over Wales, for by the 119 § of this statute, the king, &c. may at
all times, hereafter, from time to time, change, add, alter, order,
minish, and reform all manner of things afore rehearsed, as to his
most excellent wisdom and discretion, shall be thought convenient;
and also to make laws and ordinances for the commonwealth and good
quiet of his said dominion of Wales, and his subjects of the same,
from time to time, at his majesty's pleasure.
And this last section was never repealed, until the 21 Jac. 1. c. 10.
§ 4.
From the conquest of Lewellyn to this statute of James is near 350
years, during all which time the Welch were very fond of being
incorporated and enjoying the English laws; the English were desirous
that they should be, yet the crown would never suffer it to be
completely done, because it claimed an authority to rule it by
discretion. It is conceived, therefore, that there cannot be a more
complete and decisive proof of any thing, than this instance is, that
a country may be subject to the crown of England, the imperial crown;
and yet not annexed to the realm, or subject to the authority of
parliament.
The word crown, like the word throne, is used in various figurative
senses; sometimes it means the kingly office, the head of the
commonwealth, but it does not always mean the political capacity
of the king; much less does it include in the idea of it lords and
commons. It may as well be pretended that the house of commons
includes or implies a king. Nay, it may as well be pretended that the
mace includes the three branches of the legislature.
By the feudal law, a person or a country might be subject to a king,
a feudal sovereign, three several ways.
1. It might be subject to his person, and in this case, it would
continue so subject, let him be where he would, in his dominions
or without. 2. To his crown, and in this case subjection was due,
to whatsoever person or family wore that crown, and would follow
it, whatever revolutions it underwent. 3. To his crown and realm of
state, and in this case, it was incorporated as one body with the
principal kingdom; and if that was bound by a parliament, diet, or
cortes, so was the other.
It is humbly conceived, that the subjection of the colonies by
compact, and law is of the second sort.
Suffer me, my friends, to conclude by making my most respectful
compliments to the gentlemen of the regiment of royal Welch
fusileers.[1]
[Footnote 1: One of the Regiments then in Boston.--_Note by the
Publishers._]
In the celebration of their late festival, they discovered that they
are not insensible of the feelings of a man for his native country.
The most generous minds are the most exquisitely capable of this
sentiment. Let me entreat them to recollect the history of their
brave and intrepid countrymen, who struggled at least 1100 years
for liberty. Let them compare the case of Wales with the case of
America, and then lay their hands upon their hearts and say, whether
we can in justice be bound by all acts of parliament, without being
incorporated with the kingdom.
NOVANGLUS.
ADDRESSED
_To the Inhabitants of the Colony of Massachusetts Bay_,
March 27, 1775.
MY FRIENDS,
Massachusettensis in some of his writings has advanced, that our
allegiance is due to the political capacity of the king, and
therefore involves in it obedience to the British parliament. Gov.
Hutchinson, in his memorable speech, laid down the same position. I
have already shewn, from the case of Wales, that this position is
groundless, and that allegiance was due from the Welch to the king,
_jure feodali_, before the conquest of Lewellyn, and after that to
the crown, until it was annexed to the realm, without being subject
to acts of parliament any more than to acts of the king, without
parliament. I shall hereafter shew from the case of Ireland, that
subjection to the crown implies no obedience to parliament. But
before I come to this, I must take notice of a pamphlet, entitled
"A candid examination of the mutual claims of Great Britain and
the colonies, with a plan of accommodation on constitutional
principles." This author, p. 8, says, "to him (i. e. the king) in
his representative capacity, and as supreme executor of the laws,
made by a joint power of him and others, the oaths of allegiance
are taken," and afterwards: "hence these professions, (i. e. of
allegiance) are not made to him either in his legislative, or
executive capacities; but yet it seems they are made to the king.
