Papers of John Adams, volume 2
1775-04
Another Clause in the Charter, quoted by this Writer, contains the Power “to make Laws and ordinancies, for the good and Welfare of the said Company, and for the Government and ordering of the Said Lands and Plantations and the People inhabiting the Same; So as such Laws and Ordinances be not contrary or repugnant to the Laws and Statutes of this our Realm of England.”
This is the usual Clause inserted in the Charters of all Corporations in England, and it is intended to restrain those Bodies politick within the limits of the Constitution and the Laws. It expressed no more however, than the Law would imply. For the King could not erect a Corporation within the Realm and give it Power to Superceed or overrule the general Laws of the Kingdom. A Similar Clause is inserted in the Laws of this Province which impower Towns to make By Laws “so as they be not repugnant to the Laws of the 381Province.” I suppose this Clause was inserted in that Charter to restrain the Corporation from Setting up any Form of Government different from the English Constitution in general, and perhaps was intended to subject them to the Common Law [and to Such Statutes as were then in force. But if We allow it the utmost Latitude of Construction, and Suppose that it meant to confine them to Obedience to Common Law,]1 and all statutes which were then in Force, and to all others which Should thereafter be made, this is no more than they would have been bound to, if no such Clause had been in the Charter, so long as they and their Charter remained in England, which both Grantor and Grantees then intended. But the Moment the Charter and the Company were removed to New England beyond the four Seas, out of the Realm, out of the Extent and local Limit of the Laws of England, that moment they were discharged from all obligation of obedience to the Laws of England. The Charter lost all Force, which it ever had by the Laws of England, as a legal Instrument, and became only Evidence of a Contract. The whole Plan and Design of all Parties was essentially changed. If a Charter granted in England, to be exercised there, can be forfeited by the Laws of England, the Translation of that Charter and Company to America, and setting up a Government here under it, was a forfeiture of it. What the Consequences of this forfeiture were, is another Question. The King might have commanded the Adventurers to return, and upon their Refusal might have Seized their Estates in England, if they had any: that is all. But he did not. But it did not bring our Ancestores, who were allowed to remain here, under the Authority of Parliament nor under the absolute Power of the King. Nay, what is more, this Charter was deemed forfeited and void for these very Reasons in the King's bench, Trinbeyond the Seas out of this Kingdom of England, without any Warrant or royal Grant (meaning that quoad hoc the Royal Grant was void) the Liberties, Priviledges, and Franchises following &c. 1. To be a Body Politick &c. 8. To appoint councell Houses in England, and beyond seas and there, when they please, to hold a Court of such of the said Company as they please; and in such Courts to make such Laws and Statutes concerning the Lands, Goods, and Chattells of that Company and other Persons beyond seas against the Laws and Customs of England &c.”
9. To transport out of England beyond the seas his Majestys subjects and others and them, at their Wills, to governe on the seas and on Parts beyond the seas.
14. To examine on Oath any Person in any Cause [touching Life and Member and to proceed to tryal, Sentence, Judgment and Execution]2 touching Life and Member, Lands, Tenements, Goods and Chattels, against the Laws and Customs of England,” “All which Franchises Liberties &c the said Sir Henry Roswell and others of the said Company have for all that Time, and still do usurp &c.”
This Quo Warranto, manifestly, is grounded on the Principle, that the Laws of England did not extend beyond Seas, and therefore that the Charter, when translated beyond Seas, was void.
In Mich
But did Mr. Winthrop, or any other of the Adventurers return the Patent! No. Young as the Plantation was they had the Courage and the Wisdom to keep their Patent, in their own Power. But as this Translation of the Patent to New England, instead of using it within the Realm as was at first intended is of great Importance, in this controversy, We must be a little more particular.
