Date: January 29, 1773
Authors: Attributed to Samuel Adams, Joseph Warren, and/or Benjamin Church, Jr.
[Modern installment II]
“We have brought the first American charters into view, and the state of the country when they were granted, to show that the right of disposing of the lands was in the opinion of those times vested in the crown – that the several charters conveyed to the grantees, who should settle upon the territories therein granted, all the powers necessary to constitute them free and distinct states – and that the fundamental laws of the English constitution should be the certain and established rule of legislation to which the laws to be made in the several colonies were to be as nearly as conveniently might be, conformable or similar, which was the true intent and import of the words, “not repugnant to the laws of England,” “consonant to reason,” and other variant expressions in the different charters. And we would add that the King, in some of the charters reserves the right to judge of the consonance and similarity of their laws, with the English constitution to himself and not to the parliament, and in consequence thereof to affirm, or within a limited time, disallow them.
These charters as well as that afterwards granted to Lord Baltimore, and other charters are repugnant to the idea of parliamentary authority; and to suppose parliamentary authority over the colonies under such charters would necessarily induce that solecism in politics imperium in imperio. And the King’s repeatedly exercising the prerogative of disposing of the American territory by such charters, together with the[ ]ence of the nation thereupon, is an evidence that it was an acknowledged prerogative.
But further to show the sense of the English crown and nation that the American colonists and our predecessors in particular, when they first took possession of this country by a grant and charter, did not remain subject to the supreme authority of parliament, we beg to observe, that when a bill was offered by the two Houses of Parliament to King Charles the first, granting to the subjects of England the free liberty of fishing on the coast of America, he refused his royal assent, declaring as a reason, that “the colonies were without the realm and jurisdiction of parliament.”
In a like manner, his predecessor James the first, had before declared upon a similar occasion, that “America was not annexed to the realm, and it was not fitting that parliament should make laws for those countries.” This reason was, not secretly, but openly declared in parliament. If then the colonies were not annexed to the realm, at the time when their charters were granted, hey never could be afterwards, without their own special consent, which has never since been had, or even asked. If they are not now annexed to the realm they are not part of the kingdom, and consequently not subject to the legislative authority of the kingdom. For no country, by the common law was subject to the laws or to the parliament, but the realm of England.
We would, if your Excellency pleases, subjoin an instance of conduct in King Charles the second, singular indeed, but important to our purpose, who, in 1679, framed an act for a permanent revenue for the support of Virginia, and sent it there by Lord Culpepper, the Governor of that colony; which was afterwards passed into a law, and “Enacted by the King’s most excellent Majesty, by and with the consent of the General Assembly of Virginia.” If the King had judged that the colony to be a part of the realm, he would not, nor could he consistently with Magna Charta, have placed himself at the head of, and joined with any legislative body in making a law to tax the people there, other than the Lords and Commons of England.
Having taken a view of the several charters of the first colony in America, if we look into the old charter of this colony, we shall find it to be grounded on the same principle, that the right of disposing the territory granted therein was vested in the crown, as being that Christian sovereign who first discovered it, when in the possession of heathen; that it was considered as being not within the realm, but only within fee and seignory of the King. As therefore it was without the realm of England, must not the King, if he had designed that the parliament should have had any authority over it, have made a special reservation of that purpose, which was not done.
