While John Adams was concluding his long series of replies to William Brattle on the independence of the judges, he was engaged with others in a more direct effort to assert in the winter of 1773 the rights of the province. He played a vital part in framing the response of the House of Representatives to two messages sent down to the General Court by Gov. Thomas Hutchinson, and his efforts show the development of his political thought.

The exchanges between Hutchinson and the two legislative houses 310between 6 January and 6 March arose from the same basic issue which had drawn Adams into debate with Brattle: the extent of Parliament's authority. The Votes and Proceedings of the Boston town meeting of 20 November 1772, occasioned by the application of royal revenues to the payment of judges' salaries, had so stirred the Massachusetts towns, among which it had been circulated, that the Governor decided to clear the air with a public examination of the underlying question of Parliament's authority in the colonies. (For a discussion of Hutchinson's reaction to the reception accorded Boston's protest, see Bailyn, Thomas Hutchinson , p. 206–207; Brown, Revolutionary Politics , p. 85–86.) As Hutchinson saw it, Bostonians had based their protest on two false assumptions—that charter rights protected them from the exactions of Parliament, and that there was a deliberate conspiracy against the rights of colonists. Unchallenged, these assumptions must lead to a “total separation from the kingdom, by their independency upon Parliament, the only bond which could keep them united to it” ( Massachusetts Bay, ed. Mayo, 3:266). And through a circular letter, Massachusetts would spread these principles to other colonies (Hutchinson to Dartmouth, 7 Jan. 1773, Docs. of Amer. Rev. , 6:44).

Recognizing the dangers of public debate, but confident of his own ability to show the fallacies of the whig position, and lacking any instruction from the home government, Hutchinson felt he had to go ahead. To a specially called joint session of the General Court, he explained his position on the principles of the constitution under which the colony must operate. (Hutchinson's message of 6 Jan. is printed in Mass., House Jour. , 1772–1773, p. 138–143.) He welcomed, he said, a response to his argument and promised to consider objections. Never had a Massachusetts governor so courted debate on basic principles with the General Court.

Nothing Hutchinson said was new or original; he had explained his views on earlier occasions. The burden of his message was submission to the supreme authority of Parliament; that clause in the charter allowing the provincial legislature to make “such Laws as are not repugnant to the Laws of England” meant that Parliament had a reserve power to bind the colonies by its laws. Despite the charter's guaranteeing to colonists the rights of Englishmen, these rights could not be identical with those enjoyed by Englishmen still at home. Citizens of Massachusetts by their location had relinquished the right of electing members to Parliament, for example. A natural right of consent to Parliament's acts was no justification for denying that body's right to govern them and insisting that the General Court was the only legitimate lawmaking body. Nor could there be two independent legislative bodies in a single state. The only alternative to acceptance of parliamentary authority was complete independence, which would lay the province open to the assaults of dangerous enemies (Bailyn, Thomas Hutchinson , p. 207, 209).

The failure of the House to act immediately in reply to his speech may have encouraged Hutchinson in the belief that many members were 311amazed to learn the true nature of the constitution and that he had won converts to his position (Hutchinson to John Pownall, 7 Jan. 1773, Docs. of Amer. Rev. , 6:45). He was to be disabused of these notions. The story repeated by Hutchinson that the House in consternation sent messages southward seeking the aid of Daniel Dulany and John Dickinson (Bailyn, Thomas Hutchinson , p. 208) probably has no foundation. The committee named to draft a reply, made up of Thomas Cushing, Samuel Adams, John Hancock, Joseph Hawley, and five others, was ready with its report within fourteen days, hardly time enough for a messenger to go and return and still permit the committee to get its work done. The committee reported on 22 January, the report being debated that day and on 26 January, when it was unanimously accepted (Mass., House Jour. , 1772–1773, p. 146, 172, 177). The reply of the House, responding directly to points made by the Governor, was impressive for its cogency and command of historical and legal sources. Ironically, the Governor's own history of Massachusetts was quoted to refute his claims.