And into this distinction, _which is no where to be found_ either in
the constitution of the government, in reason or common sense, the
ignorant and thoughtless have been deluded ever since the passing of
the stamp act, and they have rested satisfied with it without the
least examination." And in p. 9, he says, "I do not mean to offend
the inventers of this refined distinction, when I ask them, is this
acknowledgement made to the king, in his politic capacity as king
of Great Britain, &c.? if so, it includes a promise of obedience to
the British laws." There is no danger of this gentleman's giving
offence to the inventers of this distinction, for they have been many
centuries in their graves. This distinction is to be found every
where. In the case of Wales, Ireland, and elsewhere, as I shall shew
most abundantly before I have done, it is to be found in two of the
greatest cases, and most deliberate and solemn judgments that were
ever passed. One of them is Calvin's case, 7 Rep. which, as lord Coke
tells us, was as elaborately, substantially, and judiciously argued,
as he ever heard, or read of any. After it had been argued in the
court of king's bench, by learned council, it was adjourned to the
exchequer chamber, and there argued again, first by council on both
sides, and then by the lord chancellor, and all the twelve judges of
England, and among these were the greatest men, that Westminster-Hall
ever could boast. Ellismore, Bacon, Hide, Hobart, Crook, and Coke,
were all among them: and the chancellor and judges were unanimous
in resolving. What, says the book? 7. Rep. 10. "Now seeing the king
hath but one person, and several capacities, and one politic capacity
for the realm of England, and another for the realm of Scotland, it
is necessary to be considered to which capacity _ligeance_ is due.
_And it was resolved_ that it was due to the _natural person_ of the
king (which is ever accompanied with the politic capacity, and the
politic capacity as it were appropriated to the natural capacity) and
it is not due to the politic capacity only, that is, to the crown or
kingdom, distinct from his natural capacity." And further on 7. Rep.
11. "But it was clearly resolved by all the judges, that presently by
the descent his majesty was completely and absolutely king," &c. and
that coronation was but a royal ornament. 6. "In the reign of Edward
2d. the Spencers, to cover the treason hatched in their hearts,
invented this damnable and damned opinion, that homage and oath of
allegiance was more by reason of the king's crown, (that is of his
politic capacity) than by reason of the person of the king, upon
which opinion they inferred execrable and detestable consequences."
And afterwards, 12. "Where books and acts of parliament speak of the
ligeance of England, &c. speaking briefly in a vulgar manner, are to
be understood of the ligeance due by the people of England to the
king; for no man will affirm, that England itself, taking it for the
continent thereof, doth owe any ligeance or faith, or that _any faith
or ligeance should be due to it_: but it manifestly appeareth, that
the ligeance or faith of the subject is _proprium quarto modo_ to
the king, _omni, soli, et semper_. And oftentimes in the reports of
our book cases, and in acts of parliament also, the crown or kingdom
is taken for the king himself," &c. "Tenure in _capite_ is a tenure
of the crown, and is a _seigniorie in grosse_, that is of the person
of the king." And afterwards 6, "for special purposes _the law makes
him a body politic, immortal and invisible, whereunto our allegiance
cannot appertain_." I beg leave to observe here, that these words in
the foregoing adjudication, that "the natural person of the king is
ever accompanied with the politic capacity, and the politic capacity
as it were appropriated to the natural capacity," neither imply nor
infer allegiance or subjection to the politic capacity; because in
the case of king James 1st. his natural person was "accompanied" with
three politic capacities at least, as king of England, Scotland, and
Ireland: yet the allegiance of an Englishman to him did not imply or
infer subjection to his politic capacity, as king of Scotland.
Another place in which this distinction is to be found is in Moore's
reports, p. 790. "The case of the union of the realm of Scotland
with England." And this deliberation, I hope was solemn enough. This
distinction was agreed on by commissioners of the English lords
and commons in a conference with commissioners of the Scottish
parliament, and after many arguments and consultations by the lord
chancellor and all the judges, and afterwards adopted by the lords
and commons of both nations. "The judges answered with one assent,
says the book, that allegiance and laws were not of equiparation for
six causes;" the sixth and last of which is, "allegiance followeth
the _natural person_ not the politick." "If the king go out of
England with a company of his servants, allegiance remaineth among
his subjects and servants, although he be out of his own realm,
_whereto his laws are confined_, &c. and to prove the allegiance to
be tied to the body natural of the king, not to the body politic,
the lord Coke cited the phrases of diverse statutes, &c. And to
prove that allegiance extended further than the laws national,
they (the judges) shewed that every king of diverse kingdoms, or
dukedoms, is to command every people to defend any of his kingdoms,
without respect of that nation where he is born; as if the king of
Spain be invaded in Portugal, he may levy for defence of Portugal
armies out of Spain, Naples, Castile, Milan, Flanders and the like;
as a thing incident to the allegiance of all his subjects, to join
together in defence of any of his territories, without respect of
