The Constitution Has Been Called Into Question

in about Warren

Date: January 11, 1773

Author: Thomas Hutchinson

“BOSTON, January 11, 1773. Wednesday last [i.e. January 6th] the Great & general Court or Assembly of the Province met here, when his Excellency the Governor was pleased to make the following SPEECH to both Houses, viz.

Gentlemen of the Council, and Gentlemen of the House of Representatives,

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 to be 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 candour, and, if you shall not agree in sentiments with me, I promise you, with candour 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 irresistible evidence.  This supreme authority has, from time to time, been exercised by Parliament and submitted to by the Colony and hath been, in most express terms, acknowledged by the Legislature and, except about the time of the Anarchy and Confusion in England which preceded 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 particular 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 a Colony 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 through all Parts of the British 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 of both 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 as largely the advantages of government as, perhaps, any people upon the Globe, and they have from time to time in the most publick 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 into 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 the legal Town Meetings, have passed Resolves which they have ordered to be placed upon their Town Records, and caused to be printed and published in pamphlets and news papers. I am sorry that it has thus become impossible to conceal what I could wish had never been made publick. I will not particularize these Resolves or Votes and shall only reserve to you, in general, that some of them deny the supreme Authority of Parliament, and so are repugnant to the principals 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 affections of the people from their Sovereign who has ever been most tender to their Rights, and whole 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 the 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 in making laws is granted by Charter to the 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 affirmed 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 Liberties of British subjects, which has its foundation in nature, to be governed by laws made by their consent, in person or by their representatives – that the Subjects in this Province are not and cannot be represented in the Parliament of Great Britain and , consequently, the Acts of that Parliament cannot be binding upon them.

I d not find, Gentlemen, in the Charter such an expression as sole power or any words which import it. The General Court, however, has 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 expressly declared to respect us. Surely then this is by Charter a reserve of Power and authority for Parliament to bind us by such Laws, at least, as are made expressly to refer to us, and, consequently, it is a limitation of power given to the General Court. Nor can it be contended by the Liberties of free and natural Subjects is to be understood an exception from Acts of Parliament because not represented there, seeing it is provided, by the Tame Charter, that such Acts shall be in force ; and if they that will make 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 part of the Dominions of the Crown of England, and therefore the Subjects of the Crown so removing, and those born there and in their  passage hither or in their passage from thence, would not become Aliens but throughout all parts of the English Dominions, wherever they might happen to be, as well as in the Colony, retain the Liberties and Immunities of free and natural Subjects, their removal from or not being born the Realm notwithstanding. If the plantations be part of the dominion of the Crown, this clause in the Charter does not confer or reserve any Liberties but would have been enjoyed with put it, and what the Inhabitants of every other Colony enjoy do 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 to be born out of the ligeance of the King of England, and wherever they go in any part of the dominions will they not be deemed Aliens for 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 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 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 free from the subjection they were under before ; or do they expect that the 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?

They who claim exemption, as part of their Rights by nature, should consider every restraint which men are laid under by a state of government is a privation of part of their natural Rights, and all of the different forms of government which exist, there can be no two of them in which the departure from natural rights is exactly the same. Even in the case of representation by election, do they not give up part of their natural rights when they consent to be represented by such person as shall be chosen by the majority of the Electors, even although their own voices may be for same other person? And is it not contrary to their natural rights to be obliged to submit to a Representative for seven years, or even one year, after they are dissatisfied with their conduct, although they gave their voices for him when he was elected? This must therefore be considered as an objection against a state of government rather than against any particular form.

If what I have said shall not be sufficient to satisfy such an object to the Supreme Authority of Parliament over the Plantation, there may something further be added to induce them to an acknowledgement of it which I think will well deserve their consideration. I know of no line that can be drawn between the supreme authority of Parliament and the total independence of the Colonies ; It is impossible there should be two independent Legislatures in one and the same state, for although there may be but one head, the King, yet the two legislative bodies will make two Governments as distinct as the Kingdoms of England and Scotland before the Union. If we might be suffered to be altogether independent of Great Britain, could we have any claim to the protection of that Government of which we are no longer part? Without this protection should we not become the prey of one or the other Powers of Europe, such as should first seize upon us. Is there anything we have more reason to dread than Independence? I hope that it will never be our misfortune to know by experience the difference between the Liberties of an English Colonist and those of the Spanish, French or Dutch.

If then the Supremacy of Parliament over the whole British dominions shall no longer be denied, it will follow that meer exercise of its authority can be no matter of grievance. If it has been or shall be exercised in such a way and manner as shall appear to be grievous, still this cannot be sufficient grounds for immediately denying or renouncing the Authority or refusing to submit to it. The acts and doings of authority in the most perfect form of government will not always be thought just and equitable by all the parts to be at liberty to obey or disobey according as the acts of such authority may be approved or disapproved of by them, for this necessarily works a dissolution of the Government. The manner then of obtaining redress must by representations and endeavors, in such ways and forms as the established rules of the Constitution prescribe or allow in order to make any matters alleged to be grievances appear to be really such ; but I conceive that it is rather the meer exercise of this authority which is complained of as a grievance, than any heavy burdens which have been brought upon the people by means of it.

