USA > Massachusetts > History of Massachusetts from 1764, to July 1775; when general Washington took command of the American Army. V. 1 > Part 21
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independent of the government in the province, to decide respecting the title to some tracts of land, and to dictate in other concerns, the Assembly of Massachusetts protested against their proceedings ; and when summoned to appear before the commis- sioners, denied their authority, though they had express instructions from the King to warrant their conduct .* By the remarks, the Governor had for- merly made respecting this event, it was evident, that he considered their commission as arbitrary and unjust.
The Governor insisted, that the clause in the charter, which restricted the Assembly, in its legis- lative power, to the passing of such laws "as were not repugnant to the laws of England," was in favor of his opinion of the supreme, controling authority of Parliament in the province. But the House con- tended, and adduced proof that such had formerly been the construction, that this was only a general limitation, designed to prevent the enacting of laws contrary to the fundamental statutes of the kingdom, in force at the time the charter was granted, and to the great and essential principles of the British Con- stitution, with a view to the guarantee and support of a free government in the province.
Perhaps it will most correctly shew the sense of the Council, on this subject, to give the language, used in recapitulating their argument, to prove the
* The Assembly in Plymouth colony in the year 1636, declared, ' that no act, imposition, law or ordinance be made or imposed upon us, at present, or to come, but such as has or shall be enacted by the consent of the body of freemen, or their representatives legally assem- bled ; which is according to the free liberties of the free born people of England.' So, in 1692, after the union of the two colonies, it was declared by the General Court of Massachusetts, 'that no aid, tax, assessment, loan or imposition whatever, shall be laid, assessed, imposed or levied on any of his Majesty's subjects on any color or pretence whatever, but by the act and consent of the Governor, Coun- cil and House of Representatives assembled ; and that no freeman shall be taken, imprisoned or deprived of his freehold or liberty ; nor be judged and condemned, but by the lawful judgment of his peers, or the law of the province.'
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inhabitants of the province not to be constitutionally subject to Parliamentary taxation. In order to do this, they recurred to Magna Charta and other authorities. And the argument abridged, was as follows : "That, from these authorities, it appears to be an essential part of the English constitution, that no tallage, aid or tax shall be laid or levied, without the good will and assent of the freemen of the commonalty of the realm : That, from common law and the province charter, the inhabitants of this province are clearly entitled to the rights of free and natural subjects within the realm : That among those rights must be included the essential one just men- tioned, concerning aid and taxes-And, therefore, that no aid or taxes can be levied on us, constitution- ally, without our consent, signified by our Represen- tatives-Whence, the conclusion is clear, that the inhabitants of this province are not, constitutionally, subject to Parliamentary taxation."
Besides two very able messages from the House of Representatives to the Governor, during this session, in reply to his labored apologies for the supreme authority of the British Parliament over the colonies, which were adopted with great unanimity, and to which we have already referred, they prepared and published several resolutions, expressive of their opinions in relation to this highly interesting ques- tion, which it may be proper, also, here to recite, that their views may be more fully perceived. And as this was, in truth, the foundation and chief matter of the controversy with the British government, it is the more important, that there should be a par- ticular statement of their sentiments.
" Whereas, by an act of the British Parliament, made and passed in the sixth year of his present Majesty's reign, it is declared, that the King, Lords and Commons, in Parliament assembled, have ever had, and of right ought to have, full power and authority to make laws and statutes, of sufficient
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force and validity to bind the colonies and people of America, in all cases whatever: And, afterwards, the same Parliament made and passed an act for levying duties in America, with the express purpose of raising a revenue, and to enable his Majesty to appropriate the same for the necessary charges of the administration of justice, and the support of civil government, in such colonies as shall be judged neces- sary, and towards further defraying the expences of defending, protecting and securing said dominions : And his Majesty has been pleased, by virtue of said act, to appropriate a part of the revenue, thus raised, against the consent of the people, in providing for the support of the Governor of the province ; and from his Excellency's late message, we cannot but conclude, that provision is made also for the support of the Judges, independent of the grants and acts of the General Assembly, contrary to invariable usage of this province : Therefore, resolved, That to admit of any authority to make laws binding on the people of this province, in all cases whatever, saving the General Court or Assembly, is inconsistent with the spirit of our free constitution, and repugnant to one of the most essential clauses in our charter; whereby the inhabitants are entitled to all the liberties of free and natural born subjects, to all intents, constructions and purposes whatever, as if they had been born within the realm of England. It reduces the people to the absolute will and disposal of a legislature, in which they can have no voice, and who may make it their interest to oppress and enslave them.
