Founding America: Documents from the Revolution to the Bill of Rights (5 page)

 

Jack N. Rakove is W. R. Coe Professor of History and American Studies and Professor of Political Science at Stanford University, where he has taught since 1980. He was educated at Haverford College, the University of Edinburgh, and Harvard, where he earned his Ph.D. in 1975. He is the author of four books on the American Revolutionary era, including The Beginnings of National
Politics: An Interpretive History of the Continental Congress ( 1979), James Madison and the Creation of the American Republic ( 1990, 2001 ), and Original
Meanings: Politics
and Ideas in the Making of the Constitution
, which received the 1997 Pulitzer Prize in History. His edited books include
James Madison: Writings ( 1999), The Federalist: The Essential Essays
(2003), and
The Unfinished Election of 2000 (2001)
. He writes frequently on issues relating to the original meaning of the Constitution.

 

 

 

Publisher’s Note: The editor has made no attempt to modernize the spelling or punctuation in the documents collected in this volume. When these texts were written, rules of spelling and punctuation differed from what they are today. For one, consistency was not as important: “controling” and “controlling,” “incroachments” and “encroachments,” “percieved” and “perceived” can all be found in the same document. Similarly, the word “it’s” sometimes appears as a possessive where we now use “its.” Retaining these and other odd spellings and “incorrect” punctuation preserve these important American documents in their original character.

BECAUSE THE DECLARATION OF Independence of 1776 was directed against King George III, it is often assumed that the American Revolution was a struggle against the evils of monarchy. In fact, the central dispute between Britain and its colonies was concerned with another issue entirely: Did Parliament have any authority to legislate for America, or were the colonists obliged to obey only those laws enacted by their own representative assemblies? That was the great issue that was first agitated during the Stamp Act controversy of 1765-1766 and the dispute over the Townshend duties enacted in 1767.

After the Townshend duties were repealed, this dispute largely subsided. But it was unexpectedly revived in Massachusetts in January 1773, when Governor Thomas Hutchinson rashly opened the winter session of the legislature with a speech explaining why Americans were not exempt from the jurisdiction of Parliament. Hutchinson was responding to recent attacks on his own administration launched by the Boston Committee of Correspondence. His speech was meant to quiet the opposition. Instead, it plunged Massachusetts into still greater turmoil, as John Adams and James Otis rebutted the governor’s position in responses prepared for the two houses of the legislature.

These addresses were in turn reprinted in newspaper and pamphlet form, and consumed by interested readers in other colonies. The pamphlet and the newspaper essay were the principal forms of political expression in eighteenth-century America, and most political controversies soon found their way into one or the other. Many pamphlets originated as newspaper essays. Some were deeply learned and filled with scholarly citations. Others were more pungent or humorous, like Benjamin Franklin’s
Rules by Which a Great Empire May Be Reduced to a Small One
, published in 1773. Franklin had been living in London for a good fifteen years when he published this essay. Though he still hoped that Britain and its colonies would remain united, he was increasingly frustrated by his dealings with British officials who dismissed the colonists’ assertions of loyalty. As he did so often, Franklin used a light touch to support a serious conclusion: that British policy seemed design to alienate the Americans’ natural affection for the mother country

A year later, humor was no longer possible. The adoption of the Coercive or Intolerable Acts led American writers to demonstrate, once and for all, why the colonies could not be legally bound by acts of Parliament. One of the most influential publications opposing the Acts was a pamphlet that Thomas Jefferson originally wrote as instructions for the Virginia delegates to the First Continental Congress. Jefferson’s cogent prose in
A Summary View of the Rights of British America
helped establish the reputation that led to his later authorship of the Declaration of Independence.