the extent of the laws of that nation where he was born; whereby it
manifestly appeareth, that allegiance followeth the natural person
of the king, and is not tied to the body politick respectively in
every kingdom. There is one observation, not immediately to the
present point, but so connected with our controversy, that it ought
not to be overlooked. "For the matter of the great seal, the judges
shewed that the seal was alterable by the king at his pleasure,
and he might make one seal for both kingdoms, for seals, coin, and
leagues, and of absolute prerogative of the king without parliament,
nor restrained to any assent of the people." "But for further
resolution of this point, how far the great seal doth command out
of England, they made this distinction, that the great seal was
current for remedials, which groweth on complaint of the subjects,
and thereupon writs are addressed under the great seal of England,
which writs are limited, their precinct to be within the places of
the jurisdiction of the court, that was to give the redress of the
wrong. And therefore writs are not to go into Ireland nor the Isles,
nor Wales, nor the counties palatine, because the king's courts here
have not power to hold plea of lands, nor things there. But the great
seal hath a power preceptory, to the person, which power extendeth
to any place, where the person may be found." Ludlow's case, &c. who
being at Rome, a commandment under the great seal was sent for him
to return." So Bertie's case in queen Mary's time, and Inglefield's
case in queen Elizabeth's, the privy seal went to command them to
return into the realm, and for not coming their lands were seized,"
&c. But to return to the point: "And as to the objection," says the
book, "that none can be born a natural subject of two kingdoms, they
denied that absolutely, for although locally, he can be born but in
one, yet effectually, the allegiance of the king extending to both,
his birthright shall extend to both." And afterwards, "but that his
kingly power extendeth to diverse nations and kingdoms, all owe
him equal subjection, and are equally born to the benefit of his
protection; and although he is to govern them by _their distinct
laws_, yet any one of the people coming into the other, is to have
the benefit of the laws, wheresoever he cometh; but living in one,
or for his livelihood in one, he is not to be taxed in the other,
because laws ordain taxes, impositions, and charges, as a discipline
of subjection particularized to every particular nation." Another
place where this distinction is to be found is in Foster's crown
law, p. 184. "There have been writers, who have carried the notion
of natural, perpetual, unalienable allegiance much farther than the
subject of this discourse will lead me. They say, very truly, that
it is due to the _person_ of the king, &c." It is undoubtedly due
to the person of the king; but in that respect natural allegiance
differeth nothing from what we call local. For allegiance considered
in every light is alike due to the person of the king; and is paid,
and in the nature of things must be constantly paid, to that prince,
who for time being, is in the actual and full possession of the regal
dignity."
Indeed allegiance to a sovereign lord, is nothing more than fealty
to a subordinate lord, and in neither case, has any relation to, or
connection with laws or parliaments, lords or commons. There was a
reciprocal confidence between the lord and vassal. The lord was to
protect the vassal in the enjoyment of his land. The vassal was to
be faithful to his lord, and defend him against his enemies. This
obligation on the part of the vassal, was his fealty, _fidelitas_.
The oath of fealty, by the feodal law to be taken by the vassal
or tenant, is nearly in the very words as the ancient oath of
allegiance. But neither fealty, allegiance, or the oath of either
implied any thing about laws, parliaments, lords or commons.
The fealty and allegiance of Americans then is undoubtedly due to the
person of king George the third, whom God long preserve and prosper.
It is due to him, in his natural person, as that natural person is
intituled to the crown, the kingly office, the royal dignity of the
realm of England. And it becomes due to his natural person, because
he is intituled to that office. And because by the charters, and
other express and implied contracts made between the Americans and
the kings of England, they have bound themselves to fealty and
allegiance to the natural person of that prince, who shall rightfully
hold the kingly office in England, and no otherwise.
"With us in England, says Blackstone, v. 1, 367. it becoming a
settled principle of tenure, that all lands in the kingdom are holden
of the king as their sovereign and lord paramount, &c. the oath
of allegiance was necessarily confined to the person of the king
alone. By an easy analogy, the term of allegiance was soon brought
to signify all other engagements, which are due from subjects simply
and merely territorial. And the oath of allegiance, as administered
for upwards of six hundred years, contained a promise to be true and
faithful to the king and his heirs, and truth and faith to bear of
life and limb and terrene honor, and not to know, or hear of any ill
or damages intended him, without defending him therefrom." But at the
revolution, the terms of this oath being thought perhaps to favor too
much the notion of non-resistance, the present form was introduced by
the convention parliament, which is more general and indeterminate
than the former, the subject promising "that he will be faithful, and
bear true allegiance to only the king," without mentioning his heirs,
or specifying the least wherein that allegiance consists.