Your Excellency says, it appears from the charter itself, to have been the sense of our predecessors who first took possession of this plantation or colony, that they were to remain subject to the authority of Parliament. You have not been pleased to point out to us how this appears from the charter, unless it be in the observation you make on the above mentioned clause; viz. “That a favourable construction has been put upon this clause, when it has been allowed to intend such laws of England only as are expressly made to respect us,” which you say “Is by charter a reserve of power and authority to Parliament to bind us by such laws at least as are made expressly to refer to us, and consequently is a limitation to the power given to the General Court.” But we would still recur to the charter itself, and ask your Excellency how it appears from thence to have been the sense of our predecessors? Is any reservation of power and authority to parliament thus to, expressed or implied in the charter? It is evident, that King Charles the first, the very prince who granted it; as well as his predecessor, had no such idea of the supreme authority of parliament over the colony, from their declarations before recited. Your Excellency will then allow us further ask, by what authority in reason or equity the parliament can enforce a construction so unfavourable to us: Quod ab initiv jinjustum est, nullum potest barbare juris affectum, said Gratius. Which with submission to your Excellency can be rendered thus. Whatever originally in its nature is wrong, cannot be sanctified or made right be repetition & use. In solemn agreements subsequent restrictions ought never to be allowed. The celebrated author whom your Excellency has quoted tells, us that “neither the one or the other of the interested or contracting powers hath a right to interpret at pleasure.” This we mention to show, even upon the supposition that the parliament had been a party to the contract, the invalidity of any of the subsequent acts, to explain any clause in the charter; more especially to restrict or make void any clause granted therein to the General Court. An agreement ought to be interpreted “in such a manner as that as that it may have its effect ” But if your Excellency’s interpretation of this clause is just, “that it is a reserve of power and authority to parliament to bind us by such laws as are made expressly to apply to us,” it is not only “a limitation of the power given to the General Court” to legislate, but it may whenever the parliament may think fit, render it of no effect; for it puts it in the power of parliament to bind us by as many laws as they please, and even to restrain us from making any laws at all. If your Excellency’s assertions in this and the next succeeding part of your speech were well grounded, the conclusion would be undeniable, that the charter even in this clause, “does not confer or reserve any liberties” worth enjoying “but what would have been enjoyed it,” saving that within any of his Majesty’s dominions we are to be considered barely as not aliens. You are pleased to say, it cannot “be contended that by the liberties of free and natural subjects,” (which are expressly granted in the charter to all intents, purposes and constructions whatever) “is to be understood an exemption from acts of parliament because not represented there: seeing it is provided by the same charter that such acts shall be in force.” If, says an eminent lawyer, “the King grants to the town of D the same liberties which London has, this shall be intended the like liberties.” A grant of the liberties of free and natural subjects is equivalent to a grant of the same liberties. And the King in the first charter to this colony expressly grants that it “shall be construed, reputed and adjudged in all cases most favourably on the behalf and for the benefit of the said Governor and Company and the successors – any matter, cause or thing whatsoever to the contrary notwithstanding.” It is one of the liberties of free and natural subjects, born and abiding within the realm, to be governed as your Excellency observes, “by laws made by persons in whose election they from time to time have a voice.” This is an essential right. For nothing is more evident, than that any people who are subject to the unlimited power of another must be in a state of abject slavery. It was easily and plainly foreseen that the right of representation in the English parliament could not be exercised by the people in this colony. It would be impracticable, if consistent with the English constitution. And for this reason, that this colony might have and enjoy all the liberties and immunities of free and natural subjects within the realm as stipulated in the charter it was necessary, and a legislative was accordingly constituted within the colony, one branch of which consists of representatives chosen by the people to make all laws, statues, ordinances, &c. for the well ordering and governing the same, not repugnant to the laws of England, or, as nearly as conveniently might be, agreeable to the fundamental laws of the English constitution. We are therefore still at a loss to conceive where your Excellency finds it, “provided in the same charter, that such acts,” viz. acts of parliament made expressly to refer to us,” shall be in force” in this province. There is nothing to this purpose expressed in the charter, or in our opinion even implied in it. And surely it would be very absurd, that a charter, which is evidently formed upon a supposition and intention, that a colony is and should be considered as not within the real; and declared by the very Prince who granted it to be not within the jurisdiction of parliament, should yet provide, that the laws within the same parliament should make expressly to refer to that colony, should be in force therein. Your Excellency is pleased to ask “does it follow that the government by their (our ancestors) removal from one part of the dominions to another loses its authority over that part to which they remove: And that they are freed from the subjection they were under before?” We answer, if that part of the King’s dominions to which they removed was not then a part of the realm and was never annexed to it, the parliament lost no authority over it, having never had such authority; and the emigrants were subsequently freed from the subjection they were under before their removal : The power and the authority of parliament being constitutionally confined within the limits of the realm and the nation collectively, of which alone it is the representing and legislative assembly. Your Excellency further asks, “will it not rather be said, that by this their voluntary removal, they have relinquished for a time at least, one of the rights of an English subject, which they might if they pleased have continued to enjoy, whenever they return to the place where it can be exercised:” to which we answer, they never did relinquish the right to be governed by laws made by persons in whose election they had a voice. The King stipulated with them that they should have and enjoy all the liberties of free and natural subjects born within the realm, to all intents, purposes and constructions whatsoever; that is, that they should be as free as those who were to abide within the realm: Consequently he stipulated with them that they should enjoy and exercise this most essential right, which determines freemen from vassals, uninterruptedly in its full sense and meaning; and they did and ought still to exercise it, without the necessity of returning, for the sake of exercising it, to the nation state of England.
