Full Text Archive logoFull Text Archive — Free Classic E-books

The Writings of Samuel Adams, volume II (1770 - 1773) by Samuel Adams

Part 7 out of 7

Adobe PDF icon
Download this document as a .pdf
File size: 0.8 MB
What's this? light bulb idea Many people prefer to read off-line or to print out text and read from the real printed page. Others want to carry documents around with them on their mobile phones and read while they are on the move. We have created .pdf files of all out documents to accommodate all these groups of people. We recommend that you download .pdfs onto your mobile phone when it is connected to a WiFi connection for reading off-line.

disregarded; and the following reason is given for it: "It seems to
have been a general opinion, that acts of Parliament have no other
force, than what they derived from acts made by the General Court, to
establish and confirm them."

But, still further to show the sense of our ancestors, respecting this
matter, we beg leave to recite some parts of a narrative, presented to
the Lords of Privy Council, by Edward Randolph, in the year 1676,
which we find in your Excellency's collection of papers lately
published.4 Therein5 it is declared to be the sense of the colony,
"that no law is in force or esteem there, but such as are made by the
General Court; and, therefore, it is accounted a breach of their
privilegès, and a betraying of the liberties of their commonwealth, to
urge the observation of the laws of England." And, further, "that no
oath shall be urged, or required to be taken by any person, but such
oath as the General Court hath considered, allowed and required." And,
further, "there is no notice taken of the act of navigation,
plantation or any other laws, made in England for the regulation of
trade." "That the government would make the world believe, They are a
free state, and do act in all matters accordingly." Again, "these
magistrates ever reserve to themselves, a power to alter, evade and
disannul any law or command, not agreeing with their humor, or the
absolute authority of their government, acknowledging no superior."
And, further, "he (the Governor) freely declared to me, that the laws
made by your Majesty and your Parliament, obligeth them in nothing,
but what consists with the interests of that colony; that the
Legislative power and authority is, and abides in them solely." And in
the same Mr. Randolph's letter to the Bishop of London, July 14.,
1682, he says, "this independency in government is claimed and daily
practised."6 And your Excellency being then sensible, that this was
the sense of our ancestors, in a marginal note, in the same collection
of papers, observes, that, "this, viz, the provision made for
observing the acts of trade, is very extraordinary, for this provision
was an act of the colony, declaring the acts of trade shall be in
force there." Although Mr. Randolph was very unfriendly to the colony,
yet, as his declarations are concurrent with those recited from your
Excellency's history, we think they may be admitted, for the purpose
for which they are now brought.

Thus we see, from your Excellency's history and publications, the
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

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

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,
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.


[MS., Committee of Correspondence Papers, Lenox Library.]

BOSTON Febry 9 1773


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

1 Addressed to Ebenezer Burrill, town clerk.
[1773] SAMUEL ADAMS. 427


[MS., Samuel Adams Papers, Lenox Library.]

[February --, 1773.]


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.


[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

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

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

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.


[MS., Adams Papers, Quincy, Mass.; a facsimile is in Works of John
Adams, vol. ii., p. 310.]


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.


[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."

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. 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

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

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.

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 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

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.

Book of the day: