HKB
MY DEAR COUNTRYMEN,
If we carry our researches further back than the emigration of our ancestors, we shall find many things that reflect light upon the object we are in quest of. It is immaterial when America was first discovered or taken possession of by the English. In 1602 one Gosnold landed upon one of the islands, called Elizabeth islands, which were so named in honor of queen Elizabeth, built a fort, and projected a settlement; his men were discouraged, and the project failed. In 1606, king James granted all the continent from 34 to 45 degrees, which he divided into two colonies, viz. the southern or Virginia, to certain merchants at London, the northern or New England, to certain merchants at Plymouth in England. In 1607, some of the patentees of the northern colony began a settlement at Sogadahoc; but the emigrants were disheartened after the trial of one winter, and that attempt failed of success. Thus this territory had not only been granted by the crown for purposes of colonization, which are to enlarge the empire or dominion of the parent state, and to open new sources of national wealth; but actual possession had been taken by the grantees, previous to the emigration of our ancestors, or any grant to them. In 1620, a patent was granted to the adventurers for the northern colony, incorporating them by the name of the council for the affairs of New Plymouth. From this company of merchants in England, our ancestors derived their title to this territory. The tract of land called Massachusetts, was purchased of this company, by sir Henry Roswell and associates; their deed bears date March 19th, 1627. In 1628 they obtained a charter of incorporation, which I have already remarked upon. The liberties, privileges and franchises, granted by this charter, do not perhaps exceed those granted to the city of London and other corporations within the realm. The legislative power was very confined; it did not even extend to levying taxes of any kind; that power was however assumed under this charter, which by law worked a forfeiture; and for this among other things, in the reign of Charles the second, the charter was adjudged forfeited, and the franchises seized into the king's hands. This judgment did not affect our ancestors' title to their lands, that were not derived originally from the charter, though confirmed by it, but by purchase from the council at Plymouth, who held immediately under the crown. Besides, our ancestors had now reduced what before was a naked right to possession, and by persevering through unequalled toils, hardships and dangers, at the approach of which other emigrants had fainted, rendered New England a very valuable acquisition both to the crown and nation. This was highly meritorious, and ought not to be overlooked in adjusting the present unhappy dispute; but our patriots would deprive us of all the merit, both to the crown and nation, by severing us from both. After the revolution, our ancestors petitioned the parliament to restore the charter. A bill for that purpose passed the house of commons, but went no further. In consequence of another petition, king William and queen Mary granted our present charter, for uniting and incorporating the Massachusetts, New Plymouth, and several other territories into one province. More extensive powers of legislation, than those contained in the first charter, were become necessary, and were granted; and the form of the legislature made to approach nearer to the form of the supreme legislature. The powers of legislation are confined to local or provincial purposes and further restricted by these words, viz. So as the same be not repugnant or contrary to the laws of this our realm of England. Our patriots have made many nice distinctions and curious refinements, to evade the force of these words; but after all, it is impossible to reconcile them to the idea of an independent state, as it is to reconcile disability to omnipotence. The provincial power of taxation is also restricted to provincial purposes, and allowed to be exercised over such only as are inhabitants or proprietors within the province. I would observe here, that the granting subordinate powers of legislation, does not abridge or diminish the powers of the higher legislatures; thus we see corporations in England and the several towns in this province vested with greater or lesser powers of legislation, without the parliament, in one case, or the general court in the other, being restrained, from enacting those very laws, that fall within the jurisdiction of the several corporations. Had our present charter been conceived in such equivocal terms, as that it might be construed as restraining the authority of parliament, the uniform usage ever since it passed the seal, would satisfy us that its intent was different. The parliament, in the reign when it was granted, long before and in every reign since, has been making statutes to extend to the colonies, and those statutes have been as uniformly submitted to as authoritative, by the colonies, till within ten or a dozen years. Sometimes acts of parliament have been made, and sometimes have been repealed in consequence of petitions from the colonies. The provincial assemblies often refer to acts of parliament in their own, and have sometimes made acts to aid their execution. It is evident that it was the intention of their majesties, to grant subordinate powers of legislation, without impairing or diminishing the authority of the supreme legislature. Had there been any words in the charter, that precluded that construction, or did the whole taken together contradict it, lawyers would tell us, that the king was deceived in his grant, and the patentees took no estate by it, because the crown can neither alienate a part of the British dominions, nor impair the supreme power of the empire. I have dwelt longer on this subject, than I at first intended, and not by any means done it justice, as to avoid prolix narratives and tedious deduction, I have omitted perhaps more than I have adduced, that evinces the truth of the position, that we are a part of the British dominions, and subject to the authority of parliament. The novelty of the contrary tenets, will appear by extracting a part of a pamphlet, published in 1764, by a Boston gentleman, who was then the oracle of the whigs, and whose profound knowledge in the law and constitution is equalled but by few.