the revolution, "proclaiming King William and Queen Mary, in the
room of King James," and taking the oaths to them, "the alteration
of the form of oaths, from time to time," and finally, "the
establishment of the form, which every one of us has complied
with, as the charter, in express terms requires, and makes our
duty." We do not know that it has ever been a point in dispute,
whether the Kings of England were ipso facto Kings in, and over,
this colony, or province. The compact was made between King
Charles the I. his heirs and successors, and the Governor and
company, their heirs and successors. It is easy, upon this
principle, to account for the acknowledgment of, and submission to
King William and Queen Mary, as successors of Charles the I. in
the room of King James; besides, it is to be considered, that the
people in the colony, as well as in England, had suffered under
the tyrant James, by which, he had alike forfeited his right to
reign over both. There had been a revolution here, as well as in
England. The eyes of the people here, were upon William and Mary;
and the news of their being proclaimed in England, was, as your
Excellency's history tells us, "the most joyful news ever received
in New England."11 And, if they were not proclaimed here, "by
virtue of an act of the colony," it was, as we think may be
concluded from the tenor of your history, with the general or
universal consent of the people, as apparently, as if "such act
had passed." It is consent alone, that makes any human laws
binding; and as a learned author observes, a purely voluntary
submission to an act, because it is highly in our favor and for
our benefit, is in all equity and justice, to be deemed as not at
all proceeding from the right we include in the Legislators, that
they, thereby obtain an authority over us, and that ever
hereafter, we must obey them of duty. We would observe, that one
of the first acts of the General Assembly of this province, since
the present charter, was an act, requiring the taking the oaths
mentioned in an act of Parliament, to which you refer us. For what
purpose was this act of the Assembly passed, if it was the sense of
the Legislators that the act of Parliament was in force in the
province? And, at the same time, another act was made for the
establishment of other oaths necessary to be taken; both which acts
have the royal sanction, and are now in force. Your Excellency says,
that when the colony applied to King William for a second charter,
they knew the oath the King had taken, which was to govern them
according to the statutes in Parliament, and (which your Excellency
here omits,) the laws and customs of the same. By the laws and customs
of Parliament, the people of England freely debate and consent to
such statutes as are made by themselves, or their chosen
Representatives. This is a law, or custom, which all mankind may
justly challenge as their inherent right. According to this law,
the King has an undoubted right to govern us. Your Excellency,
upon recollection, surely will not infer from hence, that it was
the sense of our predecessors that there was to remain a supremacy
in the English Parliament, or a full power and authority to make
laws binding upon us, in all cases whatever, in that Parliament
where we cannot debate and deliberate upon the necessity or
expediency of any law, and, consequently, without our consent;
and, as it may probably happen, destructive of the first law of
society, the good of the whole. You tell us, that "after the
assumption of all the powers of government, by virtue of the new
charter, an act passed for the reviving, for a limited time, all
the local laws of the Massachusetts Bay and New Plymouth
respectively, not repugnant to the laws of England. And, at the
same session, an act passed establishing naval officers, that all
undue trading, contrary to an act of Parliament, may be
prevented." Among the acts that were then revived, we may
reasonably suppose, was that, whereby provision was made to give
force to this act of Parliament, in the province. The
establishment, therefore, of the naval officers, was to aid the
execution of an act of Parliament, for the observance of which,
within the colony, the Assembly had before made provision, after
free debates, with their own consent, and by their own act.
The act of Parliament, passed in 1741,12 for putting an end to
several unwarrantable schemes, mentioned by your Excellency, was
designed for the general good; and, if the validity of it was not
disputed, it cannot be urged as a concession of the supreme
authority, to make laws binding on us in all cases whatever. But,
if the design of it was for the general benefit of the province,
it was, in one respect, at least greatly complained of, by the
persons more immediately affected by it; and to remedy the
inconvenience, the Legislative of this province, passed an act,
directly militating with it; which is the strongest evidence, that
although they may have submitted, sub silentio, to some acts of
Parliament, that they conceived might operate for their benefit,
they did not conceive themselves bound by any of its acts, which,
they judged, would operate to the injury even of individuals.
