declarare interpretari addere sive diminuere pro Nostrae libito voluntatis pront securitati Nostrae Terrae Nostrae viderimus expediri And therefore We Command you That from henceforward you observe the Premises in all things so only that as often whensoever and wheresoever We please We may Declare Interpret Add to and Diminish from the said Statutes and every part of them according to Our Will and Pleasure so as We shall see it expedient for the safety of Us and Our Land aforesaid In the next place I shall instance Ireland That it is a Conquer'd Kingdom is not doubted Cooke Rep. Fol. 18. but admitted in Calvin's case and by an Act of the 11th 12th and 13th of King James acknowledged in express Words viz. Whereas in former times the Conquest of this Realm by His Majesty's most Royal Progenitors Kings of England c. That by virtue of the Conquest it became of the Dominion of the Crown of England and subject to such Laws as the Conqueror thought fit to impose until afterwards by the Charters and Commands of H. 2. K. John and H. 3. They were Intituled to the Laws and Franchises of England as by the said Charters reference being thereunto had may more fully appear I shall only instance two The First is out of the close Rolls of H. 3. wherein the King after Thanks given to G. de Mariscis Justice of Ireland signifies That himself and all other his Lieges of Ireland should enjoy the Liberties which he had granted to his Lieges of England and that he will grant and confirm the same unto them Claus 1. H. 3. Dorso 14. which afterwards in the 12th Year of His Reign he did as followeth Rex dilecto fidelio suo Richardo de Burgo Justiciar ' suo Hibern Salutem Mandarimus vobis firmiter praecipientes quatenus certo die loco faciatis venire coram vobis Archi-Episcopos Episcopos Abbates Priores Comites Barones Milites Libere Tenentes Balivos singulorum Comitatuum coram eis publici legi faciatis Chartum Domini Johannis Regis Patris Nostri cui sigillum suum appensum est quam fieri fecit jurari a Magnatibus Hiberniae de legibus consuetudinibus Angliae observandis in Hiberniae Et praecipiatis eis ex parte nostra quod leges illas consuetudines in Charta praedicta contentas de caetero firmiter teneant observent The King to his Faithful and Beloved Richard de Burg Justice of Ireland Greeting We have Commanded you firmly enjoyning you That on a certain day and place you make to come before you the Arch-Bishops Bishops Abbats Priors Earls Barons Knights and Free-holders and the Bayliffs of every County and before them you cause to be publickly read the Charter of the Lord King John our Father to which his Seal is affixed and which he caused to be made and Sworn to by the Nobility of Ireland concerning the Laws and Customs of England to be observed in Ireland And commanded them on our behalf That for the future they firmly keep and observe those Laws and Customs contained in the Charter aforesaid By all which it is evident That after the Conquest and before the recited Charters the Inhabitants there although composed of many Free-born English Subjects who settled themselves amongst them were neither govern'd by their own Laws nor the Laws of England but according to the good pleasure of the Conqueror And if you will take the Opinion of Sir Edward Coke in his Annotations on the Great Charter he tells you plainly That at the making thereof it did not extend to Ireland or any of the King 's Foreign Dominions but after the making of Poyning's Law which was in the 11th Year of H. 7 long after the Great Charter it did extend to Ireland I have only one Instance more and that is The usage of Foreign Nations in their Plantations and Settlements abroad The Governments of the Vnited Provinces and Denmark are well known in Europe and yet in all their Plantations their Governments are despotical and absolute all the power is in the hands of a Governour and Council and every thing is ordered and appointed by them as is sufficiently manifest to those that are acquainted with Batavia Surrinam Curasao New York when formerly in their hands and the Island of St. Thomas By which it is evident That those Kingdoms and Principalities which are of the Dominion of the Crown of England are subject to such Laws Ordinances and Methods of Government as the Crown shall think fit to Establish The next thing then to be proved is That New England and all the English Colonies are subject to the Dominion of the Crown of England as Wales and Ireland are and not to the Empire of the King of England as Scotland is 'T is a fundamental point consented unto by all Christian Nations that the first Discovery of a Countrey inhabited by Infidels gives a Right and Dominion of that Countrey to the Prince in whose Service and Imployment the Discoverers was sent Thus the Spaniard claims the West-Indies the Portugals Brasile and thus the English these Northern parts of America For Sebastian Cabot imployed by King Henry 7. was the first Discoverer of these Parts and in his Name took Possession which his Royal Successors have held and continued ever since therefore they are of the Dominion of the Crown of England and as such they are accounted by that excellent Lawyer Sir John Vaughan in his reports Vauh Rep. Craw versus Ramsey which being granted the Conclusion must necessarily be good and it will follow That Englishmen permitted to be