30
“[Remainder of Governor Winthrop’s Second Letter to Governor Bradford, begun in our last.],” Boston Gazette, (16 February 1767); selection.
[John Adams]
In this lead article from the Boston Gazette for Monday, 16 February 1767, John Adams (1735–1826) continued a newspaper debate with Jonathan Sewall (1729–96) who wrote as “Philanthrop.” The debate had begun with Sewall’s letters in the Boston Evening-Post which attempted to defend Massachusetts Governor Francis Bernard’s attempt to veto the election of Whig councilors. In the selection reprinted below, Adams placed Bernard’s actions within the historical context of the British House of Commons’s privilege of judging of elections and returns. Adams’s story came largely, although not always fully acknowledged, from the pages of the first Stuart volume of Hume’s History of England. See History, vol. 5, pp. 3–18. On the Adams-Sewall debate see “Editorial Note,” in “Replies to Philanthrop, Defender of Governor Bernard,” in Papers of John Adams, series III, General Correspondence and other Papers of the Adams Statesmen, edited by Robert J. Taylor (Cambridge, 1977–), pp. 174–6.
___________________________________
IF we go back as far as the reign of Elizabeth, we find her, on one occasion, infringing on this priviledge, of the Commons, of judging solely, of their own elections and returns. This attempt was however so warmly resented by the Commons, that they instantly voted “That it was a most perilous precedent, when two knights of a county were duly elected, if any new writ should issue out, for a second election, without order of the house itself; that the discussing and adjudging of this and such like differences, belonged only to the house; and that there should be no message sent to the Ld. Chancellor, not so much as to enquire what he had done, in the matter; because it was conceived to be a matter derogatory to the power and priviledge of the house.” After this vote, which had in it something of the spirit of liberty and independency, we hear of no more disputes upon that subject, till we come to the reign of James the first, whose whole life was employed in endeavouring to demolish every popular power, in the constitution, and to establish the awful and absolute sovereignty of Kingship, that, as he expres’d himself to the convocation, Jack and Tom, and Dick and Will, might not meet and censure him and his Council — And in order to accomplish the important purpose of his reign, he thought that nothing could be more useful, than to wrest from the Commons, into his own hands, or those of his creature, the Chancellor, the adjudication of their elections and returns. Outlaws, whether for misdemeanours or debts, had been declared by the judges, in the reign of Henry the sixth, incapable by law of a seat in the house, where they themselves must be lawgivers. Sir Francis Goodwin was now chosen for the county of Bucks, and his return was made as usual into Chancery. The Chancellor decreed him an outlaw, vacated his seat, and issued writs for a new election. Sir John Fortesque was chosen in his room. But the first act of the house was to reverse the decree of the Chancellor, and restore Goodwin to his seat. At James’s instigation the Lords desired a conference on this subject, but were absolutely refused by the Commons, as the question regarded intirely their own priviledges. They agreed however to make a remonstrance to the King, by their speaker: where they maintained that tho’ the returns were by form made into chancery, yet the sole right of judging with regard to elections belonged to the house itself. James was not satisfied, and ordered a conference between the house and the judges. The Commons were in some perplexity. Their eyes were now opened, and they saw the consequences of that power, which had been assumed, and to which their predecessors had in some instances blindly submitted. This produced many free speeches in the house, “By this course, said one member, the free election of the counties is taken away, and none shall be chosen but such as shall please the King and Council. Let us therefore with fortitude, understanding and sincerity, seek to maintain our priviledges. This cannot be construed any contempt in us, but merely a maintenance of our common rights, which our ancestors have left us, and which is just and fit for us to transmit to our posterity.” Another said, this may be called a quo warranto to seize all our liberties. “A Chancellor, added a third, by this course may call a parliament consisting of what persons he pleases. Any suggestion by any person, may be the cause of lending a new writ. It is come to this plain question, whether the Chancery or Parliament ought to have authority.” The Commons however, notwithstanding this watchful spirit of liberty, appointed a committee to confer with the judges before the King and Council. There the question began to appear a little more doubtful than the King had imagined, and to bring himself off, he proposed that Goodwin and Fortesque should both be set aside, and a writ be issued by the house, for a new election. Goodwin consented, and the Commons embraced this expedient; but in such a manner, that while they shewed their regard for the King, they secured for the future, the free possession of their seats, and the right which they claimed of judging solely of their own elections and returns. Hume who will not be suspected of prejudice against the Stuarts, and in whose words very nearly this story is related, remarks at the conclusion, “Power like this, so essential to the exercise of all their other powers, themselves so essential to public liberty, cannot fairly be deemed an encroachment in the Commons, but must be regarded as an inherent priviledge, happily rescued from that ambiguity, which the negligence of former parliments had thrown upon it.”
. . .
Now if we compare the attempt of King James, with the attempt of the Governor, who can discern a difference between them? James would have vacated the seat of Sir Francis Goodwin, because his election was against law, i.e. because Sir Francis was an outlaw; The Governor would have vacated the seats of Col. Gerrish and Capt. Little, because their election was against law, i.e. because they were both chosen and returned by a town, which by law was to choose and return but one. The King in one case, the Governor in the other, made himself judge of the legality of an election, and usurped authority to vacate the seats of members. — I consider the power of the Chancellor here, which the King contended for as the power of the King, because there is no great difference in such cases, as has been very well known from the time of James to this day, between the power of the creator and that of the creature.