Although John Adams was not a member of the House at this time, he was consulted and left two substantial accounts of the role he played ( Diary and Autobiography , 3:304–305; to William Tudor, 8 March 1817, printed in JA, Works , 2:311–313). In both, Adams attributed the committee's turning to him to the influence of Joseph Hawley. Samuel Adams had prepared a draft for the committee, probably with the cooperation of Dr. Joseph Warren and perhaps with the assistance of Benjamin Church, neither of them members of the committee. Dissatisfied with the draft, Hawley, without whose “countenance, concurrence, and support” no “question upon legal and constitutional subjects” could pass the House, insisted that John Adams “must be invited and must be present at every Meeting” of the committee (JA, Works , 2:311; JA, Diary and Autobiography , 3:305).

Despite the “Jealousy and Envy” Adams detected in committee members who resented “this superiour Attachment of Major Hawley to me” ( Diary and Autobiography , 3:305), an effective working relationship developed. Although Adams presented a franker version of the tale in his Autobiography than in his tactful letter to Tudor, the two accounts agree on his displeasure with the more “popular” portions of the report prepared by Samuel Adams. Instead, Adams wished to substitute “legal and constitutional Reasonings” more in tune with the Governor's own message. “The gentlemen,” he told Tudor, “very civilly requested me to undertake the task, and I agreed to attempt it.” He described his method thus: “I drew a line over the most eloquent parts of the oration they had before them, and introduced those legal and historical authorities which appear on the record” ( Works , 2:313). The resulting document, adopted by the House, appears as No. I, below.

Disappointed in the House reply and perhaps wishing he had not begun a debate, Hutchinson thought at first to delay his rebuttal until the close of the legislative session (Hutchinson to Dartmouth, 1 Feb. 1773, Docs. 312of Amer. Rev. , 6:80). But he changed his mind. When his counter-reply came at last on 16 February, it centered attention on the House claim that the colonies as originally foreign territory, acquired but not a part of the realm of England, were outside Parliamentary jurisdiction. Hutchinson's answer was that the realm and other dependencies formed “one intire Dominion.” Massachusetts was a “feudatory of the imperial Crown of England.” No sovereign in his personal capacity could alienate territory to create new and separate governments. Hutchinson held that no responsible authority supported the proposition that only “the ancient territorial Realm” was “subject to the Supreme Authority of England.” Aside from this central point, the Governor complained with some justice that his History had been misused: he cited passages demonstrating that General Courts in the past had specifically acknowledged Parliament's authority (Mass., House Jour. , 1772–1773, p. 229–241).

One further reply from the House concluded its side of the debate. On 18 February a committee consisting of Thomas Cushing, Samuel Adams, John Hancock, and six others was named to draft a reply to the Governor's second message. Although Hawley was not on this new committee, Samuel Adams continued to seek the aid of John Adams. The resulting report (No. III, below) was submitted to the House on 2 March and adopted that same day (Mass., House Jour. , 1772–1773, p. 245, 268).

The failure of historians to note John Adams' contributions to this second House reply must be attributed to Adams himself, for in his recollections of the incident, he invariably referred to “an Answer” to a “Speech” by Hutchinson. And his reference to Joseph Hawley's part in the matter would lead scholars to believe that Adams was involved only in the reply to the first of Hutchinson's messages, since Hawley was not on the committee named to answer the Governor's second message. But, as Samuel Adams revealed in his note to John, 22? February (No. II, below), the latter had been asked to “commit” his “Thoughts to writing” even before Hutchinson's speech of 16 February appeared in print in the Boston Gazette. Charles Francis Adams recognized more than a century ago that the “casual note of Samuel Adams” showed clearly that John Adams was to participate in drafting the second reply of the House, “at least in that particular upon which the governor had pounced with such assurance of victory”—the House contention respecting realm and dominion. Interpreting Samuel Adams' request as an admission of “the little confidence he had in his own resources to meet the issue he had been the agent to present,” C. F. Adams concluded: “This makes it probable that the reply which closed the controversy is more exclusively the work of John Adams, in manner as well as matter, than the earlier paper” (JA, Works , 1:126).

