and the successive one to Sr. Edmond Andross are both true but that they were illegall is a position a little too confidently asserted by the Penman who seems to be more a Clergy-man 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 downe this as a certaine Maxime both consonant to Reason the Lawes of the Land That Those Kingdomes Principalities and Colonies which are of the Dominion of the Crowne of England and not of the Empire of the King of England are subject to such Lawes Ordinances and Forms of Government as the Crowne shall think fit to establish That New-England and all the Plantations are subject to the Dominion of the Crowne of England and not to the Empire of the King of England Therefore The Crowne of England may Rule and Governe them in such manner as it shall thinke most fit For the proofe of which I shall instance Wales which was once a Kingdome or Territory governed by its owne Lawes but when it became of the Dominion of the Crowne of England either by Submission or Conquest it became subject also to such Lawes as King Edward the first to whome they submitted thought fit to impose as may plainly appeare in the Preamble of the Statute of Rutland Leges et Consuetudines partium illarum hactenus usitatas coram nobis et proceribus Regni Nostri fecimus recitari quibus diligenter auditis et plenius intellectis quasdam illarum de Consilio Procerum predictorum delevimus quasdam permissimus et quasdam correximus et etiam quasdam alias adjiciendas et faciendas decrevimus et eas de caetero in terris Nostris in partibus illis perpetua Firmitate teneri et observari volumus in forma subscripta In English thus We have caused the Lawes and Customs of those parts hitherto used to be recited before Us and the Peers of Our Realme which being diligently heard 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 decreed that some others shall be made and added to them and We will that for the future they be holden observed in Our Lands in those parts with perpetual firmnesse in manner herein after expressed Then follow the Ordinances appointing Writts originall and judiciall in many things varying from those of England and a particular manner of proceeding And againe in the Close of the said Statute et ideo vobis mandamus quod permissa de caetero in omnibus observaetis ita tantum quod quotiescunque et quandocunque et â—bicunque Nobis placuerit possimus praedicta Statuta et eorum partes singulas declarare interpretari addere sive diminuere pro Nostrae Libiâ—o voluntatis prout securitati Nostrae et Terrae Nostrae viderimus expediri And therefore We Command you that from hence foreward you observe the premises in all things so onely 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 Conquered Kingdome is not doubted Co. Rep. fol. 18. a. but admitted in Calvins Case and by an Act of the 11 th 12 th and 13 th of King James acknowledged in expresse words Viz. Whereas in former times the Conquest of this Realme by His Majesties most Royal Progenitors Kings of England c. That by Virtue of the Conquest it became of the Dominion of the Crowne of England and subject to such Lawes as the Conquerour thought fit to impose untill afterwards by the Charters and Commands of H. the Second King John and H. the 3. they were entituled to the Lawes Franchises of England as by the said Charters Reference being thereunto had may more fully appeare I shall onely instance two The first is out of the close Rolls of H. the 3. Wherein the King after Thanks given to G. de Mariscis Justice of Ireland signifies That Himself and all other his Leiges of Ireland should enjoy the Liberties which he had granted to his Leiges of England and that he will grant confirm the same unto them Claus 1. H. 3. dorso 14 Which afterwards in the 12 th yeare of his Reigne he did as followeth Rex dilecto et sideli suo Richardo de Burgo Justiciarâ— suo Hibern Salutem Mandavimus vobis firmiter precipientes quatenus certo die loco faciatis venire coram vobis Archiepiscopos Episcopos Abbates Priores Cometes Barones Milites libere Tenentes et Balivos singulorum Comitatuum et coram eis publice legi faciatis Chartam Domini Johannis Regis Patris nostri cui Sigillum suum appensum est quam fieri fecit et jurari a Magnatibus Hiberniae de Legibus et Consuetudinibus Angliae observandis in Hibernia Et precipiatis eis ex parte Nostra quod Leges illas Consuetudines in Charta praedicta contentas de caetero firmiter teneant et observent The King to His faithfull and beloved Richard de Burg Justice of Ireland Greeting We have Commanded you firmly injoining you that on a certain day and place you make to come before you the Archbishops Bishops Abbots Priors Earles Barons Knights Free-Holders and the Baylifs 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 sworne to by the Nobility of Ireland concerning the Lawes and Customs of England to be observed in Ireland And command them on Our behalfe that for the future