The Writings of Samuel Adams - Volume 2

by Samuel Adams

We are happy to hear your Excellency say, that "our remarks upon, and construction of the words, not repugnant to the laws of England, are much the same with those of the Council." It serves to confirm us in our opinion, in what we take to be the most important matter of difference between your Excellency and the two Houses. After saying, that the statute of 7th and 8th of William and Mary favors the construction of the words, as intending such laws of England as are made more immediately to respect us, you tell us, that "the province Agent, Mr. Dummer, in his much applauded defence, says, that, then a law of the plantations may be said to be repugnant to a law made in Great Britain, when it flatly contradicts it, so far as the law made there, mentions and relates to the plantations."6 This is plain and obvious to common sense, and, therefore, cannot be denied. But, if your Excellency would read a page or two further in that excellent defence,7 you will see that he mentions this as the sense of the phrase, as taken from an act of Parliament, rather than as the sense he would choose himself to put upon it; and, he expressly designs to show, in vindication of the charter, that, in that sense of the words, there never was a law made in the plantations repugnant to the laws of Great Britain. He gives another construction, much more likely to be the true intent of the words, namely, "that the patentees shall not presume, under color of their particular charters, to make any laws inconsistent with the great charter, and other laws of England, by which the lives, liberties, and properties of Englishmen are secured."8 This is the sense in which our ancestors understood the words; and, therefore, they are unwilling to conform to the acts of trade, and disregarded them till they made provision to give them force in the colony, by a law of their own; saying, that "the laws of England did not reach America; and those acts were an invasion of their rights, liberties, and properties," because they were not "represented in Parliament." The right of being governed by laws, which were made by persons, in whose election they had a voice, they looked upon as the foundation of English liberties. By the compact with the King, in the charter, they were to be as free in America, as they would have been if they had remained within the realm; and, therefore, they freely asserted, that they "were to be governed by laws made by themselves, and by officers chosen by themselves." Mr. Dummer says, "it seems reasonable enough to think that the Crown," and, he might have added, our ancestors, "intended by this injunction to provide for all its subjects, that they might not be oppressed by arbitrary power; but being still subjects, they should be protected by the same mild laws, and enjoy the same happy government, as if they continued within the realm."9 And, considering the words of the charter in this light, he looks upon them as designed to be a fence against oppression and despotic power. But the construction which your Excellency puts upon the words, reduces us to a state of vassalage, and exposes us to oppression and despotic power, whenever a Parliament shall see fit to make laws for that purpose, and put them in execution.

We flatter ourselves, that, from the large extracts we have made from your Excellency's history of the colony, it appears evidently, that under both charters, it hath been the sense of the people and of the government, that they were not under the jurisdiction of Parliament. We pray you again to turn to those quotations, and our observations upon them; and we wish to have your Excellency's judicious remarks. When we adduced that history, to prove that the sentiments of private persons of influence, four or five years after the restoration, were very different from what your Excellency apprehended them to be, when you delivered your speech, you seem to concede to it, by telling us, "it was, as you take it, from the principles imbibed in those times of anarchy, (preceding the restoration,) that they disputed the authority of Parliament;" but, you add, "the government would not venture to dispute it." We find in the same history,10 a quotation from a letter of Mr. Stoughton, dated seventeen years after the restoration, mentioning "the country's not taking notice of the acts of navigation, to observe them." And it was, as we take it, after that time, that the government declared, in a letter to their Agents, that they had not submitted to them; and they ventured to "dispute" the jurisdiction, asserting, that they apprehended the acts to be an invasion of the rights, liberties, and properties of the subjects of his Majesty in the colony, they not being represented in Parliament, and that "the laws of England did not reach America." It very little avails in proof, that they conceded to the supreme authority of Parliament, their telling the Commissioners, "that the act of navigation had for some years before, been observed here; that they knew not of its being greatly violated; and that, such laws as appeared to be against it, were repealed." It may as truly be said now, that the revenue acts are observed by some of the people of this province; but it cannot be said that the government and people of this province have conceded, that the Parliament had authority to make such acts to be observed here. Neither does their declaration to the Commissioners, that such laws as appeared to be against the act of navigation, were repealed, prove their concession of the authority of Parliament, by any means, so much as their making provision for giving force to an act of Parliament within this province, by a deliberate and solemn act or law of their own, proves the contrary.