Thus I think that all the authorities in law, coincide exactly with
the observation which I have heretofore made upon the case of Wales,
and shew that subjection to a king of England does not necessarily
imply subjection to the crown of England; and that subjection to
the crown of England, does not imply subjection to the parliament
of England; for allegiance is due to the person of the king, and to
that alone, in all three cases, that is, whether we are subject to
his parliament and crown, as well as his person, as the people in
England are, whether we are subject to his crown and person, without
parliament, as the Welch were after the conquest of Lewellyn, and
before the union, or as the Irish were after the conquest and before
Poyning's law, or whether we are subject to his person alone, as the
Scots were to the king of England, after the accession of James 1st.
being not at all subject to the parliament or crown of England.
We do not admit any binding authority in the decisions and
adjudications of the court of king's bench or common pleas, or the
court of chancery over America: but we quote them as the opinions
of learned men. In these we find a distinction between a country
conquered, and a country discovered. Conquest, they say, gives the
crown an absolute power: discovery, only gives the subject a right
to all the laws of England. They add, that all the laws of England
are in force there. I confess I do not see the reason of this. There
are several cases in books of law which may be properly thrown before
the public. I am no more of a lawyer than Massachusettensis, but have
taken his advice, and conversed with many lawyers upon our subject,
some honest, some dishonest, some living, some dead, and am willing
to lay before you what I have learned from all of them. In Salk. 411,
the case of Blankard and Galdy. "In debt upon a bond, the defendant
prayed oyer of the condition, and pleaded the statutes E. 6. against
buying offices concerning the administration of justice; and averred
that this bond was given for the purchase of the office of provost
marshal in Jamaica, and that it concerned the administration of
justice, and _that Jamaica is part of the revenue and possessions
of the crown of England_. The plaintiff replied, that Jamaica is an
island _beyond the seas_, which was conquered from the Indians and
Spaniards in Queen Elizabeth's time, and the inhabitants are governed
by their own laws, and not by the laws of England. The defendant
rejoined, that before such conquest, they were governed by their own
laws; but since that, by the laws of England. Shower argued for the
plaintiff, that on a judgment in Jamaica, no writ of error lies here,
but only an appeal to the council; _and as they are not represented
in our parliament, so they are not bound by our statutes_, unless
specially named. Vid. And. 115. Pemberton contra argued, that, _by
the conquest of a nation, its liberties, rights, and properties, are
quite lost_; that by consequence their laws are lost too, for the law
is but the rule and guard of the other; those that conquer cannot, by
their victory, lose their laws, and become subject to others. Vid.
Vaugh. 405. That error lies here upon a judgment in Jamaica, which
could not be, if they were not under the same law. Et. per Holt,
C. J. and Cur. 1st. In case of an uninhabited country, newly found
out by English subjects, all laws in force in England are in force
there; so it seemed to be agreed. 2. Jamaica being conquered, and
not pleaded to be parcel of the kingdom of England, but part of the
possessions and revenue of the crown of England; the laws of England
did not take place there, until declared so by the conqueror, or his
successors. The Isle of Man and Ireland are part of the _possessions_
of the crown of England, yet retain their ancient laws, that in
Davis, 36, it is not pretended that the custom of tanistry was
determined by the conquest of Ireland, but by the new settlement
made there after the conquest: that it was impossible the laws of
this nation, by mere conquest, without more should take place, in
a conquered country, because for a time, there must want officers,
without which our laws can have no force; that if our law did take
place, yet they, in Jamaica, having power to make new laws, our
general laws may be altered by theirs in particulars; also they held
that in case of an infidel country; their laws by conquest do not
entirely cease, but only such as are against the law of God; and that
in such cases where the laws are rejected or silent, the conquered
country shall be governed according to the rule of natural equity.
Judgment, pro quer."
Upon this case I beg leave to make a few observations. 1. That
Shower's reasoning, that we are not bound by statutes, because not
represented in parliament, is universal, and therefore his exception,
"unless specially named," although it is taken from analogy to the
case of Ireland, by lord Coke and others, yet it is not taken from
the common law, but is merely arbitrary and groundless, as applied
to us: because, if the want of representation could be supplied, by
"expressly naming" a country, the right of representation might be
rendered null and nugatory. But of this, more another time.