they firmly keep and observe those Laws and Customs conteined in the Charter aforesaid By all which it is evident that after the Conquest and before the recited Charters the Inhabitants there altho' composed of many free-borne English Subjects who settled themselves among them were neither govern'd by theire owne Laws nor the Laws of England but according to the good pleasure of the Conqueror and if you will take the opinion of Sr. Edward Cooke in his Annotations on the Great Charter he tells you plainly That at the makeing thereof it did not extend to Ireland or any of the King 's forreigne Dominions but after the making of Poynings Law which was in the 11 th yeare of H. the 7 th long after the Great Charter it did Extend to Ireland I have onely one Instance more and that is the Vsage of forreigne Nations in theire Plantations and Settlements abroad The Government of the Vnited Provinces Denmarke are well knowne in Europe and yet in all theire Plantations their Governments are
a Reason or Argument for Vacating our Charter is beyond my conception for Fire and Sword were the designed instruments and ministers of their barbarous and hellish Contrivance and if they had once prevailed how weak a Rampart would our Charter have been against so cruell and powerfull an Enemy Would a blood thirsty and conquering Papist have made Westminster-Hall the Arbiter Certainly No we must have received our Law from the mouth of the Cannon and our Hedge would have been broke downe with a great deal of ease Is it reasonable to imagine that after they had waded through the blood of King and Nobles to their wished-for End in Old England they would make use of Politicks in New And as preposterous and unreasonable to fancy That for that end our Charter was called in question especially when we consider that more than four Decads of years have allready past since the Crowne of England first thought it not fit for us to hold any longer and severall years after the popish Plot was discovered before the Scire facias issued out 2. That the Charter was injuriously and illegally Condemned without giveing us timely notice of it or allowing us to Answer for our selves might bear some weight with it if true but it will appeare quite other wise and that we had opportunity enough to have made defence on behalfe of our Charter if we had so thought fit for severall years before the proceedings to the Condemnation thereof Our late Soveraigne King Charles the Second by His Letters signified to us the many Complaints that were made to him of our Encroachments and ill-Administration of the Government and commanded that we should send over Agents sufficiently Authorized to Answer the same which we at length so far complyed with as to send Agents who when they were called to hear and Answer the said Complaints alwaies excused and avoided the principall parts thereof pretending they were not sufficiently impowered for that purpose and after other Agents fully impowered to Answer but not to submit or Conclude any thing And when His Majesty was pleased to cause a Writt of Quo Warranto to be sued forth against our Charter and sent over with his Gracious Declaration and Proposals of such Regulations to be made therein as might be agreeable with His Majesties Service the good well-fare of his subjects here and required an entire Submission from us therein our Generall Court would not submit to or comply therewith onely a Letter was sent to the Right Honourable Sr. Lionell Jenkins then Secretary of State dated the 10. of December 1683 Subscribed by the Governour Eight of the Assistants onely wherein after the acknowledgement of their haveing had a Copy of the Quo Warranto and His Majesties Declaration they say that the major part of the Magistrates have for severall Weeks declared their Opinion and voted to lay themselves at His Majesties feet by an humble Submission and Resignation of themselves to His Majesties pleasure not being willing to Contend with His Majestie in a Course of Law but by the next Opportunity to dispatch their Agents fully impowered to make their submission according to His Majesties said Declaration but by no means can at present obtain the Consent of the Deputyes whereby to make it an Act of the Corporation and therefore have agreed with them to a power of Attourney-ship 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 Ships saile from hence His Majesty by this finding that all the easie meanes He had used could not bring us to any Answer for the Crimes and Misdemeanours laid to our Charge nor produce any thing else but Bassles and Delayes gave Order to His Attourney Generall to sue out a Writ of Scire facias out of the High Court of Chancery against our Governour and Company which was accordingly done directed to the Sheriffs of London c. and made returnable in Easter Terme in the 36 yeare of His Majesties Reigne wherein they were Required to make knowne to the said