the opinions of the people in this writer, which it is difficult to
impute to wilful misrepresentation, that I sometimes think he is some
smart young gentleman, come up into life since this great controversy
was opened; if not, he must have conversed wholly with the junto, and
they must have deceived him, respecting their own sentiments.
This writer sneers at the distinction between a right to lay the
former duty of a shilling on the pound of tea, and the right to
lay the three pence. But is there not a real difference between
laying a duty to be paid in England upon exportation, and to be
paid in America upon importation? Is there not a difference between
parliament's laying on duties within their own realm, where they have
undoubtedly jurisdiction, and laying them out of their realm, nay
laying them on in our realm, where we say they have no jurisdiction?
Let them lay on what duties they please in England, we have nothing
to say against that.
"Our patriots most heroically resolved to become independent states,
and flatly denied that parliament had a right to make any laws
whatever that should be binding upon the colonies."
Our scribbler, more heroically still, is determined to shew the
world, that he has courage superior to all regard to modesty,
justice, or truth. Our patriots have never determined, or desired to
be independent states, if a voluntary cession of a right to regulate
their trade can make them dependent even on parliament, though
they are clear in theory, that by the common law, and the English
constitution, parliament has no authority over them. None of the
patriots of this province, of the present age, have ever denied that
parliament has a right, from our voluntary cession, to make laws
which shall bind the colonies, as far as their commerce extends.
"There is no possible medium between absolute independence and
subjection to the authority of parliament." If this is true, it may
be depended upon, that all North America are as fully convinced of
their independence, their absolute independence, as they are of their
own existence, and as fully determined to defend it at all hazards,
as Great Britain is to defend her independence against foreign
nations. But it is not true. An absolute independence of parliament,
in all internal concerns and cases of taxation, is very compatible
with an absolute dependence on it, in all cases of external commerce.
"He must be blind indeed that cannot see our dearest interest in
the latter, (that is in an absolute subjection to the authority
of parliament,) notwithstanding many pant after the former" (that
is absolute independence.) The man who is capable of writing, in
cool blood, that our interest lies in an absolute subjection to
parliament, is capable of writing, or saying any thing for the
sake of his pension: a legislature that has so often discovered a
want of information concerning us and our country; a legislature
interested to lay burdens upon us; a legislature, two branches of
which, I mean the lords and commons, neither love nor fear us! Every
American of fortune and common sense, must look upon his property to
be sunk downright one half of its value, the moment such an absolute
subjection to parliament is established.
That there are any who pant after "independence," (meaning by this
word a new plan of government over all America, unconnected with the
crown of England, or meaning by it an exemption from the power of
parliament to regulate trade) is as great a slander upon the province
as ever was committed to writing. The patriots of this province
desire nothing new; they wish only to keep their old privileges.
They were for 150 years allowed to tax themselves, and govern
their internal concerns, as they thought best. Parliament governed
their trade as they thought fit. This plan, they wish may continue
forever. But it is honestly confessed, rather than become subject to
the absolute authority of parliament, in all cases of taxation and
internal polity, they will be driven to throw off that of regulating
trade.
"To deny the supreme authority of the state, is a high misdemeanor;
to oppose it by force, an overt act of treason." True: and therefore
Massachusettensis, who denies the king represented by his governor,
his majesty's council, by charter, and house of representatives, to
be the supreme authority of this province, has been guilty of a high
misdemeanour: and those ministers, governors, and their instruments,
who have brought a military force here, and employed it against that
supreme authority, are guilty of ----, and ought to be punished with
----. I will be more mannerly than Massachusettensis.
"The realm of England is an appropriate term for the ancient realm of
England, in contradistinction to Wales and other territories, that
have been annexed to it."
There are so many particulars in the case of Wales analogous to the
case of America, that I must beg leave to enlarge upon it.
Wales was a little portion of the island of Great Britain, which the
Saxons were never able to conquer. The Britons had reserved this
tract of land to themselves, and subsisted wholly by pasturage,
among their mountains. Their princes, however, during the Norman
period, and until the reign of king Edward the first, did homage to
the crown of England, as their feudal sovereign, in the same manner
as the prince of one independent state in Europe frequently did to
the sovereign of another. This little principality of shepherds and
cowherds, had however maintained their independence, through long
and bloody wars against the omnipotence of England, for 800 years.