" Resolved, That by the royal charter aforesaid, the General Court or Assembly hath full power and authority to impose and levy proportionable and reasonable assessments, rates and taxes, upon the estates and persons of all proprietors and inhabitants of the province, to be issued and disposed of for his Majesty's service, in the necessary defence and sup- port of the government of the province, and the
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protection and preservation of the inhabitants, ac- cording to such acts as are or shall be in force, within the province. And to make provision for the support of the Governor and Judges, otherwise than by the grants and acts of the General Court, is a violent breach of a most important clause in the charter; the support of government, in which their support is included, being one of the principal pur- poses for which the clause was inserted.
" And whereas the independence, as well as the uprightness of the Judges of the land, is essential to the impartial administration of justice, and one of the best securities of the rights, liberty and property of the people : Therefore, Resolved, That to make the Judges of the land independent of the grants of the people, and altogether dependent on the crown, as they will be, if, while they thus hold their com- missions during pleasure, they accept of salaries from the crown, is unconstitutional, and destructive of that security, which every good member of civil society has a right to be assured of, under the due execution of the laws; and is directly the reverse of the con- stitution, and appointment of the Judges in Great Britain.
" Resolved, That the dependence of the Judges of the land on the crown for their support, tends, at all times, especially, while they hold their commissions during pleasure, to the subversion of justice and equity, and to introduce oppression and despotic power.
" Resolved, as the opinion of this House, That while the Justices of the Superior Court hold their commissions during pleasure, any one of them who shall accept of, and depend upon the pleasure of the crown for his support, independent of the grants and acts of the General Assembly, will discover to the world, that he has not a due sense of the im- portance of an impartial administration of justice ; that he is an enemy to the constitution ; and has it in
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his heart to promote the establishment of an arbitrary government in the province."*
As the subject of the Judges' salaries excited an uncommon interest at this time, among the Represen- tatives, and the people, generally, it being in their opinion a dangerous innovation on the principles of their charter, and of corrupting influence on the char- acter and proceedings of the judiciary, the House de- sired to be officially informed by the Governor, whe-' ther support was actually made for them by the crown. He gave an evasive answer; observing, that the King had been authorized to do it; by an act of Parliament ; but, that he knew not if any warrant had been issued for the payment of their salaries, by order of his Majesty. The House then passed a bill, making the usual compensation to the Judges : But the Governor declined signing it; because, he said, he presumed they would receive it by ministerial direction and provision. Their message to him, after receiving this information, affords evidence of their unremitted efforts to prevent the inroads of arbitrary power, and of their great anxiety to preserve the liberties of the province in all their purity.
" We conceive," they said, " that no Judge who has a due regard to justice, or to his own character, would choose to be placed under such an undue bias, as they will be under, in the opinion of this House, by accepting of and becoming dependant for their salaries on the crown. And had not his Majesty been misinformed, with respect to the constitution and appointment of our Judges, by those who ad- vised to this measure, we are persuaded he would never have passed such an order; as he was pleased to declare upon his accession to the throne, "that he looked upon the independence and uprightness of the Judges as essential to the impartial administration of justice, as one of the best securities of the rights
* The Justices of the Superior Court, at this time, were P. Oliver, E. Trowbridge, N. Ropes, F. Hutchinson and W. Cushing.
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and liberties of his subjects, and as most conducive to the honor of the crown.'