We cannot help observing, that your Excellency’s manner of reasoning on this point, seems to us to render the most valuable clauses in our charter unintelligible; as if persons going from the realm of England to inhabit in America should hold and exercise there a certain right of English subjects; but in order to exercise it in such manner as to be of any benefit to them, they must not inhabit there, but return to the place where alone it can be exercised. By such construction, the words of the charter can have no sense or meaning. We forbear remarking upon the absurdity of a grant to persons born within the realm, of the same liberties which would have belonged to them if they had been born if they had been born within the realm. “
[End of modern installment II. To be continued. 6786 words inclusive of all installments]
Source: Massachusetts Spy, Vol. II, issue 104, suppl; Essex Gazette, Vol. V, Issue 136, pp. 1-2 suppl, February 9, 1773; and Massachusetts Gazette Extraordinary, Issue 3618, p. 1, February 4, 1773. The first two appearances appear to be from the same set-up of moveable type, i.e. from the same printing plate, an observation suggesting an unusual degree of cooperation in producing these pages among separate newspapers. The article appears in whole or in part in additional Colonial newspapers: Providence Gazette, February 13, 1773; New York Gazette, February 15, 1773; and Newport Mercury Supplement, Issue 755, p.1, February 22, 1773.
Commentary: Patriots could not resist answering Thomas Hutchinson’s invitation to hear contrarian views, and to use it as grist for a salvo in the war of words between Loyalists and Patriots. In a back-handed tribute to Hutchinson’s speech, Patriot leaning newspapers made sure that the answer to Hutchinson was unified, well enunciated, and more widely distributed than Hutchinson’s speech that inspired their response. Samuel Adams, Joseph Warren, and Benjamin Church, according to John Adams’ recollection, had outsized roles in this response.
The House of Representatives response is 6786 words long. I have divided it, according to optimal website performance and modern attention spans, into four parts.
The first modern installment identifies Native Americans as the true first possessors of the land. The concept could have been worked further as a fundamental questioning of European colonialism, but the authors do not pursue the implications. Instead they argue that royal grants and charters indicate colonials’ allegiance to the King rather than Parliament.
This second installment provides historical examples, mostly from the 17th century, of England’s relationship with its North American colonies. Examples cited included Maryland and Virginia, discussions that would have been of special interest to patriots in those provinces.
The third installment addresses the Massachusetts’ Pilgrims’ intentions to maintain regional autonomy subject to the British King. This is ostensibly to refute an assertion by Thomas Hutchinson that the Massachusetts colonists had always intended to be part of the Empire and therefore subject to King and Parliament. Quoting Hutchinson’s History of Massachusetts Bay back to its author may have been meant to be both clever and galling to Hutchinson.
The fourth and last installment refutes Hutchinson’s provocative assertion that Patriot incendiaries were agitating for total independence, something that few if any of them at that time were actually contemplating.
I speculate that the Patriots’ audience for this detailed piece included newspaper readers in Massachusetts, other colonies, and abroad. Whether one agreed with it or not, it is a reasoned and detailed exposition of the Patriot cause. Arguments here depend more heavily on legal relationships and precedence within the British colonial system rather than on natural rights. The piece may have well synergized with the recently initiated Boston Committee of Correspondence to engage, and set the terms of discussion, with Patriots and undecided citizens of sister Colonies.
In early 1773 Whiggish newspapers published in parallel the Massachusetts Governor’s Council answer to the Hutchinson New Year address. This exposition is comparably detailed. It characterizes the governor as the King’s representative in the province and provides additional arguments of why the colonies in general, and Massachusetts in particular, were not subject to the English Parliament. Since Joseph Warren was unlikely to have had a hand in the Council’s reply, I will not post it here. Scholars can find it in: the Boston Evening Post, Issue 949, pp.1-2 suppl, February 1, 1773; Boston Post-Boy, Issue 806, p.2, February 1, 1773; Essex Gazette, Vol. V, Issue 236, p. 105, February 2, 1773; Providence Gazette, Vol X, Issue 474, p.1, February 6, 1773; and perhaps reported in more distant newspapers.
As a modern observer, I cannot help but contrast the depth of reasoning and example put forth in this episode by both sides in the constitutional controversy within the British Empire. It shines in comparison to modern politics, too often characterized by headline sloganeering and venomous, vacuous Tweets.
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