province or colony, and the better to elucidate the true sense and
meaning of it, we would take a view of the state of the English North
American continent at the time, when, and after possession was first
taken of any part of it, by the Europeans. It was then possessed by
heathen and barbarous people, who had, nevertheless, all that right to
the soil, and sovereignty in and over the lands they possessed, which
God had originally given to man. Whether their being heathen, inferred
any right or authority to christian princes, a right which had long
been assumed by the Pope, to dispose of their lands to others, we will
leave your Excellency, or any one of understanding and impartial
judgment, to consider. It is certain, they had in no other sense,
forfeited them to any power in Europe. Should the doctrine be
admitted, that the discovery of lands owned and possessed by pagan
people, gives to any christian prince a right and title to the
dominion and property, still it is vested in the Crown alone. It was
an acquisition of foreign territory, not annexed to the realm of
England, and, therefore, at the absolute disposal of the Crown. For we
take it to be a settled point, that the King has a constitutional
prerogative, to dispose of and alienate, any part of his territories
not annexed to the realm. In exercise of this prerogative, Queen
Elizabeth granted the first American charter; and, claiming a right by
virtue of discovery, then supposed to be valid, to the lands which are
now possessed by the colony of Virginia, she conveyed to Sir Walter
Rawleigh, the property, dominion, and sovereignty thereof, to be held
of the Crown, by homage, and a certain render, without any reservation
to herself, of any share in the Legislative and Executive authority.
After the attainder of Sir Walter, King James the I. created two
Virginian companies, to be governed each by laws, transmitted to them
by his Majesty, and not by the Parliament, with power to establish,
and cause to be made, a coin to pass current among them; and vested
with all liberties, franchises and immunities, within any of his other
dominions, to all intents and purposes, as if they had been abiding
and born within the realm. A declaration similar to this, is contained
in the first charter of this colony, and in those of other American
colonies, which shows that the colonies were not intended, or
considered to be within the realm of England, though within the
allegiance of the English Crown. After this, another charter was
granted by the same King James, to the Treasurer and Company of
Virginia, vesting them with full power and authority, to make, ordain,
and establish, all manner of orders, laws, directions, instructions,
forms and ceremonies of governments, and magistracy, fit and
necessary, and the same to abrogate, &c. without any reservation for
securing their subjection to Parliament, and future laws of England. A
third charter was afterwards granted by the same King, to the
Treasurer and Company of Virginia, vesting them with full power and
authority to make laws, with an addition of this clause, "so,
always, that the same be not contrary to the laws and statutes of this
our realm of England." The same clause was afterwards copied into the
charter of this and other colonies, with certain variations, such as,
that these laws should be "consonant to reason," "not repugnant to the
laws of England," "as nearly as conveniently may be to the laws,
statutes and rights of England," &c. These modes of expression, convey
the same meaning, and serve to show an intention, that the laws of the
colonies should be as much as possible, conformable in the spirit of
them, to the principles and fundamental laws of the English
constitution, its rights and statutes then in being, and by no means
to bind the colonies to a subjection to the supreme authority of the
English Parliament. And that this is the true intention, we think it
further evident from this consideration, that no acts of any colony
Legislative, are ever brought into Parliament for inspection there,
though the laws made in some of them, like the acts of the British
Parliament, are laid before the King for his dissent or allowance.
We have brought the first American charters into view, and the state
of the country when they were granted, to show, that the right of
disposing of the lands was, in the opinion of those times, vested
solely in the Crown; that the several charters conveyed to the
grantees, who should settle upon the territories therein granted, all
the powers necessary to constitute them free and distinct states; and
that the fundamental laws of the English constitution should be the
certain and established rule of legislation, to which, the laws to
be made in the several colonies, were to be, as nearly as conveniently
might be, conformable, or similar, which was the true intent and
import of the words, "not repugnant to the laws of England,"
"consonant to reason," and other variant expressions in the different
charters. And we would add, that the King, in some of the charters,
reserves the right to judge of the consonance and similarity of their
laws with the English constitution, to himself, and not to the
Parliament; and, in consequence thereof, to affirm, or within a
limited time, disallow them.
