15 May 1770114


    The Town of Boston, by their late choice of you to Represent them in the ensuing General Court, have given strong proof of their confidence in your abilities and integrity. For no period since the perilous times of our venerable Fathers has worn a more gloomy and melancholy aspect. Unwarrantable and arbitrary exactions made upon the people—trade expiring, grievances, murmurs, discontents convulsing every part of the British Empire, forbode a day of tryal, in which under God nothing but strict virtue and inflexible fortitude can save us, from a rapacious and miserable distruction. A series of occurrances, many recent events, and especially the late Journals Of the House of Lords afford great reason to believe, that a Deep laid & desperate plan of Imperial despotism has been laid, and partly executed, for the extinction of all civil liberty; —— and from a gradual sapping the grand foundation from a subtle undermining the main pillars, breaking the strong bulwarks destroying the principal ramparts and battlements, the august and once revered, fortress of english freedom—the admirable work of ages,—the BRITISH CONSTITUTION seems fast tottering into a fatal & inevitable ruin. The dreadful catastrophe threatens universal havock, and presents an awful warning to hazard all if, peradventure, we in these distant confines of the Earth, may prevent being totally overwhelm’d and buried under the ruins of our most established rights. For many Years past we have with sorrow beheld the approaching conflict; various have been the causes, which pressed on this decisive period, and everything now conspires to prompt a full exertion of our utmost vigilance wisdom and firmness;—and as ye115 exigencies of the times require, not only the refined abilities of true policy; but the more martial virtues; conduct valor and intrepidity; So, Gentlemen, in giving you our suffrages, at this Election, we have devolved upon you a most important trust; to discharge which we doubt not you will summon up the whole united faculties of mind and body.

    We decline, Gentlemen, a minute detail of many momentous concernments, relative to which it is believed no Instructions need be given; but we shall express our thoughts on such matters as we suppose you will choose to have our explicit sentiments.

    A Grievance which will early present itself in the ensuing Sessions (and to redress which you are to take all proper and spirited methods) is that of holding the General Court at Harvard College, not only against antient usage and established law, but also against the wellfare of that Seminary of learning, the happy advancement of which, this Province ever had and still have so much at heart.116

    We would have you Gentlemen particularly Scrutinize into the wise and cautious transactions of our worthy Fathers of 1721. They, it should be known, in that year tho not directly called to weigh the high importance of the question, yet, on this very matter, behaved with a political foresight, and segacious circumspection, truly admirable and worthy imitation. The small pox then almost as pestilential as the plague, rendred the Meeting of the General Court in Boston morally impossible; yet so convinced was the Governor of the Province of his own defect of authority to remove the General Assembly out of Town, than when all the Members daring to attend the Court in that infectious season, were assembled in the Council Chamber, unable to make a quorum of the lower House, they were expressly assured by his Excellency that the proposed adjourning into the Country shown not be drawn into President. Accordingly a reliance doubtless being had on such solemn assurance, no objections appear entred on record against the Adjournment, when thro’ a providential calamity, a transaction of business in the proper place was become really impracticable. No Proverb is more familiar, than that necessity knows no law; and the Court no doubt on this natural consideration was immediately adjourned out of this Town. Yet so universally sensible were the people of that duty, and especially the three branches of Legislature, that an act of the whole Court, even when such a fatal emergency had forced the Adjournment, absolutely requisite to legalize and capasitate for their proceedure to publick business:—and accordingly a vote passed the honourable House to that purpose, the same was concurred by his Majestys Council, and approved & formally assented to, by the Commander in Chief:—all which appears on the publick records of the Province. Now we should be glad to be informed, how these proceedings in essence sense and spirit, differ from a full ample and final denunciation of the law establishing the seat of Government.

