The Writings of Samuel Adams - Volume 2

by Samuel Adams

In your speech, at the Opening of the present session2, your Excellency expressed your displeasure, at some late proceedings of the town of Boston, and other principal towns in the province. And, in another speech3 to both Houses, we have your repeated exceptions at the same proceedings, as being "unwarrantable," and of a dangerous nature and tendency; "against which, you thought yourself bound to call upon us to join with you in bearing a proper testimony." This House have not discovered any principles advanced by the town of Boston, that are unwarrantable by the constitution; nor does it appear to us, that they have "invited every other town and district in the province, to adopt their principles." We are fully convinced, that it is our duty to bear our testimony against "innovations, of a dangerous nature and tendency;" but, it is clearly our opinion, that it is the indisputable right of all, or any of his Majesty's subjects, in this province, regularly and orderly to meet together, to state the grievances they labor under; and, to propose, and unite in such constitutional measures, as they shall judge necessary or proper, to obtain redress. This right has been frequently exercised by his Majesty's subjects within the realm; and, we do not recollect an instance, since the happy revolution, when the two Houses of Parliament have been called upon to discountenance, or bear their testimony against it, in a speech from the throne.

Your Excellency is pleased to take notice of some things, which we "allege," in our answer to your first speech; and, the observation you make, we must confess, is as natural, and undeniably true, as any one that could have been made; that, "if our foundation shall fail us in every part of it, the fabric we have raised upon it, must certainly fall." You think this foundation will fail us; but, we wish your Excellency had condescended to a consideration of what we have "adduced in support of our principles." We might then, perhaps, have had some things offered for our conviction, more than bare affirmations; which, we must beg to be excused, if we say, are far from being sufficient, though they came with your Excellency's authority, for which, however, we have a due regard.

Your Excellency says, that, "as English subjects, and agreeable to the doctrine of the feudal tenure, all our lands are held mediately, or immediately, of the Crown." We trust, your Excellency does not mean to introduce the feudal system in its perfection; which, to use the words of one of our greatest historians, was "a state of perpetual war, anarchy, and confusion, calculated solely for defence against the assaults of any foreign power; but, in its provision for the interior order and tranquillity of society, extremely defective. A constitution, so contradictory to all the principles that govern mankind, could never be brought about, but by foreign conquest or native usurpation." And, a very celebrated writer calls it, "that most iniquitous and absurd form of government, by which human nature was so shamefully degraded." This system of iniquity, by a strange kind of fatality, "though originally formed for an encampment, and for military purposes only, spread over a great part of Europe;" and, to serve the purposes of oppression and tyranny, "was adopted by princes, and wrought into their civil constitutions;" and, aided by the canon law, calculated by the Roman Pontiff, to exalt himself above all that is called God, it prevailed to the almost utter extinction of knowledge, virtue, religion, and liberty from that part of the earth. But, from the time of the reformation, in proportion as knowledge, which then darted its rays upon the benighted world, increased, and spread among the people, they grew impatient under this heavy yoke; and the most virtuous and sensible among them, to whose steadfastness, we, in this distant age and climate, are greatly indebted, were determined to get rid of it; and, though they have in a great measure subdued its power and influence in England, they have never yet totally eradicated its principles.

Upon these principles, the King claimed an absolute right to, and a perfect estate in, all the lands within his dominions; but, how he came by this absolute right and perfect estate, is a mystery which we have never seen unravelled, nor is it our business or design, at present, to inquire. He granted parts or parcels of it to his friends, the great men, and they granted lesser parcels to their tenants. All, therefore, derived their right and held their lands, upon these principles, mediately or immediately of the King; which Mr. Blackstone, however, calls, "in reality, a mere fiction of our English tenures."

By what right, in nature and reason, the christian princes in Europe, claimed the lands of heathen people, upon a discovery made by any of their subjects, is equally mysterious. Such, however, was the doctrine universally prevailing, when the lands in America were discovered; but, as the people of England, upon those principles, held all the lands they possessed, by grants from the King, and the King had never granted the lands in America to them, it is certain they could have no sort of claim to them. Upon the principles advanced, the lordship and dominion, like that of the lands in England, was in the King solely; and a right from thence accrued to him, of disposing such territories, under such tenure, and for such services to be performed, as the King or Lord thought proper. But how the grantees became subjects of England, that is, the supreme authority of the Parliament, your Excellency has not explained to us. We conceive that upon the feudal principles, all power is in the King; they afford us no idea of Parliament. "The Lord was in early times, the Legislator and Judge over all his feudatories," says Judge Blackstone. By the struggle for liberty in England, from the days of King John, to the last happy revolution, the constitution has been gradually changing for the better; and upon the more rational principles, that all men, by nature, are in a state of equality in respect of jurisdiction and dominion, power in England has been more equally divided. And thus, also in America, though we hold our lands agreeably to the feudal principles of the King; yet our predecessors wisely took care to enter into compact with the King, that power here should also be equally divided, agreeable to the original fundamental principles of the English constitution, declared in Magna Charta, and other laws and statutes of England, made to confirm them.

