We conceive

of the crown." We trust your excellency does | lands in America were discovered; but, as the peonot mean to introduce the feudal system in its ple of England, upon those principles, held all the perfection; which, to use the words of one of our lands they possessed, by grants from the king, greatest historians, was "a state of perpetual war, and the king had never granted the lands in Ameanarchy, and confusion, calculated solely for de- rica to them, it is certain they could have no sort fence against the assaults of any foreign power; of claim to them. Upon the principles advanced, but, in its provision for the interior order and the lordship and dominion, like that of the lands tranquility of society, extremely defective. A con- in England, was in the king solely, and a right from stitution, so contradictory to all the principles that thence accrued to him, of disposing such territories, govern mankind, could never be brought about, under such tenure, and for such services to be perbut by foreign conquest or native usurpation."-formed, as the king or lord thought proper. But And a very celebrated writer calls it, "that most how the grantees became subjects of England, that iniquitous and absurd form of government, by is, the supreme authority of the parliament, your which buman nature was so shamefully degraded." excellency has not explained to us This system of iniquity, by a strange kind of that, upon the feudal principles, all power is in the fatality, "though originally formed for an encamp-king; they afford us no idea of parliament. "The ment, and for military purposes only, spread over lord was in early times, the legislator and judge a great part of Europe;" and, to serve the pur- over all his feudatories," says judge Blackstone. poses of oppression and tyranny, "was adopted by By the struggle for liberty in England, from the princes, and wrought into their civil constitutions;❞ days of king John, to the last happy revolution, and, aided by the canon law, calculated by the the constitution has been gradually changing for Roman Pontiff to exalt himself above all that is the better; and, upon the more rational principles called God, it prevailed to the almost utter extinc. that all men, by nature, are in a state of equality tion of knowledge, virtue, religion and liberty from in respect of jurisdiction and dominion, power in that part of the earth. But, from the time of the England has been more equally divided. reformation, in proportion as knowledge, which thus, also, in America, though we hold our lands then darted its rays upon the benighted world, agreeably to the feudal principles of the king, yet increased and spread among the people, they our predecessors wisely took care to enter into grew impatient under this heavy yoke; and the compact with the king, that power here should most virtuous and sensible among them, to whose also be equally divided, agreeably to the original fundamental principles of the English constitution, steadfastness we, in this distant age and climate, are greatly indebted, were determined to get rid declared in Magna Charta, and other laws and statutes of England, made to confirm them. 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.

And

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 Upon these principles, the king claimed an the kings of England, to constitute a number of absolute right to, and a perfect estate in, all the new governments, altogether independent of the lands within bis dominions; but how he came by sovereign authority of the English empire." By this absolute right and perfect estate, is a mystery the feudal principles, upon which you say "all the which we have never seen unravelled, nor is it our grants which have been made of America are business or design, at present, to enquire. He founded, the constitutions of the emperor have granted parts or parcels of it to his friends, the the force of law." If our government be considered great men, and they granted lesser parcels to their as merely feudatory, we are subject to the king's tenants. All, therefore, derived their right and absolute will, and there is no authority of parliaheld their lands, upon these principles, mediately ment, as the sovereign authority of the British emor immediately of the king, which Mr. Blackstone, pire. Upon these principles, what could hinder however, calls, “in reality, a mere fiction of our the king's constituting a number of independent English tenures." governments in America? That king Charles the By what right, in nature and reason, the christian I. did actually set up a government in this colony, princes in Europe, claimed the lands of heathen conceding to it powers of making and executing people, upon a discovery made by any of their laws, without any reservation to the English parsubjects, is equally mysterious. Such, however, liament, of authority to make future laws binding was the doctrine universally prevailing, when the therein, is a fact which your excellency has not

disproved, if you have denied it. Nor have you vindicate its honor, and so is united by a sort of shewn that the parliament or nation objected to unequal confederacy; or, lastly, is erected into a it; from whence we have inferred that it was an separate commonwealth, and assumes the same acknowledged right. And we cannot conceive, rights with the state it descended from." And why the king has not the same right to alienate king Tullius, as quoted by the same learned author and dispose of countries acquired by the discovery from Grotius, says, "we look upon it to be neither of his subjects, as he has to "restore, upon a truth nor justice, that mother cities ought, of treaty of peace, countries which have been ac- necessity, and by the law of nature, to rule over quired in war," carried on at the charge of the the colonies." 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 Pany of his servants, allegiance remaineth among 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, re* course is to be had to custom; and custom being