I HAVE NOTHING IN special Command from his Majesty to lay before you at this Time; I have general Instructions to recommend to you, at all Times, such Measures as may tend to promote that Peace and Order upon which your own Happiness and Prosperity as well as his Majesty’s Service very much depend. That the Government is at present in a disturbed and disordered State is a Truth too evident to be denied. The Cause of this Disorder appears to me equally evident. I wish I may be able to make it appear so to you, for then I may not doubt that you will agree with me in the proper Measures for the Removal of it. I have pleased myself, for several Years past, with Hopes that the Cause would cease of itself and the Effect with it, but I am disappointed, and I may not any longer, consistent with my Duty to the King and my Regard to the Interest of the Province, delay communicating my Sentiments to you upon a Matter of so great Importance. I shall be explicit and treat the Subject without Reserve. I hope you will receive what I have to say upon it with Candor, and, if you shall not agree in Sentiments with me, I promise you, with Candor likewise, to receive and consider what you may offer in Answer.

When our Predecessors first took Possession of this Plantation or Colony, under a Grant and Charter from the Crown of England, it was their Sense, and it was the Sense of the Kingdom, that they were to remain subject to the supreme Authority of Parliament. This appears from the Charter itself and from other irresistable Evidence. This Supreme Authority has, from Time to Time, been exercised by Parliament and submitted to by the Colony, and hath been, in the most express Terms, acknowledged by the Legislature and, except about the Time of Anarchy and Confusion in England which preceeded the Restoration of King Charles the Second, I have not discovered that it has been called in Question even by private or particular Persons until within seven or eight Years last past. Our Provincial or Local Laws have, in numerous Instances, had Relation to Acts of Parliament made to respect the Plantations in general and this Colony in particular, and in our Executive Courts both Juries and Judges have to all Intents and Purposes, considered such Acts as Part of our Rule of Law. Such a Constitution, in a Plantation, is not peculiar to England but agrees with the Principles of the most celebrated Writers upon the Law of Nations that “when a Nation takes Possession of a distant Country and settles there, that Country, though separated from the principal Establishment or Mother Country, naturally becomes a Part of the State equally with its ancient Possessions.”

So much however of the Spirit of Liberty breathes thro’ all Parts of the English Constitution, that although from the Nature of Government there must be one supreme Authority over the whole, yet this Constitution will admit of subordinate Powers with legislative and executive Authority, greater or less according to local and other Circumstances. Thus we see a Variety of Corporations formed within the Kingdom with Powers to make and execute such Bylaws as are for their immediate Use and Benefit, the Members of such Corporations still remaining subject to the general Laws of the Kingdom. We see also Governments established in the Plantations which, from their separate and remote Situation, require more general and extensive Powers of Legislation within themselves than those formed within the Kingdom, but subject nevertheless, to all such Laws of the Kingdom as immediately respect them or are designed to extend to them, and accordingly we in this Province have, from the first Settlement of it, been left to the Exercise of our legislative and executive Powers, Parliament occasionally though rarely, interposing as in its Wisdom has been judged necessary.

Under this Constitution, for more than One Hundred Years, the Laws both of the supreme and subordinate Authority were in general, duly executed, Offenders against them have been brought to condign Punishment, Peace and Order have been maintained and the People of this Province have experienced as largely the Advantages of Government, as, perhaps, any People upon the Globe, and they have from Time to Time in the most public Manner expressed their Sense of it and, once in every Year, have offered up their united Thanksgivings to God for the Enjoyment of these Privileges and, as often, their united Prayers for the Continuance of them.

At Length the Constitution has been called in Question and the Authority of the Parliament of Great-Britain to make and establish Laws for the Inhabitants of this Province has been, by many, denied. What was, at first, whispered with Caution, was soon after openly asserted in Print and, of late, a Number of Inhabitants in several of the principal Towns in the Province, have assembled together in their respective Towns and, having assumed the Name of legal Town Meetings, have passed Resolves which they have ordered to be placed upon their Town Records, and caused to be printed & published in Pamphlets and News-Papers. I am sorry that it is thus become impossible to conceal what I could wish had never been made public. I will not particularize these Resolves or Votes and shall only observe to you, in general, that some of them deny the supreme Authority of Parliament, and so are repugnant to the Principles of the Constitution, and that others speak of this supreme Authority, of which the King is a constituent Part and to every Act of which his Assent is necessary, in such Terms as have a direct Tendency to alienate the Af fections of the People from their Sovereign who has ever been most tender of their Rights, and whose Person, Crown and Dignity we are under every possible Obligation to defend and support. In consequence of these Resolves, Committees of Correspondence are formed, in several of those Towns, to maintain the Principles upon which they are founded.