You tell us, that "the government, four or five years before the charter was vacated, in more explicitly," that is, than by a conversation with the Commissioners, "acknowledged the authority of Parliament, and voted, that their Governor should take the oath required of him, faithfully to do and perform all matters and things enjoined him by the acts of trade." But does this, may it please your Excellency, show their explicit acknowledgment of the authority of Parliament? Does it not rather show directly the contrary? For, what could there he for their vote, or authority, to require him to take the oath already required of him, by the act of Parliament, unless both he, and they, judge that an act of Parliament was not of force sufficient to bind him to take such oath? We do not deny, but, on the contrary, are fully persuaded, that your Excellency's principles in governments are still of the same with what they appear to be in the history; for, you there say, that "the passing this law, plainly shows the wrong sense they had of the relation they stood in to England." But we are from hence convinced, that your Excellency, when you wrote the history, was of our mind in this respect, that our ancestors, in passing the law, discovered their opinion, that they were without the jurisdiction of Parliament; for it was upon this principle alone, they shewed the wrong sense they had in your Excellency's opinion, of the relation they stood in to England.

Your Excellency, in your second speech, condescends to point out to us the acts and doings of the General Assembly, which relates to acts of Parliament, which, you think, "demonstrates that they have been acknowledged by the Assembly, or submitted to by the people;" neither of which, in our opinion, shows that it was the sense of the nation, and our predecessors, when they first took possession of this plantation, or colony, by a grant and charter from the Crown, that they were to remain subject to the supreme authority of the English Parliament.

Your Excellency seems chiefly to rely upon our ancestors, after the revolution, "proclaiming King William and Queen Mary, in the room of King James," and taking the oaths to them, "the alteration of the form of oaths, from time to time," and finally, "the establishment of the form, which every one of us has complied with, as the charter, in express terms requires, and makes our duty." We do not know that it has ever been a point in dispute, whether the Kings of England were ipso facto Kings in, and over, this colony, or province. The compact was made between King Charles the I. his heirs and successors, and the Governor and company, their heirs and successors. It is easy, upon this principle, to account for the acknowledgment of, and submission to King William and Queen Mary, as successors of Charles the I. in the room of King James; besides, it is to be considered, that the people in the colony, as well as in England, had suffered under the tyrant James, by which, he had alike forfeited his right to reign over both. There had been a revolution here, as well as in England. The eyes of the people here, were upon William and Mary; and the news of their being proclaimed in England, was, as your Excellency's history tells us, "the most joyful news ever received in New England."11 And, if they were not proclaimed here, "by virtue of an act of the colony," it was, as we think may be concluded from the tenor of your history, with the general or universal consent of the people, as apparently, as if "such act had passed." It is consent alone, that makes any human laws binding; and as a learned author observes, a purely voluntary submission to an act, because it is highly in our favor and for our benefit, is in all equity and justice, to be deemed as not at all proceeding from the right we include in the Legislators, that they, thereby obtain an authority over us, and that ever hereafter, we must obey them of duty. We would observe, that one of the first acts of the General Assembly of this province, since the present charter, was an act, requiring the taking the oaths mentioned in an act of Parliament, to which you refer us. For what purpose was this act of the Assembly passed, if it was the sense of the Legislators that the act of Parliament was in force in the province? And, at the same time, another act was made for the establishment of other oaths necessary to be taken; both which acts have the royal sanction, and are now in force. Your Excellency says, that when the colony applied to King William for a second charter, they knew the oath the King had taken, which was to govern them according to the statutes in Parliament, and (which your Excellency here omits,) the laws and customs of the same. By the laws and customs of Parliament, the people of England freely debate and consent to such statutes as are made by themselves, or their chosen Representatives. This is a law, or custom, which all mankind may justly challenge as their inherent right. According to this law, the King has an undoubted right to govern us. Your Excellency, upon recollection, surely will not infer from hence, that it was the sense of our predecessors that there was to remain a supremacy in the English Parliament, or a full power and authority to make laws binding upon us, in all cases whatever, in that Parliament where we cannot debate and deliberate upon the necessity or expediency of any law, and, consequently, without our consent; and, as it may probably happen, destructive of the first law of society, the good of the whole. You tell us, that "after the assumption of all the powers of government, by virtue of the new charter, an act passed for the reviving, for a limited time, all the local laws of the Massachusetts Bay and New Plymouth respectively, not repugnant to the laws of England. And, at the same session, an act passed establishing naval officers, that all undue trading, contrary to an act of Parliament, may be prevented." Among the acts that were then revived, we may reasonably suppose, was that, whereby provision was made to give force to this act of Parliament, in the province. The establishment, therefore, of the naval officers, was to aid the execution of an act of Parliament, for the observance of which, within the colony, the Assembly had before made provision, after free debates, with their own consent, and by their own act.

