England, common and statute, are in force in a vacant country,
discovered by Englishmen. But America was not a vacant country; it
was full of inhabitants; our ancestors purchased the land; but if
it had been vacant, his lordship has not shewn us any authority at
common law, that the laws of England would have been in force there.
On the contrary, by that law, it is clear they did not extend beyond
seas, and therefore could not be binding there, any further than the
free will of the discoverers should make them. The discoverers had
a right by nature, to set up those laws, if they liked them, or any
others, that pleased them better, provided they were not inconsistent
with their allegiance to the king. 3. The court held that a country
must be parcel of the kingdom of England, before the laws of England
could take place there; which seems to be inconsistent with what is
said before, because discovery of a vacant country does not make
it parcel of the kingdom of England, which shews, that the court,
when they said that all laws in _force_ in England, are in _force_
in the discovered country, meant no more than that the discoverers
had a right to all such laws, if they chose to adopt them. 4. The
idea of the court, in this case, is exactly conformable to, if not
taken from the case of Wales. They consider a conquered country as
Edward 1st. and his successors did Wales, as by the conquest annexed
to the crown, as an absolute property, possession, or revenue,
and therefore to be disposed of at its will; not entitled to the
laws of England, although bound to be governed by the king's will,
in parliament or out of it, as he pleased. 5. The Isle of Man and
Ireland, are considered like Wales, as conquered countries, and part
of the possessions (by which they mean property or revenue) of the
crown of England, yet have been allowed by the king's will to retain
their ancient laws. 6. That the case of America differs totally from
the case of Wales, Ireland, Man, or any other case, which is known
at common law, or in English history. There is no one precedent in
point, in any English records, and therefore it can be determined
only by eternal reason, and the law of nature. But yet that the
analogy of all these cases of Ireland, Wales, Man, Chester, Durham,
Lancaster, &c. clearly concur with the dictates of reason and nature,
that Americans are entitled to all the liberties of Englishmen, and
that they are not bound by any acts of parliament whatever, by any
law known in English records or history, excepting those for the
regulation of trade, which they have consented to and acquiesced
in. 7. To these let me add, that as the laws of England, and the
authority of parliament were by common law confined to the realm, and
within the four seas, so was the force of the great seal of England.
Salk. 510. "The great seal of England is appropriated to England,
and what is done under it has relation to England, and to no other
place." So that the king, by common law, had no authority to create
peers or governments, or any thing out of the realm, by his great
seal; and therefore our charters and commissions to governors, being
under the great seal, gives us no more authority, nor binds us to any
other duties, than if they had been given under the privy seal, or
without any seal at all. Their binding force, both upon the crown and
us, is wholly from compact and the law of nature.
There is another case in which the same sentiments are preserved; it
is in 2. P. Williams, 75, memorandum 9th August, 1722. It was said
by the master of the rolls to have been determined by the lords of
the privy council, upon an appeal to the king in council from the
foreign plantations. 1st. That if there be a new and uninhabited
country, found out by English subjects, as the law is the birth
right of every subject, so, wherever they go, they carry their laws
with them, and therefore such new found country is to be governed
by the laws of England; though after such country is inhabited by
the English, acts of parliament made in England, without naming the
foreign plantations, will not bind them; for which reason it has been
determined that the statute of frauds and perjuries, which requires
three witnesses, and that these should subscribe in the testators
presence in the case of devise of land, does not bind Barbadoes,
but that 2dly. Where the king of England conquers a country, it is
a different consideration; for there the conqueror, by saving the
lives of the people conquered, gains a right and property in such
people! In consequence of which he may impose upon them what laws he
pleases. But 3dly. Until such laws, given by the conquering prince,
the laws and customs of the conquered country shall hold place,
unless where these are contrary to our religion, or enact any thing
that is _malum in se_, or are silent; for in all such cases the laws
of the conquering country shall prevail.
NOVANGLUS.
ADDRESSED
_To the Inhabitants of the Colony of Massachusetts Bay_,
April 3, 1775.