I know of no Arguments, founded in Reason, which will be sufficient to Support these Principles or to justify the Measures taken in Consequence of them. It has been urged, that the sole Power of making Laws is granted by Charter to a Legislature established in the Province, consisting of the King by his Representative the Governor, the Council and the House of Representatives—that by this Charter there are likewise granted or assured to the Inhabitants of the Province all the Liberties and Immunities of free and natural Subjects, to all Intents, Constructions and Purposes whatsoever, as if they had been born within the Realm of England—that it is Part of the Liberties of English Subjects, which has its Foundation in Nature, to be governed by Laws made by their Consent in Person or by their Representative—that the Subjects in this Province are not and cannot be Represented in the Parliament of Great-Britain and, consequently, the Acts of Parliament cannot be binding upon them.

I do not find, Gentlemen, in the Charter such an Expression as sole Power or any Words which import it. The General Court has, by Charter, full Power to make such Laws as are not repugnant to the Laws of England. A favourable Construction has been put upon this Clause when it has been allowed to intend such Laws of England only as are expres[s]ly declared to respect us. Surely then this is by Charter a Reserve of Power and Authority to Parliament to bind us by such Laws, at least, as are made expressly to refer to us and, consequently, is a Limitation of the Power given to the General Court. Nor can it be contended that by the Liberties of free and natural Subjects is to be understood an Exemption from Acts of Parliament because not represented there, seeing it is provided, by the same Charter, that such Acts shall be in Force; and if they that make the Objection to such Acts will read the Charter with Attention, they must be convinced that this Grant of Liberties and Immunities is nothing more than a Declaration and Assurance on the Part of the Crown that the Place to which their Predecessors were about to remove was and would be considered as Part of the Dominions of the Crown of England, and therefore that the Subjects of the Crown so removing, and those born there or in their Passage thither or in their Passage from thence, would not become Aliens but would throughout all Parts of the English Dominions, wherever they might happen to be, as well within the Colony, retain the Liberties and Immunities of free and natural Subjects, their Removal from or not being born within the Realm notwithstanding. If the Plantations be Part of the Dominions of the Crown, this Clause in the Charter does not confer or reserve any Liberties but what would have been enjoyed without it and what the Inhabitants of every other Colony do enjoy where they are without a Charter. If the Plantations are not the Dominions of the Crown will not all that are born here be considered as born out of the Ligeance of the King of England, and whenever they go into any Part of the Dominions will they not be deemed Aliens to all Intents and Purposes, this Grant in the Charter notwithstanding?

They who claim Exemption from Acts of Parliament by Virtue of their Rights as Englishmen, should consider that it is impossible the Rights of English Subjects should be the same, in every Respect, in all parts of the Dominions. It is one of their Rights as English Subjects to be governed by Laws made by Persons in whose Election they have, from Time to Time, a Voice—They remove from the Kingdom where, perhaps, they were in the full Exercise of this Right to the Plantations where it cannot be exercised or where the Exercise of it would be of no Benefit to them. Does it follow that the Government, by their Removal from one Part of the Dominions to another, loses its Authority over that Part to which they remove, and that they are freed from the Subjection they were under before; or do they expect that Government should relinquish its Authority because they cannot enjoy this particular Right? Will it not rather be said that, by this their voluntary Removal, they have relinquished for a Time at least, one of the Rights of an English Subject which they might if they pleased have continued to enjoy and may again enjoy whensoever they will return to the Place where it can be exercised?