Transported into the Plantations for thither without the Kings Licence we cannot come can pretend to no other Liberties Privileges or Immunities there than anciently the Subjects of England who removed themselves into Ireland could have done For it is from the Grace and Favour of the Crown alone that all these Flow and are dispenced at the pleasure of him that sits upon the Throne which is plain in the great Charter it self where after the Liberties therein granted by the King it concluded thus Tenendas habendas de Nobis haeredibus Nostris in perpetuum To have and to hold of Us and Our Heirs for ever which by the Learned Sir Edward Coke is thus explained These words saith he are not inserted to make a Legal Tenure of the King but to intimate that all Liberties were at first derived from the Crown Instit page 2. fol. 4. Barbados Jamaica the Leeward Islands and Virginia have their Assemblies but it is not sui juris 't is from the grace and favour of the Crown signified by Letters Patents under the Broad Seal But the Laws made by these Assemblies with the consent of the Governour are no longer in force than till the King is pleased to signifie his Disapprobation of them which power he hath always reserâ—â—â—â—o himself and can whenever he thinks fit Repeal
Magistrates have for several Weeks declared their Opinion and voted to lay themselves at His Majesty's Feet by an humble submission and resignation of themselves to his Majesty's pleasure not being willing to contend with his Majesty in a course of Law but by the next opportunity to dispatch their Agents fully impowered to make their Submission according to his Majesty's said Declaration but by no means can at present obtain the consent of the Depuries whereby to make it an Act of the Corporation and therefore have agreed with them to a power of Attorneyship to save a Default in hopes that further time will prevail to dispatch their Agents accordingly and shall earnestly endeavour to give the People a better understanding before the next Ship Sail from hence His Majesty by this finding that all the easie means he had used could not bring them to any answer for the Crimes and Misdemeanors laid to their charge nor produce any thing else but baffles and delays gave Order to his Attorney-General to sue out a Writ of Scire Facias from the High Court of Chancery against the Governour and Company which was accordingly done directed to the Sheriffs of London c. and made returnable in Easter-Term in the 36th Year of His Majesty's Reign wherein they were required to make known to the said Governour and Company at London That they appear in His Majesty's High Court of Chancery at Westminster on the Day of the return thereof to shew cause wherefore the said Charter for the Reasons in the said Writ of Scire Facias mentioned and contained should not be made void null and cancell'd and the Liberties and Privileges thereby granted to the said Governour and Company be Seized into the King's Hands upon which Writ the said Governour and Company not appearing another Writ of Scire Facias of the same Tenor issued forth returnable in Trinity-Term then next following when the said Governour and Company appeared by their constituted Attorney and Council but refused to Plead to the said Writ only moved for time to send to New England which not being agreeable with the Rules and Practice of the Court in such Cases could not be allowed but in Favour to them a Rule was made That unless they Pleaded by the first day of the then next Michaelmas-Term Judgment should be entered by Default And in that Term for default of Pleading Judgment was entered on His Majesty's behalf and the said Charter adjudged to be void null and cancell'd and that the Liberties and Privileges of the said Governour and Company be Seiz'd into the King's Hands which was accordingly done by the Exemplification of the said Judgment in the Reign of K. James the Second and by His Majesty's Commission to a President and Council to take the Government of this Countrey All which Proceedings are most just and legal according to the Rules and Practice of the Law of England and agreeable with many Precedents of the like Nature both ancient and modern Besides all Companies Corporations or Bodies Politick made or granted by Letters Patents or Charter from His Majesty for any part or places beyond the Seas are by themselves or Agents to be alwaies ready to answer His Majesty in any of his Courts at Westminster when he shall think fit to order any Suit or Writ to be Sued or Prosecuted against them and are supposed to be resident in or about London or Westminster for that purpose as the East-India Royal African Bermoodos and Hudsons-bay Companys are who have their Trade Factories Collonys and Plantations abroad in Asia Africa and America And in the like state or condition were the Company or Corporation of Massathusets-Bay in New England to be according to the Capacities given them by their Incorporation of Suing and being Sued Pleading and being Impleaded as appears by the Dogget-Book of the Council when the Charter was first Granted wherein if they have neglected their Duty as well as exceeded their Powers and Privileges granted and would not put themselves into a condition to be heard when they ought and might it is not His Majesty nor the proceedings of His Courts that are to be