Your Excellency says, "you can by no means concede to us that it is now, or was, when the plantations were first granted, the prerogative of the Kings of England, to constitute a number of new governments, altogether independent of the sovereign authority of the English empire." By the feudal principles, upon which you say "all the grants which have been made of America, are founded, the constitutions of the Emperor, have the force of law." If our government be considered as merely feudatory, we are subject to the King's absolute will, and there is no authority of Parliament, as the sovereign authority of the British empire. Upon these principles, what could hinder the King's constituting a number of independent governments in America? That King Charles the I. did actually set up a government in this colony, conceding to it powers of making and executing laws, without any reservation to the English Parliament, of authority to make future laws binding therein, is a fact which your Excellency has not disproved, if you have denied it. Nor have you shewn that the Parliament or nation objected to it; from whence we have inferred that it was an acknowledged right. And we cannot conceive, why the King has not the same right to alienate and dispose of countries acquired by the discovery of his subjects, as he has to "restore, upon a treaty of peace, countries which have been acquired in war," carried on at the charge of the nation; or to "sell and deliver up any part of his dominions to a foreign Prince or state, against the general sense of the nation;" which is "an act of power," or prerogative, which your Excellency allows. You tell us, that, "when any new countries are discovered by English subjects, according to the general law and usage of nations, they become part of the state. The law of nations is, or ought to be, founded on the law of reason. It was the saying of Sir Edwin Sandis, in the great case of the union of the realm of Scotland with England, which is applicable to our present purpose, that "there being no precedent for this case in the law, the law is deficient; and the law being deficient, recourse is to be had to custom; and custom being insufficient, we must recur to natural reason;" the greatest of all authorities, which, he adds, "is the law of nations." The opinions, therefore, and determinations of the greatest Sages and Judges of the law in the Exchequer Chamber, ought not to be considered as decisive or binding, in our present controversy with your Excellency, any further, than they are consonant to natural reason. If, however, we were to recur to such opinions and determinations, we should find very great authorities in our favor, to show, that the statutes of England are not binding on those who are not represented in Parliament there. The opinion of Lord Coke, that Ireland was bound by statutes of England, wherein they were named, if compared with his other writings, appears manifestly to be grounded upon a supposition, that Ireland had, by an act of their own, in the reign of King John, consented to be thus bound; and, upon any other supposition, this opinion would be against reason; for consent only gives human laws their force. We beg leave, upon what your Excellency has observed of the colony becoming a part of the state, to subjoin the opinions of several learned civilians, as quoted by a very able lawyer in this country. "Colonies," says Puffendorf, "are settled in different methods; for, either the colony continues a part of the Commonwealth it was set out from, or else is obliged to pay a dutiful regard to the mother Commonwealth, and to be in readiness to defend and vindicate its honor, and so is united by a sort of unequal confederacy; or, lastly, is erected into a separate Commonwealth and assumes the same rights, with the state it descended from." And, King Tullius, as quoted by the same learned author, from Grotius, says, "we look upon it to be neither truth nor justice, that mother cities, ought, of necessity, and by the law of nature, to rule over the colonies."

Your Excellency has misinterpreted what we have said, "that no country, by the common law, was subject to the laws or the Parliament, but the realm of England;" and, are pleased to tell us, "that we have expressed ourselves incautiously."4 We beg leave to recite the words of the Judges of England, in the before mentioned case, to our purpose. "If a King go out of England with a company of his servants, allegiance remaineth among his subjects and servants, although he be out of his realm, whereto his laws are confined." We did not mean to say, as your Excellency would suppose, that "the common law prescribes limits to the extent of the Legislative power," though, we shall always affirm it to be true, of the law of reason and natural equity. Your Excellency thinks, you have made it appear, that the "colony of Massachusetts Bay is holden as feudatory of the imperial Crown of England;" and, therefore, you say, "to use the words of a very great authority in a case, in some respects analogous to it," being feudatory, it necessarily follows, that "it is under the government of the King's laws." Your Excellency has not named this authority; but, we conceive his meaning must be, that being feudatory, it is under the government of the King's laws absolutely; for, as we have before said, the feudal system admits of no idea of the authority of Parliament; and this would have been the case of the colony, but for the compact with the King in the charter.