It is needless to enumerate the causes of the war between Lewellyn
and Edward the first. It is sufficient to say that the Welch prince
refused to go to England to do homage, and Edward obtained a new aid
of a fifteenth from his parliament, to march with a strong force
into Wales. Edward was joined by David and Roderic, two brothers of
Lewellyn, who made a strong party among the Welch themselves, to
assist and second the attempts to enslave their native country. The
English monarch, however, with all these advantages, was afraid to
put the valor of his enemies to a trial, and trusted to the _slow
effects of famine_ to subdue them. Their pasturage, with such an
enemy in their country, could not subsist them, and Lewellyn, Nov.
19, 1277, at last submitted, and bound himself to pay a reparation
of damages, to do homage to the crown of England, and almost to
surrender his independence as a prince, by permitting all the other
Barons of Wales, excepting four, to swear fealty to the same crown.
But fresh complaints soon arose. The English grew insolent on their
bloodless victory, and oppressed the inhabitants; many insults were
offered, which at last raised the indignation of the Welch, so that
they determined again to take arms, rather than bear any longer the
oppression of the haughty victors. The war raged sometime, until
Edward summoned all his military tenants, and advanced with an army
too powerful for the Welch to resist. Lewellyn was at last surprized,
by Edward's general Mortimer, and fighting at a great disadvantage,
was slain, with two thousand of his men. David, who succeeded in
the principality, maintained the war for some time, but at last was
betrayed to the enemy, sent in chains to Shrewsbury, brought to a
formal trial before the peers of England, and although a sovereign
prince, ordered by Edward to be hanged, drawn and quartered, as a
traitor, for defending by arms the liberties of his native country!
All the Welch nobility submitted to the conqueror. The laws of
England, sheriffs, and other ministers of justice, were established
in that principality, which had maintained its liberties and
independency, 800 years.
Now Wales was always part of the dominions of England. "Wales was
always feudatory to the kingdom of England." It was always held of
the crown of England, or the kingdom of England: that is, whoever
was king of England, had a right to homage, &c. from the prince
of Wales. But yet Wales was not parcel of the realm or kingdom,
nor bound by the laws of England. I mention, and insist upon this,
because it shews, that although the colonies are bound to the crown
of England, or, in other words, owe allegiance to whomsoever is king
of England; yet it does not follow that the colonies are parcel of
the realm or kingdom, and bound by its laws. As this is a point of
great importance, I must beg pardon, however unentertaining it may
be, to produce my authorities.
Comyns digest, v. 5. page 626. Wales was always feudatory to the
kingdom of England.
Held of the crown, but not parcel. Per Cook. 1 Roll. 247. 2 Roll. 29.
And therefore the kings of Wales did homage, and swore fealty to H.
2. and John and H. 3.
And 11 Ed. 1. Upon the conquest of Lewellyn, prince or king of
Wales, that principality became a part of the dominion of the realm
of England. And by the statute Walliae 12 Ed. 1. It was annexed and
united to the crown of England, _tanquam partem corporis ejusdem,
&c._ Yet if the statute Walliae, made at Rutland 12 Ed. 1. was not
an act of parliament (as it seems that it was not) the incorporation
made thereby was only an union "_jure feudali, et non jure
proprietatis_."
"Wales, before the union with England, was governed by its proper
laws," &c.