The Charter as I have said Shews upon the Face of it, that it was intended to erect a Corporation within the Realm. The first Governor, Deputy Governor and Assistants were chosen in England, 13. May 1628. Cradock was chosen Governor and Goffe Deputy Governor in England, and as soon as the Election was over they with the Assistants appointed Mr. Endicot their Governor in the Plantation. This shews that they had one Governor in England, who was the Head of the Corporation, and another in America, who was only principal Agent or Manager for the Company. And in this manner the Affairs of the Company were conducted untill July 1629, when the Company in England projected a much larger Embarkation of Adventurers and a Translation of the Patent itself to New England. A Committee was appointed to consider of it, and advise with Council. The Company had been at great Expence, without any Returns or rational Prospect of Profit. Johnson, Winthrop, Dudley, and others, not the rascally Rabble of Romulus but Gentlemen of Family, Fortune, Education, and Figure, offered to go over with their Families, upon Condition that the Patent and Charter Should go with them. The Objection against it, was a doubt whether the Transfer was legal. The Report of the Committee is not on Record, but a Mr. White a Counsellor at Law was of the Company and his opinion was taken, and the Company concurred with it “that the Government and Patent Should be Settled in New England.” It is much to be wished that this important opinion of Mr. White was preserved. It might discover “Arcana.” It was certainly a wise and judicious opinion, in Point of Prudence and Policy, and has been vastly Successfull, for the Plantation probably had dwindled away, but for that Advice. However Governor Winthrop himself, who knew very well the Laws of England were confined within Seas, must have [been Sensible that there could be no Provision in that Law, for the Translation of the Company beyond Seas—and indeed they 384Seem to have]5 been all Sensible of this and to have considered the Charter only as a Licence to their People to go abroad. On the 20. of October, at a General Court in England, Mr. Winthrop was chosen Governor, and the Deputy Governor and Assistants chosen were all such as proposed to go over with the Charter. They went over accordingly, and the Existence of the English Power in America is entirely owing to this manifest departure from the first Intent of the Charter, for at this critical Time Richlieu and De Monts were upon the Point of making Settlements here which would have excluded the English forever.
“Acts of Parliament” had been inserted
Soon after, We are Struck with a Smart Remark indeed “if We are not annexed to the Realm we are Aliens.” It is not a little Surprizing, that this Writer should let Such Blunders escape him. If he had ever read one Page in a Book concerning the Connection of Scotland, Ireland, Jersey, Guernesy, Gascoin &c with England, he must have seen the Contrary. He might have forgot it, or this observation might escape him inadvertently. It is too uncandid to suppose, that he thought he should never be answered, and that it would pass well enough with the Ignorant, and serve to deceive them.
But unfortunately, all History and Law are against it. Lord Coke observed what a Concurrence of Judgments, Resolutions, and Rules there be in our Books in all Ages concerning this Case, as if they had been prepared for the deciding this Point; and that which never fell out in any doubtfull Case, no one opinion in all our Books is against this Judgement, in Calvins Case, who was not of the Realm, but yet was no Alien because born within the Allegiance of
But this round Affirmation is a downright Contempt of Truth. The Denial and opposition has been planned and conducted by Men of the first Fortune in North America. Nay by the first Fortunes in this Province. I will undertake to Name three Gentlemen on the Whigg Side, in Boston any one of whom is able to purchase Bernard, Hutchinson, the four Judges of Admiralty, and the five Commissioners of the Customs, and still have an handsome Fortune left.
Let me now dismiss this Paper of January the Sixteenth. It contains the Ground, the Principle and Foundation of the whole Building. It is an Attempt to prove the Supream Authority of Parliament by the Constitution. But it is the feeblest, the most frivolous, the weakest, the most absurd, Effort that ever was made. One would have thought that a Master Builder would have laid his Corner Stone to the best of his skill. Without the constitutional Authority contended for in this Paper, all the other Writings of Massachusettensis are mere Harrangue. Whoever reads it, and considers it, will be convinced how easy it is for any Scribbler on the side of Power, by Means of the Court Trumpetters to get a Reputation; and that this Man, however he has been cryed up for a Wit and Humourist and
fully and wholly,” and docketed by Charles Cushing Paine: “This paper is a copy in Judge Cushing's handwriting of a number of Novanglus, which was sent to Edes & Gill on the morning of the Battle of Lexington, to be published in their paper. But it was never published, the paper being then discontinued, and was by them handed to Judge C.” Differences between the two copies are noted below.