    We are not ignorant that in 1728/9 a controversy was forced on relative to this point. This dispute had its rise, like many of more modern date, in consequence of ministerial Instructions, which to borrow a phrase of the then House “are not pleasant to mention.” We are not unacquainted that his Majestys Attorney and Solicitor General were at this time consulted relative to our legal seat of Government. We also know that the then Governor (Burnet), treating upon the same subject, informed the House of Representatives, that the King Determined the point,” according to the Attorney General and “Solicitors opinion, that the SOLE power of dissolving, proroguing and adjourning the General Court or Assembly as to time or place is IN HIS MAJESTYS GOVERNOR, and that the reasons against it from the tenth of King William had no real foundation; there being no clause in that Act laying any such restraint upon the Governor.”

    Here it should be well observed is not barely a tacit but an express declaration that the sole power of dissolving is “devolved entirely” upon, and exclusively vested “in the Governor” From hence in our opinion, this consequence unavoidably follows, that no Instructions orders or mandates whatever ought to direct and control such power solely in the Governor. For it is not merely absurd in theory, and most mischievous in practise, that an authority incapasitated by distance to Judge of local and other critical circumstances, should have a power to fix such an imporant movement, but moreover it is palpably contrarient to the plain words of the preceeding determination. We freely own it would have given us more satisfaction to have seen this opinion under the hand of those Lawyers. But we would here Gentlemen direct you carefully to notice and remember, that as we always expect to defend our own rights & libertys so we are unalterably fixed to Judge for ourselves of their real existence, agreable to law. Yet as we believe this same opinion is far from being well grounded, so we now offer a few comments thereon; for your future consideration. But let it be recorded that we enter upon this task, protesting against the pretended right or power of any Crown Lawyer, or any exterior authority upon Earth to determine, limit or ascertain all or any of our constitutional or charteral, natural or civil, political or sacred Rights, liberties and privileges or immunities. These words there being no clause in the “Act of 10th. of William laying any such constraints upon the Governor” contained in the afore cited opinion are, we conclude, intended to convey that as the Kings prerogative to remove the General Court at pleasure is not by express words taken away, so such a power remains inherent in the Crown. We do allow indeed that the Kings Prerogative was once thought “a topic too delicate and sacred to be profaned by the pen of a Subject, that it was ranked among the areana imperrii [state secrets], and like the misteries of the bona dea [good Roman goddess, connected with fertility] was not suffered to be pried into by any but such as were initiated into its Service: because perhaps the exertion of the one, like the solemnities of the other, would not bear the inspection of a rational & sober enquiry.” We also have heard that there hath been a British Potentate who “dared to direct an English Parliament to abstain from discoursing of matters of state; that even that august assembly ought not to deal to Judge or to meddle with Majestys Prerogative Royal”—and James the first with his high notions of the Divinity of regal sway, more than once laid it down in his speeches, that “as it was athesm and blashemy in a Creature to dispute what the Deity might do so it is presumption and sedition in a subject to dispute what a King might do in the height of his powers; Good Christians, he adds, will be content with Gods will revealed in his word, and good Subjects will rest in the Kings will, revealed in HIS Law.” Surely when such mistical Jargon, such absurd and infamous rant was thus openly denounced in a Realm famed for understanding, freedom and true magnanimitie, nothing except an ineffable contempt of the reigning Monarch diverted that indignant vengeance, which would otherwise have made his illustrious throne to tremble and hurl’d the Royal diadem from his forfeit head.

