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Docno: ADMS-06-01-02-0074

Author: Adams, John
Author: Boston Town Meeting
Recipient: Otis, James Jr.
Recipient: Cushing, Thomas
Recipient: Adams, Samuel
Recipient: Hancock, John
Recipient: Massachusetts General Court, Boston Representatives
Recipient: Boston Gazette (newspaper)
Date: 1769-05-08

Draft Instructions of Boston to its Representatives in the General Court

[salute] To the Honble. James Otis and Thomas Cushing Esqrs, Mr. Samuel Adams and John Hancock Esqr.

[salute] Gentlemen.

You have, once more received, the highest Testimony of the Confidence and Affection of your Constituents, which the Constitution has impowered 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 agreable to you.
1 The first object of your Attention, is the Priviledges 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 Sett in the usual Place, common Decency, as well as the Honour, 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 Majestys Troops, and even at Sometimes while the highest Court of Judicature has been Sitting there on the Tryal of capital Causes.1
2 When this Grievance shall be removed, and the Debates of the Assembly shall be free, it will be natural to enquire into all the Grievances we have Suffered from the military Power: Why they have been quartered in the Body of this 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 account, and dealt with as the Law required: Whether the Measure taken by the Governor, in appointing an extraordinary officer to provide Quarters for the Troops, was not an Evasion of the Act of Parliament made for the billetting and quartering his Majestys Troops in America (the professed Rule of their Conduct) and designed to elude the Clause of said Act purposely providing for, the { 225 } Convenience of American Subjects, And their Security against an Excess of military Power:2
3d. 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:
4th. And whether the Attorney General has not, in Some late Instances unduly <assumed, and exerted> 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.3
5 And as the Quartering Troops <appears to be the grand Source of all these Evils,> here has provd occasion of many evils we do earnestly recommend to you, to use your utmost Endeavours for a Speedy Removal of them <, to Places where they may be really usefull and necessary.>
6 Should4 The Expence that has been incurred <in the Transportation of these Troops hither,> in providing Barracks for the troops and supplying them with Necessaries, <has in our opinion been purposely great. A Reimbursement may possibly> be required of the House of Representatives. <Should this be the Case,> We do, in the most solemn and express manner, enjoin <you, upon no Consideration whatever to pay the least Regard to so unreasonable> that you by no means comply with such5 a Requisition. If the general Court is a free assembly, no Power upon Earth has authority to compell it to pay this Money: <if it is not free,> Should it ever be deprived of its Freedom6 it shall never <with our Consent> be made an Engine <to raise this Money from us.> to drain us of <our Treasure> the little Money we have left.7
<7 Another Object of great <Consequence to this Province,> Importance8 and which requires the early Attention of the Assembly is a <daring> flagrant9 Attack upon our Constitution <of this Province> an Attempt to deprive it [us] of <the Blessings, derived from the Charter> not only of our Charter Liberties privileges and Immunities, but the rights of British subjects derivd to us from the Constitution and the rights of Men derived to us from the laws and Nature of God and Nature. Copys of10 A Number of Letters, have been lately published, here, authenticated by the Clerk of the Papers, to the Honble House of Commons, which contain <such Representations of and Reasonings, as it would not perhaps be prudent for us to characterise, in proper language.> Misrepresentations so gross as to render it needless on this occasion, to make any particular Remarks.11<The Drift and Scope> { 226 } The dark Design12 of the Writer is sufficiently <clear and> apparent, and considering his station <and that of the noble Personage to whom they were addressed,> as Representative of the first personage in the Empire and the rank of the Minister to whom he addressed himself13 and the Attention that has been given to them in Great Britain, we apprehend <them of very dangerous Tendency and Consequence> they have produced Effects dangerous and alarming to both Countrys, and have a direct Tendency to produce yet greater.14 It is therefore expected, that you employ <all your Influence> your utmost Endeavors and all the Influence you may have15 that the injurious Impressions, which may unhappily have been made by them may be removed, and that an effectual Antidote may be administered before the Poison, shall have wrought the Ruin of our Constitution.>16
8 It is unnecessary for Us at this Time, to repeat our well known17 Sentiments concerning the Revenue, which is continually, <collecting from> levyd upon18 Us, to our great Distress and for No other End than to support a great Number of19 very unnecessary Placemen and Pensioners. We have now only to add, that our Sentiments on this Subject are in no Respect changed, And that We expect you pursue with <unabated Zeal, and unalterable Resolution> firm Resolution and unremitted ardor every Measure that may tend to procure us Relief never yeilding <the least> your20 Consent to or Connivance, at <any> the least21 Encroachments 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 Law of the Land. It would be thought in England, a dangerous Innovation if the Tryal of any Matter upon Land, was given to the Admiral. It would be thought more threatning still, if the Power of Confiscation, over Ships and Cargoes for illicit Trade, was committed to that 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 co]ncerned22 in Landing uncustomed goods, were by Act of Parliament appointed to be tryed by the Admiral, the Nation would think their Liberties irrecoverably lost.23
This, however is the miserable Case of North America! In the 41.ss. of the Statute of the 4th. of G[eo]. 3. c. 15. 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, { 227 } sued for and recovered in any Court of Admiralty, in the said Colonies”. Thus, these extraordinary Penalties and Forfeitures, are to be heard and tryed not by a Jury—not by the Law of the Land—but by the civil Law and 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!
