sense our ancestors had of the jurisdiction of Parliament, under the
first charter. Very different from that, which your Excellency in your
speech, apprehends it to have been.
It appears by Mr. Neal's History of New England, that the agents, who
had been employed by the colony to transact its affairs in England, at
the time when the present charter was granted, among other reasons,
gave the following for their acceptance of it, viz. "The General Court
has, with the King's approbation, as much power in New England, as the
King and Parliament have in England; they have all English privileges,
and can be touched by no law, and by no tax but of their own making."7
This is the earliest testimony that can be given of the sense our
predecessors had of the supreme authority of Parliament, under the
present charter. And it plainly shows, that they, who having been
freely conversant with those who framed the charter, must have well
understood the design and meaning of it, supposed that the terms in
our charter, "full power and authority," intended and were considered
as a sole and exclusive power, and that there was no "reserve in the
charter, to the authority of Parliament, to bind the colony" by any
acts whatever.
Soon after the arrival of the charter, viz, in 1692, your Excellency's
history informs us,8 "the first act" of this Legislative, was a sort
of Magna Charta, asserting and setting forth their general privileges,
and this clause was among the rest; "no aid, tax, tallage, assessment,
custom, loan, benevolence, or imposition whatever, shall be laid,
assessed, imposed, or levied on any of their Majesty's subjects, or
their estates, on any pretence whatever, but by the act and consent of
the Governor, Council, and Representatives of the people assembled in
General Court." And though this act was disallowed, it serves to show
the sense which the General Assembly, contemporary with the granting
the charter, had of their sole and exclusive right to legislate for
the colony. The history says, "the other parts of the act were copied
from Magna Charta;" by which, we may conclude that the Assembly then
construed the words, "not repugnant to the laws," to mean, conformable
to the fundamental principles of the English constitution. And it is
observable, that the Lords of Privy Council, so lately as in the reign
of Queen Anne, when several laws enacted by the General Assembly were
laid before her Majesty for her allowance, interpreted the words in
this charter, "not repugnant to the laws of England," by the words,
"as nearly as conveniently may be agreeable to the laws and statutes
of England." And her Majesty was pleased to disallow those acts, not
because they were repugnant to any law or statute of England, made
expressly to refer to the colony, but because divers persons, by
virtue thereof, were punished, without being tried by their peers in
the ordinary "courts of law," and "by the ordinary rules and known
methods of justice," contrary to the express terms of Magna Charta,
which was a statute in force at the time of granting the charter, and
declaratory of the rights and liberties of the subjects within the
realm.
You are pleased to say, that "our provincial or local laws have, in
numerous instances, had relation to acts of Parliament, made to
respect the plantations, and this colony in particular." The authority
of the Legislature, says the same author who is quoted by your
Excellency, "does not extend so far as the fundamentals of the
constitution. They ought to consider the fundamental laws as sacred,
if the nation has not in very express terms, given them the power to
change them. For the constitution of the state ought to be fixed;
and since that was first established by the nation, which afterwards
trusted certain persons with the Legislative power, the fundamental
laws are excepted from their commission." Now the fundamentals of the
constitution of this province, are stipulated in the charter; the
reasoning, therefore, in this case, holds equally good. Much less,
then, ought any acts or doings of the General Assembly, however
numerous, to neither of which your Excellency has pointed us,
which barely relate to acts of Parliament made to respect the
plantations in general, or this colony in particular, to be taken
as an acknowledgment of this people, or even of the Assembly,
which inadvertently passed those acts, that we are subject to the
supreme authority of Parliament; and with still less reason are
the decisions in the executive courts to determine this point. If
they have adopted that "as part of the rule of law," which, in
fact, is not, it must be imputed to inattention or error in
judgment, and cannot justly be urged as an alteration or
restriction of the Legislative authority of the province.
