THE HOUSE OF REPRESENTATIVES OF MASSACHUSETTS TO THE LIEUTENANT GOVERNOR.
[MS., Boston Public Library; a text, with many modifications of detail, is in Massachusetts State Papers, pp. 240-248; it was also printed in the Boston Gazette, August 6, 1770.]
In the House of Representatives August the 3 1770
Orderd that Mr Hancock Cap Thayer Mr Pickerin Cap Fuller and Cap Sumner carry up to the Honbl Board the following Answer of this House to his Honors Speech to both Houses at the opening of this Session
THOMAS CUSHING Spkr
1 May it please your Honor
The House of Representatives, having duly attended to your Speech2 to both Houses at the Opening of this Session, and maturely considerd the several parts of it, have unanimously, in a full House determind to adhere to their former Resolution "that it is by no means expedient to proceed to Business, while the General Assembly is thus constraind to hold the Session out of the Town of Boston." Upon a Recollection of the Reasons we have before given for this measure, we conceive it will appear to all the World, that neither the good People of this Province, nor the House of Representatives can be justly chargd with any ill Consequences that may follow it. After the most repeated & attentive Examination of your Speech, we find Nothing to induce us to alter our Opinion, and very little that is new & material in the Controversy: But as we perceive it is publishd, it may possibly be read by some who have never seen the Reasons of the House; and as there are specious things containd in it, which may have a Tendency to make an unhappy Impression on some minds, we have thought proper to make a few Observations upon it.
You are pleasd to say, "you meet us at Cambridge, because you have no Reason to think there has been any Alteration in his Majestys Pleasure, which you doubt not was determind by wise motives, & with a gracious Purpose to promote the Good of the province." We presume not to call in Question the Wisdom of our Sovereign or the Rectitude of his Intentions: But there have been Times, when a corrupt and profligate Administration have venturd upon such Measures, as have had a direct Tendency, to ruin the Interest of the People as well as that of their Royal Master.
This House have great Reason to doubt, whether it is, or ever was his
Majestys Pleasure that your Honor should meet the Assembly at
Cambridge, or that he has ever taken the matter under his Royal
Consideration: Because, the common and the best Evidence in such
Cases, is not communicated to us.
It is needless for us to add any thing to what has been heretofore said, upon the Illegality of holding the Court any where except in the Town of Boston: For admitting the Power to be in the Governor to hold the Court in any other place when the publick Good requires it; yet, it by no means follows that he has a Right to call it at any other place, when it is to the manifest Injury & Detriment of the Publick
The Opinion of the Attourney and Solicitor General has very little Weight with this House in any Case, any farther than the Reasons which they expressly give are convincing. This Province has sufferd so much by unjust, groundless & illegal Opinions of those officers of the Crown, that our Veneration or Reverence for their Opinions is much abated. We utterly deny that the Attuorny & Solicitor General have any Authority or Jurisdiction over us; any Right to decide Questions in Controversy, between the several Branches of the Legislature here: Nor do we concede, that even his Majesty in Council has any Constitutional Authority to decide such Questions, or any other Controversy whatever that arises in this Province, excepting only such Matters as are reservd in the Charter. It seems a great Absurdity, that when a Dispute arises between the Governor and the House, the Governor should appeal to his Majesty in Council to decide it. Would it not be as reasonable for the House to appeal to the Body of their Constituents to decide it? Whenever a Dispute has arisen within the Realm, between the Crown & the two Houses of Parliament, or either of them, was it ever imagind that the King in his privy Council had Authority to decide it? However there is a Test, a Standard common to all, we mean the publick Good. But your Honor must be very sensible that the Illegality of holding the Court in any other place besides the Town of Boston is far from being the only Dispute between your Honor & this House: we contend, that the People & their Representatives have a Right to withstand the abusive Exercise of a legal & constitutional Prerogative of the Crown. We beg Leave to recite to your Honor what the Great Mr Locke has advancd in his Treatise of civil Government, upon the like Prerogative of the Crown. "The old Question, says he, will be asked in this matter of Prerogative, who shall be Judge when this Power is made a right Use of?" And he answers, "Between an executive Power in being with such a Prerogative, and a Legislature that depends upon his Will for their convening, there can be no Judge on Earth, as there can be none between the Legislative & the People, should either the Executive or Legislative when they have got the Power in their Hands, design or go about to enslave or destroy them. The People have no other Remedy in this, as in all other Cases, where they have no Judge on Earth, but to appeal to Heaven. For the Rulers, in such Attempts, exercising a Power the People never put into their Hands (who can never be supposd to consent that any Body should rule over them for their Harm) do that which they have not a Right to do. And when the Body of the People or any single Man is deprivd of their Right, or under the Exercise of a Power without Right, and have no Appeal on Earth, then they have a Liberty to appeal to Heaven whenever they judge the Cause of sufficient moment. And therefore, tho the People cannot be judge, so as to have by the Constitution of that Society any superior Power to determine and give effective Sentence in the Case; yet they have by a Law antecedent & paramount to all positive Laws of men, reservd that ultimate Determination to themselves which belongs to all Mankind where there lies no Appeal on Earth viz to judge whether they have just Cause to make their Appeal to Heaven." We would however, by no means be understood to suggest that this People have Occasion at present to proceed to such Extremity.