MY FRIENDS,
Give me leave now to descend from these general matters, to
Massachusettensis. He says "Ireland, who has perhaps the greatest
possible subordinate legislature, and sends no members to the British
parliament, is bound by its acts when expressly named." But if we are
to consider what ought to be, as well as what is, why should Ireland
have the greatest possible subordinate legislature? Is Ireland more
numerous and more important to what is called the British empire,
than America? Subordinate as the Irish legislature is said to be, and
a conquered country as undoubtedly it is, the parliament of Great
Britain, although they claim a power to bind Ireland by statutes,
have never laid one farthing of tax upon it. They knew it would
occasion resistance if they should. But the authority of parliament
to bind Ireland at all, if it has any, is founded upon a different
principle entirely from any that takes place in the case of America.
It is founded on the consent and compact of the Irish by Poyning's
law to be so governed, if it has any foundation at all: and this
consent was given and compact made in consequence of a conquest.
In the reign of Henry 2d of England, there were five distinct
sovereignties in Ireland; Munster, Leinster, Meath, Ulster and
Connaught, besides several small tribes. As the prince of any one of
these petty states took the lead in war, he seemed to act, for the
time being, as monarch of the island. About the year 1172, Roderic
O'Connor, king of Connaught, was advanced to this pre-eminence. Henry
had long cast a wishful eye upon Ireland, and now partly to divert
his subjects from the thoughts of Becket's murder, partly to appease
the wrath of the pope for the same event, and partly to gratify his
own ambition, he lays hold of a pretence, that the Irish had taken
some natives of England and sold them for slaves, applies to the pope
for license to invade that island. Adrian the 3d, an Englishman by
birth, who was then pontiff, and very clearly convinced in his own
mind, of his right to dispose of kingdoms and empires, was easily
persuaded, by the prospect of Peter's pence, to act as emperor of the
world, and make an addition to his ghostly jurisdiction of an island
which, though converted to christianity, had never acknowledged any
subjection to the see of Rome. He issued a bull, premising that
Henry had ever shewn an anxious care to enlarge the church, and
increase the saints on earth and in heaven: that his design upon
Ireland proceeded from the same pious motives: that his application
to the holy see, was a sure earnest of success: that it was a point
incontestible, that all christian kingdoms belonged to the patrimony
of St. Peter: that it was his duty to sow among them the seeds of the
gospel, which might fructify to their eternal salvation. He exhorts
Henry to invade Ireland, exterminate the vices of the natives, and
oblige them to pay yearly, from every house, a penny to the see
of Rome; gives him full right and entire authority over the whole
island; and commands all to obey him as their sovereign.
Macmorrough, a licentious scoundrel, who was king of Leinster, had
been driven from his kingdom, for his tyranny, by his own subjects,
in conjunction with Ororic, king of Meath, who made war upon him for
committing a rape upon his queen, applied to Henry for assistance,
to restore him, and promised to hold his kingdom in vassalage of the
crown of England.
Henry accepted the offer and engaged in the enterprise. It is
unnecessary to recapitulate all the intrigues of Henry, to divide
the Irish kingdoms among themselves, and set one against another,
which are as curious as those of Edward 1st. to divide the kingdom
of Wales, and play Lewellyn's brothers against him, or as those of
the ministry, and our junto, to divide the American colonies, who
have more sense than to be divided. It is sufficient to say, that
Henry's expeditions terminated altogether by means of those divisions
among the Irish, in the total conquest of Ireland, and its annexation
forever to the English crown. By the annexation of all Ireland to the
English crown, I mean that all the princes and petty sovereigns in
Ireland agreed to become vassals of the English crown. But what was
the consequence of this? The same consequence was drawn, by the kings
of England in this case, as had been drawn in the case of Wales after
the conquest of Lewellyn, viz: that Ireland was become part of the
_property_, _possession_ or _revenue_ of the English crown, and that
its authority over it was absolute and without controul.
That matter must be traced from step to step. The first monument we
find in English records, concerning Ireland, is a mere _rescriptum
principis_, intituled _statutum Hiberniae de coheredibus_, 14, Henry
3d, A. D. 1229. In the old abridgment Tit. Homage, this is said not
to be a statute. Vid. Ruffhead's statutes at large, V. 1. 15. Mr. Cay
very properly observes, that it is not an act of parliament, Vid.
Barrington's observations on the statutes, p. 34. In this rescript,
the king informs certain milites, (adventurers probably in the
conquest of Ireland, or their descendants) who had doubts how lands
holden by knights' service descending to co-partners, within age,
should be divided, what is the law and custom in England with regard
to this.