" When we consider the many attempts which have been made to render null and void those clauses in our charter, upon which the freedom of our con- stitution depends, we should be lost to all public feeling, should we not manifest a just resentment. We are more and more convinced, that it has been the design of administration totally to subvert the constitution, and introduce an arbitrary government into this province : And we cannot wonder that the apprehensions of this people are thoroughly awak- ened. We wait with impatience to know, and hope your Excellency will very soon be able to assure us, that the Justices will utterly refuse ever to accept of support in a manner so justly obnoxious to the disinterested and judicious part of the good people of this province, being repugnant to the charter, and utterly inconsistent with the security of the rights, liberties and property of the people."
But the subject did not rest here even. This measure of the British ministers was considered as part of an insidious plan to destroy the rights and privileges guaranteed by the charter to the province. They had already a Governor wholly dependant on their smiles for support, and almost wholly devoted to their arbitrary views, so hostile to the freedom of the people. And now they were to have a judiciary composed of men, who would be under every inducement, which interest or love of power could furnish, to be the tools of a tyrannical ad- ministration, and the oppressors of their fellow citi- zens. At the next June session it was further resolved by the House of Representatives, " that it was the incumbent duty of the Judges of the Su- perior Court, without delay, explicitly to declare, whether they are determined to receive the grants of the General Assembly of the province, or to ac- cept of their support from the crown; and their
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delaying any longer to let the public know their de- termination thereon, will discover that they have little or no regard for the peace and welfare of the province ; and that, by this means, those who by their several offices, should be the guardians of the public security and liberty, will no longer be the objects of the confidence and esteem of the people : And that in such case it will be the indispensable duty of the Commons of the province to impeach them before the Governor and Council, as men disqualified to hold the important posts they now sustain."
During this session of the General Court, the Gov- ernor, by a special message, informed the House that he had proposed to raise several companies of Artil- lery sufficient to form one entire regiment, and spoke with approbation of a company of that description in Boston: And he recommended to the House to make provision for their equipment. A bill was prepared for raising such companies : But as the House pro- posed they should be furnished with arms and other military articles from the province stores at the Castle, the Governor declined approving the bill, as he had before done with respect to a plan for regulating the militia ; and said he could not consent to such an ap- propriation of military stores and arms, deposited at the Castle without his Majesty's direction. The views, both of the Governor and of the Representa- tives, may be perceived, in these different proposi- tions. The House were desirous of availing them- selves, as they justly might, of the arms already belonging to the province, without incurring any fur- ther expense : And were solicitous, perhaps, to take from the Castle, then in possession of regular British troops, a portion of the military stores, which might be employed against themselves. And the Governor, probably, had his apprehensions of an increase of the uneasy disposition in the province ; and thought proper, therefore, to use all suitable methods to pre- vent the inhabitants being furnished with arms.
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The proceedings of the citizens of Boston in No- vember, 1772, and of the General Assembly in Janu- ary and February, 1773, which have been stated above, were forwarded to Virginia in the month of March ; and their House of Burgesses being in ses- sion, the proposition was made and adopted of cor- responding with the other colonies on the subject of their mutual grievances. And it is not improbable the spirited conduct of Massachusetts led to the measure. The House of Representatives in this province, had, some time before,* chosen a committee for the same purpose : But no general communications were then made by them. On receiving notice of this patriotic resolution of Virginia, in June, the Representatives immediately expressed their cordial approbation of the plan ; and appointed a committee for the purpose of maintaining such an intercourse. They also voted an address to be forwarded to all the other prov- inces ; ; in which they observe, " that being earnestly attentive to the controversy between Great Britain and the colonies, and considering that the authority claimed and exercised by Parliament, on the one side, and by the General Assemblies of this continent, on the other, greatly militates, and is productive of this unhappy contention, the House think it of the utmost importance to the welfare of both, and particularly of the colonies, that the constitutional powers and rights of each be inquired into, delineated and fully ascer- tained. That his Majesty's subjects of America are entitled to the same rights and liberties as those of Great Britain ; and that those ought in justice, by the constitution, to be as well guaranteed and secured to the one, as to the other, are too apparent to be deni- ed. It is, by this House, humbly conceived, to be likewise undeniable, that the authority assumed and
* In November, 1770.
