more immediately respects us, and of that we have were soliciting the parliament to grant the duties the most authentic remains. of tonnage and poundage, with other aids, and were, in this way, acknowledging the rights of parliament, at the same time were requiring the Payment of those duties, with ship money, &c. by virtue of their prerogative? By this charter, upon the petition of sir Ferdinando Gorges, a corporation was constituted, to be, and continue by succession, forever in the town of Plymouth aforesaid, to which corporation, that But to remove all doubts of the sense of the napart of the American continent, which lies between 40 and 48 degrees of latitude, was granted, tion, and of the patentees of this patent, or charto be held of the king, his heirs and successors, ter, in 1620, I need only refer you to the account as of the manor of East Greenwich, with powers published by sir Ferdinando Gorges himself, of the to constitute subordinate governments in Ame-proceedings in parliament upon this occasion. As rica, and to make laws for such governments, not he was the most active member of the council of repugnant to the laws and statutes of England. Plymouth, and, as he relates what came within From this corporation, your predecessors obtained his own knowledge and observation, his narrative, a grant of the soil of the colony of Massachusetts- which has all the appearance of truth and sincerity, Bay, in 1627, and in 1628, they obtained a charter must carry conviction with it. He says, that soon from king Charles the I. making them a distinct after the patent was passed, and whilst it lay in corporation, also within the realm, and giving the crown office, he was summoned to appear in them full powers within limits of their patent, very parliament, to answer what was to be objected like to those of the council of Plymouth, through. out their more extensive territory. against it; and the house being in a committee, and sir Edward Coke, that great oracle of the law, in the chair, he was called to the bar, and was told We will now consider what must have been the by sir Edward, that the house understood that a sense of the king, of the nation, and of the patentees, at the time of granting these patents. From the patent had been granted to the said Ferdinando, and divers other noble persons, for establishing a year 1602, the banks and sea coasts of New Eng. land had been frequented by English subjects, for colony in New England, that this was deemed a grievance of the commonwealth, contrary to the catching and drying cod-fish. When an exclusive laws, and to the privileges of the subject, that it right to the fishery was claimed, by virtue of the was a monopoly, &c. and he required the delivery patent of 1620, the house of commons was alarmed, of the patent into the house. Sir Ferdinando and a bill was brought in for allowing a free fishery; and it was upon this occasion, that one of the Gorges made no doubt of the authority of the house, but submitted to their disposal of the secretaries of state declared, perhaps as his own opinion, that the plantations were not annexed to patent, as, in their wisdom, they thought good; "not knowing, under favor, how any action of that the crown, and so were not within the jurisdiction kind could be a grievance to the public, seeing it of parliament. Sir Edwin Sandys, who was one of was undertaken for the advancement of religion, the Virginia company, and an eminent lawyer, the enlargement of the bounds of our nation, &c. declared, that he knew Virginia had been annexed, He was willing, however, to submit the whole to and was held of the crown, as of the manor of East the honorable censures." After divers atten Greenwich, and he believed New England was so also; and so it most certainly was. This declara. dances, heimagined he had satisfied the house, that the planting a colony was of much more conse tion, made by one of the king's servants, you say, shewed the sense of the crown, and, being not quence, than a simple disorderly course of fishing. He was, notwithstanding, disapointed; and, when secretly, but openly declared in parliament, you would make it the sense of the nation also, notwith the public grievances of the kingdom were prestanding your own assertion, that the lords and sented by the two houses, that of the patent for New England was the first. I do not know how commons passed a bill, that shewed their sense to the parliament could have shewn more fully the be directly the contrary. But if there had been sense they then had of their authority over this full evidence of express declarations made by king James the I. and king Charles the I. they were new acquired territory; nor can we expect better declarations contrary to their own grants, which evidence of the sense which the patentees had of declare this country to be held of the crown, and it, for I know of no historical fact, of which we have less reason to doubt. consequently, it must have been annexed to it. And may not such declarations be accounted for And now, gentlemen, I will shew you how it sp by other actions of those princes, who, when they pears from our charter itself, which you say I have not yet been pleased to point out to you, except jorder sent unto them, under the hand of the clerk from that clause, which restrains us from making of the honorable house of commons, shall be enter. laws repugnant to the laws of England; that it was ed among their public records, to remain there the sense of our predecessors, at the time when unto posterity. And, in an address to parliament, the charter was granted, that they were to remain nine years after, they acknowledge, among other subject to the supreme authority of parliament. undeserved favors, that of taking off the customs from them. one idea, and they have one and the same significa. tion in the different languages from whence they are derived. I do not charge you with any design; but the equivocal use of the word realm, in several parts of you answer, makes them perplexed and obscure. Sometimes you must intend the whole dominion, which is subject to the authority of par. Besides this clause, which I shall have occasion I am at a loss to know what your ideas could further to remark upon before I finish, you will And that, by the charter, a grant was made of be, when you say that, if the plantations are not exemption from all taxes and impositions