Before we leave this part of your Excellency's speech, we would
observe, that the great design of our ancestors in leaving the
kingdom of England, was to be freed from a subjection to its
spiritual laws and courts, and to worship God according to the
dictates of their consciences. Your Excellency, in your history
observes, that their design was "to obtain for themselves and
their posterity, the liberty of worshipping God in such manner as
appeared to them most agreeable to the sacred scriptures." And the
General Court themselves declared in 1651, that "seeing just cause
to fear the persecution of the then Bishop, and high commission
for not conforming to the ceremonies of those under their power,
they thought it their safest course, to get to this outside of the
world, out of their view and beyond their reach." But, if it had
been their sense, that they were still to be subject to the
supreme authority of Parliament, they must have known that their
design might, and probably would be frustrated; that the
Parliament, especially considering the temper of those times,
might make what ecclesiastical laws they pleased, expressly to
refer to them, and place them in the same circumstances with
respect to religious matters, to be relieved from which, was the
design of their removal; and we would add, that if your
Excellency's construction of the clause in our present charter is
just, another clause therein, which provides for liberty of
conscience for all christians, except papists, may be rendered
void by an act of Parliament made to refer to us, requiring a
conformity to the rights and mode of worship in the church of
England, or any other.
Thus we have endeavored to show the sense of the people of this
colony under both charters; and, if there have been in any late
instances a submission to acts of Parliament, it has been, in our
opinion, rather from inconsideration, or a reluctance at the idea
of contending with the parent state, than from a conviction or
acknowledgment of the Supreme Legislative authority of Parliament.
Your Excellency tells us, "you know of no line that can be drawn
between the supreme authority of Parliament and the total
independence of the colonies." If there be no such line, the
consequence is, either that the colonies are the vassals of the
Parliament, or that they are totally independent. As it cannot be
supposed to have been the intention of the parties in the compact,
that we should be reduced to a state of vassalage, the conclusion
is, that it was their sense that we were thus independent. "It is
impossible," your Excellency says, "that there should be two
independent Legislatures in one and the same state." May we not
then further conclude, that it was their sense, that the colonies
were, by their charters, made distinct states from the mother
country? Your Excellency adds, "for although there may be but one
head, the King, yet the two Legislative bodies will make two
governments as distinct as the kingdoms of England and Scotland,
before the union." Very true, may it please your Excellency; and
if they interfere not with each other, what hinders, but that
being united in one head and common Sovereign, they may live
happily in that connection, and mutually support and protect each
other? Notwithstanding all the terrors which your Excellency has
pictured to us as the effects of a total independence, there is
more reason to dread the consequences of absolute uncontroled
power, whether of a nation or a monarch, than those of a total
independence. It would be a misfortune "to know by experience, the
difference between the liberties of an English colonist and those
of the Spanish, French, and Dutch": and since the British
Parliament has passed an act, which is executed even with rigor,
though not voluntarily submitted to, for raising a revenue, and
appropriating the same, without the consent of the people who pay
it, and have claimed a power of making such laws as they please,
to order and govern us, your Excellency will excuse us in asking,
whether you do not think we already experience too much of such a
difference, and have not reason to fear we shall soon be reduced
to a worse situation than that of the colonies of France, Spain,
or Holland?
If your Excellency expects to have the line of distinction between
the supreme authority of Parliament, and the total independence of
the colonies drawn by us, we would say it would be an arduous
undertaking, and of very great importance to all the other
colonies; and therefore, could we conceive of such a line, we
should be unwilling to propose it, without their consent in
Congress.
To conclude, these are great and profound questions. It is the
grief of this House, that, by the ill policy of a late injudicious
administration, America has been driven into the contemplation of
them. And we cannot but express our concern, that your Excellency,
by your speech, has reduced us to the unhappy alternative, either
of appearing by our silence to acquiesce in your Excellency's
sentiments, or of thus freely discussing this point.
After all that we have said, we would be far from being understood
to have in the least abated that just sense of allegiance which we
owe to the King of Great Britain, our rightful Sovereign; and should
the people of this province be left to the free and full exercise of
all the liberties and immunities granted to them by charter, there
would be no danger of an independence on the Crown. Our charters
reserve great power to the Crown in its Representative, fully
sufficient to balance, analogous to the English constitution, all the
liberties and privileges granted to the people. All this your
Excellency knows full well; and whoever considers the power and
influence, in all their branches, reserved by our charter, to the
Crown, will be far from thinking that the Commons of this province are
too independent.
1 Adams was a member of the committee appointed by the House on
January 8 to prepare this answer, and also a member of the committee
appointed January 26 to present the answer to the Governor.