Governour Company at London that they may appeare in His Majesties High Court of Chancery at Westminster on the day of the Returne thereof to shew cause wherefore the said Charter for the Reasons in the said Writt of Scire facias mentioned and contained should not be made void null and cancelled and the Liberties and priviledges thereby granted to the said Governour and Company be seized into the King's hands upon which Writt the said Governour and Company not appearing another Writt of Scire facias of the same Tenour issued forth Returnable in Trinity Terme then next following when the said Governour and Company appeared by their constituted Attourney and Councill but refused to plead to the said Writt onely moved for time to send hither 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-Terme Judgement should be entered by Default And in that Terme for Default of pleading Judgement was enterd on His Majesties Behalfe and the said Charter adjudged to be void Null and Cancelled and that the Liberties and Priviledges of the said Governour and Company be Seized into the Kings hands which was accordingly done by the Exemplification of the said Judgement in the Reigne of King James the Second and by His Majesties Commission to a President and Councill to take the Government of this Countrey All which proceedings are most just and and Legall according to the Rules and practice of the Law of England and agreeable with many Precedents of the like nature both Ancient and Moderne Besides All Companies Corporations or Bodies politick made or granted by Letters Patents or Charter from His Majesty for any parts or places beyond the Seas are by themselves or Agents to be always ready to answer His Majesty in any of his Courts at Westminster when He shall think sit to Order any Suite or Writt to be sued and prosecuted against them and are supposed to be Resident in or about London or Westminster for that purpose as the East-India Royall-Affrican Bermudas and Hudson-bay Companies are who have their Trade Factories Colonies and Plantations abroad in Asia Affrica and America and in the like state and Condition ought the Company and Corporation of the Massathusetts Bay in New-England to be According to the Capacities given them by their Incorporation of Sueing and being sued Pleading being Impleaded wherein if we have neglected our Duty as well as exceeded our Powers and Priviledges granted and would not put our selves into a Condition to be heard when we ought and might it is not His Majesty nor the Proceedings of His Courts that are to be blamed but our selves 3. That there was a Commission sent to the President
despoticall and absolute all the power is in the hands of a Governour Councill and every thing is ordered and appointed by them as is well knowne to those that are acquainted with Batavia Surinam Curasao New-Yorke when formerly in their hands and the Island of St. Thomas By which it is it evident that Those Kingdoms and Principalities which are of the Dominion of the Crowne of England are subject to such Laws Ordinances and Methods of Government as that Crowne shall think sit 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 Crowne of England as Wales and Ireland are and not to the Empire of the King of England as Scotland is 'T is a Fundamentall Point consented unto by all Christian Nations that the First Discovery of a Countrey inhabited by Insidells gives a Right and Dominion of that Countrey to the Prince in whose Service and Employment the Discoverers were sent Thus the Spaniard claimes the West-Indies the Portungals Brasile and thus the English these Northern parts of America for Sebastian Cabott imployed by King H. the 7 th was the first Discoverer of these parts and in his name took possession which his Royall Successours have held and continued ever since therefore they are of the Dominion of the Crowne of England and as such they are accounted by that excellent Lawyer Sr. John Vaughan in his Reports Vaugh. 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 Priviledes or Immunities there than anciently the subejcts of England who removed themselves into Ireland could have done For 't is from the Grace and Favour of the Crowne alone that all these flow and are dispensed at the pleasure of him that sits on the Throne which is plaine in the Great Charter it-selfe where after the Liberties therein granted by the King it concludes thus tenendas habendas de Nobis Haeredibus Nostris in perpetuum To HAVE and to HOLD of Us and Our Heires for ever which by the learned Sr. Edward Cooke is thus explained These Words saith he are not inserted to make a legall Tenure of the King but to intimate that all Liberties at first were derived from the Crowne Instit Pag. 2. Fol. 4. Barbadoes Jamaica the Leeward-Islands Virginia have their Assemblies but it is not sui Juris 't is from the Grace Favour of the Crowne signified by Letters Patents under the broad