Your Honor is pleasd to say, "that the House of Representatives in the year 1728, did not think the Form of the Writ, sufficient to justify them in refusing to do Business at Salem"; It is true they did not by any Vote or Resolve determine not to do Business yet the House, as we read in your Honors History, "met and adjournd from Day to Day without doing Business";3 and we find by the Records, that from the 31 of October 1728 to the 14th of December following the House did meet and adjourn without doing Business; And then they voted to proceed to the publick & necessary Affairs of the province "provided no Advantage be had or made, for and by Reason of the aforesaid Removal (meaning the Removal to Salem) or pleaded as a precedent for the future." Yet your Honor has been pleasd to quote the Conduct of that very House, as a precedent for our Imitation. We apprehend their proceeding to Business, & the Consequences of it viz, the Encouragement it gave to Governor Burnet to go on with his Design of harrassing them into unconstitutional Compliances, and the Use your Honor now makes of it as an Authority and a Precedent, ought to be a Warning to this House to make a determind & effectual Stand. Their Example, tho respectable, is not obligatory upon this House.—They lived in times, when the Encroachments of Despotism were in their Infancy.—They were carried to Salem, by the mere Caprice of Governor Burnet, who never pleaded an Instruction for doing this—An Instruction from a Ministry who had before treated them with unexampled Indignity—An Instruction which they were not permitted to see. They had no Reason to apprehend a fixd Design to alter the Seat of Government, to their great Inconvenience and the manifest Injury of the Province.
We are not disposd to dispute the Understanding, Integrity, Familys & Estates of the Council in 1728. We believe them to have been such, that if they were now upon the Stage, they would see so many additional & more weighty Reasons against proceeding to Business out of Boston, that they would fully approve of the Resolution of this House; as well as of what has been lately advancd by their Successors, who are also Gentlemen of Understanding, Integrity, Fortune and Family, in the following Words; "Governor Burnets Conduct in convening the General Court out of Boston, cannot be deemd an acknowlegd or constitutional Precedent, because, it was not founded on the only Reason on which the Prerogative of the Crown can be justly founded, The Good of the Community." We shall only add, that the Rights of the province having been of late years most severely attackd, has inducd Gentlemen to examine the Constitution more thorowly, & has increasd their Zeal in its Defence.