By these authorities it appears, that Wales was subject, by the
feudal law, to the crown of England, before the conquest of Lewellyn;
but not subject to the laws of England; and indeed after this
conquest, Edward and his nobles, did not seem to think it subject to
the English parliament, but to the will of the king as a conqueror
of it in war. Accordingly that instrument which is called _Statutum
Walliae_, and to be found in the appendix to the statutes p. 3,
although it was made by the advice of the peers, or officers of the
army more properly, yet it never was passed as an act of parliament,
but as an edict of the king. It begins not in the stile of an act
of parliament. _Edwardus Dei gratia Rex Angliae, Dominus Hyberniae,
et Dux Aquitaniae, omnibus fidelibus suis, &c. in Wallia. Divina
providentia, quae in sui dispositione_, says he, _non fallitur, inter
alia dispensationis suae munera, quibus nos et Regnum nostrum Angliae
decorare dignata est, terram Walliae, cum, incolis suis, prius,
nobis_, jure feudali _subjectam, jam sui gratia_, in proprietatis
nostrae dominium, _obstaculis quibuscumque cessantibus, totaliter,
et cum integritate convertit_, et coronae regni praedicti, tanquam
partem corporis ejusdem annexuit et univit.
Here is the most certain evidence that Wales was subject to the kings
of England by the feudal law before the conquest, though not bound by
any laws but their own. 2d. That the conquest was considered, in that
day, as conferring the property, as well as jurisdiction of Wales
to the English crown. 3. The conquest was considered as annexing
and uniting Wales to the English crown, both in point of property
and jurisdiction, as a part of one body. Yet notwithstanding all
this, parliament was not considered as acquiring any share in the
government of Wales by this conquest. If, then, it should be admitted
that the colonies are all annexed and united to the crown of England,
it will not follow that lords and commons have any authority over
them.
This statutum Walliae, as well as the whole case and history of
that principality, is well worthy of the attention and study of
Americans, because it abounds with evidence, that a country may be
subject to the crown of England, without being subject to the lords
and commons of that realm, which entirely overthrows the whole
argument of Gov. Hutchinson, and of Massachusettensis, in support of
the supreme authority of parliament, over all the dominions of the
imperial crown. "_Nos itaque_, &c. says King Edward 1. "_volentes
predictam terram, &c. sicut et caeteras ditioni nostrae subjectas,
&c. subdebito regimine gubernari, et incolas seu habitatores terrarum
illaram, qui alto et basso_, se submiserunt voluntati nostrae,
_et quos sic ad nostram recepimus voluntatem, certis legibus et
consuetudinibus, &c. tractari leges, et consuetudines, partum
illarum hactenus usitatas coram nobis et proceribus regni nostri
fecimus recitari, quibus diligenter auditis, et plenus intellectis,
quasdam ipsarum de concilio procerum predictorum delevimus, quasdam
permisimus, et quasdam correximus, et etiam quasdam alias adjungendas
et statuendas decrevimus, et eas, &c. observari volumus in forma
subscripta._"
And then goes on to prescribe and establish a whole code of laws for
the principality, in the style of a sole legislature, and concludes,
_Et ideo vobis mandamus, quod premissa de cetero in omnibus firmiter
observatis. Ita tamen quod quotiescunque, et quandocunque, et
ubicunque, nobis placuerit, possimus predicta statuta et coram partes
singulas declarare, interpretari, addere sive diminuere, pro nostro
libito voluntatis, et prout securitati nostrae et terrae nostrae
predictae viderimus expedire._
Here is then a conquered people submitting to a system of laws
framed by the mere will of the conqueror, and agreeing to be forever
governed by his mere will. This absolute monarch, then, might
afterwards govern this country, with or without the advice of his
English lords and commons.
To shew that Wales was held before the conquest of Lewellyn, of the
king of England, although governed by its own laws, hear lord Coke,
Inst. 194, in his commentary on the statute of Westminster. "At this
time, viz. in 3 Ed. 1. Lewellyn was a prince or king of Wales, who
held the _same of the king of England, as his superior lord, and owed
him liege homage and fealty_; and this is proved by our act, viz:
that the king of England was _superior dominus_, i. e. sovereign lord
of the kingdom, or principality of Wales."
Lord Coke, in 4 Inst. 239, says "Wales was sometime a realm, or
kingdom, (realm from the French word royaume, and both a regno) and
governed _per suas regulas_," and afterwards, "but _jure feudali_,
the kingdom of Wales was holden of the _crown of England_, and
thereby, as Bracton saith, was _sub potestate regis_. And so it
continued until the 11th year of king Edward 1st. when he subdued the
prince of Wales, rising against him, and executed him for treason."