There is, however, better evidence yet for attributing to John Adams important portions of the second reply to Hutchinson. In the letter to William Tudor of 8 March 1817, John Adams concluded his recollection of his collaboration with the House committee with these sarcastic remarks: 313 “Mr. Hutchinson really made a meagre figure in that dispute. He had waded beyond his depth. He had wholly misunderstood the legal doctrine of allegiance.” To demonstrate the Governor's limitations, Adams continued with this anecdote: “I had quoted largely from a law authority which no man in Massachusetts, at that time, had ever read. Hutchinson and all his law counsels were in fault; they could catch no scent. They dared not deny it, lest the book should be produced to their confusion. It was humorous enough to see how Hutchinson wriggled to evade it. He found nothing better to say than that it was 'the artificial reasoning of Lord Coke.' The book was Moore's Reports. The owner of it, for, alas! master, it was borrowed, was a buyer, but not a reader, of books. It had been Mr. Gridley's” (JA, Works , 2:313).

After more than four decades, Adams recalled with relish Hutchinson's scornful dismissal of the “artificial Reasoning of Lord Chief Justice Coke.” But the Governor made this remark, not in his reply to the first House message of 26 January, but in that to the second House reply. In his final rebuttal, delivered at the close of the General Court session on 6 March, Hutchinson employed the phrase with respect to the passage which argued that “Allegiance is due to the natural Person and not to the Body Politick of the King” (Mass., House Jour. , 1772–1773, p. 297). And, to confirm Adams' recollection, this was the only section in either House message which drew upon Cases Collect & Report per Sir Fra. Moore. (For passages taken from Moore, see No. III, notes 5, 7, 9, below. Despite the French title, some of the cases were reported in English.)

The use of Moore is not the only contribution which can be attributed to John Adams. Much of the section introducing the material on realm and allegiance is drawn from his “A Dissertation on the Canon and the Feudal Law” (see 21 May–Oct. 1765 May – 21 October 1765 , above). Although it is impossible to tell whether John Adams himself rewrote these paragraphs from his earlier essays or whether Samuel “borrowed” heavily from the “Dissertation” for sections which he contributed to the House statement, it is clear that John Adams must have at least reviewed the passages closely. The House reply contains additional material from the historian William Robertson, which did not appear in the “Dissertation,” but which came to John Adams' attention after its publication in 1765, and the pertinence of which he noted in the margins of his own copy of that work's London edition (see No. III, note 2, below).

Portions of the House reply in March which can be identified as Adams' work mark an important development in his political thought. Here the youthful author of the “Dissertation” begins his transformation into the author of the Novanglus letters. His use of Moore's report on the post nati case, the philosophical heart of the House reply, anticipates his fuller presentation of a theory of realm and dominion, colonial rights and parliamentary limitations, in Novanglus nearly two years later. In Novanglus, the reader finds the same arguments now polished and refined, but buttressed with historical precedents which Adams apparently 314found too late to include in the 1773 House document. (See 23 Jan.–April 1775, Novanglus letter No. IX, in JA, Papers , vol. 2.)

Failure to credit Adams with authorship of the central portions of the House reply of 2 March is all the more unfortunate as the relation between that message and his later writings has long been recognized. In 1923 Charles McIlwain wrote admiringly of the House message as “one of the most remarkable in the whole series of American 'revolutionary' state papers”; and he recognized that that message set forth the “historical and constitutional basis of article four of the Declaration [of Rights and Grievances]” drafted in the Continental Congress in October 1774 (The American Revolution: A Constitutional Interpretation, N.Y., 1923, p. 122). He was aware of Adams' authorship of that article in the Declaration as well as of the Novanglus letters, which McIlwain termed, “the most elaborate exposition extant of the American interpretation of the constitutional problem of the empire” (same, p. 139).

In 1929, McIlwain expanded on these themes. Writing of the “Massachusetts doctrine,” that is, “the principle that allegiance to the English King involves no obedience to the English parliament,” he pointed out that that “doctrine” was clearly expressed in the House reply of March 1773, was incorporated in Article 4 of the Declaration of Rights and Grievances, and finally affirmed in Novanglus. The last, McIlwain characterized as “the most powerful and comprehensive statement ever made of the doctrine of the Continental Congress” (“The Transfer of the Charter to New England, and its Significance in American Constitutional History,” MHS, Procs. , 63 [Dec. 1929]:61, 62).

