USA > Massachusetts > History of Massachusetts from 1764, to July 1775; when general Washington took command of the American Army. V. 1 > Part 17
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There had been, about this time, some hope, as before observed, that ministers would change their policy in governing America ; and that a spirit more conciliatory and just was prevailing in England towards the colonies. But after various plans and
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struggles in the administration, those of more arbi- trary principles became the dominant party; and the celebrated Lord NORTH succeeded the Duke of - GRAFTON as Prime Minister. The duties on some articles imported into the province were proposed to be discontinued ; but the article of tea was still sub- ject to the tax as formerly ; and no order was given for removing the troops. In the month of April, the merchants of Boston, some of whom, in the expectation of a change of ministerial measures, had given orders for goods to be sent them from England, adopted the patriotic resolution to send them back, to prove their resolute purpose of doing every thing in their power for their country, and their ability to manufacture whatever was necessary for' their sup- port. One of their number, a gentleman of opulence,* generously provided a ship for the purpose; and a full cargo was returned to Great Britain.
When the Representatives of Boston for the Gen- eral Court were chosen, in May, 1770, the inhabi- tants voted a very spirited address,t by way of instructions to them, as had been done on some former occasions. They expressed a most feeling sense of the grievances and oppressions, under which they labored, in common with their fellow citizens through the province, and in the other colonies. They referred to the numerous arbitrary acts of the British government towards America for several past
* Mr. J. Hancock.
t R. Dana, Esq. was chairman of the committee who prepared the address. Mr. Bowdoin, who received the negative of governor Bernard the year before, was this year chosen a member for Boston. Mr. Otis was out of health, and had gone into the country, by the advice of his physicians. This expression of esteem and confidence towards Mr. Bowdoin, was as honorable to the town as to him. It was evidence that they had both discernment and a disposition to appreciate his former very firm and useful exertions in defence of civil liberty. Mr. Otis received a vote of thanks from the town, "for his great and im- portant services to the province, especially for his undaunted exertions in support of its rights, in the late struggles with the agents of an arbi- trary administration." Mr. Bowdoin was elected to the Council; and Mr. J. Adams was chosen in his room, as a Representative for Boston.
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years ; particularly, the stationing of regular troops among the citizens; the insolent behavior of the officers of the revenue and of the military; of the alarming pretensions set up by the Lieutenant Gov- ernor, that ministerial instructions were to be para- mount in effect to law, and to express provisions of their charter. They admonished them to the exer- cise of fortitude, patience and firmness ; reminding them of the peculiar crisis of the times, and of their responsibility, as on their faithful, and determined conduct depended, in a great measure, the freedom and welfare of the present and future generations. They also suggested the importance of corresponding with the other colonies, and cultivating mutual regard and confidence. They were aware of the designs of ministers, they said, to prevent the united efforts of the people on this continent ; and to prevail, with a part, if possible, by specious promises, to submit to the claims and acts of Parliament. This address discovered a most zealous and patriotic spirit, which was not to be subdued by the insolent threats, or the arbitrary measures of the British government. They referred, very pertinently, to the resolution and heroism of their ancestors; and appeared ready to endure equal privations, and to make equal struggles in the cause of freedom.