You are pleasd to adduce an Instance in 1754 in Addition to that in 1747, which you say "makes it probable, that the House of Representatives rather chose that the Court should sit elsewhere, when a Comittee was chosen to consider of and report a proper place for a Court House at a Distance from Boston". We beg Leave here to observe, that both these are Instances of the House's interresting themselves in this Affair, which your Honor now claims as a Prerogative: If the House were in no Case to have a Voice, or be regarded, in chusing a place to hold the Court, how could they think of building a House in a place, to which they never had been, and probably, never would be called.—
While the House have been from time to time, holding up to View, the great Inconveniencys and manifest Injurys resulting from the Sitting of the Assembly at Cambridge, and praying a Removal to Boston, it is with Pain that they have heard your Honor, instead of pointing out any one good Purpose which can be answerd by it, replying that your Instructions will not permit you to remove the Court to Boston. By a royal Grant in the Charter, in favor of the Commons of this province, the Governor has the sole power of adjourning, proroguing and dissolving the General Court: And the Wisdom of that Grant appears in this, that a person residing in the province, must be a more competent Judge, of the Fitness of the Time, and we may add, the place of holding the Court, than any person residing in Great Britain. We do not deny, that there may be Instances when the Comander in Chiefe, ought to obey the Royal Instructions: And should we also admit, that in ordinary Cases he ought to obey them, respecting the convening, holding, proroguing, adjourning & dissolving the General Court, notwithstanding that Grant; yet we clearly hold, that whenever Instructions cannot by complyd with, without injuring the people, they cease to be binding. Any other Supposition would involve this Absurdity in it, that a Substitute by Means of Instructions from his Principal, may have a greater Power than the Principal himself; or in other Words, that a Representative of a King who can do no Wrong, by means of Instructions may obtain a Right to do Wrong: for that the Prerogative extends not to do any Injury, never has and never can be denyd. Therefore this House are clearly of Opinion, that your Honor is under no Obligation to hold the General Court at Cambridge, let your Instructions be conceivd in Terms ever so peremptory, in as much as it is inconvenient and injurious to the province.—As to your Commission, it is certain, that no Clause containd in that, inconsistent with the Charter can be binding: To suppose, that when a Grant is made by Charter in favor of the people, Instructions shall supercede that Grant, and oblige the Governor to act repugnant to it, vacating the Charter at once, by the Breath of a Minister of State. Your Honor thinks you may safely say, "there is not one of us, who if he was in your Station, would venture to depart from the Instructions ." As you had not the least Shadow of Evidence to warrant this, we are sure you could not say it with Safety: And we leave it with your Honor to determine, how far it is reconcileable with Delicacy to suggest it. In what particulars the holding the General Court at Cambridge is injurious to us and the Province, has already been declared by the House, and must be too obvious to escape your Honors Observation. Yet you are pleasd to tell us, that "the Inconveniences can easily be removd, or are so inconsiderable that a very small publick Benefit will outweigh them"—That they are not inconsiderable, every Days Experience convinces us; nor are our Constituents insensible of them: But how they can be easily removd, we cannot conceive, unless by removing the Court to Boston. Can the publick Offices & Records, to which we are under the Necessity of recurring, almost every Hour, with any Safety or Convenience to the publick be removd to Cambridge? Will our Constituents consent to be at the Expence of erecting a proper House at Cambridge, for accommodating the General Court, especially when they have no Assurance that the next Freak of a capricious Minister will not remove the Court to some other place? Is it possible to have that Communication with our Constituents, or to be benefited by the Reasonings of the people without Doors here, as at Boston? We cannot but flatter ourselves, that every judicious and impartial Person will allow, that the holding the General Court at Cambridge, is inconvenient and hurtful to the Province; Nor has your Honor ever yet attempted to show a single Instance, in which the province can be benefited by it: No good purpose which can be answerd by it, has ever yet been suggested by any one to this House. And we have the utmost Confidence, that our gracious Sovereign, has no Desire to hold the General Court at any place inconvenient to its Members, or injurious to the province; but rather, that he will frown upon those, who have procurd its Removal to such a place, or persist in holding it there.
We are not indeed sure, that the Ministry caused the Assembly to be removd to Cambridge, in order to worry them into a Compliance with any arbitrary Mandate, to the Ruin of our own or our Constituents Libertys: But we know, that the General Assembly has in Times past been treated with such Indignity and Abuse, by the Servants of the Crown, and a wicked Ministry may attempt it again.
Your Honor observes, that "the same Exception may be made to the Use of every other part of the prerogative, for every part is capable of Abuse." We shall never except to the proper Use of the prerogative: We hold it sacred as the Liberty of the Subject. But every Abuse of it, will always be excepted to, so long as the Love of Liberty, or any publick Virtue remains. And whenever any other part of the prerogative shall be abusd, the House will not fail to judge for themselves of the Grievance, nor to exert every power with which the Constitution hath entrusted them, to check the Abuse, and redress the Grievance.