Your excellency bas 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." We beg leave to recite the words of the judges of England, in the beforementioned case, to our purpose. "If a king go out of England with a com.

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 reainsufficient, we must recur to natural reason"-the son and natural equity. Your excellency thinks greatest of all authorities, which, he adds, "is the law of nations." The opinions, therefore, and Massachusetts-Bay is holden as feudatory of the you have made it appear, that the "colony of determinations of the greatest sages and judges imperial crown of England;" and, therefore, you of the law in the exchequer chamber, ought not say, "to use the words of a very great authority in to be considered as decisive or binding in our pre-a case, in some respects analogous to it," being sent controversy with your excellency, any further feudatory, it necessarily follows that "it is under than they are consonant to natural reason. If, how the government of the king's laws." Your excelever, we were to recur to such opinions and deter-lency has not named this authority; but we conminations, we should find very great authorities in ceive his meaning must be, that, being feudatory, our favor, to show that the statutes of England it is under the government of the king's laws are not binding on those who are not represented absolutely; for, as we have before said, the feudal in parliament there. The opinion of lord Coke, system admits of no idea of the authority of parthat Ireland was bound by statutes of England, liament; and this would have been the case of the wherein they were named, if compared with his colony, but for the compact with the king in the other writings, appears manifestly to be grounded charter. upon a supposition, that Ireland had, by an act of their own, in the reign of king John, consented to Your excellency says, that "persons thus holding be thus bound; and, upon any other supposition, under the crown of England, remain or become this opinion would be against reason; for consent subjects of England,” by which, we suppose your only gives human laws their force. We beg leave, excellency to mean, subject to the supreme auupon what your excellency has observed of the thority of parliament, "to all intents and purposes, colony becoming a part of the state, to subjoin the as fully as if any of the royal manors, &c. within opinions of several learned civilians, as quoted by the realm, had been granted to them upon the a very able lawyer in this country. "Colonies," like tenure." We apprehend, with submission, says Puffendorf, "are settled in different methods; your excellency is mistaken in supposing that our for, either the colony continues a part of the com. allegiance is due to the crown of England. Every monwealth it was set out from, or else is obliged man swears allegiance for himself, to his own king, to pay a dutiful regard to the mother common-in his natural person. "Every subject is presumed wealth, and to be in readiness to defend and by law to be sworn to the king, which is to his

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.

natural person," says lord Coke-Rep. on Calvin's is not to be taxed in the other, because laws ordain case. "The allegiance is due to his natural body;" taxes, impositions, and charges, as a discipline of and, he says, “in the reign of Edward II. the subjection, particularized to every particular naSpencers, the father and the son, to cover the tion." Nothing, we think, can be more clear to treason hatched in their hearts, invented this our purpose than this decision of judges, perhaps damnable and damned opinion, that homage and as learned as ever adorned the English nation, or oath of allegiance was more by reason of the king's in favor of America, in her present controversy with crown, that is, of his politic capacity, than by rea- the mother state. son of the person of the king; upon which opinion they inferred execrable and detestable conse. quen.s." 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 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 Eng land, &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 Eng. land." 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 king. doms, 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 Your excellency has been pleased to confirm, to have the benefit of the laws, wheresoever he rather than deny or confute, a piece of history, cometh." So they are not to be deemed aliens, which, you say, we took from an anonymous pam. as your excellency in your speech supposes, in phlet, and by which you "fear we have been too any of the dominions, all which accords with the easily misled." It may be gathered from your principles our ancestors held. "And he is to bear own declaration, and other authorities, besides the the burden of taxes of the place where he cometh, anonymous pamphlet, that the house of commons but living in one, or for his livelihood in one, he took exception, not at the king's having made an