blamed but themselves 3. That there was a Commission sent to the President and the successive one to Sir Edmond Andros are both true but that they were Illegal is a Position too confidently asserted by the Pen-man who seems to be more a Clergyman than a Lawyer but because the well clearing up of this point will be of great service to the subsequent Discourse 't will not be amiss that it be throughly considered I shall therefore lay down this as a certain Maxime both consonant to Reason and the Laws of the Land That those Kingdoms Principalities and Collonies which are of the Dominion of the Crown of England and not of Empire of the King of England are subject to such Laws Ordinances and Forms of Government as the Crown shall think fit to establish New England and all the Plantations are subject to the Dominion of the Crown of England and not to the Empire of the King of England Therefore the Crown of England may Rule and Govern them in such manner as it shall think most fit For the proof of which I shall instance Wales which was once a Kingdom or Territory govern'd by its own Laws but when it became of the Dominion of the Crown of England either by Submission or Conquest it became subject also to such Laws as King Edward the First to whom they submitted thought fit to impose as may plainly appear in the Preamble of the Statute of Rutland Leges consuetudines partium illarum hactenus usitatas coram Nobis preceribus Regni nostri fecimus recitari quibus diligenter auditis plenius intellectis quasdam illarum de consilio Procerum predictorum delevimus quasdam permissimus quasdam correximus etiam quasdam alias adjiciendas faciendas decrevinis eas de caetero in terris nostris in partibus illis perpetua firmitate teneri observari volumus in forma subscripta We have caused the Laws and Customs of those parts hitherto used to be recited before Us and the Peers of Our Realm which being diligently heard and more fully understood some of them by the Advice of Our Peers aforesaid We have obliterated some We have allowed and some We have corrected And have also Deereed That some others shall be made and We will that for the future they be holden and observed in Our Lands in those parts with perpetual Firmness in manner hereinafter expressed Then follow the Ordinances appointing Writs original and judicial in many things varying from those of England and a particular manner of proceeding And again in the close of the same Statute Et ideo vobis Mandamus quod praemissa de caetero in omnibus observetis ita tantum quod quotiescunque quandocunque ubicunque Nobis placuerit possimus praedicta Statuta earum partes singulas
and Annâ—â—â— all such as have not been before confirmed by him or some of his Predecessors New England had a Charter but no one will be so stupid to imagine that the King was bound to grant it them neither can you without impeaching the prudent Conduct and Discretion of your Fore-Fathers so much as think they would put themselves to so vast an Expence and unnecessary Trouble to obtain that which as English Men they thought themselves to have a sufficient Right to before They owe it only to the Grace and Favour of their Sovereign and if they had made better use of it to promote the Ends for which it was granted the weight of those Afflictions under which the People of this Country now groans would not have lain so heavy upon them at least they would have less deserved them Besides the Parliament of England have never by any Act of theirs favoured the Plantations or declared or inlarged their Privileges but have all along demonstrated that they were much differenced from England and not to have those Privileges and Liberties which England enjoyed being in all Acts relating to the Plantations restrained and burthened beyond any in England as appears by the several Acts made for the increasing of Navigation and for regulating and securing the Plantation Trade I think I have both by good Authority Practice and Precedent made it plain That the Plantations are of the Dominion of the Crown of England and without any regard to Magna Charta may be rul'd and govern'd by such ways and methods as the Person who wears that Crown for the good and advancement of those Settlements shall think most proper and convenient therefore neither the Commission to the Prosident nor that to Sir Edmond Andros can be said to be Illegal Since then such an one might lawfully be granted you have great reason to commend the Moderation of the Gentleman who was intrusted with it and to return Thanks to Almighty God for placing over you a Person indued with that Prudence and Integrity that he was so far from exceeding his Commission that he never put in execution the powers therein granted him Have there been any Taxes laid upon the People but such as were settled fifty years since and made perpetual by Laws of their own making Any part whereof might be retained and in force after the condemnation of their Charter that the King thought fit Who hath been transferr'd out of this Territory Or were ever fewer Rates paid than under him And whereas it is also alleaged in the Declaration That there were courses taken to damp and spoil their Trade while neither the Honour nor Treasure of the King were advanced Give me leave to tell you the same is altogether false and mistaken for the very considerable