The act of Parliament, passed in 1741,12 for putting an end to several unwarrantable schemes, mentioned by your Excellency, was designed for the general good; and, if the validity of it was not disputed, it cannot be urged as a concession of the supreme authority, to make laws binding on us in all cases whatever. But, if the design of it was for the general benefit of the province, it was, in one respect, at least greatly complained of, by the persons more immediately affected by it; and to remedy the inconvenience, the Legislative of this province, passed an act, directly militating with it; which is the strongest evidence, that although they may have submitted, sub silentio, to some acts of Parliament, that they conceived might operate for their benefit, they did not conceive themselves bound by any of its acts, which, they judged, would operate to the injury even of individuals.

Your Excellency has not thought proper, to attempt to confute the reasoning of a learned writer on the laws of nature and nations, quoted by us, on this occasion, to shew that the authority of the Legislature does not extend so far as the fundamentals of the constitution. We are unhappy in not having your remarks upon the reasoning of that great man; and, until it is confuted, we shall remain of the opinion, that the fundamentals of the constitution being excepted from the commission of the Legislators, none of the acts or doings of the General Assembly, however deliberate and solemn, could avail to change them, if the people have not, in very express terms, given them the power to do it; and, that much less ought their acts and doings, however numerous, which barely refer to acts of Parliament made expressly to relate to us, to be taken as an acknowledgment, that we are subject to the supreme authority of Parliament.

We shall sum up our own sentiments in the words of that learned writer, Mr. Hooker, in his Ecclesiastical Policy, as quoted by Mr. Locke. "The lawful power of making laws to command whole political societies of men, belonging so properly to the same entire societies, that for any prince or potentate of what kind soever, to exercise the same of himself, and not from express commission, immediately and personally received from God, is no better than mere tyranny. Laws, therefore, they are not, which public approbation hath not made so; for human laws, of what kind soever, are available by consent." "Since men, naturally, have no full and perfect power to command whole politic multitudes of men, therefore, utterly without our consent, we could in such sort, be at no man's commandment living. And to be commanded, we do not consent, when that society. whereof we be a party, hath at any time before consented." We think your Excellency has not proved, either that the colony is a part of the politic society of England, or that it has ever consented that the Parliament of England or Great Britain, should make laws binding upon us, in all cases, whether made expressly to refer to us or not.

We cannot help, before we conclude, expressing our great concern, that your Excellency has thus repeatedly, in a manner, insisted upon our free sentiments on matters of so delicate a nature and weighty importance. The question appears to us, to be no other, than, whether we are the subjects of absolute unlimited power, or of a free government, formed on the principles of the English constitution. If your Excellency's doctrine be true, the people of this province hold their lands of the Crown and people of England; and their lives, liberties, and properties, are at their disposal, and that, even by compact and their own consent. They were subject to the King as the head alterius populi of another people, in whose Legislative they have no voice or interest. They are, indeed, said to have a constitution and a Legislative of their own; but your Excellency has explained it into a mere phantom; limited, controled, superseded, and nullified, at the will of another. Is this the constitution which so charmed our ancestors, that, as your Excellency has informed us, they kept a day of solemn thanksgiving to Almighty God when they received it? And were they men of so little discernment, such children in understanding, as to please themselves with the imagination, that they were blessed with the same rights and liberties which natural born subjects in England enjoyed, when, at the same time, they had fully consented to be ruled and ordered by a Legislative, a thousand leagues distant from them, which cannot be supposed to be sufficiently acquainted with their circumstances, if concerned for their interest, and in which, they cannot be in any sense represented?

1 Hutchinson is the principal authority for the statement that this document, as well as that of January 26, 1773, was prepared by Adams. Cf., R. Frothingham, Life of Joseph Warren, p. 223. W. V. Wells, Life of Samuel Adams, vol. ii., p. 45. An instance of the later recognition of this claim is in Publications, Colonial Society of Massachusetts, vol. vi., p. 170. And see also above, pages 401, 430. 2 Massachusetts State Papers, p. 338. 3Ibid., pp. 368-381. February 16. 4 See above, page 430. 5 Rep. x. (16o8). Referred to as the leading case" on the subject as recently as 1897. United States v. Wong Kim Ark, 169 United States Reports, 649. 6 Jer. Dummer, A Defence of the New England Charters. London, 1721, p. 57 7 Ibid., pp. 58, 59. 8 Ibid., p. 59. 9 Jer. Dummer, A Defence of the New England Charters. London, 1721, pp. 59, 60. The quotation is abridged. 10 T. Hutchinson, History of the Province of Massachusetts Bay, vol. i., p. 319. 11 T. Hutchinson, History of the Province of Massachusetts Bay, vol. i., p. 387. 12 14 Geo. II., chap. 37.