In neither discussion did McIlwain realize that the Declaration of 1774 and the Novanglus letters were related to the March 1773 message by more than the accident of time and colony of origin. The developing strain in Adams' thought, moving logically from his 1765 “Dissertation,” which acknowledged the modified feudalism under which Puritans held their land, through Novanglus, was the realization that the legal tradition which he revered could justify an alternative to the forms of royal government imposed on his native province and believed by Hutchinson to be the only forms possible. In 1773, Adams did not submit a blueprint for revolution or insurrection; but he did supply the House with historically and legally respectable arguments for change.

Hutchinson had lost his gamble that his logic might end political dissension. The members of the General Court recognized the opportunity the Governor had given them for publicizing views fundamentally opposed to his. On the morning of 6 March, even before Hutchinson delivered his final speech to the General Court, the House voted to have the documents relating to the debate put into a pamphlet for distribution to each House member and to every town clerk in Massachusetts (Mass., House Jour. , 1773–1774, p. 290). The pamphlet appeared as The Speeches of His Excellency Governor Hutchinson, to the General Assembly of the Massachusetts-Bay. At a Session begun and held on the 6th of January, 1773. 315 With the Answers of His Majesty's Council and the House of Representatives Respectively, Boston, 1773 (Evans, No. 12856).

Adams saw that Hutchinson's “Ruin and Destruction must spring out of” the controversy he had invited and that the Governor's disgrace must come “either from the Ministry and Parliament on one Hand, or from his Countrymen, on the other” ( Diary and Autobiography , 2:77). In the end, Hutchinson could thank both sides for his “Ruin.” The ministry would doubt his ability to govern the unruly and contentious colonists of Massachusetts. And, within the province, he had given men like John Adams a chance to take their thinking one step further toward espousal of independence, although Hutchinson had expected to terrify them with its “Miseries” in order to bring them to their senses.

Your Excellency's Speech to the General Assembly at the Opening of this Session, has been read with great Attention in this House.

We fully agree with your Excellency, that our own Happiness as well as his Majesty's Service, very much depends upon Peace and Order; and we shall at all Times take such Measures as are consistent with our Constitution and the Rights of the People to promote and maintain them. That the Government at present is in a very disturbed State is apparent! But we cannot ascribe it to the People's having adopted unconstitutional Principles, which seems to be the Cause assigned for it by your Excellency. It appears to us to have been occasioned rather, by the British House of Commons assuming and exercising Power inconsistent with the Freedom of the Constitution to give and grant the Property of the Colonists, and appropriate the same without their Consent.

It is needless for us to enquire what were the Principles that induced the Councils of the Nation to so new and unprecedented a Measure. But when the Parliament by an Act of their own expressly declared, that the King, Lords and Commons of the Nation “have, had, and of Right ought to have full Power and Authority to make Laws and Statutes of sufficient Force and Validity to bind the Colonies and People of America, Subjects of the Crown of Great-Britain, in all Cases whatever,”1 and in Consequence hereof another Revenue Act was made, the Minds of the People were filled with Anxiety, and they were justly alarmed with Apprehensions of the total Extinction of their Liberties.

The Result of the free Enquiries of many Persons into the Right of the Parliament to exercise such a Power over the Colonies, seems in your Excellency's Opinion to be the Cause of what you are pleased to call the present “disturbed State of the Government;” upon which you “may not any longer consistent with your Duty to the King, and your Regard to the Interest of the Province, delay communicating your Sentiments.” But that the Principles adopted in Consequence hereof, are unconstitutional, is a Subject of Enquiry. We know of no such Disorders arising therefrom as are mentioned by your Excellency. If Grand Jurors have not on their Oaths found such Offences, as your Excellency with the Advice of his Majesty's Council have ordered to be prosecuted, it is to be presumed they have followed the Dictates of good Conscience. They are the constitutional Judges of these Matters, and it is not to be supposed, that moved from corrupt Principles, they have suffered Offenders to escape a Prosecution, and thus supported and encouraged them to go on offending. If any Part of the Authority, shall in an unconstitutional Manner, interpose in any Matter, it will be no wonder if it be brought into Contempt; to the lessening or confounding of that Subordination which is necessary to a well regulated State. Your Excellency's Representation that the Bands of Government are weakened, we humbly conceive to be without good Grounds; though we must own the heavy Burthens unconstitutionally brought upon the People have been and still are universally and very justly complained of as a Grievance.