These charters, as well as that afterwards granted to Lord Baltimore,
and other charters, are repugnant to the idea of Parliamentary
authority; and, to suppose a Parliamentary authority over the
colonies, under such charters, would necessarily induce that solecism
in politics, imperium in imperio. And the King's repeatedly exercising
the prerogative of disposing of the American territory by such
charters, together with the silence of the nation thereupon, is an
evidence that it was an acknowledged prerogative.
But, further to show the sense of the English Crown and nation, that
the American colonists, and our predecessors in particular, when they
first took possession of this country, by a grant and charter from the
Crown, did not remain subject to the supreme authority of Parliament,
we beg leave to observe, that when a bill was offered by the two
Houses of Parliament to King Charles the I. granting to the subjects
of England, the free liberty of fishing on the coast of America, he
refused his royal assent, declaring as a reason, that "the colonies
were without the realm and jurisdiction of Parliament."
In like manner, his predecessor, James the I. had before declared,
upon a similar occasion, that "America was not annexed to the realm,
and it was not fitting that Parliament should make laws for those
countries." This reason was, not secretly, but openly declared in
Parliament. If, then, the colonies were not annexed to the realm, at
the time when their charters were granted, they never could
afterwards, without their own special consent, which has never since
been had, or even asked. If they are not now annexed to the realm,
they are not a part of the kingdom, and consequently not subject to
the Legislative authority of the kingdom. For no country, by the
common law, was subject to the laws or to the Parliament, but the
realm of England.
We would, if your Excellency pleases, subjoin an instance of conduct
in King Charles the II. singular indeed, but important to our purpose,
who, in 1769, framed an act for a permanent revenue for the support of
Virginia, and sent it there by Lord Culpepper, the Governor of that
colony, which was afterwards passed into a law, and "enacted by the
King's most excellent Majesty, by, and with the consent of the General
Assembly of Virginia." If the King had judged the colony to be a part
of the realm, he would not, nor could he, consistently with Magna
Charta, have placed himself at the head of, and joined with any
Legislative body in making a law to tax the people there, other than
the Lords and Commons of England.
Having taken a view of the several charters of the first colony in
America, if we look into the old charter of this colony, we shall find
it to be grounded on the same principle; that the right of disposing
the territory granted therein, was vested in the Crown, as being that
Christian Sovereign who first discovered it, when in the possession of
heathens; and that it was considered as being not within the realm,
but being only within the Fee and Seignory of the King. As, therefore,
it was without the realm of England, must not the King, if he had
designed that the Parliament should have any authority over it, have
made special reservation for that purpose, which was not done?
Your Excellency says, "it appears from the charter itself, to have
been the sense of our predecessors, who first took possession of this
plantation, or colony, that they were to remain subject to the
authority of Parliament." You have not been pleased to point out to
us, how this appears from the charter, unless it be in the observation
you make on the above mentioned clause, viz.: "that a favorable
construction has been put upon this clause, when it has been allowed
to intend such laws of England only, as are expressly made to respect
us," which you say, "is by charter, a reserve of power and authority
to Parliament, to bind us by such laws, at least, as are made
expressly to refer to us, and consequently is a limitation of the
power given to the General Court." But, we would still recur to the
charter itself, and ask your Excellency, how this appears, from
thence, to have been the sense of our predecessors? Is any reservation
of power and authority to Parliament thus to bind us, expressed or
implied in the charter? It is evident, that King Charles the I. the
very Prince who granted it, as well as his predecessor, had no such
idea of the supreme authority of Parliament over the colony, from
their declarations before recited. Your Excellency will then allow us,
further to ask, by what authority, in reason or equity, the Parliament
can enforce a construction so unfavorable to us. Quod ab initio
injustum est, nullum potest habere juris efectum, said Grotius. Which,
with submission to your Excellency, may be rendered thus: whatever is
originally in its nature wrong, can never be sanctified, or made right
by repetition and use.
