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." 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 have 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 favorably on the behalf and for the benefit and behoof of the said Governor and Company, and their successors - any matter, cause or thing, whatsover, 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 governing 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 dominion to another, loses its authority over that part to which they removed; 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 emigrations 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 without 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 bylaws, &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 resident 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, inquire 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 preceded the restoration of King Charles the II. we beg leave to remind your Excellency of some parts of your own history of Massachusetts Bay. 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. "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." 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 II. 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 of 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."3 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 have no other force, than what they derived from acts made by the General Court, to establish and confirm them."
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.4 Therein5 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 privilegčs, 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 humor, 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 is claimed and daily practised."6 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 acts 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, 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."7 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,8 "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, assessed, imposed, 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 constitution. 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.