upon part of the realm, they are not part of the kingany goods imported into New England, or exported dom, seeing the two words can properly convey but from thence into England, for the space of twenty. one years, except the custom of five per cent. upon such goods as, after the expiration of seven years, should be brought into England. Nothing can be more plain, than that the charter, as well as the patent to the council of Plymouth, constitutes a corporation in England, with powers to create a subordinate government or governments within liament; sometimes only strictly the territorial the plantation, so that there would always be sub-realm to which other dominions are, or may be jects of taxes and impositions both in the king. dom and in the plantation. An exemption for twenty-one years, implies a right of imposition after the expiration of the term, and there is no distinction between the kingdom and the plantation. By what authority then, in the understanding of the parties, were those impositions to be laid? If any, to support a system, should say by the king, rather than to acknowledge the authority of parliament, yet this could not be the sense of one of our principal patentees, Mr. Samuel Vassal, who, at that instant, 1628, the date of the charter, was suffering the loss of his goods, rather than submit to an imposition laid by the king, without the authority of parliament; and to prove that, a few years after, it could not be the sense of the rest, I need only to refer you to your own records for the year 1642, where you will find an order of the house of commons, conceived in such terms as discover a plain reference to this part of the charter, after fourteen years of the twenty-one were expired. By this order, the house of commons declare, that all goods and merchandise exported to New England, or imported from thence, shall be free from all taxes and impositions, both in the kingdom and New England, until the house shall take further order therein to the contrary. The sense which our predecessors had of the bene- Thus, I think, I have made it appear that the fit which they took from this order, evidently ap- plantations, though not strictly within the realm, pears from the vote of the general court, acknow-bave, from the beginning, been constitutionally ledging their humble thankfulness, and preserv- subject to the supreme authority of the re-im, ing a grateful remembrance of the honorable re-and are so far annexed to it, as to be, with the spect from that bigh court, and resolving, that the realm and the other dependencies upon it, one annexed. If you mean that no countries, but the ancient territorial realm, can, constitutionally, be subject to the supreme authority of England, which you have very incautiously said is a rule of the common law of England-this is a doctrine which you will never be able to support. That the common law should be controled and changed that the common law prescribes limits to the by statutes, every day's experience teaches; but extent of the legislative power, I believe has never been said upon any other occasion. That acts of parliaments, for several hundred years past, have respected countries, which are not strictly within the realm, you might easily have discovered by the statute books. You will find acts for regulating the affairs of Ireland, though a separate and distinct kingdom. Wales and Calais, whilst they sent no representatives to parliament, were subject to the like regulations; so are Guernsey, Jersey, Alderney, &c. which send no members to this day. These countries are not more properly a part of the ancient realm, than the plantations, nor do I know they can more property be said to be annexed to the realm, unless the declaring that acts of parliament shall extend to Wales, though not particularly named, shall make it so, which I conceive it does not, in the sense you intend. entire dominion; and that the plantation, or colony a subordinate legislature immediately, or in perof Massachusetts-Bay in particular, is holden as son, than when he does it mediately by his gover feudatory of the imperial crown of England. Deem nor or substitute; but if it could be admitted, that it to be no part of the realm, it is immaterial; for, such an assent discovered the king's judgment to use the words of a very great authority in a that Virginia was independent, would you lay any case, in some respects analogous, "being feudatory, stress upon it, when the same king was, from time the conclusion necessarily follows, that it is under to time, giving his assent to acts of parliament, the government of the king's laws and the kings's which inferred the dependence of all the colonies, courts, in cases proper for them to interpose, though and had, by one of those acts, declared the planta. (like counties Palatine) it has peculiar laws and tions to be inhabited and peopled by his majesty's customs, jura regalia, and complete jurisdiction at subjects of England? home." I gave you no reason to remark upon the absurdity Your remark upon, and construction of the words, of a grant, to persons not born within the realm, of not repugnant to the laws of England, are much the same liberties which would have belonged to the same with those of the council; but, can any them, if they had been born within the realm; but reason be assigned why the laws of England, as rather guarded against it, by considering such grant they stood just at that period, should be pitched as declaratory only, and in the nature of an assur upon as the standard, more than at any other ance, that the plantations would be considered as period? If so, why was it not recurred to when the the dominions of England. But is there no absurdity second charter was granted, more than sixty years in a grant from the king of England, of the liberafter the first? It is not improbable, that the ties and immunities of Englishmen to persons born original intention might be a repugnancy in gene- in, and who are to inhabit other territories than ral, and a fortiori, such laws as were made more the dominions of England; and would such grant, immediately to respect us, but the statute of 7th whether by charter, or other letters patent, be and 8th of king William and queen Mary, soon sufficient to make them inheritable, or to entitle after the second charter, favors the latter construc- them to the other liberties and immunities