absolute grant of the territory, but at the claim may be said to be repugnant to a law made in of an exclusive right to the fishery on the banks Great Britain, when it flatly contradicts it, so far. and sea coast, by virtue of the patent. At this as the law made there mentions and relates to you say "the house of commons was alarmed, and the plantations." This is plain and obvious to com. a bill was brought in for allowing a free fishery." mon sense, and, therefore, cannot be denied. But, And, upon this occasion, your excellency allows if your excellency would read a page or two furthat "one of the secretaries of state declared, that ther, in that excellent defence, you will see that the plantations were not annexed to the crown, he mentions this as the sense of the phrase, as and so were not within the jurisdiction of parlia- taken from an act of parliament, rather than as ment." If we should concede to what your excel- the sense he would choose himself to put upon it; lency supposes might possibly, or, "perhaps," be and he expressly designs to show, in vindication of the case, that the secretary made this declaration the charter, that, in that sense of the words, there "as his own opinion," the event showed that it never was a law made in the plantations repugnant was the opinion of the king too; for it is not to be to the laws of Great Britain. He gives another accounted for upon any other principle, that he construction, much more likely to be the true intent would have denied his royal assent to a bill, formed of the words, namely, "that the patentees shall not for no other purpose, but to grant his subjects presume, under color of their particular charters, in England the privilege of fishing on the sea to make any laws inconsistent with the great charcoasts in America. The account published by sir ter, and other laws of England, by which the lives, Ferdinando Gorges himself, of the proceedings of liberties, and properties of Englishmen are secur parliament on this occasion, your excellency thinks ed." This is the sense in which our ancestors will remove all doubt of the sense of the nation, understood the words; and, therefore, they are and of the patentees of this patent or charter, in unwilling to conform to the acts of trade, and 1620. "This narrative," you say, "has all the ap- disregarded them till they made provision to give pearance of truth and sincerity," which we do not them force in the colony, by a law of their own; deny; and, to us, it carries this conviction with it, saying, that "the laws of England did not reach that "what was objected" in parliament, was the America; and those acts were an invasion of their exclusive claim of fishing only. His imagining that rights, liberties, and properties," because they he had satisfied the house, after divers attendances, were not "represented in parliament." The right that the planting a colony was of much more con- of being governed by laws, which were made by sequence than a simple disorderly course of fish. persons in whose election they had a voice, they ing, is sufficient for our conviction. We know looked upon as the foundation of English liberties. that the nation was at that time alarmed with By the compact with the king, in the charter, they apprehensions of monopolies; and, if the patent of were to be as free in America as they would have New England was presented by the two houses as been if they had remained within the realm; and, a grievance, it did not show, as your excellency therefore, they freely asserted that they "were to supposes, "the sense they then had of their au. be governed by laws made by themselves, and by thority over this new acquired territory," but only their sense of the grievance of a monopoly of the

sea.

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 We are happy to hear your excellency say, that subjects, that they might not be oppressed by "our remarks upon, and construction of the words, arbitrary power; but, being still subjects, they not repugnant to the laws of England, are much should be protected by the same mild laws, and the same with those of the council." It serves to enjoy the same happy government, as if they con. confirm us in our opinion, in what we take to be tinued within the realm." And, considering the the most important matter of difference between words of the charter in this light, he looks upon your excellency and the two houses: After saying, them as designed to be a fence against oppression that the statute of 7th and 8th of William and and despotic power. But the construction which Mary favors the construction of the words, as your excellency puts upon the words, reduces us intending such laws of England as are made more to a state of vassalage, and exposes us to oppres immediately to respect us, you tell us, that "the sion and despotic power, whenever a parliament province agent, Mr. Dummer, in his much applaud-shall see fit to make laws for that purpose, and put ed defence, says that then a law of the plantations them in execution.