As contentment and order were the happy effects of a Constitution strengthened by universal assent and approbation, so discontent and disorder are now the deplorable effects of a Constitution enfeebled by contest and opposition. Besides divisions and animosities which disturb the peace of Towns and Families, the Law in some important cases, cannot have its course,- offenders ordered by advice of His Majesty’s Council to be prosecuted, escape with impunity and are supported and encouraged to go on offending,– the authority of Government is brought into contempt, and there are but frail remains of that subordination which was once very conspicuous in this Colony, and which is essential to a well regulated state.

When the bands of Government are thus weakened, it certainly behoves those with whom the powers of Government are intrusted to omit nothing which may tend to strengthen them.

I have disclosed my sentiments to you without reserve.  Let me intreat you to consider them calmly and not to be too sudden in your determination.  If my Principles of Government are right let us adhere to them.  With the same Principles our Ancestors were easy and happy for a long course of years together, and I know of no reason to doubt of your being equally easy and happy.  The people, influenced by you, will forsake their unconstitutions’ principles & desist from their irregularities which are the consequence of them, they will be convinced that every thing that is valuable to them depend upon their connexion to their parent state, that this connexion cannot be continued in any other way than such as will also continue their dependence upon the Supreme Authority of the British dominions, and that, notwithstanding this dependence, they will enjoy as great a proportion of those Rights to which they have a claim by nature or as Englishmen as can be enjoyed by a Plantation or Colony.

If I am wrong in my Principals of Government or in the inferences which I have drawn from them, I wish to be convinced of my error.  Independence I may not allow myself to think that you can possibly have in contemplation.  If you can conceive of any other constitutional dependence than what I have mentioned, if you are of opinion that upon any other principles our connection with the state from which we sprang can be continued, communicate your sentiments to me with the same freedom and unreservedness as I have communicated mine to you.

I have no desire, Gentlemen, by any thing I have said to preclude you from seeking relief, in a constitutional way, in any cases in which you have heretofore or may hereafter suppose that you are aggrieved, and, although I should not concur with you in sentiment, I will, notwithstanding, do nothing to lessen the weight which your representations may deserve.  I have laid before you what I think are the Principles of your Constitution : If you do not agree with me I wish to know your objections ; They may be convincing to me, or I may be able to satisfy you of the insufficiency of them ; In either case, I hope, we shall put an end to these irregularities, which ever will be the portion of a Government where the Supreme Authority is controverted, and introduce that tranquility which seems to have taken place in most of the Colonies upon the Continent.

The ordinary business of the Session I will not now particularly point out to you.  To the enacting of any new Laws which may be necessary for the more equal and effectual distribution of Justice, or for giving further encouragement to our Merchandize, Fishery and Agriculture, which through Divine favour are already in a very flourishing state, or for promoting any measures which may conduce to the general good of the Province, I will readily give my Assent or Concurrence. (3047 words)

Council-Chamber, 6 January 1773.                                               T. Hutchinson.”

Source: Boston Evening-Post supplement, Issue 1946; p.1

Commentary: Governor Thomas Hutchinson took the occasion of the New Year to lecture Patriot activists on the errors of their ways. His address, though long at 3080 words and rife with meandering phrases and qualifications, manages to be an elegant defense of Loyalism.

In the previous two years, Patriot political activity had fallen off from heights of the Stamp Act crisis and Boston Massacre unrest. Boycotts against British goods had faltered. Leading Sons of Liberty voices in Massachusetts such as James Otis, Benjamin Church, and John Adams had quieted for various reasons. Only stalwarts like Samuel Adams and Joseph Warren, the most radical among the Patriots, did not waiver.

Patriots sought to revitalize their cause over issues such as whether provincial judges should be accountable, through payment of salaries, to the elected provincial House of Representatives or to the Crown. Loyalists were not at first greatly concerned with the Boston Committee of Correspondence, initiated late in 1772 to communicate with like minded citizens in Massachusetts towns and in other North American colonies.

Thomas Hutchinson, in private correspondence, thought his New Year address was a masterful stroke publicly demolishing the underpinnings of Patriot concerns. He struck a conciliatory note, inviting the opposition to point out any errors in his thinking. At the same time he pointed out that, “I know of no line that can be drawn between the supreme authority of Parliament and the total independence of the Colonies.” Patriots at this time were not thinking in terms of independence, but rather the achievement of regional autonomy within the British Empire. They were loathe to accept the label of disloyalty to King George III.

Hutchinson identifies troublesome activities of the Patriots. These include tumults, riots, obstruction of justice, and “irregularities” of the Committee of Correspondence. Relative to Joseph Warren, the doctor was a key protagonist in the Mucius Scaevola episode and a founding and active member of the Boston Committee of Correspondence.

From May to July of 1767 Joseph Warren had treated Hutchinson for a severe, acute illness. There may have been a more than passing acquaintance between the two. In my biography of Warren I speculate that this may have included Warren lobbying for a bill to license physicians in the province, Hutchinson attempting to enlist Warren to the ranks of Loyalists, and a failed mentoring relationship between the then-respected father figure and the talented young physician and budding activist.

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