of Eng tion only; and the province agent, Mr. Dummer, in lishmen, in any part of the English dominions? his much applauded defence of the charter, says, that, then, a law in the plantations may be said to As I am willing to rest the point between us, be repugnant to a law made in Great Britain, when upon the plantations having been, from their first it flatly contradicts it, so far as the law made discovery and settlement under the crown, a part there mentions and relates to the plantations. But, of the dominions of England, I shall not take up gentlemen, there is another clause, both in the any time in remarking upon your arguments, to first and second charter, which, I think, will serve show that, since that time, they cannot have been to explain this, or to render all dispute upon the made a part of those dominions. construction of it unnecessary. You are enabled to impose such oaths only, as are warrantable by, or not repugnant to the laws and statutes of the realm. I believe you will not contend, that these clauses must mean such oaths only, as were warrant. able at the respective times when the charters were granted. It has often been found necessary, since the date of the charters, to alter the forms of oaths to the government by acts of parliament, and such alterations have always been conformed to in the plantations. The remaining parts of your answer, are princi. Pally intended to prove that, under both charters, it hath been the sense of the people, that they were not subject to the jurisdiction of parliament, and, for this purpose, you have made large extracts from the bistory of the colony. Whilst you are doing honor to the book, by laying any stress upon its authority, it would have been no more than justice to the author, if you had cited some other passages, which would have tended to reconcile the passage in my speech to the history. I have Lest you should think that I admit the authority said that, except about the time of the anarchy, of king Charles the II. in giving his assent to an which preceded the restoration of king Charles act of the assembly of Virginia, which you subjoin the II. I have not discovered that the authority of to the authorities of James the I. and Charles the parliament had been called in question, even by I, to have any weight, I must observe to you, that particular persons. It was, as I take it, from the I do not see any greater inconsistency with Magna principles imbibed in those times of anarchy, that Charta, in the king's giving his assent to an act of the persons of influence, mentioned in the history, disputed the authority of parliament, but the go- governors, by the act of the 12th of king Charles vernment would not venture to dispute it. On the the II. until the time which I have mentioned.contrary, in four or five years after the restora- Upon the revolution, the force of an act of parlia, tion, the government declared to the king's comment was evident, in a case of as great importance missioners, that the act of navigation had been for as any which could happen to the colony. King some years observed here, that they knew not of William and queen Mary were proclaimed in the its being greatly violated, and that such laws as colony, king and queen of England, France, and appeared to be against it, were repealed. It is Ireland, and the dominions thereunto belonging, not strange, that these persons of influence should in the room of king James; and this, not by virtue prevail upon a great part of the people to fall in, of an act of the colony, for no such act ever passed, for a time, with their opinions, and to suppose but by force of an act of parliament, which altered acts of the colony necessary to give force to acts the succession to the crown, and for which the of parliament. The government, however, several people waited several weeks, with anxious concern. years before the charter was vacated, more ex- By force of another act of parliament, and that plicitly acknowledged the authority of parliament, only, such officers of the colony as had taken the 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. I have not recited in my speech, all these particulars, nor had I them all in my mind; but, I think, I have said nothing inconsistent with them. My principles in government, are still the same with what they appear to be in the book you refer to; nor am I conscious that, by any part of my conduct, I have given cause to suggest the contrary. Inasmuch, as you say that I have not particularly pointed out to you the acts and doings of the general assembly, which relate to acts of parliament, I will do it now, and demonstrate to you that such acts have been acknowledged by the assembly, or submitted to by the people. From your predecessors' removal to America, until the year 1640, there was no session of parliament; and the first short session, of a few days only, in 1640, and the whole of the next session, until the withdraw of the king, being taken up in the disputes between the king and the parliament, there could be no room for plantation affairs. Soon after the king's withdraw, the house of commons passed the memorable order of 1642; and, from that time to the restoration, this plantation seems to have been distinguished from the rest; and the several acts and ordinances, which respected the other plantations, were never enforced here; and, possibly, under color of the exemption, in 1642, it might not be intended they should be executed. For fifteen or sixteen years after the restoration, there was no officer of the customs in the colony, except the governor, annually elected by the people, and the acts of trade were but little regarded; nor did the governor take the oath required of oaths of allegiance to king James, deemed themselves at liberty to take, and accordingly did take, the oaths to king William and queen Mary. And that I may mention other acts of the like nature together, it is by force of an act of parliament, that the illustrious house of Hanover succeeded to the throne of Britain and its dominions, and by several other acts, the forms of the oaths have, from time to time, been altered; and, by a late act, that form was established which every one of us has com plied with, as the charter, in express words, requires, and makes our duty. Shall we now dispute whether acts of parliament have been submitted to, when we find them submitted