The thirteenth Novanglus letter was never published owing to the Lexington battle, which occurred two days after the appearance of the twelfth letter (JA, Diary and Autobiography
, 3:313). It is reasonable to suppose that 386the draft, which is the heart of the document here printed, is not the complete MS which JA submitted to the printers, that the missing piece was then still part of it, but that it got separated at some point.
This supposition is based upon JA's own testimony and the nature of the two Cushing copies. According to JA, printer John Gill gave the MS of the thirteenth letter to Cushing shortly after the Lexington battle (same). Cushing probably made his first copy sometime during the Revolution and his second, during or after JA's presidency. There are several differences between the copies, but two stand out. The first omits entirely a paragraph that JA had struck out of his draft; the second includes this paragraph, but it is lined out. Although its inclusion might seem to indicate at first glance that the earlier copy is more faithful to JA's intention, this conclusion leaves unexplained the inclusion in the second copy of two brief but essential paragraphs missing from both JA's draft and the first Cushing copy. Why did Cushing scrupulously drop a paragraph that JA had struck out, but in the second copy include two paragraphs not in JA's draft?
The obvious answer is that these two paragraphs were on the missing piece of text, and, logically, they come respectively at the top of the front and backsides of the half sheet of the draft. The piece is large enough to have accommodated the paragraphs. When Cushing made the first copy of the draft, he must have known that the MS lacked a small piece, for he left two spaces in his copy for the missing short paragraphs. It is not too farfetched to assume that he had temporarily mislaid the piece, intending to fill in the words when he found it. The second copy includes the paragraphs in their proper places, but they are written in a different hand from that of the body of the text, and they are inserted in more-than-ample spaces obviously left for the purpose. Moreover, the first of these paragraphs is introduced by the words, in the copyist's hand, “on a separate piece of paper—viz.” Apparently considerable time elapsed between the misplacing of the piece cut from the draft and the finding of it later.
Although JA said in a portion of his Autobiography, written in 1804, that Judge Cushing still had the MS of the thirteenth letter that he had sent to the Boston Gazette 28 years earlier (same), the evidence is strong that the draft now in the Adams Papers is the MS that Cushing kept for so long. The handling of the missing paragraphs supports this conclusion, but there is further evidence. The first Cushing copy duplicates the JA draft in a way that would be unlikely if Cushing had been following a second draft. The signature “Novanglus” is crossed out, and the letter continues for another paragraph. A second draft, had there been one, would not have shown this change in intention. Thus, it seems safe to say that by supplementing the draft with the Cushing copies we have the thirteenth letter as JA intended it to appear in print, and that the original is safely in the Adams Papers—minus the top piece of the half-sheet.
Brackets in JA's draft; he probably meant this passage to be deleted, but it is enclosed in brackets in both Cushing copies.
Brackets in JA's draft; both Cushing copies carry this passage within brackets.
Illegible in JA's draft; word supplied from second Cushing copy; a space is left for the word in the first Cushing copy.
Hutchinson, A Collection of Original Papers, p. 105–106; opening quotation marks supplied by the editors.
Brackets in JA's draft; bracketed statement kept in both Cushing copies.
This paragraph appears only in the 387second Cushing copy; it logically belongs at the top of the front side of the half-sheet of JA's draft on a piece now missing.
JA's draft torn; these words are from the second Cushing copy and are missing from the first one. The hand-writing is different from both that of the main body of text and that of the two inserted paragraphs. The hand seems to be that of an elderly man, possibly Cushing.
The exact language is that the General Court may “from tyme to tyme . . . make, ordeine, and establishe all Manner of wholesome and reasonable Orders, Lawes, Statutes, and Ordinances, Direccions, and Instruccions, not contrairie to the Lawes of this our Realme of England” (Thorpe, Federal and State Constitutions
, 3:1857).
JA's draft torn; words supplied from the Cushing copies.
This paragraph appears only in the second Cushing copy; it logically belongs at the top of the back side of the half-sheet of JA's draft on a piece now missing.
JA's draft torn; words supplied from the first Cushing copy. The second copy has “as” for “altho'.”
JA's draft torn; words supplied from the first Cushing copy. The second copy has “ground” for “grounds.”