This committee consisted of S. Adams, J. Hancock, W. Phillips, W. Heath, J. Hawley, R. Derby, jr. E. Gerry, J. Foster, J. Green- leaf, J. Prescott, J Warren and T. Gardner.
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now forcibly exercised by Parliament over the colo- nies is utterly subversive of freedom in the latter : And that while his Majesty's loyal subjects in Amer- ica have the mortification daily to see new abridge- ments of their rights and liberties, they have not the least security for those which at present, remain. Were the colonists only affected by a Legislature subject to their control, they would even then have no other security than belongs to them by the laws of nature and the English constitution : But should the authority now claimed by Parliament be fully supported by power, or submitted to by the colonies, it appears to this House, that there will be an end to liberty in America ; and that the colonists will then change the name of freemen for that of slaves."
In October, this committee addressed a letter to the other colonies, and assured them that they had not been inattentive to the design of their appoint- ment ; but had been waiting for intelligence from Great Britain, from whose injudicious councils the common grievances of the colonies had arisen; in hope that a change in the American department* would have produced a happy change in the mea- sures of administration. " But according to the latest accounts," they observe, " the ministry have been so far from radically redressing American grievances, that not the least relaxation has been proposed : And the Parliament has given new proofs that they are more intent on increasing the power and influence of the crown, than securing the liberties of the subject. t
* Lord Dartmouth was, a short time before this, made Secretary for American affairs, in the room of Lord Hillsborough.
t With this disposition in the British ministry, it is difficult to account for the sentiments expressed by Dr. Franklin in a letter of July, 1773- " By the exercise of prudent moderation on the part of Great Britain, mixed with a little kindness, and by a decent behavior on ours, excusing where we can, from a consideration of circumstances, and bearing a little with the infirmities of her government, as we would with those of an aged parent, though firmly asserting our privileges, and declaring that we mean, at a proper time, to vindicate them, this advantageous union might still be conti: J. We wish it, and we may endeavor it.
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At the same time, this province has had a very re- cent discovery of the unaltered resolution of ministers to pursue their plan of arbitrary power, in the King's answer to the petitions of our Assembly against the appropriation of the revenue raised from the colonies for the purpose of rendering our Governor and Judges dependant on the crown. In his Majesty's answer, we have nothing explicit, but his determination to support the supreme authority of Parliament to make laws binding on the colonies, although the petitions were supported by express declarations from the char- ter ; and his great displeasure, that principles repug- nant to that claim were therein urged. Such an an- swer to such a petition affords the strongest grounds to conclude, that the ministry are still firmly resolved to continue the revenue acts, and apply the tribute, extorted by virtue of them from the colonies, to main- tain the executive powers of the several governments in America absolutely independent of their respective Legislatures, or rather absolutely dependant on the crown, which must end in absolute despotism.
' Such being the temper of the British ministry, such the disposition of the Parliament, under their influence, to consider themselves as the Sovereign of America, is it not most important our vigilance should increase, that the colonies should be united in their sentiments of the measures of opposition neces- sary to be adopted; and that in whichever of the colonies any infringements are or should be made on the common rights of all, that colony should have the united efforts of all for its support. This, we think, is the design of our appointment.
The friends of liberty in England wish we may long preserve it on our side the water, that they may find it there, if adverse events should destroy it here. They are therefore anxious and afraid, lest we should hazard it by premature attempts in its favor. They think we may risk . much by violent measures ; and that the risk is unnecessary, since a little time must infallibly bring us all we demand or.desire, and bring it to us in peace and safety. I do not presume to advise. There are many wiser men among you ; and I hope you will be directed by a still superior wisdom."
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' Should a war take place,* which by many is thought to be probable, America will be viewed by administration as important to Great Britain. Her aids will then be deemed necessary ; her friendship, perhaps, will be even courted. Would it not then be wise in the several American Assemblies to with- hold all kind of aid, in a general war, till the rights and liberties which they ought to enjoy are restored, and secured upon the most permanent foundation ? This has often been the usage of a spirited House of Commons in England : And upon the best grounds. For, certainly, protection and security ought to be the unalterable condition, when supplies are called for.
