The Online Library of Liberty

A project of Liberty Fund, Inc.

• Autobiography. Continued.
• Diary.
• Notes of a Debate In the Senate of the United States.
• Essays and Controversial Papers of the Revolution.
• On Private Revenge. No. I. 1
• On Self-delusion. No. II.
• On Private Revenge. No. III.
• A Dissertation On the Canon and Feudal Law.
• Instructions of the Town of Braintree to Their Representative, 1765.
• The Earl of Clarendon to William Pym.
• Governor Winthrop to Governor Bradford
• Instructions of the Town of Boston to Their Representatives, 17 June, 1768.
• Instructions of the Town of Boston to Their Representatives, 15 May, 1769.
• The Independence of the Judiciary; a Controversy Between William Brattle and John Adams 1773
• Appendix.
• A.
• On the Powers of the Senate.

INSTRUCTIONS OF THE TOWN OF BOSTON TO THEIR REPRESENTATIVES, 15 MAY, 1769.

At the adjournment of the meeting of the freeholders, and other inhabitants of this town, on Monday last, the committee appointed for that purpose reported the following draft of instructions, which, being several times distinctly read, was accepted by the town, nemine contradicente:—

TO THE HONORABLE JAMES OTIS, AND THOMAS CUSHING, ESQUIRES; MR. SAMUEL ADAMS, AND JOHN HANCOCK, ESQUIRE.

Gentlemen,—

You have once more received the highest testimony of the confidence and affection of your constituents, which the constitution has empowered them to exhibit,—the trust of representing them in the great and general court, or assembly of this province. This important trust is committed to you at a time when your country demands the exertion of all your wisdom, fortitude, and virtue, and therefore, it is presumed, a free communication of our sentiments cannot but be agreeable to you.

The first object of your attention is the privilege of that assembly of which you are now chosen to be members. The debates there must be free. You will therefore exert yourselves to remove every thing that may carry the least appearance of an attempt to awe or intimidate. As the assembly is called to sit in the usual place, common decency as well as the honor and dignity of a free legislative, will require a removal of those cannon and guards, as well as that clamorous parade which has been daily around the court house since the arrival of his majesty’s troops, and at some times while the highest court of judicature has been sitting there, on the trial even of capital causes. When this grievance shall be removed, and the debates of the assembly shall be free, it will be natural to inquire into all the grievances we have suffered from the military power; why they have been quartered in the body of the town, in contradiction to the express words, and, as we conceive, the manifest intention of an act of parliament; why the officers who have thus violated our rights have not been called to an account, and dealt with as the law required; whether the measure taken by the governor of the province, in appointing an extraordinary officer to provide quarters for the troops, was not an evasion of the act of parliament made for the billeting and quartering his majesty’s troops in America, (the professed rule of their conduct,) and a design to elude the clause of said act purposely providing for the convenience of American subjects, and their security against an excess of military power? Why the repeated offences and violences committed by the soldiery, against the peace, and in open defiance and contempt of the civil magistrate and the law, have escaped punishment in the courts of justice? And whether the attorney-general has not, in some late instances, unduly exercised a power of entering nolle prosequi upon indictments, without the concurrence of the court, in obstruction to the course of justice, and to the great encouragement of violence and oppression?

And, as the quartering troops here has proved the occasion of many evils, we do earnestly recommend to you to use your utmost endeavors for a speedy removal of them.

Should the expense that has been incurred for providing barracks for the troops, and supplying them with necessaries, be required of the house of representatives, we do in the most solemn and express manner enjoin you, by no means to comply with such a requisition. If the general court is a free assembly, no power upon earth has authority to compel it to pay this money. Should it ever be deprived of its freedom, it shall never, with our consent, be made an engine to drain us of the little money we have left.

Another object of great importance, and which requires your earliest attention, is a late flagrant and formal attack upon the constitution itself,—an attempt not only to deprive us of the liberties, privileges, and immunities of our charter, but the rights of British subjects. We have seen copies of letters published here, authenticated by the clerk of the papers to the honorable house of commons, the contents of which must have awakened the jealousy of the country.1 The design of the writer is sufficiently apparent. And, considering his station as representative of the first person in the empire, and the rank of the minister to whom he addressed himself, we cannot wonder that credit has been given to his letters in Great Britain, and that they have already produced effects alarming to the colonies, and dangerous to both countries. It is therefore expected, that you use the whole influence you may have, that the injurious impressions which they have unhappily made may be removed, and that an effectual antidote may be administered, before the poison shall have wrought the ruin of the constitution.

It is unnecessary for us, at this time, to repeat our well-known sentiments concerning the revenue which is continually levied upon us, to our great distress, and for no other end than to support a great number of very unnecessary placemen and pensioners. We have only to add, that our sentiments on this subject are in no respect changed, and we expect that you will pursue with firm resolution and unremitted ardor, every measure that may tend to procure us relief, never yielding your consent to, or connivance at the least encroachment on our rights.