You are pleased to say, that “when our Predecessors first took Possession of this Plantation or Colony, under a Grant and Charter from the Crown of England, it was their Sense and it was the Sense of the Kingdom, that they were to remain subject to the Supreme Authority of Parliament;” whereby we understand your Excellency to mean in the Sense of the Declaratory Act of Parliament aforementioned, in all Cases whatever. And indeed it is difficult, if possible, to draw a Line of Distinction between the universal Authority of Parliament over the Colonies and no Authority at all. It is therefore necessary for us to enquire how it appears, for your Excellency has not shown it to us, that when or at the Time that our Predecessors took Possession of this Plantation or Colony, under a Grant and Charter from the Crown of England, it was their Sense, and the Sense of the Kingdom, that they were to remain subject to the Supreme Authority of Parliament. In making this Enquiry, we shall, according to your Excellency's Recommendation, treat the Subject with Calmness and Candor, and also with a due Regard to Truth.

Previous to a direct Consideration of the Charter granted to this Province or Colony, and the better to elucidate the true Sense and Meaning of it, we would take a View of the State of the English North American Continent at the Time when and after Possession was first taken of any Part of it, by the Europeans. It was then possessed by Heathen and Barbarous People, who had nevertheless all that Right to the Soil and Sovereignty in and over the Lands they possessed, which God had originally given to Man. Whether their being Heathen, inferred any Right or Authority to Christian Princes, a Right which had long been assumed by the Pope, to dispose of their Lands to others, we will leave to your Excellency or any one of Understanding and impartial Judgment to consider. It is certain they had in no other Sense forfeited them to any Power in Europe. Should the Doctrine be admitted that the Discovery of Lands owned and possessed by Pagan People, gives to any Christian Prince a Right and Title to the Dominion and Property, still it is invested in the Crown alone. It was an Acquisition of Foreign Territory, not annexed to the Realm of England, and therefore at the absolute Disposal of the Crown. For we take it to be a settled Point, that the King has a constitutional Prerogative to dispose of and alienate any Part of his Territories not annexed to the Realm. In the Exercise of this Prerogative, Queen Elizabeth granted the first American Charter; and claiming a Right by Virtue of Discovery, then supposed to be valid, to the Lands which are now possessed by the Colony of Virginia, she conveyed to Sir Walter Rawleigh, the Property, Dominion and Sovereignty thereof, to be held of the Crown by Homage, and a certain Render, without any Reservation to herself of any Share in the Legislative and Executive Authority. After the Attainder of Sir Walter, King James the First created two Virginia Companies, to be governed each by Laws transmitted to them by his Majesty and not by the Parliament, with Power to establish and cause to be made a Coin to pass current among them; and vested with all Liberties, Franchises and Immunities within any of his other Dominions, to all Intents and Purposes, as if they had been abiding, and born within the Realm. A Declaration similar to this is contained in the first Charter of this Colony, and in those of other American Colonies, which shows that the Colonies were not intended or considered to be within the Realm of England, though within the Allegiance of the English Crown. After this, another Charter was granted by the same King James, to the Treasurer and Company of Virginia, vesting them with full Power and Authority, to make, ordain and establish all Manner of Orders, Laws, Directions, Instructions, 318Forms and Ceremonies of Government, and Magistracy, fit and necessary, and the same to abrogate, &c. without any Reservation for securing their Subjection to the Parliament and future Laws of England. A third Charter was afterwards granted by the same King to the Treasurer and Company of Virginia, vesting them with Power and Authority to make Laws, with an Addition of this Clause, “so always that the same be not contrary to the Laws and Statutes of this our Realm of England.” The same Clause was afterwards copied into the Charter of this and other Colonies, with certain Variations, such as that these Laws should be “consonant to Reason,” “not repugnant to the Laws of England,” “as nearly as conveniently may be to the Laws, Statutes and Rights of England,” &c. These Modes of Expression convey the same Meaning, and serve to show an Intention that the Laws of the Colonies should be as much as possible, conformant in the Spirit of them to the Principles and fundamental Laws of the English Constitution, its Rights and Statutes then in Being, and by no Means to bind the Colonies to a Subjection to the Supreme Authority of the English Parliament. And that this is the true Intention, we think it further evident from this Consideration, that no Acts of any Colony Legislative, are ever brought into Parliament for Inspection there, though the Laws made in some of them, like the Acts of the British Parliament are laid before the King for his Assent or Disallowance.