The precepts which were issued for a new General Court on the last Wednesday of May, required it to be holden at Cambridge : And on the first day of the Court, even before the government was organized or the Council chosen, the House prepared a message to the Lieutenant Governor, declaring their opinion, that the writ by law provided, for convening the Assembly, implied, that the Court House in Boston was the only place where it ought to be holden. This, they said, was the opinion of the General Court in 1721; when, on account of a contagious disease, it was adjourned to Cambridge; in which, however, they admitted it was justifiable and proper,
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. as the public good required it. But as there was a doubt on the subject, even in that exigency, a resolve was passed by the Legislature to render their proceedings valid. But they also contended, that if it were within the prerogative of the King. or of his agent in the province, to direct another place for holding the Legislative Assembly, it was to be exercised only in cases of necessity, and when the welfare of the people required it-That even the prerogative of the King was to be exerted, dif- ferent from usage and custom, in no instances, but when the good of the subject and of the nation made it evidently and absolutely necessary. They, there- fore, remonstrated against having the Assembly holden in any other place than the Town House in Boston : And resolved not to proceed to the public business of the province. But the Lieutenant Gov- ernor did not appear in Cambridge, on that day, and the message could not be presented him. In this difficult situation, probably designed by Mr. HUTCH- INSON, they found themselves obliged to proceed to the election of the Council; not, however, without entering a protest on their journal against making this conduct a precedent, as it was of necessity they made these elections ; and meant not to give up their claim to the right of declining all further business, under their present circumstances. The next day, the Lieutenant Governor made a speech to the Legis- lature, in which he called their attention to the com- mon business of the province, and cautiously avoided saying any thing, in reference to the place of its meeting. By message, soon after, however, he ac- knowledged that it was not proper ministerial instruc- tions should supersede or control the law ; but denied that Boston was the only legal place for hold- ing the General Court. The House then requested a copy of his instructions, by which he was requir- ed to convene the Assembly out of Boston; but he refused. A committee was, therefore, chosen to
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consider this subject ; and all other business of the Court was suspended for several days. The report and the resolutions of this committee, which were approved by ninety-six members out of one hundred and two, asserted, that it was as important and legally necessary for the General Court to be con- vened in the Town House in Boston, as to be holden on the last Wednesday of May, both being accord- ing to the writ first issued under the charter, and having so continued ; that the said building had been erected for the purpose, and at the expense of the province ; that it was only by way of exception, in some cases of necessity, and when the public safety clearly required it, that the prerogative or a discre- tionary power was to be exercised; and certainly not in direct opposition to the petitions and wishes of the great body of the people: That prerogative, when not thus restricted, when not clearly exerted for the welfare or convenience of the subjects, (the reason that such a power was allowed in a free government,) was most unjust and tyrannical : And that, as there were no reasons given, and none could be conceived, for removing the Assembly from Boston, the ordering of it to be holden out of that place, contrary to the repeated supplications of the Court, must be considered a most alarming measure by the friends of civil freedom ; and it had therefore become necessary for them, as the guardians of the people's rights, to make a constitutional stand ; which they did, by declaring it inexpedient to pro- ceed to business, while the General Assembly was thus constrained to hold their session out of the town of Boston. They addressed the Lieutenant Governor accordingly. He replied ; but offered no new argu- ments, and gave no reasons, except that he was so instructed ; and added, that he acted faithfully as a servant of the King; and that all the mischief result- ing from omitting the usual business of the session, would be attributed to them, and not to himself.
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On the 15th of June, the House stated, at length, the 'reasons,' which induced them still to object to the holding of the General Court in any other place than the Town House in Boston, and to adhere to their resolution, adopted early in the session, not to proceed to transact any public business, so long as the Assembly was kept from its usual and ancient place of meeting. Their great objection was to the controling power of instructions given by the minis- try ; which they declared to be most alarming and hostile to the settled principles of the Constitution ; and, therefore, to all true freedom in the subject, and to the dignity and independence of the legisla- ture. They adverted also again to the nature and object of prerogative in the King, or in his agent, by virtue of the royal authority ; and argued, that it was evidently designed for the welfare and safety of the people, and to be exercised in unexpected emer- gencies, when no law directly or fully applied. But they insisted, that this power was controlable by the general principles of reason and justice, and to be exerted solely for the public good ; and that, in all other instances, when against the will of the sub- jects, generally, or for their oppression and incon- venience, and without evident reason, then it was dangerous, and could not be admitted. They pointed out the evil consequences of prerogative, thus claim- ed and exercised, and of ministerial instructions, founded in such an undefined power, in setting aside law, or in deviating from ancient usage and conve- nience, when a great benefit to the public was not clearly effected. They readily acknowledged the public business was urgent-yet were of opinion it was most important, and would be most for the last- ing benefit of the country to omit it, rather than to admit a principle so dangerous and arbitrary, as that for which the Lieutenant Governor contended, in requiring the Assembly to meet out of the town of Boston, merely by virtue of ministerial instructions.