In solemn agreements, subsequent restrictions ought never to be
allowed. The celebrated author, whom your Excellency has quoted, tells
us, that, "neither the one or the other of the interested, or
contracting powers, hath a right to interpret at pleasure." This we
mention, to show, even upon a supposition, that the Parliament had
been a party to the contract, the invalidity of any of its subsequent
acts, to explain any clause in the charter; more especially to
restrict or make void any clause granted therein to the General Court.
An agreement ought to be interpreted "in such a manner as that it may
have its effect." But, if your Excellency's interpretation of this
clause is just, "that it is a reserve of power and authority to
Parliament to bind us by such laws as are made expressly to refer to
us," it is not only "a limitation of the power given to the General
Court" to legislate, but it may, whenever the Parliament shall think
fit, render it of no effect; for it puts it in the power of
Parliament, to bind us by as many laws as they please, and even to
restrain us from making any laws at all. If your Excellency's
assertions in this, and the next succeeding part of your speech, were
well grounded, the conclusion would be undeniable, that the charter,
even in this clause, "does not confer or reserve any liberties," worth
enjoying, "but what would have been enjoyed without it;" saving that,
within any of his Majesty's dominions, we are to be considered
barely as not aliens. You are pleased to say, it cannot "be contended,
that by the liberties of free and natural subjects," (which are
expressly granted in the charter, to all intents, purposes and
constructions, whatever,) "is to be understood, an exemption from acts
of Parliament, because not represented there; seeing it is provided by
the same charter, that such acts shall be in force." If, says an
eminent lawyer, "the King grants to the town of D. the same liberties
which London has, this shall be intended the like liberties." A grant
of the liberties of free and natural subjects, is equivalent to a
grant of the same liberties. And the King, in the first charter to
this colony, expressly grants, that it "shall be construed, reputed
and adjudged in all cases, most favorably on the behalf and for the
benefit and behoof of the said Governor and Company, and their
successors - any matter, cause or thing, whatsover, to the contrary
notwithstanding." It is one of the liberties of free and natural
subjects, born and abiding within the realm, to be governed, as your
Excellency observes, "by laws made by persons, in whose elections
they, from time to time, have a voice." This is an essential right.
For nothing is more evident, than, that any people, who are subject to
the unlimited power of another, must be in a state of abject slavery.
It was easily and plainly foreseen, that the right of representation
in the English Parliament, could not be exercised by the people of
this colony. It would be impracticable, if consistent with the English
constitution. And for this reason, that this colony might have and
enjoy all the liberties and immunities of free and natural subjects
within the realm, as stipulated in the charter, it was necessary, and
a Legislative was accordingly constituted within the colony one branch
of which, consists of Representatives chosen by the people, to make
all laws, statutes, ordinances, &c. for the well ordering and
governing the same, not repugnant to the laws of England, or, as
nearly as conveniently might be, agreeable to the fundamental laws of
the English constitution. We are, therefore, still at a loss to
conceive, where your Excellency finds it " provided in the same
charter, that such acts," viz, acts of Parliament, made expressly to
refer to us, " shall be in force " in this province. There is nothing
to this purpose, expressed in the charter, or in our opinion, even
implied in it. And surely it would be very absurd, that a charter,
which is evidently formed upon a supposition and intention, that a
colony is and should be considered as not within the realm; and
declared by the very Prince who granted it, to be not within the
jurisdiction of Parliament, should yet provide, that the laws which
the same Parliament should make, expressly to refer to that colony,
should be in force therein. Your Excellency is pleased to ask, "does
it follow, that the government, by their (our ancestors) removal from