'With regard to the extent of rights, which the colonies ought to insist upon, it is a subject which requires the greatest attention and deliberation. And this is a strong reason why it should claim the earliest consideration of every committee; that we may be prepared, when time and circumstances shall give to our claim the surest prospect of success. And when we consider how one great event has hurried on after another, such a time may come sooner than we are aware.
" There are certain rights, which every colony has explicitly asserted, and we trust they will never give up. In particular, that they have the sole and unalienable right to give and grant their own money, and appropriate it to such purposes as they judge proper, is justly deemed of the last importance. Whether this right, so essential to our freedom and happiness can remain secure to us, while a right is claimed by the British Parliament to make laws, which shall be binding upon us in all cases what- ever, you will, certainly, consider with great serious- ness. It would be debasing to us, after such a manly struggle for our rights, to be contented with a mere temporary relief. We are far from desiring that
* There was danger of war with Spain at this period.
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the connexion between Great Britain and America should be broken. " Esto perpetua," is our ardent wish ; but upon the terms only of equal liberty. If we cannot establish an agreement upon these terms, let us leave it to another and wiser generation. But it may be worthy of consideration, whether the work is not more likely to be well done at a time when the ideas of liberty and its importance are strong in men's minds. There is danger that these ideas will grow faint and languid. Our posterity may be accustomed to bear the yoke; and being inured to servility, they may even bow their shoulders to the burden. It can never be expected, that a people, however numerous, will form and execute a wise plan to perpetuate their liberties, when they have lost the spirit and feeling of it.
'We cannot close, without mentioning a fresh in- stance of the temper and design of the British ministry, in allowing the East India Company, with a view of conciliating them, to ship their teas to America. It is easy to see how aptly this scheme will serve both to destroy the trade of the colonies, and increase the revenue. How necessary, then, is it that each colony should take effectual methods to prevent this measure from having its designed effects.'*
In justice to the disposition of the patriots of Massachusetts to preserve their connexion with Great Britain on terms consistent with their civil rights and privileges, as well as to their zealous and persevering efforts in support of constitutional liberty, it may be proper to give some extracts from a letter of a joint committee of the Council and House of Representatives to lord DARTMOUTH in June, 1773.1 'The re-establishment of the union
* There was a request that the contents of this letter might not be published. It is believed it never has been.
t The committee were J. Bowdoin and J. Winthrop of the Council ; S. Adams, T. Cushing, and R. T. Paine of the House.
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and harmony which formerly subsisted between Great Britain and her colonies, is earnestly to be wished by the friends of both. As your Lordship is one of them, the two Houses of the Assembly of this pro- vince beg leave to address you. The original causes of the interruption of that union and harmony may probably be found in letters sent hence to the ad- ministration in England, and to other gentlemen of influence in Parliament, since the appointment of Sir FRANCIS BERNARD to the government of this pro- vince : And there is great reason to apprehend, that he and his coadjutors originally recommended and laid the plan for establishing the American revenue ; out of which they expected large stipends and ap- pointments for themselves; and which, through their instrumentality, has been the occasion of all the evils which have since taken place. When we had humbly addressed his Majesty, and petitioned both Houses of Parliament, representing our grievances, and praying for the repeal of the revenue acts, the like instruments, and probably the same, exerted themselves to prevent those petitions being laid be- fore his Majesty and the Parliament, or to frustrate the prayer of them. Of this, we have lately had some new and unexpected evidence from original letters of Governor HUTCHINSON and Lieutenant Governor OLIVER ;* in which the former endeavor- ed, in co-operation with Governor BERNARD, to frustrate a petition of a number of the Council, for repealing those acts; and to procure his Majesty's censure on the petitioners. And the letters of the latter, by the unfavorable idea conveyed by them of the two Houses of Assembly, manifestly tended to create a prejudice against any petitions coming from a Body of such a character.
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