Seale But these Assemblies have not power to enforce any Act by them made above one year the King haveing in all the Consessions granted them reserved unto Himselfe the Annulling or Continuance of what Laws they make according to His pleasure new-New-England had a Charter but no one will be so stupid to imagine that the King was bound to grant it us Neither can we without impeaching the prudent Conduct and discretion of our Fore-Fathers so much as think they would put themselves to so vast an expence and unnecessary Trouble to Obtain that which as Englishmen they thought themselves to have a sufficient right to before We owe it onely to the Grace and Favour of our Soveraigne and if we had made beter use of it to promote the Ends for which it was granted the weight of those Afflictions under which we now groan would not have laine so heavy upon us at least we should have less deserved them Besides The Parliament of England have never by any Act of theirs favoured the Plantations or declared or enlarged their Priviledges but have all along plainly demonstrated that they were much differenced from England and not to have those Priviledges and Liberties which England enjoyed being in all Acts relateing to the Plantations Restrained and burthened beyond any in England as appears by the several Acts made for the Encreasing of Navigation and for Regulating and securing the Plantation Trade I think I have both by good Authority Practice Precedent made it plaine that the Plantations are of the Dominion of the Crown of England and without any Regard to Magna Charta may be Ruled and Governed by such wayes and methods as the Person who wears that Crowne for the good and advancement of those Settlements shall think most proper and convenient Therefore Neither the Commission to the President nor that to Sr. Edmond Aâ—dros can be said to be illegall Since then such an one might lawfully be granted we have greaâ— reason to commend the Moderation of the Gentleman who was entrusted with it and so returne thanks to Almighty God for placeing over us a person endued with that prudence Integrity that he was so for from exceeding his Commission that he never put in execution the powers therein granted him Have there been any Taxes laid upon us but such as were settled by Laws of our owne makeing any part whereof might be retained in force after the Condemnation of our Charter that the King thought â—it Who hath been Transferr'd out of this Territory Or did we ever pay fewer Rates than we have done under him And whereas it is also Alledged in the Declaration that there were Courses taken to damp and spoile the Trade c. the same is altogether Mistaken unlesse by that is meant the irregular Trade used heretofore with Forreigners and Privateers contrary to the Acts of Navigation the Laws of the Land For the very considerable Advance of His Majesties Revenue ariseing by Customs doth sufficiently demonstrate that the lawfull Trade of this Territory was very much encreased under the Government of Sr. Edmond Andros 4. 'T will be but time lost to say any thing of the Red-Coats for no man can be so void of Sence and Reason to think that so many Thousand men which at this day inhabit this Colony could be imposed upon by one hundred Red-Goats and if any body hath been so vain as to threaten us with more I look upon it an effect of Passion or Folly for Experience which certainly is the most convinceing Argument in the world tells us there is no such thing and Haters of the People I must confesse I cannot easily comprehend unless to inhabit fourteen or fifteen years within the Territory will make a man such Is their any one Gentleman of the Councill that hath either been displaced or put into that station by the Authority here Which of our Judges are strangers Were not Three of them brought up amongst us and of our owne Communion and was not the other in the same Imployment in some part of this Territority at the time of the Annexation From whome had the Secretary and Collector his Commission certainly from no body here Did the Alteration of the Government change our Treasurer Is it not the same Sr. Edmond found here Is he not a man of
such a Case would be erroneous reversable 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 the 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 the other for the Colony hath not been long enough settled to claim any Advantage by that Right or if it had could it be admitted without apparent Violation of our Charter being absolutely repugnant to the Lawes of England 15. Fully to discuss the question concerning the Titles of our Lands would be a Subject to copious for this present designe Therefore I shall onely 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 our Charter which is the very Basis of all our Rights unless we will set up a power above the Kings and then let him tell me in whome the Fee Simple of that Tract of Land betwixt Charles