We flatter ourselves that, from the large extracts plicitly," that is, than by a conversation with the we have made from your excellency's history of commissioners, "acknowledged the authority of the colony, it appears evidently that, under both parliament, and voted that their governor should charters, it hath been the sense of the people and take the oath required of him, faithfully to do and of the government, that they were not under the perform all matters and things enjoined him by jurisdiction of parliament. We pray you again to the acts of trade." But does this, may it please turn to those quotations, and our observations up. your excellency, show their explicit acknowledg on them; and we wish to have your excellency's ment of the authority of parliament? Does it not judicious remarks. When we adduced that his- rather show directly the contrary? For, what tory, to prove that the sentiments of private per- could there be for their vote, or authority, to resons of influence, four or five years after the quire him to take the oath already required of restoration, were very different from what your him by the act of parliament, unless both he and excellency apprehended them to be, when you they, judged that an act of parliament was not of delivered your speech, you seem to concede to it, force sufficient to bind him to take such oath?by telling us, "it was, as you take it, from the prin- We do not deny, but, on the contrary, are fully ciples imbibed in those times of anarchy, (preced-persuaded, that your excellency's principles in going the restoration,) that they disputed the au-vernments are still of the same with what they ap. thority of parliament;" but, you add, "the govern-pear to be in the history; for you there say, that ment would not venture to dispute it." We find, "the passing this law, plainly shows the wrong in the same history, a quotation from a letter of sense they had of the relation they stood unto Eng. Mr. Stoughton, dated seventeen years after the land." But we are from hence convinced, that restoration, mentioning "the country's not taking your excellency, when you wrote the history, was notice of the acts of navigation, to observe them." of our mind in this respect, that our ancestors, in And it was, as we take it, after that time that the passing the law, discovered their opinion, that they government declared, in a letter to their agents, were without the jurisdiction of parliament; for it that they had not submitted to them; and they was upon this principle alone, they shewed the ventured to "dispute" the jurisdiction, asserting wrong sense they had, in your excellency's opinion, that they apprehended the acts to be an invasion of the relation they stood unto England. of the rights, liberties, and properties of the sub. jects of his majesty in the colony, they not being scends to point out to us the acts and doings of Your excellency, in your second speech, conderepresented in parliament, and that "the laws of the general assembly, which relates to acts of parEngland did not reach America." It very little avails in proof, that they conceded to the supreme have been acknowledged by the assembly, or subliament, which, you think, "demonstrates that they authority of parliament, their telling the commis-mitted to by the people," neither of which, in our sioners, "that the act of navigation had for some opinion, shows that it was the sense of the nation, years before been observed here; that they knew and our predecessors, when they first took possesnot of its being greatly violated; and that such sion of this plantation, or colony, by a grant and laws as appeared to be against it, were repealed." charter from the crown, that they were to remain It may as truly be said now, that the revenue acts are observed by some of the people of this prosubject to the supreme authority of the English parliament. vince; but it cannot be said that the government and people of this province have conceded that Your excellency seems chiefly to rely upon our the parliament had authority to make such acts ancestors, after the revolution, "proclaiming king to be observed here. Neither does their declara-William and queen Mary, in the room of king tion to the commissioners, that such laws as ap James," and taking the oaths to them, "the alterapeared to be against the act of navigation, were tion of the form of oaths, from time to time," and repealed, prove their concession of the authority of finally, "the establishment of the form, which parliament, by any means, so much as their making every one of us has complied with, as the charter, provision for giving force to an act of parliament in express terms, requires and makes our duty." within this province, by a deliberate and solemn We do not know that it has ever been a point in act or law of their own, proves the contrary.

dispute, whether the kings of England were ipso facto kings in, and over, this colony, or province.

You tell us, that "the government, four or five The compact was made between king Charles years before the charter was vacated, more ex. the I. his heirs and sucessors, and the governog