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The world, they said, would judge, to whom the ill consequences of delay must be attributed.
This statement was ordered to be communicated to the Council : And that Honorable Body also sent a message to the Lieutenant Governor, praying that he would order the General Court to be removed to Boston ; and stated their objections to holding it in Cambridge, by virtue of ministerial instructions, with great force and argument. They also had previously requested that the Assembly might be adjourned to Boston ; and the Lieutenant Governor had informed them, that he had express instructions for holding it in Cambridge. They, therefore, in the present me- morial, quoted a clause of the province charter, which provided " that the Governor should have full power to adjourn or prorogue the General Court;" and they argued, that this power was complete, as to its specific objects, and was vested solely in him ; and, therefore, not to be controled by instructions, but by considerations of the safety and convenience of the Assembly, or the general utility of the pro- vince. For this purpose, they asserted, such power was given to the Governor; as he, being present, was the best judge of the welfare of the province, and of the exigences of the times. To pretend to be bound by instructions from ministers in England, they said, was not only yielding his own power, granted by the charter and the crown, solely for the public good ; but must prove most injurious to the province; as the Assembly and the people would thus become liable to great embarrassment and op- pression, by orders from persons at a distance, who were ignorant of the true situation of the country ; and as he, who was really responsible, would claim an excuse for himself, whatever might be the com- plaints and grievances of the citizens. They added, "in the present case, when every reason, arising from convenience, safety and utility, demonstrates and urges the fitness of the Courts sitting in Boston,
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the convening and keeping it elsewhere, contrary to the mind of the two Houses and the province, in general, we humbly apprehend is an exercise of the prerogative, if not against law, yet certainly against ancient usage, and unwarranted by reason, which supports all prerogative, namely, the public good"- "We are sensible the Governor is the servant of the King, and by his commission is to govern the pro- vince according to charter, and to such instructions as he shall receive from the King. These instruc- tions, however, must be understood to be such as do not militate with, or in any degree vacate the char- ter; otherwise, the charter would be annihilable at pleasure : Whence it would follow, that it neither was, nor is in the power of the crown to grant any charter whatever, vesting in the grantees any durable privileges, much less such as are granted to this province, which are perpetual. We hold, however, that the crown hath such a power; and that the charter for this province, granted by King William and Queen Mary, secures to its inhabitants forever all the powers and privileges therein given ; one of which is, that the Governor convene and adjourn the General Court. And this power, we apprehend, is exclusively vested in him, for the benefit of the people ; and therefore that no instructions can super- sede or control this right, without injuring them, and so far vacating the charter. Your Honor has justly observed, that his Majesty never intended his instructions should supersede or control the law. This must be true also with respect to the charter, because it is the great rule of the constitution ; and is the foundation of the law of the province ; and because his Majesty is just, has a paternal affection for his people, and never intended his instructions should subject them to any unnecessary inconve- mience, much less, infringe upon their rights."