But the record itself shews it to be a royal rescript only. _Rex
dilecto et fideli suo gerardo fil'mauricii justii' suo [Errata:
delete 'suo'] Hiberniae salutem. Quia tales Milites de partibus
Hiberniae nuper, ad nos accedentes nobis ostenderunt, quod, &c. Et
a nobis petierunt inde certiorari qualiter in regno nostro Angliae
in casu consimili hactenus usitatum sit, &c._ He then goes on and
certifies what the law in England was, and then concludes, _Et Ideo
vobis mandamus, quod predictas consuetudines in hoc casu, quas in
regno nostro Angliae habemus, ut predictum est, in terra nostra
Hiberniae proclamari et firmiter teneri, fac, &c._
Here again we find the king conducting, exactly as Edward 1st. did in
Wales, after the conquest of Wales. Ireland had now been annexed to
the English crown many years, yet parliament was not allowed to have
obtained any jurisdiction over it, and Henry ordained laws for it by
his sole and absolute authority, as Edward 1st. did by the statute
of Wales. Another incontestible proof that annexing a country to the
crown of England, does not annex it to the realm, or subject it to
parliament. But we shall find innumerable proofs of this.
Another incontestible proof of this, is the _ordinatio pro statu
Hiberniae_ made 17 Edward 1, 1288.
This is an ordinance made by the king, by advice of his council,
for the government of Ireland. "Edward, by the grace of God, king
of England, lord of Ireland, &c. to all those who shall see or hear
these letters, doth send salutation." He then goes on and ordains
many regulations, among which the seventh chapter is "that none of
our officers shall receive an original writ pleadable at the common
law, but such as be sealed by the great seal of Ireland," &c. This
ordinance concludes, "In witness whereof we have caused these our
letters patent to be made." Dated at Nottingham 24th Nov. 17th year
of our reign.
This law, if it was passed in parliament, was never considered
to have any more binding force, than if it had been made only by
the king. By Poyning's law indeed in the reign of Henry 7th. all
precedent English statutes are made to bind in Ireland, and this
among the rest; but until Poyning's law, it had no validity as an
act of parliament, and was never executed, but in the English pale,
for, notwithstanding all that is said of the total compact [Errata:
conquest] by Henry 2d.; yet it did not extend much beyond the
neighbourhood of Dublin, and the conqueror could not enforce his laws
and regulations much further.
There is a note on the roll of 21 Edward 1st. in these words: "_Et
memorandum quod istud statutum, de verbo ad verbum, missum fuit in
Hiberniam, teste rege apud Kenyngton 14 die, Augusti, anno regni
sui vicesimo septimo: et mandatum fuit Johanni Wogan justiciario
Hiberniae, quod praedictum statutum, per Hiberniam, in locis quibus
expedire viderit legi, et publice proclamari ac firmiter teneri
faciat_.
"This note most fully proves, that the king, by his sole authority,
could introduce any English law; and will that authority be lessened
by the concurrence of the two houses of parliament? There is also
an order of Charles 1st. in the third year of his reign, to the
treasurers and chancellors of the exchequer, both of England and
Ireland, by which they are directed to increase the duties upon
Irish exports; which shews that it was then imagined, that the king
would tax Ireland by his prerogative, without the intervention of
parliament." Vid. obs. on the statutes, p. 127.
Another instance to shew, that the king by his sole authority,
whenever he pleased, made regulations for the government of Ireland,
notwithstanding it was annexed and subject to the crown of England,
is the _ordinatio facta pro statu terrae Hiberniae_, in the 31
Edward 1. in the appendix to Ruffhead's statutes, p. 37. This is an
extensive code of laws, made for the government of the Irish church
and state, by the king alone, without lords or commons. The king's
"_volumus et firmiter precipimus_," governs and establishes all, and
among other things, he introduces by the 18th chapter, the English
laws for the regimen of persons of English extract settled in Ireland.
The next appearance of Ireland, in the statutes of England, is in
the 34 Edward 3d, c. 17. This is no more than a concession of the
king to his lords and commons of England, in these words. "_Item_, it
is accorded that all the merchants, as well aliens as denizens, may
come into Ireland, with their merchandizes, and from thence freely
return with their merchandizes and victuals, without fine or ransom
to be taken of them, saving always to the king, his ancient customs
and other duties." And by chapter 18, "_Item_, that the people of
England, as well religious as other, which have their heritage and
possessions in Ireland, may bring their corn, beasts and victuals to
the said land of Ireland, and from thence re-carry their goods and
merchandizes into England freely without impeachment, paying their
customs and devoirs to the king."