The House had expressd to your Honor their Apprehension of a fixd Design, either to change the Seat of Government, or to harrass us, in order to bring us into Compliance with some arbitrary Mandate: Your Honor says, you know of no fixd Design to harrass us &c.: Upon which we cannot but observe, that if you did not know of a fixd Design to change the Seat of Governmt you would not have omitted so fair an Opportunity to satisfy the Minds of the House, in a Matter of such Importance to the Province. As to your very condescending and liberal Professions, of exercising patience, or using Dispatch, as would be most agreable to us, we shall be very much obligd to your Honor, for the Exercise of those Virtues, whenever you shall see Cause to remove us to our ancient and established Seat: But these professions can be no Temptations to us, to give up our Privileges.
Your Honor is pleasd to say, that "we consider the Charter as a Compact between the Crown and the People of this province" and to ask a Question "Shall one Party to the Compact be held, and not the other"? It is true, we consider the Charter as such a Compact, and agree that both Parties are held. The Crown covenants, that a Great & General Court shall be held, every last Wednesday in May for ever; The Crown therefore, doubtless is bound by this Covenant. But we utterly deny, that the people have covenanted to grant Money, or to do Business, at least any other Business than chusing Officers and Councellors to compleat the General Court, on the last Wednesday of May, or in any other Day or Year whatever: Therefore this House, by refusing to do Business, do not deprive the Crown of the Exercise of the prerogative, nor fail of performing their part of the Compact. Your Honor wd doubtless have been culpable had you refusd to call a General Court on the last Wednesday in May: And the House might have been equally culpable, if they had refusd to chuse a Speaker and Clerk, or to elect Councellors, whereby to compleat the General Court; for in Case of Omission in either part, a Question might arise, Whether the people would have a Legislature. When the General Assembly is thus formd, they are impowerd by the Charter, to make, ordain and establish all Manner of wholesome and reasonable Orders, Laws, Statutes & Ordinances, Directions and Instructions, either with penaltys or without. But the Charter no where obliges the Genl Court, to make any Orders, Laws, Statutes or Ordinances, unless they, at that time judge it conducive to the publick Good to make them: Much less does it oblige them to make any Laws &c, in any particular Session, year or number of years, whenever they themselves shall judge them not to be for the publick Good. Such an Obligation would leave them the least Color of Freedom, but reduce them to a mere machine; to the State the Parliament would have been in, if the Opinion of the two Chiefe Justices and the three puisne Judges had prevaild in the Reign of Richard the second "that the King hath the Governance of Parliament, and may appoint what shall be first handled, and so gradually what next, in all matters to be treated of in parliament, even to the End of the parliament; and if any person shall act contrary to the Kings pleasure made known therein, they are to be punishd as Traitors"—for which opinion those five Judges had Judgment as in Case of high Treason.—Your Honor will allow us to ask, Whether the Doctrine containd in your Question viz, "If you should refuse to do Business now you are met, would you not deprive the Crown of the Exercise of the prerogative, and fail of performing your part of the Compact" which implys a strong affirmation, is not in a Degree, the very Doctrine of Chiefe Justice Tresilian and the four other Judges just now mentiond? By convening in Obedience to his Majesty's Writ, tested by your Honor, and again, at the time to which we are prorogud, we have submitted to the prerogative, and performd our part of the Compact.
This House has the same inherent Rights in this Province, as the House of Commons has in Great Britain. It is our Duty to procure a Redress of Grievances, and we may constitutionally refuse to grant our Constituents money to the Crown, or to do any other Act of Government, at any given time, that is not affixd by Charter to a certain Day, until the Grievances of the people are redressd. We do not pretend, that our Opinion is to prevail against his Majestys Opinion: We never shall attempt to adjourn or prorogue or dissolve the General Court: But we do hope, that our Opinion shall prevail, against any Opinion whatever, of the proper time to make Laws and to do Business. And by exerting this Power which the Constitution has given us, we hope to convince your Honor and the Ministry of the Necessity of removing the Court to Boston.—All judicious Men will allow that the proper time for the House to do their part of the Business of the province, is for the House to judge of and determine. The House think it is not, in the present Circumstances of the province, a proper time to do this Business, while the Court is constraind to hold their Session out of Boston: Your Honor is of a different Opinion: We have conformd to this Opinion as far as the Constitution requires us, And now our right of judging commences. If your Honors or even his Majestys Opinion concerning this Point is to prevail against the Opinion of the House, why may not the Crown, according to the Tresilian Doctrine, as well prescribe what Business we shall do, and in what Order.
