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.