All this is no more than an agreement between the king and his
English subjects, lords and commons, that there should be a free
trade between the two islands, and that one of them should be free
for strangers. But it is no colour of proof that the king could not
govern Ireland without his English lords and commons.
The 1. Henry 5th. c. 8. All Irishmen and Irish clerks, beggars, shall
depart this realm before the 1st day of November, except graduates,
sergeants, &c. is explained by 1. Henry 6th. c. 3. which shews what
sort of Irishmen only may come to dwell in England. It enacts that
all persons, born in Ireland, shall depart out of the realm of
England, except a few; and that Irishmen shall not be principals
of any hall, and that Irishmen shall bring testimonials from the
lieutenant, or justice of Ireland, that they are of the king's
obeisance. By the 8th, Henry 6th. c. 8. "Irishmen resorting into the
realm of England, shall put in surety for their goodabearing."
Thus I have cursorily mentioned every law made by the king of
England, whether in parliament or out of it, for the government of
Ireland, from the conquest of it by Henry 2d. in 1172, down to the
reign of Henry 7th. when an express contract was made between the two
kingdoms, that Ireland should for the future be bound by English acts
of parliament, in which it should be specially named. This contract
was made in 1495; so that upon the whole it appears, beyond dispute,
that for more than 300 years, though a conquered country, and annexed
to the crown of England; yet was so far from being annexed to, or
parcel of the realm, that the king's power was absolute there, and
he might govern it without his English parliament, whose advice
concerning it, he was under no obligation to ask or pursue.
The contract I here alluded to, is what is called Poyning's law; the
history of which is briefly this. Ireland revolted from England,
or rather adhered to the partizans of the house of York; and Sir
Edward Poyning was sent over about the year 1495, by king Henry 7th.
with very extensive powers, _over the civil as well as military
administration_. On his arrival he made severe inquisition about the
disaffected, and in particular attacked the earls of Desmond and
Kildare. The first stood upon the defensive, and eluded the power
of the deputy: but Kildare was sent prisoner to England: _not to
be executed, it seems, nor to be tried upon the statute of Henry
8th_, but to be dismissed, as he actually was, to his own country,
with marks of the king's esteem and favor; Henry judging that, at
such a juncture, he should gain more by clemency and indulgence,
than by rigor and severity. In this opinion he sent a commissioner
to Ireland, with a formal amnesty, in favor of Desmond and all his
adherents, whom the tools of his ministers did not fail to call
traitors and rebels, with as good a grace and as much benevolence, as
Massachusettensis discovers.
Let me stop here and enquire, whether lord North has more wisdom than
Henry 7th. or whether he took the hint from the history of Poyning,
of sending Gen. Gage, with his civil and military powers? If he
did, he certainly did not imitate Henry, in his blustering menaces,
against certain "ringleaders and forerunners."
While Poyning resided in Ireland, he called a parliament, which is
famous in history for the acts which it passed, in favour of England,
and Englishmen settled in Ireland. By these, which are still called
Poyning's laws, all the former laws of England were made to be of
force in Ireland, and no bill can be introduced into the Irish
parliament, unless it previously receive the sanction of the English
privy council; and by a construction, if not by the express words of
these laws, Ireland is still said to be bound by English statutes, in
which it is specially named. Here then let Massachusettensis pause,
and observe the original of the notion that countries might be bound
by acts of parliament, if "specially named," though without the
realm. Let him observe, too, that this notion is grounded entirely on
the voluntary act, the free consent of the Irish nation, and an act
of an Irish parliament, called Poyning's law. Let me ask him, has any
colony in America ever made a Poyning's act? Have they ever consented
to be bound by acts of parliament, if specially named? Have they ever
acquiesced in, or implicitly consented to any acts of parliament,
but such as are _bona fide_ made for the regulation of trade? This
idea of binding countries without the realm, "by specially naming"
them, is not an idea taken from the common law. There was no such
principle, rule, or maxim, in that law; it must be by statute law,
then, or none. In the case of Wales and Ireland, it was introduced
by solemn compact, and established by statutes, to which the Welch
and Irish were parties, and expressly consented. But in the case of
America there is no such statute, and therefore Americans are bound
by statutes, in which they are "named," no more than by those in
which they are not.
