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of the crown." We trust your excellency does | lands in America were discovered; but, as the peo. not mean to introduce the feudal system in its ple of England, upon those principles, held all the perfection; which, to nse 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, hut, 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 per. but 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 We conceive This system of iniquity, by a strange kind of that, upon the feudal principles, all power is in the falality, "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 liberiy 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. And reformation, in proportion as knowledge, which chus, also, in America, though we hold our lands then darted its rays upon the benighted worla, 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 steadfastness we, in this distant age and climate, funda:sental principles of the English constitution, are greatly indebted, were determined to get rid declared in Magna Charta, and other laws and of it; and, though they have in a great measure statutes of England, made to confirm them. subdued its power and influence in England, they

Your excellency says, "you can by no means have never yet totally eradicated its principles. 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 this absolute right and perfect estate, is a mystery the feudal principles, upon which you say "all the

sovereign authority of the English empire." By 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 parliabeld their lands, upon these principles, mediately

ment, as the sovereign authority of the British em. or immediately of the king, which Mr. Blackstone, pire. Upon these principles, what could binder 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 wbich your excellency has got

disproved, if you have denied it. Nor hayė you , vindicate its honor, and so is united by a sort of shown 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 bas to "restore, upon a truth nor justice, that mother cities ougbt, of treaty of peace, countries which bave 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

Your excellency bas misinterpreted what we dominions to a foreign prince or state, against the

have said, "that no country, by the common law, general sense of the nation;" which is "an act of

was subject to the laws or the parliament, but the power,” or prerogative, which your excellency allows. You tell us, that “when any new counuies realm of England;” and are pleased to tell us,

“that we have expressed ourselves incautiously." are discovered by English subjects, according to

We beg leave to recite the words of the judges the general law and usage of nations, they become

of England, in the beforemen:ioned case, to our part of the state.” The law of nations is, or ought to be, founded on the law of reason.

purpose. "If a king go out of England with a com.

It was the saying of sir Edwin Sandis, in the great case of the pany of his servants, allegiance remaineth among

his subjects and servants, although he be out of union of the realm of Scotland with England, which

his realm, whereto bis laws are confined.” We is applicable to our present purpose, that "there

did not mean to say, as your excellency would sup. being no precedent for this case in the law, the law is deficient; and the law being deficient, re. the extent of the legislative power," though we

pose, that "the common law prescribes limits to course is to be bad to custom; and custom being 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 1.

you have made it appear, that the "colony of law of nations." The opinions, therefore, and

Massachusetts-Bay is holden as feudatory of the 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. La 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 lawe.” Your excel. ever, we were to recur to such opinions and deter

lency has not named this authority; but we con. Ininations, 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 thas 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 au. upon what your excellency has observed of the thority of parliament, "to all intenis 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 he 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

37.

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“to prove

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natural person,” says lord Coke-Rep. on Calvin's is not to be taxed in the other, because laws ordaia
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 11. the subjection, particularized to every particular na-
Spencers, 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.

Your excellency says that, by "our not disquenis." The judges of England, all but one, in tinguishing between the crown of England and the case of the union between Scotland and Eng

the kings and queens of England, in their personal land, declared that "allegiance followeth the na. or natural capacities, we have been led into a tural person, not the politic;" and,

fundamental error." Upon this very distinction

the allegiance to be tied to the body natural of the we have availed ourselves. We have said, that king, and not to the body politic, the lord Coke

our ancestors considered the land, which they cited the phrases of divers statutes, mentioning

took possession of in America, as out of the bounds our natural liege sovereign." If, then, the homage

of the kingdom of England, and out of the reach and allegiance is not to the body politic of the and extent of the laws of England; and that the king, then it is not to bim as the head, or any part

king also, even in the act of granting the charter, of that legislative authority, which your excellency that the king liad an absolute right in himself to

considered the territory as not within the realm; says “is equally extensive with the authority of the crown throughout every part of the dominion;", dispose of the lands, and that this was not disputed and your excellency's observations thereupon must

by the nation; nor could the lands, on any solid fail. The same judges mention the allegiance of

grounds, be claimed by the nation; and, therefore, subject to the kings of England, who is out of

our ancestors received the lands, by grant, from the reach and extent of the laws of England, which the king; and, at the same time, compacted with is perfectly reconcileable with the principles of

him, and promised him homage and allegiance, not our ancestors, quoted before from your excellency's

in his public or politic, but natural capacity only. history, but, upon your excellency's principles, ap

If it be difficult for us to show how the king acpears to us to be absurdity. The judges, speaking

quired a title to this country in his natural capacity, of a subject, say, "although his birth was out of

or separate from his relation to his subjects, which the bounds of the kingdom of England, and out of

we confess, yet we conceive it will be equally the reach and extent of the laws of England, yet,

difficult for your excellency to show how the body if it were within the allegiance of the king of Eng.

politic and nation of England acquired it. Our land, &c. Normandy, Aquitain, Gascoign, and other

ancestors supposed it was acquired by neither; places, within the limits of France, and, conse

and, therefore, they declared, as we have before quently, out of the realm or bounds of the kingdom

quoted from your history, tbat, saving their actual of England, were in subjection to the kings of Eng.

purchase from the natives of the soil, the dominion, land.” And the judges say, "Her et Regnum, be

the lordship, and sovereignty, they had, in the sight not so relatives, as a king can be king but of one

of God and man, no right and title to what they kingdom, which clearly holdeth not, but that his possessed. How much clearer then, in natural rea. kingly power extending to divers nations and king

son and equity, must our title be, who hold estates doms, all owe bim equal subjection, and are equally

dearly purchased at the expense of our own, as well born to the benefit of his protection; and although

as our ancestors labor, and defended by them with be is to govern them by their distinct laws, yet

treasure and blood. any one of the people coming into the other, is to have the benefit of the laws, wheresoever be rather than deny or confute, a piece of history,

Your excellency has been pleased to confirm, cometh.” So they are not to be deemed aliens, which, you say, we took from an anonymous pamas your excellency 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 bis livelihood in one, be took exception, not at the king's having made en

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 it your excellency would read a page or two fur. that "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 be 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 "2s 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 bis 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 char. coasts 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 tbat 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. tbat 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 bave 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 officers chosen by themselves.” Mr. Dummer says, their sense of the grievance of a monopoly of the "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 o 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 "thesion 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.

sea.

We flatter ourselves that, from the large extractsplicitly,” that is, than by a conversation with the we bave 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 bath 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 upynur 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 bis- 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, vas 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 bad, 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.

Your excellency, in your second speech, conde. jects of his majesty in the colony, they not being scends to point out to us the acts and doings of represented in parliament, and that "the laws of the general assembly, which relates to acts of par. England did not reach America.” It very little liament, which, you think, “demonstrates that they avails in proof, that they conceded to the supreme bave been acknowledged by the asserably, or subauthority 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 bere; that they knew

and our predecessors, when they first took posses. not 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

subject to the supreme authority of the English are observed by some of the people of this pro. vince; but it cannot be said that the government

parliament. 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 parliamentin 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, wbether the kings of England were ipso

facto kings in, and qver, 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 beira and sucessors, and the governor

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