"The next year, viz. in the 12th year of king Edward 1. by authority
of parliament, it is declared thus, speaking in the person of the
king, as ancient statutes were wont to do, _divina providentia_,"
&c. as in the statute _Walliae_, before recited. But here is an
inaccuracy, for the _statutum Walliae_ was not an act of parliament,
but made by the king with the advice of his officers of the army, by
his sole authority, as the statute itself sufficiently shews. "Note,"
says lord Coke, "diverse monarchs hold their kingdoms of others _jure
feudali_, as the duke of Lombardy, Cicill, Naples, and Bohemia of the
empire, Granado, Leons of Aragon, Navarre, Portugal of Castile; and
so others."
After this the Welch seem to have been fond of the English laws, and
desirous of being incorporated into the realm, to be represented in
parliament, and enjoy all the rights of Englishmen, as well as to
be bound by the English laws. But kings were so fond of governing
this principality by their discretion alone, that they never could
obtain these blessings until the reign of Henry 8th. and then they
only could obtain a statute, which enabled the king to alter their
laws at his pleasure. They did indeed obtain in the 15 Ed. 2. a writ
to call twenty-four members to the parliament at York from South
Wales, and twenty-four from North Wales; and again in the 20 Ed. 2.
the like number of forty-eight members for Wales, at the parliament
of Westminster. But lord Coke tells us "that this wise and warlike
nation was long after the _statutum Walliae_ not satisfied nor
contented, and especially, for that they truly and constantly took
part with their rightful sovereign and liege lord, king Richard 2d.;
in revenge whereof they had many severe and invective laws made
against them in the reigns of Henry 4th. Henry 5th. &c. all which as
unjust are repealed and abrogated. And to say the truth, this nation
was never in quiet, until king Henry 7th. their own countryman,
obtained the crown. And yet not so really reduced in his time, as in
the reign of his son, Henry 8th. in whose time certain just laws,
made at the humble suit of the subjects of Wales, the principality
and dominion of Wales was incorporated and united to the realm of
England; and enacted that every one born in Wales should enjoy the
liberties, rights and laws of this realm, as any subjects naturally
born within this realm should have and inherit, and that they should
have knights of shires, and burgesses of parliament." Yet we see
they could not obtain any security for their liberties, for lord
Coke tells us, "in the act of 34 Henry 8th. it was enacted, that the
king's most royal majesty should, from time to time change, &c. all
manner of things in that act rehearsed, as to his most excellent
wisdom and discretion should be thought convenient, and also to make
laws and ordinances for the commonwealth of his said dominion of
Wales at his majesty's pleasure. But for that, the subjects of the
dominion of Wales, &c. had lived in all dutiful subjection to the
crown of England, &c. the said branch of the said statute of 34 Henry
8th. is repealed, and made void by 21 Jac. c. 10."
But if we look into the statute itself of 27, Henry 8th. c. 26, we
shall find the clearest proof, that being subject to the imperial
crown of England, did not entitle Welchmen to the liberties of
England, nor make them subject to the laws of England. "Albeit the
dominion, principality and country of Wales, _justly and righteously
is, and ever hath been incorporated, annexed, united, and subject
to and under the imperial crown of this realm, as a very member and
joint of the same_; wherefore, the king's most royal majesty of
mere droit, and very right, is very head, king, lord and ruler; yet
notwithstanding, because that, in the same country, principality
and dominion, diverse _rights_, _usages_, _laws_ and customs be far
discrepant from the laws and customs of this realm, &c. Wherefore it
is enacted, by king, lords and commons, "that his" (i. e. the king's)
said country or dominion of Wales shall be, stand and continue
forever from henceforth, incorporated, united, and annexed to and
with this, his realm of England; and that all and singular person and
persons, born or to be born, in the said principality, country, or
dominion of Wales, shall have, enjoy, and inherit, all and singular
freedoms, liberties, rights, privileges, and laws within this his
realm, and other the king's dominions, as other the king's subjects
naturally born within the same, have, enjoy, and inherit." § 2.