The Lieutenant Governor replied to this memorial of the Council ; but did not remove their objections,
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nor answer their arguments : And it was difficult to determine, whether he intended to justify himself, in ordering the Assembly to be holden in Cambridge, by virtue of his instructions, or of his general autho- rity, as commander in chief of the province. Such powerful objections had been made to the indefinite and unlimited power of ministerial instructions, when adverse to law, to reason and convenience, that he was reluctant, in resting his authority solely upon them, for convening the Court in Cambridge : And he claimed a right to adopt this measure, by virtue of his general power as chief magistrate. This au- thority, however, he was unwilling to say, had in- duced him to such a requirement ; for he knew, he should thus expose himself to general censure by such an arbitrary and unpopular act. But though he was not prepared to say, explicitly, whether it were wholly or partly from his instructions that he had acted ; nor to give any reasons, for holding the Assembly at Cambridge, he refused to adjourn it to Boston, as repeatedly and earnestly requested; and the House, thereupon, adhering to their former deter- mination, desired leave " to return to their homes," unless he would order the Legislature to be con- vened in its ancient and usual place. This, however, was refused, on a suggestion, that some dispatches were soon expected from England, which would re- quire the immediate attention of the General Court. In the meantime, the Council sent another message to the Lieutenant Governor; in which, after repeat- ing some of the arguments and objections before advanced, they complained of being subject to secret orders and directions from ministers ; and asked, "if instructions were to be the law and rule of govern- ment, whether it were not fit and proper, that they should be known." "Are we not, otherwise, not only in a state of vassalage, but distinguished from others in that state, in this essential circumstance, that they have a known law, which they might obey, and we
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an unknown one, which we can neither obey or dis- obey, and yet may be punished for not obeying ? Your Honor tells us, you have no instructions militat- ing with the charter. If there be an instruction forbidding the adjournment of the Court to Boston, we apprehend it does militate against the charter; and we think we have clearly proved, from the charter, that it does so militate. In which case, we submit it to your consideration, whether you are held to observe it. Whenever your Honor shall think proper to consult the Council upon any occa- sion, you may depend on our best advice for his Majesty's service, and the good of the province. These necessarily include each other; and are, in fact, but different names for the same thing; there being no room for distinction or separation between them. Whoever, therefore, attempts to make a separation, is an enemy to both."-A few days after, the House again requested permission to return to their homes; being still determined not to proceed to business, while the General Court was kept from the town of Boston. The Lieutenant Governor, ac- cordingly, prorogued the Assembly for thirty days.
The Representatives of the people again assem- bled on the 25th of July, in Cambridge, to which time and place the General Court had been pro- rogued. Mr. HANCOCK and others were immediately appointed a committee to inform the Lieutenant Governor, that a quorum of the House was present, and that they were desirous he would remove the Legislature to its ancient and legal place of sitting, the town of Boston. He had prepared a long speech, which he delivered to them, much in his specious and evasive manner, and giving 'his strong reasons' why he should not grant their request. He declared, "he knew of no fixed design to harass them, in order to make them comply with any arbitrary measures : But he insisted, that it was for the King or his ministers to judge of the fitness of a measure, as,
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otherwise, the prerogative would be an empty name." The opinion of the British Attorney and Solicitor General was mentioned by the Lieutenant Gover- nor, to fortify his own reasoning ; when, in fact, they had only given an opinion, that the sole power of proroguing the General Court, was vested in the Governor; which had not been denied. This had indeed been acknowledged and asserted by the House, as an argument against the interference of the British administration. And yet the Lieutenant Governor declared he would not remove them to Boston, without permission from his Majesty's minis- ters. The House replied to this message, in a man- ner more full and elaborate, than had been before done .* They unanimously determined to adhere to their resolution, made at a former session, 'that it was not expedient to proceed to public business while the General Court was constrained. to hold its session out of the town of Boston.' With this decla- ration, they proceeded to notice some specious things contained in the Lieutenant Governor's last message to them-" You are pleased to say, you meet us at Cambridge, because you have no reason to think there has been any alteration in his Majesty's plea- sure ; which, you doubt not, was determined by wise motives, and with a gracious purpose to promote the good of the province. We shall not call in question the wisdom of our Sovereign, or the rectitude of his intentions; but there have been times when a corrupt and profligate administration have ventured upon such measures, as have had a direct tendency to ruin the interest of the people, as well as that of their royal master. This House have great reason to doubt, whether it is, or ever was his Majesty's pleasure, that your Honor should meet the Assem- bly at Cambridge, or that he has ever taken the
* J. Hancock, S. Adams, J. Adams, J. Hawley were on the com- mittee to prepare this reply.
