binding it in
all cases, and exercises it in some. And even so the Massachusetts
is a realm, New York is a realm, Pennsylvania another realm, to all
intents and purposes, as much as Ireland is, or England or Scotland
ever were. The king of Great Britain is the sovereign of all these
realms.
This writer says, "that in denying that the Colonies are annexed to
the realm, and subject to the authority of parliament, individuals
and bodies of men subvert the fundamentals of government, deprive us
of British liberties, and build up absolute monarchy in the colonies."
This is the first time that I ever heard or read that the colonies
are annexed to the realm. It is utterly denied that they are, and
that it is possible they should be, without an act of parliament, and
acts of the colonies. Such an act of parliament cannot be produced,
nor any such law of any one colony. Therefore as this writer builds
the whole authority of parliament upon this fact, viz: That the
colonies are annexed to the realm, and as it is certain they never
were so annexed, the consequence is, that his whole superstructure
falls.
When he says, that they subvert the fundamentals of government,
he begs the question. We say that the contrary doctrines subvert
the fundamentals of government. When he says that they deprive us
of British liberties, he begs the question again. We say that the
contrary doctrine deprives us of English liberties; as to British
liberties, we scarcely know what they are, as the liberties of
England and Scotland are not precisely the same to this day. English
liberties are but certain rights of nature, reserved to the citizen,
by the English constitution, which rights cleaved to our ancestors,
when they crossed the Atlantic, and would have inhered in them, if
instead of coming to New-England they had gone to Outaheite, or
Patagonia, even although they had taken no patent or charter from
the king at all. These rights did not adhere to them the less, for
their purchasing patents and charters, in which the king expressly
stipulates with them, that they and their posterity should forever
enjoy all those rights and liberties.
The human mind is not naturally the clearest atmosphere; but the
clouds and vapours which have been raised in it, by the artifices
of temporal and spiritual tyrants, have made it impossible to see
objects in it distinctly. Scarcely any thing is involved in more
systematical obscurity, than the rights of our ancestors, when they
arrived in America. How, in common sense, came the dominions of king
Philip, king Massachusetts, and twenty other sovereigns, independent
princes here, to be within the allegiance of the kings of England,
James and Charles? America was no more within the allegiance of those
princes, by the common law of England, or by the law of nature, than
France and Spain were. Discovery, if that was incontestible, could
give no title to the English king, by common law, or by the law of
nature, to the lands, tenements, and hereditaments of the native
Indians here. Our ancestors were sensible of this, and therefore
honestly purchased their lands of the natives. They might have bought
them to hold allodially, if they would.
But there were two ideas, which confused them, and have continued
to confuse their posterity, one derived from the feudal, the other
from the canon law. By the former of these systems, the prince,
the general, was supposed to be sovereign lord of all the lands,
conquered by the soldiers in his army; and upon this principle, the
king of England was considered in law as sovereign lord of all the
land within the realm. If he had sent an army here to conquer king
Massachusetts, and it had succeeded, he would have been sovereign
lord of the land here upon these principles; but there was no rule of
the common law, that made the discovery of a country by a subject,
a title to that country in the prince. But conquest would not have
annexed the country to the realm, nor have given any authority to
the parliament. But there was another mist cast before the eyes of
the English nation from another source. The pope claimed a sovereign
propriety in, as well as authority over the whole earth. As head of
the christian church, and vicar of God, he claimed this authority
over all Christendom; and, in the same character, he claimed a right
to all the countries and possessions of heathens and infidels; a
right divine to exterminate and destroy them at his discretion, in
order to propagate the catholic faith. When king Henry VIII. and
his parliament, threw off the authority of the pope, stripped his
holiness of his supremacy, and invested it in himself by an act of
parliament, he and his courtiers seemed to think that all the rights
of the holy see were transferred to him; and it was a union of these
two, the most impertinent and fantastical ideas that ever got into an
human pericranium, viz: that as feudal sovereign and supreme head of
the church together, a king of England had a right to all the land
their subjects could find, not possessed by any christian state,
or prince, though possessed by heathen or infidel nations, which
seems to have deluded the nation about the time of the settlement
of the colonies. But none of these ideas gave or inferred any right
in parliament, over the new countries conquered or discovered; and
therefore denying that the colonies are a part of the realm, and
that as such they are subject to parliament, by no means deprives
us of English liberties. Nor does it "build up absolute monarchy in
the colonies." For admitting these notions of the common and feudal
law to have been in full force, and that the king was absolute in
America, when it was settled; yet he had a right to enter into a
contract with his subjects, and stipulate that they should enjoy all
the rights and liberties of Englishmen forever, in consideration of
their undertaking to clear the wilderness, propagate christianity,
pay a fifth part of ore, &c. Such a contract as this has been
made with all the colonies; royal governments, as well as charter
ones. For the commissions to the governors contain the plan of the
government, and the contract between the king and subject, in the
former, as much as the charters in the latter.
Indeed this was the reasoning, and upon these feudal and
_catholic_ principles in the time of some of the predecessors of
Massachusettensis. This was the meaning of Dudley, when he asked, "Do
you think that English liberties will follow you to the ends of the
earth?" His meaning was, that English liberties were confined to the
realm, and out of that the king was absolute. But this was not true;
for an English king had no right to be absolute over Englishmen, out
of the realm, any more than in it, and they were released from their
allegiance, as soon as he deprived them of their liberties.