The principle upon which Ireland is bound by English statutes, in
which it is named, is this, that being a conquered country, and
subject to the mere will of the king, it voluntarily consented to
be so bound. This appears in part already, and more fully in 1.
Blackstone 99, 100, &c. who tells us, "that Ireland is a distinct,
though a dependant, subordinate kingdom." But how came it dependant
and subordinate? He tells us "that king John, in the twelfth year
of his reign, after the conquest, went into Ireland, carried over
with him many able sages of the law; and there, by his letters
patent, in right of the dominion of conquest, is said to have
ordained and established, that Ireland should be governed by the
laws of England; which letters patent Sir Edward Coke apprehends
to have been there confirmed in parliament." By the same rule that
no laws made in England, between king John's time and Poyning's
law, were then binding in Ireland, it follows that no acts of the
English parliament, made since the tenth of Henry 7th. do now bind
the people of Ireland, unless specially named, or included under
general words. And on the other hand, it is equally clear, that where
Ireland is particularly named, or is included under general words,
they are bound by such acts of parliament; for it follows, from the
very nature and constitution of a dependent state; dependance being
very little else, but an obligation to conform to the will or law of
that superior person, or state, upon which the inferior depends. The
original and true ground of this superiority, in the present case,
is what we usually call, though somewhat improperly, "the right of
conquest;" a right allowed by the law of nations, if not by that of
nature; but which in reason and civil policy can mean nothing more,
than that, in order to put an end to hostilities, "a compact is
either expressly or tacitly made between the conqueror and conquered,
that if they will acknowledge the victor for their master, he will
treat them for the future as subjects and not as enemies."
These are the principles upon which the dependance and subordination
of Ireland are founded. Whether they are just or not, is not
necessary for us to enquire. The Irish nation have never been
entirely convinced of their justice; have been ever discontented with
them; and ripe and ready to dispute them. Their reasonings have ever
been answered, by the _ratio ultima and penultima_ of the tories, and
it requires to this hour no less than a standing army of 12,000 men
to confute them; as little as the British parliament exercises the
right, which it claims of binding them by statutes, and although it
never once attempted or presumed to tax them, and although they are
so greatly inferior to Britain in power, and so near in situation.
But thus much is certain, that none of these principles take place,
in the case of America. She never was conquered by Britain. She
never consented to be a state dependant upon, or subordinate to the
British parliament, excepting only in the regulation of her commerce;
and therefore the reasonings of British writers, upon the case of
Ireland, are not applicable to the case of the colonies, any more
than those upon the case of Wales.
Thus have I rambled after Massachusettensis through Wales and
Ireland, but have not reached my journey's end. I have yet to travel
through Jersey, Guernsey, and I know not where. At present I shall
conclude with one observation. In the history of Ireland and Wales,
though undoubtedly conquered countries, and under the very eye and
arm of England, the extreme difficulty, the utter impracticability of
governing a people, who have any sense, spirit, or love of liberty,
without incorporating them into the state, or allowing them in some
other way, equal privileges may be clearly seen. Wales was forever
revolting for a thousand years, until it obtained that mighty
blessing. Ireland has been frequently revolting, although the most
essential power of a supreme legislature, that of imposing taxes,
has never been exercised over them, and it cannot now be kept under,
but by force; and it would revolt forever, if parliament should tax
them. What kind of an opinion, then, must the ministry entertain of
America? When her distance is so great, her territory so extensive,
her commerce so important, not a conquered country, but dearly
purchased and defended? When her trade is so essential to the navy,
the commerce, the revenue, the very existence of Great Britain, as
an independent state? They must think America inhabited by three
millions of fools and cowards.
NOVANGLUS.
ADDRESSED
_To the Inhabitants of the Colony of Massachusetts Bay_,
April 10, 1775.
MY FRIENDS,
The cases of Wales and Ireland are not yet exhausted. They afford
such irrefragable proofs, that there is a distinction between the
crown and realm, and that a country may be annexed and subject to the
former, and not the latter, that they ought to be thoroughly studied
and understood.
The more these cases, as well as those of Chester, Durham, Jersey,
Guernsey, Calais, Gascoine, Guienne, &c. are examined, the more
clearly it will appear, that there is no precedent in English
records; no rule of common law; no provision in the English
constitution; no policy in the English or British government; for
the case of the colonies; and therefore that we derive our laws and
government solely from our own compacts with Britain and her kings,
and from the great legislature of the universe.