increase of Their Majesties Revenue arising by Customs not at all altered under Sir Edmond's government doth sufficiently demonstrate that the regular and lawful Trade of this Territory was exceedingly improved under him 'T is true the Acts for Regulating the Plantation-Trade and Navigation little regarded under the Massathusets Government to the great prejudice of the Revenues of the Crown and detriment of its European Subjects were carefully inforced and their constant and profitable correspondence with Foreigners and Pyrats diligently obstructed which was very disagreeable to many Persons who had even grown old in that way of Trade and was I believe one chief cause of the Revolution which seems evident by their falling again upon the same measures since that change By this is meant Courses taken to damp and spoil their Trade for which I hope the Government will not lie under any imputations in the Judgment of considering Men. I shall say little concerning the King's Treasure for it is clear to all that know this Country that under the late Government there was never so few Taxes paid nor until the Indian Rebellion a fuller Treasury since the settlement of these parts and 't is plain That the alteration of the Massethusets Government and annexation of the rest of those petty Colonys did highly conduce to the King's Honour and the good and welfare of his Subjects for all that Country which was every day subject to the Incursions of the French was no sooner taken into the King's hands and united but they became formidable And all endeavours to make them demolish the Fort of Oneagra which they had Built and Garrisoned some hundreds of Miles within the English Dominions in the Year 1687 proved unsuccessful until the Union of the said Colonys under the Commission so much complained of And I do heartily wish that the Divisions now among you do not encourage them to take the advantage of this opportunity and by an utter destruction of all this Continent experimentally make good my Assertion And 't is as plain that the King's Subjects which for many years had groaned under the severlty of a Tyrannical and Arbitrary Constitution deprived of the Laws and Liberties of English-men forced in their Consciences suffered death for Religion and denied Appeals to the King were eased of those intolerable Burthens and allowed the free Exercise of their Religion and the benefit of the Laws of England which were duly and truly administred unto them by which the Honour of the King is advanced to the highest pitch 4. 'T will be but time lost to say any thing of the Red-coats for no body can be so void of Sense and Reason to think that so many Thousand Men which at this day inhabit this Colony could be imposed upon by 100 Red-coats and if any body hath been so vain as to threaten them with more I look upon it an effect of passion or folly For Experience which certainly is the most convincing Argument in the World tells you there is no such thing 5. What is meant by Preserments and who are called Strangers and Haters of the People I must confess I cannot easily comprehend unless to inhabit fourteen or fifteen Years within the Territory will make a Man such Is there any one Gentleman of the Council that hath either been displaced or put into that Station by the Authority there Which of your Judges are Strangers Were not Three of them brought up amongst you and of your own Communion And was not the other in the same Imployment in some part of this Territory at the time of the Annexation From whom had the Secretary and Collector his Commission Certainly from no body here Did the alteration of the Government change your Treasurer Is it not the same Sir Edmond found here Is he not a Man of Estate good Credit and Reputation and one of your own Countrymen Were not all Officers in the Government as well Magisterial as Ministerial natural born Englishmen and Subjects to the Crown of England How then are Strangers and Haters of the People preferr'd when there is not one that can reasonably and justly be so termed in any place of Trust or Office throughout the Dominion
if they did a Judgment in such a case would be erroneous and reversible and 't is dangerous to admit of Innovations The Common Law of New England is brought in to Warrant the lifting up the Hand but I take that to be rara Avis in Terris for I challenge the whole Territory to produce one Precedent of such a resolved case but perhaps by it Prescription is intended if it be that will as illy serve the turn as th' other for the Colony hath not been long enough settled to claim any advantage by that Right neither if it had would it be admitted without apparent violation of their Charter being absolutly repugnant to the Laws of England 13. Fully to discuss the question concerning the Titles of their Lands would be a Subject too Copious for the present Design therefore I shall only glance at it as I pass by being resolved when time shall serve to declare my Opinion more amply on that Subject in the mean time let every considering Man Examine well the Charter which is the very basis of all their Rights unless they will set up a Power above the Kimgs and then let him tell me in whom the Fee simple of that Tract of Land betwixt Charles's River and Merry-mack remains if in the Grantees or their Heirs How do they derive their Titles form them