Your Excellency says, that "persons thus holding under the Crown of England, remain, or become subjects of England," by which, we suppose your Excellency to mean, subject to the supreme authority of Parliament, "to all intents and purposes, as fully, as if any of the royal manors, &c. within the realm, had been granted to them upon the like tenure." We apprehend, with submission, your Excellency is mistaken in supposing that our allegiance is due to the Crown of England. Every man swears allegiance for himself, to his own King, in his natural person. Every subject is presumed by law to be sworn to the King, which is to his natural person," says Lord Coke. Rep. on Calvin's case.5 "The allegiance is due to his natural body;" and, he says, "in the reign of Edward II. the Spencers, the father and the son, to cover the treason hatched in their hearts, invented this damnable and damned opinion, that homage and oath of allegiance was more by reason of the King's Crown, that is, of his politic capacity, than by reason of the person of the King; upon which opinion, they inferred execrable and detestable consequents." The Judges of England, all but one, in the case of the union between Scotland and England, declared, that "allegiance followeth the natural person, not the politic;" and, "to prove the allegiance to be tied to the body natural of the King, and not to the body politic, the Lord Coke cited the phrases of divers statutes, mentioning our natural liege Sovereign." If, then, the homage and allegiance is not to the body politic of the King, then it is not to him as the head, or any part of that Legislative authority, which your Excellency says, "is equally extensive with the authority of the Crown throughout every part of the dominion;" and your Excellency's observations thereupon, must fail. The same Judges mention the allegiance of a subject to the Kings of England, who is out of the reach and extent of the laws of England, which is perfectly reconcileable with the principles of our ancestors, quoted before from your Excellency's history, but, upon your Excellency's principles, appears to us to be an absurdity. The Judges, speaking of a subject, say, "although his birth was out of the bounds of the kingdom of England, and out of the reach and extent of the laws of England, yet, if it were within the allegiance of the King of England, &c. Normandy, Aquitain, Gascoign, and other places, within the limits of France, and, consequently, out of the realm or bounds of the kingdom of England, were in subjection to the Kings of England." And the Judges say, "Rex et Regnum, be not so relatives, as a King can be King but of one kingdom, which clearly holdeth not, but that his kingly power extending to divers nations and kingdoms, all owe him equal subjection, and are equally born to the benefit of his protection; and, although he is to govern them by their distinct laws, yet any one of the people coming into the other, is to have the benefit of the laws, wheresoever he cometh." So they are not to be deemed aliens, as your Excellency in your speech supposes, in any of the dominions, all which accords with the principles our ancestors held. "And he is to bear the burden of taxes of the place where he cometh, but living in one, or for his livelihood in one, he is not to be taxed in the other, because laws ordain taxes, impositions, and charges, as a discipline of subjection, particularized to every particular nation." Nothing, we think, can be more clear to our purpose than this decision of Judges, perhaps as learned, as ever adorned the English nation, or in favor of America, in her present controversy with the mother state.

Your Excellency says, that, by "our not distinguishing between the Crown of England, and the Kings and Queens of England, in their personal or natural capacities, we have been led into a fundamental error." Upon this very distinction we have availed ourselves. We have said, that our ancestors considered the land, which they took possession of in America, as out of the bounds of the kingdom of England, and out of the reach and extent of the laws of England; and, that the King also, even in the act of granting the charter, considered the territory as not within the realm; that the King had an absolute right in himself to dispose of the lands, and that this was not disputed by the nation; nor could the lands, on any solid grounds, be claimed by the nation; and, therefore, our ancestors received the lands, by grant, from the King; and, at the same time, compacted with him, and promised him homage and allegiance, not in his public or politic, but natural capacity only. If it be difficult for us to show how the King acquired a title to this country in his natural capacity, or separate from his relation to his subjects, which we confess, yet we conceive, it will be equally difficult for your Excellency to show how the body politic and nation of England acquired it. Our ancestors supposed it was acquired by neither; and, therefore, they declared, as we have before quoted from your history, that saving their actual purchase from the natives, of the soil, the dominion, the lordship, and sovereignty, they had in the sight of God and man, no right and title to what they possessed. How much clearer then, in natural reason and equity, must our title be, who hold estates dearly purchased at the expense of our own, as well as our ancestors labor, and defended by them with treasure and blood.

Your Excellency has been pleased to confirm, rather than deny or confute, a piece of history, which, you say, we took from an anonymous pamphlet, and by which you "fear we have been too easily misled." It may be gathered from your own declaration, and other authorities, besides the anonymous pamphlet, that the House of Commons took exception, not at the King's having made an absolute grant of the territory, but at the claim of an exclusive right to the fishery on the banks and sea coast, by virtue of the patent. At this you say, "the House of Commons was alarmed, and a bill was brought in for allowing a free fishery." And, upon this occasion, your Excellency allows, that "one of the Secretaries of State declared, that the plantations were not annexed to the Crown, and so were not within the jurisdiction of Parliament." If we should concede to what your Excellency supposes might possibly or "perhaps," be the case, that the Secretary made this declaration, "as his own opinion," the event showed that it was the opinion of the King too; for it is not to be accounted for upon any other principle, that he would have denied his royal assent to a bill, formed for no other purpose, but to grant his subjects in England, the privilege of fishing on the sea coasts in America. The account published by Sir Ferdinando Gorges himself, of the proceedings of Parliament on this occasion, your Excellency thinks, will remove all doubt, of the sense of the nation, and of the patentees of this patent or charter, in 1620. "This narrative," you say, "has all the appearance of truth and sincerity," which we do not deny; and, to us, it carries this conviction with it, that "what was objected" in Parliament, was the exclusive claim of fishing only. His imagining that he had satisfied the House, after divers attendances, that the planting a colony was of much more consequence than a simple disorderly course of fishing, is sufficient for our conviction. We know that the nation was at that time alarmed with apprehensions of monopolies; and, if the patent of New England was presented by the two Houses as a grievance, it did not show, as your Excellency supposes, "the sense they then had of their authority over this new acquired territory," but only their sense of the grievance of a monopoly of the sea.