to, in points which are of the very essence of our constitution? If you should disown that authority, which has power even to change the succession to the crown, are you in no danger of denying the authority of our most gracious sovereign, which I am sure none of you can have in your thoughts? I think I have before shewn you, gentlemen, what must have been the sense of our predecessors. at the time of the first charter; let us now, whilst we are upon the acts and doings of the assembly, consider what it must have been at the time of the second charter. Upon the first advice of the revolution in England, the authority which assumed the government, instructed their agents to petition parliament to restore the first charter, and a bill for that purpose passed the house of commons, but went no further. Was not this owning the authority of parliament? By an act of parliament, passed in the first year of king William and queen Mary, a form of oaths was established, to be taken by those princes, and by all succeeding kings and queens of England, at their coronation; the first of which is, that they will govern the people of the kingdom, and the dominions thereunto belonging, according to the statutes in parliament agreed on, and the laws and customs of the same. When in the administration six months from the demise the colony directed their agents to make their of queen Anne, and immediately after, the council humble application to king William, to grant the assumed the administration, and continued it until second charter, they could have no other pretence, a proclamation arrived from king George, by virtue than, as they were inhabitants of part of the of which governor Dudley reassumed the govern dominions of England; and they also knew the ment. It would be tedious to enumerate the oath the king had taken, to govern them according addresses, votes and messages, of both the counto the statutes in parliament. Surely, then, at cil and house of representatives, to the saine pur. the time of this charter, also, it was the sense of pose. I have said enough to shew that this goour predecessors, as well as of the king and of vernment has submitted to parliament, from a conthe nation, that there was, and would remain, a viction of its constitutional supremacy, and this not supremacy in the parliament. About the same from inconsideration, nor merely from reluctance time, they acknowledge, in an address to the king, at the idea of contending with the parent state. that they have no power to make laws repugnant to the laws of England. And, immediately after If, then, I have made it appear that, both by the the assumption of the powers of government, by first and second charters, we hold our lands, and virtue of the new charter, an act was passed to the authority of government, not of the king, but revive, for a limited time, all the local laws of the of the crown of England, that being a dominion of colonies of Massachusetts-Bay and New Plymouth, the crown of England, we are consequently subrespectively, not repugnant to the laws of Eng-ject to the supreme authority of England. That fand. And, at the same session, an act passed, this hath been the sense of this plantation, except establishing naval officers, in several ports of the in those few years when the principles of anarchy, province, for which, this reason is given; that all which had prevailed in the kingdom, had not lost undue trading, contrary to an act of parliament, their influence here; and if, upon a review of your made in the 15th year of king Charles the II. may principles, they shall appear to you to have been be prevented in this, their majesty's province. delusive and erroneous, as I think they must, or, The act of this province, passed so long ago as the if you shall only be in doubt of them, you certainly second year of king George the I. for stating the will not draw that conclusion, which otherwise fees of the custom house officers, must have rela. you might do, and which I am glad you have tion to the acts of parliament, by which they are hitherto avoided; especially when you consider the constituted; and the provision made in that act obvious and inevitable distress and misery of indeof the province, for extending the port of Boston pendence upon our mother country, if such inde. to all the roads, as far as Cape Cod, could be for pendence could be allowed or maintained, and the no other purpose, than for the more effectual probability of much greater distress, which we are not able to foresee. carrying the acts of trade into execution. And, to come nearer to the present time, when an act of parliament had passed, in 1771, for putting an end to certain unwarrantable schemes, in this pro- that of the colonies of France, Spain, or Holland. vince, did the authority of government, or those I may safely affirm that we have not; that we have persons more immediately affected by it, ever disno reason to fear any evils from a submission to pute the validity of it? On the contrary, have not the authority of parliament, equal to what we must a number of acts been passed in the province, the feel from its authority being disputed, from an burdens to which such persons were subjected, uncertain rule of law and government. For more might be equally apportioned; and have not all than seventy years together, the supremacy of those acts of the province been very carefully parliament was acknowledged, without complaints framed, to prevent their militating with the act of grievance. The effect of every measure cannot of parliament? I will mention, also, an act of par- be foreseen by human wisdom. liament, made in the first year of queen Anne, expected more, from any authority, than, when although the proceedings upon it more imme- the unfitness of a measure is discovered, to make diately respected the council. By this act, no it void? When, upon the united representations office, civil or military, shall be void, by the death and complaints of the American colonies, any acts of the king, but shall continue six months, unless have appeared to parliament to be unsalutary, suspended, or made void, by the next successor. have there not been repeated instances of the By force of this act, governor Dudley continued repeal of such acts? We cannot expect these in You ask me, if we have not reason to fear we shall soon be reduced to a worse situation than What can be |