If in the Governour and Company of the Massathusets Bay they must inquire whether pursuant to the Directions and Powers to them granted it is by good and sufficient Conveyances in the Law derived unto them If they find it so they must not be disturbed with Fears and Jealousies for nothing can hurt them if not they are infinitely obliged to those Persons who have made them sensible of their Weaknesses in a time when by His Majesties Letter Patents the Governour was impowered to supply all such Defects and not upon Terms either excessive or unreasonable but upon such as were both easy and moderate which will plainly appear to any Man who will but give himself the trouble to peruse the Table of Fees settled and allowed by the Council yet still every Man was at his own Liberty to take a Patent of Confirmation or to let it alone as is apparent enough by the many Petitions now lying in the Secretary's Office which altho' his Excellency was always ready so far as in him lay to Grant yet the more necessitous Affairs of the Govermment which both he and all about him ever preferr'd to their private advantage took up so much of his time that not above twenty ever passed the Seal and I am very well assured that not one Example can be produced that the least compulsion was ever used in this case to any Man living within this Dominion If the Governour did say there was no such thing amongst you as a Town what can be inferred from thence 'T is not to be presum'd but his Discourse tended only to a Body Corporate and Publick For you generally call that a Town in America where a number of People have Seated themselves together yet 't is very well known 't is so in Name only not in Fact I take that Body of People to be a Town properly so called who by some Act of Law have been Incorporated and in that sense there is no such thing as a Town in the Massathusets neither was there a Power to make such before his Excellency's Arrival for One Corporation cannot make another The Case of Suttons Hospital Co. Rep. 14. That Writs of Intrusion were issued out is doubtless true and the Government would have justly merited a severe censure if all waies should have been free and open for the Subject to attain his right and none left for the King They would think themselves highly injur'd to be refused a Capias or any other common Writ and I 'm sure the other is as peremptory an one in the Kings Case and had the Penman been never so little acquainted with the Natura brevium or the Register he would have been asham'd to have stuffed up the Declaration with such Matter which can be of no other service than to amuse and deceive ignorant People Have there been more than seven Writs of this kind issued out during Sir Edmonds Administration Or more than two Prosecuted And were any of them against either Poor or Ignorant Persons that had neither Purses nor Brains to defend themselves Hath it not been against such as both for their Estates and Capacities are sufficiently known to be eminent And the business of Deer-Island was brought on for no other intent then that right might be done to the King here and that the Party if agrieved might in a regular way have brought it to the Council-Board in England for their Determination And I think if this matter were rightly understood it would be of excellent service to the Country for such a Judgment would sufficiently instruct them what they have to trust to 15. That their Commons might be begg'd is not very strange but that the Governour must be Criminal because such a thing is asked of him is a barbarous inference To whom have they been granted Or for which of his Creatures have they been measured out I should be glad to see that Man who would bare-fac'd instance one partioular grant of any Man 's Right or Possession passed by Sir Edmond during his Government 'T is true that at the request of Lieutenant Coll. Lidget a Gentleman who hath long lived among you in Reputation equal to the best whose Fortunes were not so narrow that he needed a dependance upon any one and by a plentiful Estate which he possessed in Charles-Town had a right to a proportionable share or dividend in all the vacant and unapropriated Lands belonging to the said Town the Governour and Council did grant him a piece of the said vacant Lands which the Pen-man corruptly calls Commons contiguous to a very considerable Farm which he was there owner of which I presume they might very lawfully do for it can never be made appear That the People of Charles-Town either in Law or Equity had a Right or Title to the said Land without a Grant from the Governour and Company of the Massathuset's Bay exempted under the Seal of the Corporation pursuant to the Rules and Directions of their Charter they can have no Legal Claime and I am fure such can never be produced and I think they have as slender a pretence to an equitable one when the Land hath always lain wast and undivided to the profit and advantage of the Claimer without any manner of charge or expence Besides it cannot be consistent with the Interest of new Plantations that two or three Hund. Thousand Acres of Land should be taken up by a small number of People who are not capable of improving one tenth part of it and the rest lie vacant under the notion of Commons when Persons of Ability equally concerned would improve it but cannot because