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 solely 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, comformable 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 Balti-319more, and other Charters, are repugnant to the Idea of Parliamentary Authority: And to suppose a 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 Silence 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, from the Crown did not remain subject to the Supreme Authority of Parliament, we beg leave 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 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.”2 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, they 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 a 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.3

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 Colpepper Culpeper, 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.”4 If the King had judged that 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 320it 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; and that it was considered as being not within the Realm, but only within the 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 for 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 of the Power given to the General Court.” But we would still recur to the Charter itself, and ask your Excellency, How this appears from thence to have been the Sense of our Predecessors? Is any Reservation of Power and Authority to Parliament thus to bind us, 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 to ask, by what Authority in Reason or Equity the Parliament can enforce a Construction so unfavourable to us. Quod ab anitio injustum est, nullum potest habere juris effectum, said Grotius. Which with Submission to your Excellency may be rendered thus, Whatever is originally in its Nature wrong, can never be satisfied or made right by Reputation and 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.”5 This we mention to show, even upon a Supposition that the Parliament had been a Party to the Contract, the Invalidity of any of its 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 it may 321have 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 refer to us,” it is not only “a Limitation of the Power given to the General Court” to Legislate, but it may whenever the Parliament shall 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 without 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 and Behoof of the said Governor and Company and their 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 Elections 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 of 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, Statutes, Ordinances, &c. for the well-ordering and 322governing 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 Realm; and declared by the very Prince who granted it, to be not within the Jurisdiction of Parliament, should yet provide, that the Laws which 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 consequently freed from the Subjection they were under before their Removal: The Power and 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, and may again 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 discriminates 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 or 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 within the Realm.

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 Residant 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 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 in Question even by private and particular Persons, until within seven or eight Years past; except about the Time of the Anarchy and Confusion in England which preceeded the Restoration of King Charles the Second; we beg leave to remind your Excellency of some Parts of your own History of Massachusetts-Bay.6 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 of Conscience, it would justify a Separation, and upon their Removal their Subjection determined and ceased.” That “the Country to which they had removed, was claimed and possessed by independent Princes, whose Right to the Lordship and Sovereignty thereof had been acknowledged by the Kings of England,” an Instance of which is quoted in the Margin;7 “That they themselves had actually purchased for valuable Consideration, not only the Soil but the Dominion, the Lordship and Sovereignty of those Princes;” without which Purchase, “in the Sight of God and Men, they had no Right or Title to what they possessed.” That they had 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. In 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 of the General Assembly to their Agent, quoted in the following Words, “They apprehended them to be an Invasion 325of 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 the 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 the 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.”8

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.9 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 practised.” 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 326Acts 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,10 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.” 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,11 “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, 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 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 327Constitution. 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 Realm.

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,12 “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 328Laws and Courts, and to worship God according to the Dictates of their Consciences. Your Excellency in your History observes,13 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 Bishops, and High Commission for nor not conforming to the Ceremonies then pressed upon the Consciences 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. 14 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 Rites and Mode of Worship in the Church of England or any other.

Thus we have endeavoured to shew 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 Vassallage, 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 329there 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 Affects of a total Independence, there is more Reason to dread the Consequences, of absolute uncontrouled Supreme 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 a Spanish, French and Dutch: And since the British Parliament has passed an Act which is executed even with Rigour, 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 Congress.

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 Independance on the Crown. Our Charters reserve great Power to the Crown in its Representative, fully sufficient 330to balance, analagous 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.