River Mirrimack remaines if in the Grantees or their Heires how do we derive our Titles from them If in the Governour and Company of the Massathusets Bay we must enquire whether pursuant to the Directions and powers to them granted it is by good sufficient Conveyances in the Law derived unto us if we find it so we must not be disturbed with Fears and Jealousies for nothing can hurt us if not we are infinitely obliged to those persons who have made us sensible of our Weakenesses in a time when by His Majesties Letters Patents the Governour was impowered to supply all such defects and not upon Terms either excessive or unreasonable but upon such as were both easie 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 Councill Yet still every man was at his own Liberty to take a Patent of Confirmation or to let it alone which is Apparent enough by the many Petitions now lying in the Secretaries Office which although his Excellency was alwayes ready so far as in him lay to Grant yet the more necessitous Affairs of the Government which both he and all about him ever preferr'd to theire private Advantage took up so much of his time that not above Twenty ever past the seale 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 16. That Writts of Intrusion were issued out is doubtlesse true and the Government would have justly merited a severe Censure if all Waies should have been free open for the Subject to attaine his Right and none left for the King. We should think our selves highly injured to be refused a Capias or any other Common Writt and I 'm sure the other is as peremptory a one in the Kings Case and had the Pen man been never so little acquainted with the Natura Brevium or the Register he would have been ashamed to have stuffed up the Declaration with such matter which can be of no other service than to amuse deceive ignorant people have their been any Writts of this kind dureing Sr. Edmond s Administration taken out 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 than 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 Councill board in England for their determination and I think if this matter were rightly understood it would be of excellent Service to the Countrey for such a Judgement would sufficiently instruct us what we have to trust to 17. If the Governour did say there was no such thing amongst us as a Towne what can be inferred from thence T is not to be presumed but his discourse tended onely to a Body Corporate and politick for we generally call that a Towne in America where a number of people have seated themselves together yet it s very well known t is so in name onely not in fact I take that Body of People to be a Towne properly so called who by some Act of Law have been Incorporated and in that sence there is no such thing as a Towne in the Massachusetts neither was there a power to make such before his Excellencies Arrivall For One Corporation cannot make another the case of Suttons Hospital Co Rep. 18. I am totally ignorant what is meant by Blank Patents for t is the first time I ever heard of such a thing neither indeed can such a thing be For he that takes a Patent for his Land doth it in such a Form as best pleaseth himself or as he shall be advised to by his Councill and how any man living can so far know my mind to prepare such an Instrument for me I leave the world to judge This Notion did arise from one Roll of Parchment onely brought over by Capt. Tanner and if we do but consider that all Law process was then in Parchment it would serve but a little while for that use for it contains not above sixty sheets I am likewise gropeing in the darke to finde out how the Forceing of the people at the Eastward to take Patents although I know of no such thing done gave a Rise to the late unhappy Invasion by the Indians unless by that meames they were deprived of those Quit-Rents and and Acknowledgements which by a base dishonourable Agreement the people of those parts some time since submitted to pay them as their Lords and Masters 19. That our Commons might be begg'd is not very strange but that the Governour must be criminall because such a thing is asked of him is the most wonderfull thing in the world To whome have they been granted or for which of his creatures have they been measured out If Lieut ' Col ' Lidgeâ— be instanced how came he to be the Governour 's Creature that hath so long liv'd among us in Reputation equall to the best of us and whose Fortunes were not so narrow that he needed a dependancy upon any body and estate interest in Charles-town Lands equalled if not exceeded any man's there so his Right to the Grant ought to be preferr'd If Clarks-Island granted to Mr. Clarke of Plimouth I must tell you 't is not within the Plimouth Patent and therefore grantable at the pleasure of the King which was the Opinion of the Councill in that Case and neither of the before-mentioned Grants nor indeed any other did