Next to the revenue itself, the late extensions of the jurisdiction of the admiralty are our greatest grievance. The American courts of admiralty seem to be forming by degrees into a system that is to overturn our constitution and to deprive us entirely of our best inheritance, the laws of the land. It would be thought in England a dangerous innovation, if the trial of any matter upon land was given to the admiralty; it would be thought more threatening still, if the power of confiscation over ships and cargoes for illicit trade was committed to the court; but if the forfeitures of ships and cargoes, large penalties upon masters, and such exorbitant penalties as the treble value of cargoes upon every person concerned in landing uncustomed goods were, by act of parliament, appointed to be tried by the admiral, the nation would think their liberties irrecoverably lost.

This, however, is the miserable case of North America! In the forty-first section of the statute of the fourth of George III. chap. xv. we find that “all the forfeitures and penalties inflicted by this or any other act of parliament, relating to the trade and revenues of the British colonies or plantations in America, which shall be incurred there, may be prosecuted, sued for, and recovered in any court of admiralty in the said colonies.” Thus these extraordinary penalties and forfeitures are to be heard and tried, not by a jury, nor by the law of the land, but by the civil law of a single judge! Unlike the ancient barons who answered with one voice, “We will not that the laws of England be changed, which of old have been used and approved,” the barons of modern times seem to have answered that they are willing those laws should be changed with regard to America in the most tender point and fundamental principle.

And this hardship is the more severe, as we see in the same page of the statute, and the section immediately preceding,—“That all penalties and forfeitures which shall be incurred in Great Britain shall be prosecuted, sued for, and recovered in any of his majesty’s courts of record in Westminster, or in the court of exchequer in Scotland respectively.” Here is a contrast that stares us in the face! A partial distinction that is made between the subject in Great Britain and the subject in America! The parliament in one section guarding the people of the realm and securing to them the benefit of a trial by jury and the law of the land, and by the next section depriving Americans of those important rights. Is not this distinction a brand of disgrace upon every American—a degradation below the rank of an Englishman? Is it not with respect to us a repeal of the twenty-ninth chapter of Magna Charta? “No freeman shall be taken or imprisoned or disseised of his freehold or liberties or free customs or outlawed or exiled or any otherwise destroyed, nor will we pass upon him nor condemn him, but by lawful judgment of his peers or the law of the land.” Englishmen are inviolably attached to the important right expressed in this clause, which for many centuries has been the noblest monument and firmest bulwark of their liberties. One proof of this attachment, given us by a great sage of the law, we think proper to mention, not for your information, but as the best expression of the sense of your constituents. “Against this ancient and fundamental law, and in the face thereof,” says Lord C̀oke, “I find an act of parliament made, that as well justices of assize as justices of peace, without any finding or presentment of twelve men, upon a bare information for the king before them made, should have full power and authority by their discretions to hear and try men for penalties and forfeitures.” His lordship, after mentioning the repeal of this statute, and the fate of Empson and Dudley, who received the full weight of the national vengeance for acting under it, concludes with a reflection, which, if well considered, might be sufficient to discourage such attacks upon fundamental principles: “The ill-success of this statute, and the fearful end of these two oppressors, should deter others from committing the like, and should admonish parliaments, that instead of this ordinary and precious trial by the law of the land, they bring not in absolute and partial trials by discretion.” Such are the feelings and reflections of an Englishman upon a statute not unlike the statute now under consideration, and upon courts and judges not unlike the courts and judges of admiralty in America!

The formidable power of these courts, and their distressing course of proceedings, have been severely felt within the year past; many of your fellow-citizens having been worn out with attendance upon them, in defence against informations for extravagant and enormous penalties. And we have the highest reason to fear, from past experience, that if no relief is obtained for us, the properties and liberties of this unhappy country, and its morals too, will be ruined by these courts and the persons employed to support them.

We, therefore, earnestly recommend to you, by every legal measure, to endeavor that the power of these courts may be confined to their proper element, according to the ancient English statutes; and that you petition and remonstrate against the late extensions of their jurisdiction; and, we doubt not, the other colonies and provinces who suffer with us under them will cheerfully harmonize with this in any justifiable measures that may be taken for redress.

We need not here take occasion to instruct you, that while you in the most ample manner testify your loyalty to our gracious sovereign, you strenuously assert and maintain the right of the subject, jointly or severally to petition the king, or to declare it as our clear opinion that the house of representatives in any one province has an undeniable right, whenever a just occasion shall offer, to communicate their sentiments upon a common concern to the assemblies of any or all the other colonies, and to unite with them in humble, dutiful, and loyal petitions for redress of a general grievance.

[1 ]History, vol. iii. p. 231.

[2 ]History, vol. i. p. 180.

[1 ]Copies of six letters of Sir Francis Bernard to the government at home, had been obtained through the agency of Alderman Beckford, a member of parliament, and had been transmitted by the colonial agent, Mr. Bollan, to the council of Massachusetts. The suggestions of changes necessary to be made in the government were well calculated to aggravate the popular irritation already existing.