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matter under his royal consideration; because the common, and the best evidence in such cases is not communicated to us. It is needless to add any thing to what has been heretofore said upon the illegality of holding the Court any where except in the town of Boston : For admitting the power to be in the Governor to hold the Court in any other place, when the public good requires it, it by no means follows, that he has a right to call it in any other place, when it is to the manifest injury and detriment of the public.
" The opinion of the Attorney and Solicitor Gen- eral has very little weight with this House in any case further than the reasons, which they give, are convincing. This province has suffered so much by unjust, groundless and illegal opinions of those officers of the crown, that our veneration for their opinions is much abated. We utterly deny, that the Attorney and Solicitor General have any authority or jurisdic- tion over us, any right to decide questions in contro- versy between the several branches of the Legislature here : Nor do we conceive, that even his Majesty in Council has any constitutional authority to decide such questions, or any controversy whatever, that arises in this province, excepting only such matters as are reserved in the charter. It seems a great absurdity, that when a dispute arises between the Governor and the House, the Governor should ap- peal to his Majesty in Council to decide it. Would it not be as reasonable in the House to appeal to the body of their constituents to decide it? There is, however, a test, a standard common to all ; we mean the public good. Your Honor must be sensible, that the illegality of holding the Court in any other place besides the town of Boston, is far from being the only dispute between us. We contend, that the people and their Representatives have a right to withstand the abusive exercise of a legal and con- stitutional prerogative of the crown.
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" While the House have been, from time to time, holding up to view the great inconveniences, and manifest injuries resulting from the sitting of the Assembly in Cambridge, and praying a removal to Boston, it is with pain they have heard your Honor, instead of pointing out any good purpose, which can be answered by it, replying that your 'instructions' will not permit you to remove the Court to Boston. By a royal grant in the charter, in favor of the Com- mons of this province, the Governor has the sole power of adjourning and proroguing the General Court. And the wisdom of that provision appears in this, that a person residing in the province must be a more competent judge of the fitness of the time, and we may add, the place of holding the Court, than any person residing in Great Britain. We do not deny, that there may be instances, when the commander in chief ought to obey the royal instruc- tions ; yet we hold, that whenever instructions cannot be complied with, without injuring the people, they cease to be binding. Any other supposition would involve this absurdity, that a substitute, by means of instructions from his principal, may have a greater power than the principal himself: Or, in other words, that a Representative of a King, who can do no wrong, may, by means of instructions, obtain a right to do wrong: for that the prerogative extends not to do any injury, never has been, and never can be denied. As to your commission, it is certain, that no clause contained in it, inconsistent with the charter, can be binding. To suppose, that when a grant is made by charter in favor of the people, instructions shall supersede that grant, and oblige the Governor to act repugnant to it, is vacating the charter at once, by the breath of a Minister of State.
"We are not, indeed, sure, that the ministry caused the Assembly to be removed to Cambridge, in order to worry them into a compliance with any arbitrary mandate to the ruin of our own, or our
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constituents' liberty ; but we know the General As- sembly has in times past been treated with such indignity and abuse by the servants of the crown ; and a wicked ministry may attempt it again: We shall never except against a proper use of the pre- rogative ; we hold it sacred as the liberty of the subject : But every abuse of it will always be ex- cepted to, so long as the love of liberty, or any public virtue remains. And whenever any other part of the prerogative shall be abused, the House will not fail to judge for themselves, of the grievance; nor to exert every power, with which the constitu- tion has entrusted them, to check the abuse of it, and redress the grievance .- As to your Honor's very condescending and liberal professions of exercising patience or using despatch, as would be most agree- able to us, we shall be very much obliged to you, for the exercise of those virtues, whenever you shall see cause to remove us to our ancient and established seat : But these professions can be no temptations with us to give up our privileges.
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