    The Kings prerogative in its largest extent includes only certain rights and privileges which by law the King hath as a third power of the Commonwealth, intrusted with the execution of laws already in being. This prerogative our law pronounces to be solely governed by the laws of the land; those being the measure as well of the Kings power as the Subjects obedience. For as the laws assert & bound the Just rights of the King; so they likewise declare & maintain the Rights and liberties of the people; hence it is adjudged law, that all prerogatives must be for the advantage and good of the people, otherwise such pretended prerogatives are to be allowed by law. Even our Crown Lawyers will inform us “that one of the principal bulwarks of civil liberty, or in other words of the British constitution, is the limitation of the Kings prerogative by bounds so certain and notorious, that it is impossible he should ever exceed them, without the consent of the people on the one hand, or without on the other a violation of that original contract, which in all states implicidly and in ours most expressly subsists between the Prince and the Subject—And for a consideration of the extent and the restrictions of the Kings prerogative, this conclusion will evidently follow that the powers which are vested in the Crown by the Laws of England; are necessary for the support of society; and do not retrench any further on our natural rights then is expedient for the maintenance of our civil. Sir Henry Finch under Charles the first, tho’ he lays down the law of prerogative in very strong and emphatical terms, yet qualifies it with a general restriction in regard to the liberties of the people.117 The King (says he) hath a prerogative in all things that are not injurious to the Subject, in them all it must be remembered, that the Kings prerogative stretcheth not to the doing of any wrong. And finally the best definition of the prerogative, which our law books afford, is “that discretionary power of acting for the public good where the positive laws are silent” and if this discretionary power is abused to the publick detriment, such prerogative is exerted in an unconstitutional manner.118

    We, Gentlemen, have been thus particular in our instructions on this head, because we apprehend that this point of prerogative thro’ great inattention hath been much mistaken; and also because every other matter, set forth in the aforesaid opinion of Mr. Attorney and Solicitor General, has been irrefragably confuted by diverse Judicious replys of succeeding houses of Assembly.119 Now the clear law laid down (to the spirit of which we do order you punctually to adhere) proves beyond a cavil, that if the late removal of our General Court was not against plain provincial law, yet that such removal is not only unwarrantable by the principles of Crown Law, but is directly repugnant to the fundamental institutions even of prerogative law—For will any one be so weak or wicked nay, will even a Crown lawyer for his stipend or pension have the front publicly to maintain, that the late alteration of the seat of our General Assembly is “for the advantage and good of the people,” or “for the necessary support of society,” or that this assumed “prerogative stretcheth not to any wrong.” Now if all this, and much more, is not maintained, then waving our provincial law relative to the seat of government, we with good authority say, that the holding the General Court, from its antient and proper station, is unwarrantable, unconstitutional, illegal and oppressive. We have given you Gentlemen our full sentiments touching this important concern, because you ought not to be at any loss how to conduct your self herein conformable to the Judgment of your Constituents.—But had we not here spoken so largely, nay, had the express letter of the law been less favorable, & were it possible to romack up120 any absurd, obsolete notion, which might have seemed calculated to propagate slavish doctrines, we should by no more means have been influenced to forego our birth rights. For the prime and only reason which originated all laws, but more particularly and expressly the prerogative, was the general emolument of the state, and therefore when any pretended prerogatives do not advance this grand purpose, they have no legal obligation; and when any strictly Just prerogatives are exerted to promote any different design, they also cease to be binding. Indeed was a Solicitor General of Majesty in an express treatise “of the Kings prerogative will teach us” that mankind will not be reasoned out of the feelings of humanity nor will sacrifice their liberty by a scrupulous adherence to those political maxims, which were originally established to preserve it.

    The despicable situation of our provincial militia you will make the object of your peculiar attention; and as it is apparent From what putred source, this decline of military emulation hath flow’d, we press, that such animated steps may be taken as shall speedily remove this Just reproach from the land.—When every method is obstinately pursued to enervate with foreign luxuries, every artifice practised to corrupt, in order to inslave, when we are denyed a free constitutional exercise of our rights as Men and Citizens; when high handed invasions are made on our property, and audacious attempts to intimidate not only from resistance but complaint; surely the constitutional watchmen and centinels of our liberties are asleep upon their stations, or traitors to the main body, if they not rouse and risque from this insiduous plot.

    As a laudable and voluntary renunciation of a baneful Commerce has naturally occasioned a general stagnation of trade; and as the true riches of a people are numbers and industry, we warmly recommend to you such measures as will tend to increase population, incourage industry and promote our own manufactures; and as this is a very pacifick political devise for the defeat of our malicious foes, we presume it may be less obnoxious to the virulent slander of ministerial dependants—but these salutary methods of genuine policy ought never to exclude or supersede the more open, manly, bold and pertenacious exertions for our freedom.