The House is still ready to answer for all the ill Consequences which can justly be attributed to them; nor are they sensible of any Danger from exerting the power which the Charter has given them of doing their part of the Business in their own time.—That the Province has Enemies who are continually defaming it, and their Charter, is certain; that there are Persons who are endeavoring to intimidate the province from asserting and vindicating their just Rights and Liberties, by Insinuations of Danger to the Constitution, is also indisputable; But no Instance happend, even in the execrable Reign of the worst of the Stuart Race, of a Forfeiture of a Charter, because any one Branch of a Legislature, or even because the whole Government under the Charter, refusd to do Business at a particular time, under grievous Circumstances of Ignominy, Disgrace and Insult; and when their Charter had explicitly given to that Government the sole power of judging of the proper Season & Occasion of doing Business.
We are obligd at this time to struggle, with all the Powers with which the Constitution hath furnishd us, in Defence of our Rights; to prevent the most valueable of our Libertys, from being wrested from us, by the subtle Machinations, and daring Encroachments of wicked Ministers. We have seen of late, innumerable Encroachments on our Charter: Courts of Admiralty extended from the high Seas, where by the Compact in the Charter, they are confind, to numberless important Causes upon Land: Multitudes of civil Officers, the Appointment of all which is confind by Charter to the Governor and Council, sent here from abroad by the Ministry: A Revenue, not granted by us, but torn from us: Armys stationd here without our Consent; and the Streets of our Metropolis, crimsond with the Blood of our fellow Subjects.—These, and other Grievances and Cruelties, too many to be here enumerated, and too melancholly to be much longer born by this injurd People, we have seen brot upon us by the Devices of Ministers of State. We have seen & had of late, Instructions to Governors which threaten to destroy all the remaining Privileges of our Charter. In June 1768, the House, by an Instruction were orderd to rescind an excellent Resolution of a former House, on pain of Dissolution;4 they refusd to comply with so impudent a Mandate, and were dissolvd. And the Governor, tho' repeatedly requested, and tho' the Exigences of the Province demanded a General Assembly, refusd to call a new one, till the following May. In the last year, the General Court was forcd to give Way to regular Troops, illegally quarterd in the Town of Boston, in Consequence of Instructions to Crown Officers, and whose main Guard was most daringly and insultingly placd at the Door of the State house; and afterwards they were constraind to hold their Session at Cambridge. The present year the Assembly is summond to meet, and is still continued there in a kind of Duress, without any Reason that can be given—any Motive whatever, that is not as great an Insult to them, and Breach of their Privilege, as any of the foregoing.—Are these things consistent with the Freedom of the House; or, could the General Courts tamely submiting to such Usage, be thought to promote his Majestys Service!
Should these Struggles of the House prove unfortunate and ineffectual, this Province will submit, with pious Resignation to the Will of Providence; but it would be a kind of Suicide, of which we have the utmost Horror, thus to be made the Instruments of our Servitude.
We beg leave before we conclude, to make one Remark on what you say, that "our Compliance can be of no Benefit to our Sovereign, any farther than as he interests himself in the Happiness of his Subjects." We are apprehensive that the World may take this for an Insinuation, very much to our Dishonor: As if the Benefit of our Sovereign were a Motive in our Minds, against a Compliance. But as this Imputation would be extremely unjust, so we hope it was not intended by your Honor. We are however obligd in Justice to our selves and our Constituents to declare that if we had Reason to believe, that a Compliance would by any, the least Benefit to our Sovereign, it would be a very powerful Argument with us; But we are on the Contrary, fully perswaded, that a Compliance at present, would be very injurious and detrimental to his Majestys Service.
1From this point the manuscript is wholly in the handwriting of Adams. 2Massachusetts State Papers, pp. 237-240. 3Inaccurately quoted from T. Hutchinson, History of the Province of Massachusetts Bay, vol. ii., p. 317. 4See Vol. I., p. 230.