But "our charters suppose regal authority in the grantor." True
they suppose it, whether there was any or not. "If that authority
be derived from the British (he should have said English) crown,
it presupposes this territory to have been a part of the British
(he should have said English) dominion, and as such subject to the
imperial sovereign." How can this writer shew this authority to be
derived from the English crown, including in the idea of it lords
and commons? Is there the least color for such an authority but in
the popish and feudal ideas before mentioned? And do these popish
and feudal ideas include parliament? Was parliament, were lords and
commons parts of the head of the church, or was parliament, that
is, lords and commons, part of the sovereign feudatory? Never. But
why was this authority derived from the English, any more than the
Scottish or Irish crown? It is true the land was to be held in
soccage, like the manor of East Greenwich; but this was compact, and
it might have been as well to hold, as they held in Glasgow or Dublin.
But, says this writer, "if that authority was vested in the person
of the king in a different capacity, the British constitution and
laws are out of the question, and the king must be absolute as to us,
as his prerogatives have never been limited." Not the prerogatives
limited in our charters, when in every one of them all the rights
of Englishmen are secured to us! Are not the rights of Englishmen
sufficiently known, and are not the prerogatives of the king among
those rights?
As to those colonies which are destitute of charters, the commissions
to their governors have ever been considered as equivalent
securities, both for property, jurisdiction, and privileges, with
charters; and as to the power of the crown being absolute in those
colonies, it is absolute no where. There is no fundamental or other
law, that makes a king of England absolute any where, except in
conquered countries; and an attempt to assume such a power, by the
fundamental laws, forfeits the prince's right even to the limited
crown.
As to "the charter governments reverting to absolute monarchy, as
their charters may happen to be forfeited, by the grantees not
fulfilling the conditions of them;" I answer, if they could be
forfeited, and were actually forfeited, the only consequence would
be, that the king would have no power over them at all. He would
not be bound to protect the people, nor, that I can see, would the
people here, who were born here, be, by any principle of common law,
bound even to allegiance to the king. The connection would be broken
between the crown and the natives of the country.
It has been a great dispute whether charters granted within the
realm, can be forfeited at all. It was a question debated with
infinite learning, in the case of the charter of London: it was
adjudged forfeited, in an arbitrary reign: but afterwards, after
the revolution, it was declared in parliament, not forfeited, and
by an act of parliament made incapable of forfeiture. The charter
of Massachusetts was declared forfeited too. So were other American
charters. The Massachusetts alone, were tame enough to give it up.
But no American charter will ever be decreed forfeited again, or if
any should, the decree will be regarded no more, than a vote of the
lower house of the robinhood society. The court of chancery has no
authority without the realm; by common law, surely it has none in
America. What! the privileges of millions of Americans depend on the
discretion of a lord chancellor? God forbid! The passivity of this
colony in receiving the present charter, in lieu of the first, is,
in the opinion of some, the deepest stain upon its character. There
is less to be said in excuse for it, than the witchcraft, or hanging
the Quakers. A vast party in the province were against it at the
time, and thought themselves betrayed by their agent. It has been a
warning to their posterity, and one principal motive with the people,
never to trust any agent with power to concede away their privileges
again. It may as well be pretended that the people of Great Britain
can forfeit their privileges, as the people of this province. If the
contract of state is broken, the people and king of England must
recur to nature. It is the same in this province. We shall never more
submit to decrees in chancery, or acts of parliament, annihilating
charters, or abridging English liberties.
Whether Massachusettensis was born as a politician, in the year
1764, I knew [Errata: know] not: but he often writes as if he know
[Errata: knew] nothing of that period. In his attempt to trace the
denial of the supreme authority of the parliament, he commits such
mistakes, as a man of age, at that time, ought to blush at. He says,
that "when the stamp act was made, the authority of parliament to
impose external taxes, or, in other words, to lay duties upon goods
and merchandize was admitted," and that when the tea act was made, "a
new distinction was set up, that parliament had a right to lay duties
upon merchandize, for the purpose of regulating trade, but not for
the purpose of raising a revenue." This is a total misapprehension
of the declared opinions of people at those times. The authority
of parliament to lay taxes for a revenue has been always generally
denied. And their right to lay duties to regulate trade, has been
denied by many, who have ever contended that trade should be
regulated only by prohibitions.
The act of parliament of the 4th George 3d, passed in the year
1764, was the first act of the British parliament that ever was
passed, in which the design of raising a revenue was expressed. Let
Massachusettensis name any statute before that, in which the word
revenue is used, or the thought of raising a revenue is expressed.
This act is entitled, "an act for granting certain duties in the
British colonies, and plantations in America," &c. The word revenue,
in the preamble of this act, instantly ran through the colonies, and
rang an alarm, almost as much as if the design of forging chains
for the colonists had been expressed in words. I have now before me
a pamphlet, written and printed in the year 1764, entitled, "The
sentiments of a British American," upon this act. How the idea of a
revenue, though from an acknowledged external tax, was relished in
that time, may be read in the frontispiece of that pamphlet.
_Ergo quid refert mea
Cui serviam? clitellas dum portem meas._ PHAEDRUS.
The first objection to this act, which was made in that pamphlet,
by its worthy author, OXENBRIDGE THACHER, Esq. who died a
martyr to that amity [Errata: anxiety] for his country, which the
conduct of the junto gave him, is this, "The first objection is,
that a tax is thereby laid on several commodities, to be raised
and levied in the plantations, and to be remitted home to England.
This is esteemed a grievance, inasmuch as the same are laid, without
the consent of the representatives of the colonists. It is esteemed
an essential British right, that no person shall be subject to any
tax; but what in person, or by his representative, he hath a voice
in laying." Here is a tax unquestionably external, in the sense in
which that word is used, in the distinction that is made by some
between external and internal taxes, and unquestionably laid in part
for the regulation of trade; yet called a grievance, and a violation
of an essential British right, in the year 1764, by one who was then
at the head of the popular branch of our constitution, and as well
acquainted with the sense of his constituents, as any man living. And
it is indisputable, that in those words he wrote the almost universal
sense of this colony.