    One of the most weighty matters, which attracts our affection, and lies deep in the heart of every honest, sensible American, is the firm and lasting union of the Colonies; There is no one point which ought more to engage our affectionate zeal. Our enemies well knowing the consequence of this great acquisition, have bent their whole force to render it abortive. Without the least foundation, Jealousies have been assiduously infused, diabolical falsehood forged, idle tales propogated, little discords fomented; and every engine that fraud could invent, and hardy villains manage, has been set to work in order to retard if not utterly overthrow this desirable atainment, but all has not done it. The Eyes of our worthy Brethren thro’ the Continent are open. Yet as we know the plotting mallice, inveteracy & indefatigueable labour of the desperately wicked, we strongly inculcate that you be zealous to keep up a cordial intercourse, with our Sister Colonies; and as our interests are so apparently inseparable, nothing but an intimate Communion is requisite to cement our political and natural attachment.

    We have for a long time beheld with grief and astonishment the unwarrantable practise of ministerial instructions to the Commanders in Chief of this Province; it is high time, Gentlemen, for this matter to be searched into and remidied.

    Such an enormous stretch of power, if much longer unchecked, will eventually annihilate the essentials of all civil liberty. It is repugnant to the very first principle of true government (which was alone instituted for the good of the governed) that a remote power not only much disconnected but often different in interests should undertake at pleasure to controul any command in affairs of the last moment for the benefit and relief of the people—a power 3000 transmarine miles distant, not only ignorant of our true wellfare, but if perchance discovered, interested to oppose it; not only attempting to oppress, but actually oppressing—that such a power should be allowed, wontonly to proscribe patricians & plebeins, at will to fix the residence of our parliament; to order that parliament when and how to proceed, and where to retire; at one time to forbid the best improvement of our own produce, at another time effectually to force us to purchase forreign merchandize; and again, as it were, sword in hand, to demand our property; and anon to forbid our own disposal of a certain part of it.121 These are doctrines & political solicisms which may take root and spring up, under the meridian of modern Rome; but we trust in God will not flourish in the soil and climate of British America. We therefore strictly charge you not to grant any supplys to the instruments of government, if through their defect or misapplication the grand end for which we support and pay our Rulers are not accomplished. We also recommend to you carefully to enquire into the state of criminal Prosecution in our executive courts; and endeavor to revive the antient method of appointing the Attorney General, agreable to charter; for we believe that such a step will be attended with very salutary consequences, in the advancement of public Justice, the punishment of offenders and the general good order of the Province.

    Our choice of you Gentlemen to represent us at this hazardous Juncture is a sufficient evidence of our great dependence on your wise, honest and steady conduct. We therefore leave all other matters to your best discretion and Judgment; till we shall see fit to give further instructions. We greatly confide that you will bear in strong remembrance, the hardships and sufferings of our pious fathers, to find out and purchase this remote asslym from ecclesiastical persecution and civil tyranny; that inspired by their glorious example, you will vigorously repel even unto the uttermost the insults and violences of internal and external enemies to our peace. We remind you that the further Nations recede and give way to the gigantick strides of any powerful Despot, the more rapidly will the Fiend advance to spread wide desolation; and then should an attempt be made to stay his ravaging progress—the dogs of war let loose and hot for blood rush on to waste and havock!122 Obsta principiis is the maxim now held in view.123 It is now no time to halt between two opinions: the demands of fraud, violence and usurpation are insatiable. It is therefore no season to stand listning to subtle alurements, deceitful cajolings, or formidable threatenings. We therefore enjoin you at all hazards to deport (as we rely your own hearts will stimulate) like the faithful Representatives of a freeborn, awakened and determined people—who being impregnated with the spirit of liberty in conception, and nurtured in principles of freedom from their infancy are resolved to breathe the same celestial ether, till summoned to resign the heavenly flame by that omnipotent God who gave it.