one part of the dominion to another, loses its authority over that
part to which they removed; and that they are freed from the
subjection they were under before?" We answer, if that part of the
King's dominions, to which they removed, was not then a part of the
realm, and was never annexed to it, the Parliament lost no authority
over it, having never had such authority; and the emigrations were
consequently freed from the subjection they were under before their
removal. The power and authority of Parliament, being constitutionally
confined within the limits of the realm, and the nation collectively,
of which alone it is the representing and Legislative Assembly. Your
Excellency further asks, "will it not rather be said, that by this,
their voluntary removal, they have relinquished, for a time, at least,
one of the rights of an English subject, which they might, if they
pleased, have continued to enjoy, and may again enjoy, whenever they
return to the place where it can be exercised?" To which we answer;
they never did relinquish the right to be governed by laws, made by
persons in whose election they had a voice. The King stipulated with
them, that they should have and enjoy all the liberties of free and
natural subjects, born within the realm, to all intents, purposes and
constructions, whatsoever; that is, that they should be as free as
those, who were to abide within the realm: consequently, he stipulated
with them, that they should enjoy and exercise this most essential
right, which discriminates freemen from vassals, uninterruptedly,
in its full sense and meaning; and they did, and ought still to
exercise it, without the necessity of returning, for the sake of
exercising it, to the nation or state of England.
We cannot help observing, that your Excellency's manner of reasoning
on this point, seems to us, to render the most valuable clauses in our
charter unintelligible: as if persons going from the realm of England,
to inhabit in America, should hold and exercise there a certain right
of English subjects; but, in order to exercise it in such manner as to
be of any benefit to them, they must not inhabit there, but return to
the place where alone it can be exercised. By such construction, the
words of the charter can have no sense or meaning. We forbear
remarking upon the absurdity of a grant to persons born without the
realm, of the same liberties which would have belonged to them, if
they had been born within the realm.
Your Excellency is disposed to compare this government to the variety
of corporations, formed within the kingdom, with power to make and
execute bylaws, &c.; and, because they remain subject to the supreme
authority of Parliament, to infer, that this colony is also subject to
the same authority: this reasoning appears to us not just. The members
of those corporations are resident within the kingdom; and residence
subjects them to the authority of Parliament, in which they are also
represented; whereas the people of this colony are not resident within
the realm. The charter was granted, with the express purpose to
induce them to reside without the realm; consequently, they are not
represented in Parliament there. But, we would ask your Excellency,
are any of the corporations, formed within the kingdom, vested with
the power of erecting other subordinate corporations? of enacting and
determining what crimes shall be capital? and constituting courts of
common law, with all their officers, for the hearing, trying and
punishing capital offenders with death? These and many other powers
vested in this government, plainly show, that it is to be considered
as a corporation, in no other light, than as every state is a
corporation. Besides, appeals from the courts of law here, are not
brought before the House of Lords; which shows, that the peers of the
realm, are not the peers of America: but all such appeals are brought
before the King in council, which is a further evidence, that we are
not within the realm.
We conceive enough has been said, to convince your Excellency, that,
"when our predecessors first took possession of this plantation, or
colony, by a grant and charter from the Crown of England, it was not,
and never had been the sense of the kingdom, that they were to remain
subject to the supreme authority of Parliament. We will now, with your
Excellency's leave, inquire what was the sense of our ancestors, of
this very important matter.