Concerning the authorship of the answer, see W. V. Wells, Life of
Samuel Adams. vol. ii., p. 31, and R. Frothingham, Life of Joseph
Warren, p. 223. For a claim adverse to the authorship of Samuel Adams,
see W. Tudor, Life of James Otis, p. 411, See also below, pages 430,
431.
2 Massachusetts State Papers, pp. 336-342.
3 T. Hutchinson, History of the Province of Massachusetts Bay, vol. i.
p. 322.
4 A Collection of Original Papers Relative to the History of the
Colony of Massachusetts Bay. Boston, 1769. Reprinted by the Prince
Society, 2 vols., Albany, 1865, under the title The Hutchinson Papers.
5 The Hutchinson Papers, vol, ii., pp. 210 et seq.
7 Daniel Neal, History of New England. London, 1720, vol. ii., p. 479.
8 T. Hutchinson, History of the Province of Massachusetts Bay, vol
ii., p. 64.
THE COMMITTEE OF CORRESPONDENCE OF BOSTON TO
THE COMMITTEE OF CORRESPONDENCE OF LYNN.1
[MS., Committee of Correspondence Papers, Lenox Library.]
BOSTON Febry 9 1773
SIRS
The Committee of Correspondence have now before them the Letter of
the Town of Lynn, & will, agreable to their desire, lay it before
this Town. We heartily joyn with you in wishing the glorious
spirit of Liberty which now animates the Inhabitants of this
Province shall be diffused through the Colonies, & happily Effect
the restoration of their Rights, which are cruelly ravishd from
them.
1 Addressed to Ebenezer Burrill, town clerk.
[1773] SAMUEL ADAMS. 427
To DARIUS SESSIONS.1
[MS., Samuel Adams Papers, Lenox Library.]
[February --, 1773.]
SIR
As I am informd the Commissioners are all now in Newport, and your
Assembly is to meet this day I am anxious to know precisely the
Steps that are or shall be taken by each. I hope your Governor
will not think it proper for him to act in the Commission if the
others should determine so to do. Will it not be construed as
conceding on his part to the Legality of it? Every Movement on the
Side of the Commissioners & the Assembly must be important. I trust no
Concessions will be made on your part which shall have the remotest
tendency to fix a precedent; for if it is once establishd, a thousand
Commissions of the like arbitrary kind may be introducd to the utter
ruin of your free Constitution. The promoters of ministerial measures
in this Town are pleasd to hear from one of the Commissioners that
they are treated with great respect: Even common Civility will be thus
colourd to serve the great purpose. Will it not be necessary at all
Events for the Assembly to enter a protest on their Journal against so
unconstitutional a proceeding. This is the Sentiment of a Gentleman
here whose Judgment I very much regard. Such has been the constant
practice of the Assembly of this province in like Cases, for some
years past. You will see by our Governors Speech what Use is made of
Mistakes of this Sort; they are even Improved as Arguments of our
having voluntarily consented to be the Vassals of the British
Parliament. Indeed the Doctrine he has advancd strikes at the root of
every civil Constitution in America. If it be admissible, you have no
just Cause to complain of the present Measure for it is founded upon
the Authority of that parliament, to the Jurisdiction of which
notwithstanding your Charter, you remain subject.
I shall receive a Letter from you by the return of the post if
your Attention to the publick Affairs will admit of it, as a great
favor. In the mean time I beg you to excuse this hasty Scrawl &
believe me to be &c
1 See above, page 389. note.
THE HOUSE OF REPRESENTATIVES OF MASSACHUSETTS
TO THE GOVERNOR. FEBRUARY 12, 1773.1
[Massachusetts State Papers, pp. 366, 367; printed also in the
Gentleman's Magazine, vol. xliii., Pp. 198, 199.]
May it please your Excellency,
Your message of the 4th instant,2 informs this House, that his
Majesty has been pleased to order that salaries shall be allowed
to the Justices of the Superior Court of this province.
We conceive that no Judge, who has a due regard to justice, or
even to his own character, would choose to be placed under such an
undue bias as they must be under, in the opinion of this House, by
accepting of, and becoming dependent for their salaries upon the
Crown.
Had not his Majesty been misinformed, with respect to the
constitution and appointment of our Judges, by those who advised
to this measure, we are persuaded, he would never have passed such
an order; as he was pleased to declare, upon his accession to the
throne, that "he looked upon the independence and uprightness of
the Judges, as essential to the impartial administration of
justice, as one of the best securities of the rights and liberties
of his subjects, and as most conducive to the honor of the Crown."
