III. Reply of the House to Hutchinson’s Second Message
Martis, 2 Die Martii, A.D. 1773 Post-Meridiem
May it please your Excellency,
In your Speech at the Opening of the present Session, your Excellency express’d your Displeasure at some late Proceedings of the Town of Boston, and other principal Towns in the Province. And in another Speech 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 “alledge” in our Answer to your first Speech: And the Observation you make, we must confess, is as natural and as undeniably true, as any one that could have been made; that “if our Foundation shall fail us in every Part of it, the Fabrick we have rais’d 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 it’s Perfection; which to use the Words of one of our greatest Historians,1 was “a State of perpetual War, Anarchy and Confusion; calculated solely for Defence against the Assaults of any foreign Power, but in it’s Provision for the interior Order and Tranquility 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:”2 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 Fatility, “though originally form’d 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, increas’d and spread among the People, they grew impatient under this heavy Yoke: And the most virtuous and sensible among them, to whose Stedfastness we in this distant Age and Climate are greatly indebted, were determined to get rid of it: And tho’ they have in a great Measure subdued it’s 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 enquire. 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 meer Fiction of our English Tenures.”3
By what Right in Nature and Reason the Christian Princes in 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.4 By the Struggles 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 Room for the 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 First 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,5 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 Favour, 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 Part of the State, to subjoin the Opinions of several learned Civilians, as quoted by a very able Lawyer in this Country;6 “Colonies, says Puffendorf, are settled in different Methods. For either the Colony continues a Part of the Common Wealth it was sent out from; or else is obliged to pay a dutiful Regard to the Mother Common Wealth, and to be in Readiness to defend and vindicate its Honor, and so is united [to it] by a Sort of unequal Confederacy; or lastly, is erected into a seperate Common Wealth 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.” We beg Leave to recite the Words of the Judges of England in the beforementioned Case to our Purpose.7 “If a King go out of England with a Company of his Servants, Allegiance remaineth among his Subjects and Servants, altho’ 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 necessary 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 Calvins Case.8 “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 politick Capacity, than by Reason of the Person of the King; upon which Opinion they infer’d execrable and detestable Consequents.” The Judges of England, all but one, in the Case of the Union between Scotland and England,9 declared that “Allegiance followeth the natural Person not the politick;” and “to prove the Allegiance to be tied to the Body natural of the King, and not to the Body politick, the Lord Coke cited the Phrases of diverse Statutes, mentioning our natural liege Sovereign.” —If then the Homage and Allegiance is not to the Body politick 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, Acquitan, 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 altho’ 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 publick or politick 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 seperate 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 Politick 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 Expence of our own as well as our Ancestors Labour, 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 anonimous Pamphlet,10 and by which you “fear we have been too easily misled.” It may be gathered from your own Declaration and other Authorities besides the anonimous 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 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 Privileges of Fishing on the Sea Coasts in America. The Account published by Sir Ferdinando Gorges himself, of the Proceedings of Parliament on this Occasion,11 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.”12 This is plain and obvious to common Sense, and therefore cannot be denied. But if your Excellency will read a Page or two further in that excellent Defence, 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 chuse himself to put upon it; and he expresly designs to shew, 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 Colour 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.” This is the Sense in which our Ancestors understood the Words; and therefore they were unwilling to conform to the Acts of Trade, and disregarded them all 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 only 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”. 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, reduce us to a State of Vassallage, 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 recur 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 (preceeding 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 a Quotation from a Letter of Mr. Stoughton, dated 17 Years after the Restoration,13 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 Declarations 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 more explicitly,” that is than by a Conversation with the Commissioners, “acknowledge 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 need could there be 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 judged 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 Government are still the same with what they appear to be in the History; for you there say, that “the passing the 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 that 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.
Your Excellency seems chiefly to rely upon our Ancestors, after 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 First, his Heirs and Successors, and the Governor and Company, their Heirs and Successors. It is easy upon this Principle to account for the Acknowledgment and Submission of King William and Queen Mary as Successors of Charles the First, 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.” 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, for putting an End to several unwarrantable Schemes,14 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 pass’d an Act, directly militating with it;15 which is the strongest Evidence, that altho’ 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,16 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 expresly 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,17 “The lawful Power of making Laws to command whole political Societies of Men, belonging so properly to the same intire 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 publick Approbation hath not made so, for Laws human of what kind soever are available by Consent.” “Since Men naturally have no full and perfect Power to command whole politick 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 Part, hath at any Time before consented.” We think your Excellency has not proved, either that the Colony is a Part of the politick 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 whatever, whether made expresly 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 unlimitted 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 are 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; limitted, controuled, superceded 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.