Your Excellency has not thought proper, to attempt to confute the
reasoning of a learned writer on the laws of nature and nations,
quoted by us, on this occasion, to shew that the authority of the
Legislature does not extend so far as the fundamentals of the
constitution. We are unhappy in not having your remarks upon the
reasoning of that great man; and, until it is confuted, we shall
remain of the opinion, that the fundamentals of the constitution
being excepted from the commission of the Legislators, none of the
acts or doings of the General Assembly, however deliberate and
solemn, could avail to change them, if the people have not, in
very express terms, given them the power to do it; and, that much
less ought their acts and doings, however numerous, which barely
refer to acts of Parliament made expressly to relate to us, to be
taken as an acknowledgment, that we are subject to the supreme
authority of Parliament.
We shall sum up our own sentiments in the words of that learned
writer, Mr. Hooker, in his Ecclesiastical Policy, as quoted by Mr.
Locke. "The lawful power of making laws to command whole political
societies of men, belonging so properly to the same entire
societies, that for any prince or potentate of what kind soever,
to exercise the same of himself, and not from express commission,
immediately and personally received from God, is no better than
mere tyranny. Laws, therefore, they are not, which public
approbation hath not made so; for human laws, of what kind soever,
are available by consent." "Since men, naturally, have no full and
perfect power to command whole politic multitudes of men,
therefore, utterly without our consent, we could in such sort, be
at no man's commandment living. And to be commanded, we do not
consent, when that society. whereof we be a party, hath at any
time before consented." We think your Excellency has not proved,
either that the colony is a part of the politic society of
England, or that it has ever consented that the Parliament of
England or Great Britain, should make laws binding upon us, in all
cases, whether made expressly to refer to us or not.
We cannot help, before we conclude, expressing our great concern,
that your Excellency has thus repeatedly, in a manner, insisted
upon our free sentiments on matters of so delicate a nature and
weighty importance. The question appears to us, to be no other,
than, whether we are the subjects of absolute unlimited power, or
of a free government, formed on the principles of the English
constitution. If your Excellency's doctrine be true, the people of
this province hold their lands of the Crown and people of England;
and their lives, liberties, and properties, are at their disposal,
and that, even by compact and their own consent. They were subject
to the King as the head alterius populi of another people, in
whose Legislative they have no voice or interest. They are,
indeed, said to have a constitution and a Legislative of their
own; but your Excellency has explained it into a mere phantom;
limited, controled, superseded, and nullified, at the will of
another. Is this the constitution which so charmed our ancestors,
that, as your Excellency has informed us, they kept a day of
solemn thanksgiving to Almighty God when they received it? And
were they men of so little discernment, such children in
understanding, as to please themselves with the imagination, that
they were blessed with the same rights and liberties which natural
born subjects in England enjoyed, when, at the same time, they had
fully consented to be ruled and ordered by a Legislative, a
thousand leagues distant from them, which cannot be supposed to be
sufficiently acquainted with their circumstances, if concerned for
their interest, and in which, they cannot be in any sense
represented?
1 Hutchinson is the principal authority for the statement that
this document, as well as that of January 26, 1773, was prepared
by Adams. Cf., R. Frothingham, Life of Joseph Warren, p. 223. W.
V. Wells, Life of Samuel Adams, vol. ii., p. 45. An instance of
the later recognition of this claim is in Publications, Colonial
Society of Massachusetts, vol. vi., p. 170. And see also above,
pages 401, 430.
2 Massachusetts State Papers, p. 338.
3Ibid., pp. 368-381. February 16.
4 See above, page 430.
5 Rep. x. (16o8). Referred to as the leading case" on the subject
as recently as 1897. United States v. Wong Kim Ark, 169 United
States Reports, 649.
6 Jer. Dummer, A Defence of the New England Charters. London,
1721, p. 57
7 Ibid., pp. 58, 59.
8 Ibid., p. 59.
9 Jer. Dummer, A Defence of the New England Charters. London,
1721, pp. 59, 60. The quotation is abridged.
10 T. Hutchinson, History of the Province of Massachusetts Bay,
vol. i., p. 319.
11 T. Hutchinson, History of the Province of Massachusetts Bay,
vol. i., p. 387.
12 14 Geo. II., chap. 37.