Enacts that the laws of England shall be introduced and established
in Wales: and that the laws, ordinances and statutes of this realm of
England forever, and none other shall be used and practised forever
thereafter, in the said dominion of Wales. The 27th § of this long
statute enacts, that commissioners shall inquire into the laws and
customs of Wales, and report to the king, who with his privy council,
are empowered to establish such of them as they should think proper.
§ 28 Enacts that in all future parliaments _for this realm_, two
knights for the shire of Monmouth, and one burgess for the town,
shall be chosen and allowed such fees as other knights and burgesses
of parliament were allowed. § 29 Enacts that one knight shall be
elected for every shire within the country or dominion of Wales, and
one burgess for every shire town, to serve in that and every future
parliament to be holden for this realm. But by § 36 the king is
empowered to revoke, repeal and abrogate that whole act, or any part
of it, at any time within three years.
Upon this statute let it be observed, 1. That the language of
Massachusettensis "imperial crown" is used in it: and Wales is
affirmed to have _ever_ been annexed, and united to that imperial
crown, as a very member and joint: which shews that being annexed to
the imperial crown, does not annex a country to the realm, or make
it subject to the authority of parliament: because Wales certainly,
before the conquest of Lewellyn, never was pretended to be so
subject, nor afterwards ever pretended to be annexed to the realm
at all, nor subject to the authority of parliament, any otherwise
than as the king claimed to be absolute in Wales, and therefore to
make laws for it, by his mere will, either with the advice of his
proceres, or without. 2. That Wales never was incorporated with
the realm of England, until this statute was made, nor subject to
any authority of English lords and commons. 3. That the king was
so tenacious of his exclusive power over Wales, that he would not
consent to this statute, without a clause in it, to retain the power
in his own hands, of giving it what system of law he pleased. 4.
That knights and burgesses, i. e. representatives, were considered
as _essential_ and _fundamental_ in the constitution of the new
legislature, which was to govern Wales. 5. That since this statute,
the distinction between the realm of England and the realm of Wales,
has been abolished, and the realm of England, now, and ever since,
comprehends both; so that Massachusettensis is mistaken, when he
says, that the realm of England is an appropriate term for the
ancient realm of England, in contradistinction from Wales, &c. 6.
That this union and incorporation was made by the consent, and upon
the supplication of the people of Wales, as lord Coke and many other
authors inform us, so that here was an express contract between
the two bodies of people. To these observations let me add a few
questions.
Was there ever any act of parliament, annexing, uniting, and
consolidating any one of all the colonies to and with the realm
of England or the kingdom of Great Britain? 2. If such an act of
parliament should be made, would it upon any principles of English
laws and government, have any validity, without the consent,
petition, or supplication of the colonies? 3. Can such an union
and incorporation, ever be made, upon any principles of English
laws and government, without admitting representatives for the
colonies in the house of commons, and American lords into the house
of peers? 4. Would not representatives in the house of commons,
unless they were numerous in proportion to the numbers of people in
America, be a snare rather than a blessing? 5. Would Britain ever
agree to a proportionable number of American members, and if she
would, could America support the expense of them? 6. Could American
representatives possibly know the sense, the exigencies, &c. of their
constituents, at such a distance, so perfectly as it is absolutely
necessary legislators should know? 7. Could Americans ever come to
the knowledge of the behaviour of their members, so as to dismiss the
unworthy? 8. Would Americans, in general, ever submit to septennial
elections? 9. Have we not sufficient evidence, in the general
frailty and depravity of human nature, and especially the experience
we have had of Massachusettensis and the junto, that a deep,
treacherous, plausible, corrupt minister, would be able to seduce our
members to betray us, as fast as we could send them?
To return to Wales. In the statute of 34 and 35 of Henry 8th. c. 26.
we find a more complete system of laws and regulations for Wales.
But the king is still tenacious of his absolute authority over it.
It begins, "our sovereign lord the king, of his tender zeal and
affection, &c. to his obedient subjects, &c. of Wales, &c. _hath
devised and made_ divers sundry good and necessary ordinances, which
his majesty of his most abundant goodness, _at the humble suit and
petition of his said subjects of Wales_, is pleased and contented to
be enacted by the assent of the lords spiritual and temporal, and the
commons," &c.