And, as your Excellency has been pleased to tell us, you have not
discovered, that the supreme authority of Parliament has been called
in question, even by private and particular persons, until within
seven or eight years past; except about the time of the anarchy and
confusion in England, which preceded the restoration of King Charles
the II. we beg leave to remind your Excellency of some parts of your
own history of Massachusetts Bay. Therein we are informed of
the sentiments of "persons of influence," after the restoration; from
which, the historian tells us, some parts of their conduct, that is,
of the General Assembly, "may be pretty well accounted for." By the
history, it appears to have been the opinion of those persons of
influence, "that the subjects of any prince or state, had a natural
right to remove to any other state, or to another quarter of the
world, unless the state was weakened or exposed by such remove;
and, even in that case, if they were deprived of the right of all
mankind, liberty of conscience, it would justify a separation, and
upon their removal, their subjection determined and ceased." That "the
country to which they had removed, was claimed and possessed by
independent princes, whose right to the lordship and sovereignty
thereof had been acknowledged by the Kings of England," an instance of
which is quoted in the margin. "That they themselves had actually
purchased, for valuable consideration, not only the soil, but the
dominion, the lordship and sovereignty of those princes;" without
which purchase, "in the sight of God and men, they had no right or
title to what they possessed." They had received a charter of
incorporation from the King, from whence arose a new kind of
subjection, namely, "a voluntary, civil subjection;" and by this
compact, "they were to be governed by laws made by themselves." Thus
it appears to have been the sentiments of private persons, though
persons by whose sentiments the public conduct was influenced, that
their removal was a justifiable separation from the mother state, upon
which, their subjection to that state, determined and ceased. The
supreme authority of Parliament, if it had then ever been asserted,
must surely have been called in question, by men who had advanced such
principles as these.
The first act of Parliament, made expressly to refer to the colonies,
was after the restoration. In the reign of King Charles the II.
several such acts passed. And the same history informs us, there was a
difficulty in conforming to them; and the reason of this difficulty is
explained in a letter of the General Assembly to their Agent, quoted
in the following words; "they apprehended them to be an invasion of
the rights, liberties and properties of the subjects of his Majesty,
in the colony, they not being represented in Parliament, and according
to the usual sayings of the learned in the law, the laws of England
were bounded within the four seas, and did not reach America: However,
as his Majesty had signified his pleasure, that those acts should be
observed in the Massachusetts, they had made provision, by a law of
the colony, that they should be strictly attended."3 Which provision,
by a law of their own, would have been superfluous, if they had
admitted the supreme authority of Parliament. In short, by the same
history it appears, that those acts of Parliament, as such, were
disregarded; and the following reason is given for it: "It seems to
have been a general opinion, that acts of Parliament have no other
force, than what they derived from acts made by the General Court, to
establish and confirm them."
But, still further to show the sense of our ancestors, respecting this
matter, we beg leave to recite some parts of a narrative, presented to
the Lords of Privy Council, by Edward Randolph, in the year 1676,
which we find in your Excellency's collection of papers lately
published.4 Therein5 it is declared to be the sense of the colony,
"that no law is in force or esteem there, but such as are made by the
General Court; and, therefore, it is accounted a breach of their
privilegčs, and a betraying of the liberties of their commonwealth, to
urge the observation of the laws of England." And, further, "that no
oath shall be urged, or required to be taken by any person, but such
oath as the General Court hath considered, allowed and required." And,
further, "there is no notice taken of the act of navigation,
plantation or any other laws, made in England for the regulation of
trade." "That the government would make the world believe, They are a
free state, and do act in all matters accordingly." Again, "these
magistrates ever reserve to themselves, a power to alter, evade and
disannul any law or command, not agreeing with their humor, or the
absolute authority of their government, acknowledging no superior."
And, further, "he (the Governor) freely declared to me, that the laws
made by your Majesty and your Parliament, obligeth them in nothing,
but what consists with the interests of that colony; that the
Legislative power and authority is, and abides in them solely." And in
the same Mr. Randolph's letter to the Bishop of London, July 14.,
1682, he says, "this independency in government is claimed and daily
practised."6 And your Excellency being then sensible, that this was
the sense of our ancestors, in a marginal note, in the same collection
of papers, observes, that, "this, viz, the provision made for
observing the acts of trade, is very extraordinary, for this provision
was an act of the colony, declaring the acts of trade shall be in
force there." Although Mr. Randolph was very unfriendly to the colony,
yet, as his declarations are concurrent with those recited from your
Excellency's history, we think they may be admitted, for the purpose
for which they are now brought.