Date: January 29, 1773
Authors: Attributed to Samuel Adams, Joseph Warren, and/or Benjamin Church, Jr.
[Modern installment III]
“Your Excellency is disposed to compare this government to the variety of corporations formed within the kingdom, with power to make and execute by-laws, &c. And because they remain subject to the supreme authority of parliament, to infer that this colony is also subject to the same authority. This reasoning appears to us not just. The members of those corporations are resident within the kingdom: and residence subjects them to the authority of parliament, in which they are also represented: Whereas the people of this colony are not resident within the realm. The charter was granted with the express purpose to induce them to reside without the realm; consequently they are not represented in parliament there. But we would ask your Excellency, Are any of the corporations formed within the kingdom, vested with the power of erecting other subordinate corporations? Of enacting and determining what crimes shall be capital? And constituting courts of common law with all their officers, for the hearing, trying and punishing capital offenders with death? These and many other powers are vested in this government plainly show that it is to be considered as a corporation in no other light, than as every state is a corporation. Besides, appeals from the courts of law here, are not brought before the House of Lords, which shows that the Peers of the realm are not the Peers of America; but all such appeals are brought before the King in Council, which is a further evidence that we are not within the realm.
We conceive enough has been said to convince your Excellency, that “when our predecessors first took possession of this plantation or colony by a grant and charter from the crown of England, it was not and never had been the sense of the kingdom, that they were to remain subject to the supreme authority of parliament.” We will now with your Excellency’s leave, enquire what was the sense of our ancestors of this very important matter.
And as your Excellency has been pleased to tell us, you have not discovered that the supreme authority of parliament has been called into question even by private and particular persons within the last seven or eight years past, except about the time of the anarchy and confusion in England which preceded the restoration of King Charles the second, we beg leave to remind your Excellency of some parts of your own history of Massachusetts-bay. Therein we are informed of the sentiments of “persons of influence” after the restoration, from which the historian tells us, some parts of their conduct, that is of the General Assembly, “may be pretty well accounted for.” By the history it appears to have been the opinion of those persons of influence, “that the subjects of any Prince or state had a natural right to remove to any other state or to another quarter of the world, unless the state was weakened or exposed by such remove; and even in that case, if they were deprived of the right of all mankind, liberty and coinscience, it would justify a separation and upon their removal their subjection determined and ceased.” That “the country to which they removed, was claimed and possessed by independent princes, whose right to the and sovereignty thereof had been acknowledged by the Kings of England,” an instance of which is quoted in the margin; “That they themselves had actually purchased for valuable consideration, not only the soil but the dominion, the lordship and sovereignty of those princes,” without such purchase “in the sight of God and men they had no right or title to what they possessed.” That they received a charter of incorporation from the King, from whence arose a new kind of subjection, namely, “a voluntary civil subjection;” and by this compact “they were to be governed by laws made by themselves.” Thus it appears to have been the sentiments of private persons, though persons by whose sentiments the public conduct was influenced, that their removal was a justifiable separation from the mother state, upon which their subjection to that state determined and ceased. The supreme authority of parliament, if it had then ever been asserted, must surely have been called in question by men, who had advanced such principles as these.
The first act of parliament made expressly to refer to the colonies was after the restoration. I[n] the reign of King Charles the second, several such acts passed. And the same history informs us there was a difficulty in conforming to them and the reason of this difficulty is explained in a letter to the general assembly to their Agent, quoted in the following words, “they apprehended them 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 according to the usual sayings of the learned in law, the laws of England were bounded within the four seas, and did not reach America: however as his Majesty had signified his pleasure that those acts should be observed in Massachusetts, they had made provision by a law of the colony that they should be strictly attended.” Which provision by a law of their own would have been superfluous, if they had admitted the supreme authority of Parliament. In short, by the same history it appears that those acts of parliament as such were disregarded; and the following reason is given for it, “It seems to have been a general opinion that acts of Parliament had 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. Therein 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 privileges, 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 humour 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 claimed and daily practiced.” 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 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 give 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.” This is the eariest testimony that can be given of the sense of 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, “the first act” of this legislative was a sort of magna charta: asserting and setting forth their general priveleges, and this clause was among the rest, “no aid, tax, tallage[?], assessment, custom, loan, benevolence, or imposition whatever, shall be laid, assess’d, impos’d 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 thoug 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 msde expressly to refer to this 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 this realm.
You are pleased to say that “our Provincial and local Laws in numerous Instances had relation to Acts of parliament made to respect the Plantations and this Colony in particular.” This 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, 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 hold equally good. Much less than 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 into these 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 Conscience. 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 Persecution of the then Bishop, and high Commission for not conforming to the Ceremonies of those under their Power, they thought it their sacred Course, to get to this side 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 could 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 Rites and Mode of Worship in the Church of England and or any other.
[End of modern installment III. To be continued]
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.
The 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.
This 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 well have 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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