MS not found. Reprinted from (Mass., House Jour. description begins Journals of the House of Representatives of Massachusetts [1715–], Boston, reprinted by the Massachusetts Historical Society, 1919–. (For the years for which reprints are not yet available, the original printings are cited, by year and session.) description ends , 1772–1773, p. 268–280).
1. William Robertson. The quotation given here, “a State . . . defective,” is actually a combination of phrases used by Robertson in The History of the Reign of Emperor Charles V, 1:12, 60.
2. The remainder of this paragraph, after the quotation from Robertson, draws heavily on two sections of JA’s “A Dissertation on the Canon and the Feudal Law.” The quotations from Lord Kames (“A Constitution so contradictory”) and from Rousseau (“a very celebrated writer”) are the same ones used in the closing paragraph of No. 2 of that series (“Dissertation” , No. IV., above). Other sections in this paragraph within quotation marks are close paraphrases of the fifth and sixth paragraphs of No. 1 in the same series (same, No. III, above).
3. William Blackstone, Commentaries on the Laws of England, 2:51.
4. Same, 2:54.
5. The remarks of Sir Edwin Sandys (1561–1629) in this case are taken from Cases Collect & Report per Sir Fra. Moore . . . , p. 791. Cited hereafter as Moore, Cases.
6. James Otis in The Rights of the British Colonies Asserted and Proved, Boston, 1764. For an analysis of Otis’ pamphlet, see Bailyn, ed., Pamphlets description begins Bernard Bailyn, ed., Pamphlets of the American Revolution, 1750–1776, Cambridge, 1965– . description ends , 1:409–418. The passages quoted here and below appear at same, p. 437, with exact citations to Pufendorf and Grotius.
7. That is, the Case of the Union of Scotland and England, or Calvin’s Case. The quotation appears in Moore, Cases, p. 798.
8. Part 7 of the various editions of Sir Edward Coke, Reports, p. 10, 11–12.
9. The quotations which comprise the remainder of the paragraph are drawn from Moore, Cases, p. 798–800, 805.
10. In his message of 16 Feb., Hutchinson made this reply to the House’s remarks on the status of “any new Countries . . . discovered by English Subjects” : “[T]hat it is now, or was when the Plantations were first granted, the Prerogative of the Kings of England to alienate such Territories from the Crown, or to constitute a Number of new Governments altogether independent of the Sovereign Legislative Authority of the English Empire, I can by no Means concede to you. I have never seen any better Authority to support such an Opinion than an anonimous Pamphlet by which I fear you have too easily been misled, for I shall presently shew you that the Declarations of King James the First, and of King Charles the First, admitting they are truly related by the Author of this Pamphlet, ought to have no Weight with you” (Mass., House Jour. description begins Journals of the House of Representatives of Massachusetts [1715–], Boston, reprinted by the Massachusetts Historical Society, 1919–. (For the years for which reprints are not yet available, the original printings are cited, by year and session.) description ends , 1772–1773, p. 231). For the apparent source of the House arguments on this subject, see No. I, note 2, above.
11. Gorges’ “Account” appears in his A Briefe Narration of the Originall Undertakings of the Advancement of Plantations into the Parts of America, London, 1658 (reprinted in MHS, Colls. description begins Massachusetts Historical Society, Collections and Proceedings. description ends , 3d ser., 6 : 45–93).
12. This passage appears in Jeremiah Dummer (1681–1739), A Defence of the New-England Charters, London, 1721, p. 34; other passages quoted from Dummer in this paragraph appear at p. 34–36.
13. Lt. Gov. William Stoughton’s letter of 1 Dec. 1677 appears in Hutchinson, Massachusetts Bay, ed. Mayo description begins Thomas Hutchinson, The History of the Colony and Province of Massachusetts-Bay, ed. Lawrence Shaw Mayo, Cambridge, 1936; 3 vols. description ends , 1:270.
14. George II, ch. 37.
15. “An Act for the more speedy Finishing of the Land-Bank or Manufactory Scheme,” Mass., Province Laws description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, Boston, 1869–1922; 21 vols. description ends , 3:118. For the background of this legislation, see Hutchinson, Massachusetts Bay, ed. Mayo description begins Thomas Hutchinson, The History of the Colony and Province of Massachusetts-Bay, ed. Lawrence Shaw Mayo, Cambridge, 1936; 3 vols. description ends , 2:298–300.
17. These passages are taken from the second of John Locke’s Two Treatises of Government, “An Essay Concerning the True Original, Extant, and End of Civil Government,” ch. 11. In the 5th edition, London, 1728, this passage appears in a note at p. 231–232. In the sections which follow, some phrases of Locke’s have been incorporated into the passages which Locke quoted from Richard Hooker (1554?–1600), Lawes of Ecclesiasticall Politie.