9 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 Majestys Courts of Record in Westminster, or in the Court of Exchequer in Scotland respectively.” Here is a Contrast that stares Us, in the Face! <an unjust> 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 Tryal 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 29. 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 lay lawful Judgment of his Peers, or the Law of the Land.” Englishmen are inviolably attached to the important Right expressed in this Clause24 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 Coke 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.”25 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 { 228 } be sufficient to discourage such attacks upon fundamental Principles. “The ill success of this statute and the fearfull End of these two oppressors, should deter others from committing the like, and should admonish Parliaments, that instead of this ordinary and precious Tryal by the Law of the Land, they bring not in absolute and partial Tryals by Discretion.” Such are the Feelings and Reflections of an Englishman upon a statute, <very like> not unlike the statute now under Consideration, and upon Courts and Judges, <very like> not unlike26 the Courts and Judges of Admiralty, in America.27
The formidable Power of these Courts, and their distressing Course of Proceedings, have been Severely felt within the past Year, 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 <granted> obtained for28 us, the Properties and Liberties, and the Morals too, of this unhappy Country, 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 <begin to> Suffer, with us, under them, will chearfully harmonise with <you> this, in any justifiable Measures that may be taken for Redress.
10 We need not here take occasion to instruct you That while you in the most ample manner testify your loyalty to our gracious Sovereign you29 strenuously assert and maintain, the Right of the subject jointly or severally30 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 Assemblys of any or all the other Colonies and to unite with them in humble, dutifull and loyal Petitions for Redress of a general Grievance.
Dft (MB); mainly in the hand of JA; endorsed by William Cooper, town clerk: “Draft of Instructions.” Numerous additions and amendments in several unknown hands are noted below. Numerical subheadings entered in margins. Printed text in Boston Gazette, 15 May 1769. Minor variations between Dft and printed text are ignored.
The additions and changes disprove JA's claims that these instructions, { 229 } like the ones he drafted for the town in 1768, were accepted “without Alteration” (see 17 June 1768, note 1, above). Rather, the alterations confirm the town meeting records of 8 May which note that the draft report was carefully “considered and Voted Paragraph by Paragraph” before the meeting voted to adopt the modified instructions and to order their printing in the local press (Boston Record Commissioners, 16th Report, p. 285–289). A large portion of sections 8 and 9 in the draft instructions was adapted by JA from an argument he had prepared during the period Oct. 1768-March 1769 in the case of Sewall v. Hancock (see JA, Legal Papers, 2:199–202, for the text of this section of the draft argument).
1. “Even of Capital Causes” in the Boston Gazette.
2. When Gov. Bernard sought quarters for British regiments in Boston in Sept. 1768, the Council and the town selectmen contended that the town was under no obligation to provide for the troops until all available space in local barracks was filled. Bostonians maintained this interpretation of the Quartering Act's provisions throughout the pre-Revolutionary occupation (Hutchinson, Massachusetts Bay, ed. Mayo, 3:149–157).
3. For specific occasions on which Atty. Gen. Jonathan Sewall was accused of having entered pleas of nolle prosequi in cases involving soldiers who had harrassed townspeople, see Boston Evening-Post, 27 March and 19 June 1769.
4. “Should” in another hand.
5. “That . . . such” in the same hand as the previous addition.
6. “Should . . . Freedom” in a second unknown hand.
7. “To drain . . . left” in the second unknown hand.
8. “Importance” in a third unknown hand.
9. “Flagrant” in the third unknown hand.
10. “Not only . . . Copys of” in the third unknown hand.
11. This sentence in the third unknown hand.
12. Substitution made in the third unknown hand.
13. “As Representative . . . himself” in the third unknown hand.
14. “They have . . . yet greater” in the third unknown hand.
15. “Utmost Endeavors . . . have” in the third unknown hand.
16. Copies of Letters from Governor Bernard &c. to the Earl of Hillsborough, a pamphlet containing six letters to Hillsborough from Bernard and one from Gen. Gage, appeared in Boston in April. Copies of the letters had been sent to the Massachusetts Council by William Bollan, the former provincial agent who still acted as an agent for the Council. Very influential Bollan was able to gain access to the correspondence when it was laid before Commons in Jan. 1769 (T. R. Adams, American Independence, No. 68a–e; Hutchinson, Massachusetts Bay, ed. Mayo, 3:163).
Although paragraph “7” is canceled from the draft, it appeared in the Boston Gazette in this form:
“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—the Design of the Writer is sufficiently apparent: And considering his Station, as Representative of the first Personage 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 { 230 } may be administered, before the Poison shall have wrought the Ruin of the Constitution.”
17. “Well known” in the third unknown hand.
18. “Levyd upon” in the third unknown hand.
19. “A great Number of” in the third unknown hand.
20. “Your” in the third unknown hand.
21. “The least” in the third unknown hand.
22. Blotted in MS; obliterated material supplied from Boston Gazette text.
23. An act of Parliament of 1768 stipulated that colonial violators of trade or revenue acts were to be tried only in juryless vice-admiralty courts. Hitherto, such cases could be heard either in viceadmiralty courts or in local courts of record. For a summary of the expansion of vice-admiralty jurisdiction in such cases, see Gipson, Empire before the Revolution, 11:120–125. The two paragraphs which follow are based on JA's argument in Sewall v. Hancock. See descriptive note, above.
24. A phrase following “Law of the Land” has been deleted so completely as to be illegible. “Englishmen ... Clause” is added in the margin in an unidentified hand and keyed with an asterisk for insertion at this point.
25. Quotation marks supplied from Boston Gazette text. JA mentioned this opinion of Coke's on Empson and Dudley in his first Clarendon-to-Pym letter, 13 Jan. 1766, above.
26. The two substitutions of “not unlike” for “very like” in this passage made by the third unknown hand.
27. To this point, section “9” of the draft instructions is based upon JA's argument in Sewall v. Hancock.
28. “Obtained for” in the first unknown hand.
29. “That while ... you” in the first unknown hand.
30. “Jointly or severally” in the first unknown hand.
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2014.
http://www.masshist.org/apde2/