The Writings of Samuel Adams, volume II (1770 1773)

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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.

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.

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