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
principles, 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 services 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 conceive that upon the feudal principles, all
power is in the King; they afford us no idea of Parliament. "The
Lord was in early times, the Legislator and Judge over all his
feudatories," says Judge Blackstone. By the struggle 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 jurisdiction and
dominion, power in England has been more equally divided. And
thus, also in America, though we hold our lands agreeably to the
feudal principles of the King; yet our predecessors wisely took
care to enter into compact with the King, that power here should
also be equally divided, agreeable to the original fundamental
principles of the English constitution, declared in Magna Charta,
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 America, are founded, the
constitutions of the Emperor, have the force of law." If our
government be considered as merely feudatory, we are subject to
the King's absolute will, and there is no authority of Parliament,
as the sovereign authority of the British empire. Upon these
principles, what could hinder the King's constituting a number of
independent governments in America? That King Charles the I. 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 Parliament 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 dispose 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
dominions 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 countries are
discovered by English subjects, according 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 of 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 determinations of
the greatest Sages and Judges of the law in the Exchequer Chamber,
ought not to be considered as decisive or binding, in our present
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 favor, to show, that the statutes 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 colony becoming a part of the state, to
subjoin the opinions of several learned civilians, as quoted by a very
able lawyer in this country. "Colonies," says Puffendorf, "are
settled in different methods; for, either the colony continues a
part of the Commonwealth it was set out from, or else is obliged
to pay a dutiful regard to the mother Commonwealth, 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
separate Commonwealth 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."4 We beg leave
to recite the words of the Judges of England, in the before
mentioned case, to our purpose. "If a King go out of England with
a company of his servants, allegiance remaineth among his subjects
and servants, although he be out of his realm, whereto his laws
are confined." We did not mean to say, as your Excellency would
suppose, 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 authority 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 being feudatory, it is under
the government of the King's laws 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 compact with the King in the charter.
Your Excellency says, that "persons thus holding under the Crown
of England, remain, or become subjects of England," by which, we
suppose your Excellency to mean, subject to the supreme authority
of Parliament, "to all intents and purposes, as fully, as if any of
the royal manors, &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
Calvin's case.5 "The allegiance is due to his natural body;" and,
he says, "in the reign of Edward II. the Spencers, the father and
the son, to cover the treason hatched in their hearts, invented
this damnable and damned opinion, that homage and oath of allegiance
was more by reason of the King's Crown, that is, of his politic
capacity, than by reason of the person of the King; upon which
opinion, they inferred execrable and detestable consequents." The
Judges of England, all but one, in the case of the union between
Scotland and England, declared, that "allegiance followeth the natural
person, not the politic;" and, "to prove the allegiance to be tied to
the body natural of the King, and not to the body politic, the Lord
Coke cited the phrases of divers statutes, mentioning our natural
liege Sovereign." If, then, the homage and allegiance is not to the
body politic 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 reconcileable 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 England, 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. Normandy,
Aquitain, 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 Regnum, be not so relatives, as a King can be
King but of one kingdom, which clearly holdeth not, but that his
kingly power extending to divers nations and kingdoms, all owe him
equal subjection, and are equally born to the benefit of his
protection; and, although 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 Excellency in your speech supposes,
in any of the dominions, all which accords with the principles our
ancestors held. "And he is to bear 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 discipline of subjection,
particularized to every particular 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 distinguishing between the
Crown of England, and the Kings and Queens of England, in their
personal or natural capacities, we have been led into a
fundamental 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
granting the charter, considered the territory as not within the
realm; that the King had an absolute 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 ancestors 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 public or politic, 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 politic and nation of England acquired it. Our
ancestors supposed it was acquired by neither; and, therefore,
they declared, as we have before quoted from your history, that
saving their actual purchase from the natives, of the soil, the
dominion, the lordship, and sovereignty, they had in the sight of
God and man, no right and title to what they possessed. How much
clearer then, in natural reason and equity, must our title be, who
hold estates dearly purchased at the expense of our own, as well
as our ancestors labor, and defended by them with treasure and
blood.
Your Excellency has been pleased to confirm, rather than deny or
confute, a piece of history, which, you say, we took from an
anonymous pamphlet, and by which you "fear we have been too easily
misled." It may be gathered from your own declaration, and other
authorities, besides the anonymous 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 House of Commons was alarmed, and a bill was
brought in for allowing a free fishery." And, upon this occasion,
your Excellency allows, that "one of the Secretaries of State
declared, that the plantations 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 narrative," 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 territory," 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 repugnant 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."6 This is plain and obvious to common
sense, and, therefore, cannot be denied. But, if your Excellency
would read a page or two further in that excellent defence,7 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
choose himself to put upon it; and, he expressly designs to show,
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 construction, much more
likely to be the true intent of the words, namely, "that the
patentees shall not presume, under color of their particular
charters, to make any laws inconsistent with the great charter,
and other laws of England, by which the lives, liberties, and
properties of Englishmen are secured."8 This is the sense in which
our ancestors understood the words; and, therefore, they are
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 by laws, which were made by persons, in
whose election they had a voice, they looked upon 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
ancestors, "intended by this injunction to provide for all its
subjects, that they might not be oppressed by arbitrary power; but
being still subjects, they should be protected by the same mild laws,
and enjoy the same happy government, as if they continued within the
realm."9 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 vassalage, and
exposes us to oppression and despotic power, whenever a Parliament
shall see fit to make laws for that purpose, and put them in
execution.
We flatter ourselves, that, from the large extracts we have made
from your Excellency's history 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 turn 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 apprehended them to be, when you delivered your speech, you
seem to concede to it, by telling us, "it was, as you take it, from
the principles imbibed in those times of anarchy, (preceding the
restoration,) that they disputed the authority of Parliament;"
but, you add, "the government would not venture to dispute it." We
find in the same history,10 a quotation from a letter of Mr.
Stoughton, dated seventeen years after the restoration, 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 navigation had for some years before, been observed
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 cannot 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
declaration 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, in more explicitly," that is, than by a
conversation with the Commissioners, "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." 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 could there he for their vote, or authority,
to require him to take the oath already required of him, by the
act of Parliament, unless both he, and they, judge that an act of
Parliament was not of force sufficient to bind him to take such
oath? We do not deny, but, on the contrary, are fully persuaded,
that your Excellency's principles in governments are still of the
same with what they appear to be in the history; for, you there
say, that "the passing 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 Excellency, 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, they shewed the wrong sense they had in your Excellency's
opinion, of the relation they stood in to England.
Your Excellency, in your second speech, condescends 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 Assembly, 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
authority of the English Parliament.