Your Excellency's precaution to prevent all claim from the
province for any services, for which the Justices may also be
entitled to a salary from the King, is comparatively, of very
small consideration with us.
When we consider the many attempts that have been made,
effectually to render null and void those clauses in our charter,
upon which the freedom of our constitution depends, we should be
lost to all public feeling, should we not manifest a just
resentment. We are more and more convinced, that it has been the
design of administration, totally to subvert the constitution, and
introduce an arbitrary government into this province; and we
cannot wonder that the apprehensions of this people are thoroughly
awakened.
We wait with impatience to know, and hope your Excellency will
very soon be able to assure us, that the Justices will utterly
refuse ever to accept of support, in a manner so justly obnoxious
to the disinterested and judicious part of the good people of this
province, being repugnant to the charter, and utterly inconsistent
with the safety of the rights, liberties and properties of the
people.
1 Stated to have been written by Adams, in W. V. Wells, Life of
Samuel Adams, vol. ii., p. 47, but with no authority given.
2 Massachusetts State Papers, pp. 365, 366.
TO JOHN ADAMS.1
[MS., Adams Papers, Quincy, Mass.; a facsimile is in Works of John
Adams, vol. ii., p. 310.]
MY DEAR SIR
If you have had Leisure to commit your Thoughts to writing
agreable to my request I shall be obligd if you will send them by
the Bearer. The Govr says the House have incautiously applied a rule
of the Common Law2 (see the 4th Coll. of his Speech). The Assertion is
mine, upon your Authority as I thought. If it be vindicable, pray give
me your Aid in that as briefly as you please. I am sorry to trouble
you at a time when I know you must be much engagd but to tell you a
Secret, if there be a Lawyer in the house in Major Hawleys Absence,
there is no one whom I incline to confide in.
Monday Evg
1 Presumably written on February 22 or March I, 1773. Cf. W. V.
Wells, Life of Samuel Adams, vol. ii., p. 41.
2 Speech of February 16, 1773. Massachusetts State Papers, p. 374.
See ibid., p. 387.
THE HOUSE OF REPRESENTATIVES OF MASSACHUSETTS TO
THE GOVERNOR. MARCH 2, 1773.1
[Massachusetts State Papers, pp. 384-396; printed also in the
Boston Gazette, March 8, 1773, and in The Speeches of His
Excellency Governor Hutchinson, pp. 90-113.]
May it please your Excellency,
In your speech, at the Opening of the present session2, your
Excellency expressed your displeasure, at some late proceedings of
the town of Boston, and other principal towns in the province. And,
in another speech3 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 convinced, that it
is our duty to bear our testimony against "innovations, of a dangerous
nature and tendency;" but, it 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 grievances 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 revolution, 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
"allege," in our answer to your first speech; and, the observation
you make, we must confess, is as natural, and undeniably true, as
any one that could have been made; that, "if our foundation shall
fail us in every part of it, the fabric we have raised upon it,
must certainly fall." You think this foundation will fail us; but,
we wish your Excellency had condescended to a consideration of
what we have "adduced in support of our principles." We might
then, perhaps, have had some things offered for our conviction,
more than bare affirmations; 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 its perfection; 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 its provision for the interior
order and tranquillity of society, extremely defective. A
constitution, so contradictory to all the principles that govern
mankind, could never be brought about, but by foreign conquest or
native 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 iniquity, by a strange
kind of fatality, "though originally formed for an encampment, and
for military purposes only, spread over a great part of Europe;"
and, to serve the purposes of oppression and tyranny, "was adopted
by princes, and wrought into their civil constitutions;" and,
aided by the canon law, calculated by the Roman Pontiff, to exalt
himself above all that is called God, it prevailed to the almost
utter extinction of knowledge, virtue, religion, and liberty 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, increased, and spread among the people, they grew
impatient under this heavy yoke; and the most virtuous and
sensible among them, to whose steadfastness, we, in this distant
age and climate, are greatly indebted, were determined to get rid
of it; and, though they have in a great measure subdued its power
and influence 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 is it our business or design, at
present, to inquire. He granted parts or 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 mere fiction of our
English tenures."