these are apt to lead us astray. Lord Coke, in 7 Rep. 21, 6, says,
"Wales was sometimes a kingdom, as it appeareth by 19 Henry 6th.
fol. 6, and by the act of parliament of 2 Henry 5th. cap. 6, but
while it was a kingdom, the same was holden, and within the fee of
the king of England: and this appeareth by our books, Fleta, lib.
1. Edward 3d. 14, 8. Ed. 3d. 59, 13, Edward 3d. Tit. Jurisdict. 10.
Henry 4, 6. Plow. com. 368. And in this respect, in divers ancient
charters, kings of old time styled themselves in several manners,
as king Edgar, Britanniae Basileus, Etheldrus, Totius Albionis Dei
providentia Imperator, Edredus, magnae Britanniae Monarcha, which,
among many others of like nature I have seen. But by the statute of
12 of Edward 1st. Wales was united and incorporated into England, and
made parcel of England in possession; and therefore it is ruled in
7 Henry 4th. fol. 14. That no protection doth lie, _quia moratur in
Wallia_, because Wales is within the realm of England. And where it
is recited in the act of 27 Henry 8th. _that Wales was ever parcel
of the realm of England_, it is true in this sense, viz: that before
12 Edward 1st. it was parcel in tenure, and since _it is parcel of
the body of the realm_. And whosoever is born within the fee of the
king of England, though it be in another kingdom, is a natural born
subject, and capable and inheritable of lands in England, as it
appeareth in Plow. com. 126. And therefore those that were born in
Wales before 12 Edward 1st. while it was only holden of England, were
capable and inheritable of lands in England."
Where my lord Coke or any other sage, shews us the ground on which
his opinion stands, we can judge for ourselves, whether the ground
is good, and his opinion just. And if we examine by this rule, we
shall find in the foregoing words, several palpable inaccuracies
of expression; 1, by the 12 E. 1. (which is the _Statutum Walliæ_
quoted by me before) it is certain "that Wales was not united and
incorporated into England, and made parcel of England." It was
annexed and united to the crown of England only. It was done by the
king's sole and absolute authority; not by an act of parliament, but
by a mere _constitutio imperatoria_, and neither E. 1. nor any of his
successors, ever would relinquish the right of ruling it, by mere
will and discretion until the reign of James 1.--2. It is not recited
in the 27 H. 8, that Wales was ever parcel of the realm of England.
The words of that statute are, "incorporated, annexed, united and
subject to and under the imperial crown of this realm," is a decisive
proof that a country may be annexed to the one, without being
united with the other. And this appears fully in lord Coke himself,
7 rep. 22, b. "Ireland originally came to the kings of England
by conquest, but who was the first conquerer thereof hath been a
question. I have seen a charter made by king Edgar, in these words,
_Ego Edgarus Anglorum Basileus, omnium quæ insularum oceani, quæ
Britanniam circumjacent, imperator et dominus, gratias ago ipsi Deo
omnipotenti regi meo, qui meum imperium sic ampliavit et exaltavit
super regnum patrum meorum_, &c. _Mihi concessit propitia divinitas,
cum anglorum imperis omnia regna insularum oceani_, &c. _Cum suis
ferocibus regibus usque Norvegiam, maximamque partem Hiberniæ, cum
sua nobilissima civitate de Dublina, Anglorum regno subjugare,
quapropter et ego Christi gloriam et laudem in regno meo exaltare,
et ejus servitium amplificare devotus disposui_, &c. Yet for that it
was wholly conquered in the reign of H. 2. The honour of the conquest
of Ireland is attributed to him. That Ireland is a dominion separate
and divided from England it is evident by our books, 20 H. 6, 8.
Sir John Pilkington's case, 32 H. 6, 26. 20 Eliz. Dyer 360. Plow.
com. 360. and 2, r. 3. 12. _Hibernia habet parliamentum, et faciunt
leges, et statuta nostra non ligant eos quia non mittunt milites ad
parliamentum_, (which is to be understood unless they be specially
named) _sed personæ eorum sunt, subjecti regis, sicut inhabitantes in
Calesia, Gasconia et Guigan_. Wherein it is to be observed, that the
Irishman (as to his subjection) is compared to men born in Calice,
Gascoin and Guian. Concerning their laws, _Ex rotulis petentium,
de anno_ 11. Regis 8. 3, there is a charter which that king made
beginning in these words: _Rex Baronibus, Militibus et omnibus libere
tenenibus L. salutem, satis, ut credimus vestra audivit discretio,
quod quando bonæ memoriæ Johannes quondam rex Angliæ, pater noster
venit in Hiberniam ipse duxit secum viros discretos et legis peritos,
quorum communi consilio et adjunctorum Hiberniansium, statuit et
præcepit leges Anglicanas in Hibernia, ita quod easdem inscripturas
redactas reliquit sub sigillo suo ad saccarium Dublin_. So as now
the laws of England became the proper laws of Ireland; and therefore
because they have parliaments holden there, whereat they have made
diverse particular laws, concerning that dominion, as it appeareth in
20 Hen. 6th, 8th. and 20 Eliz. Dyer, 360, and for that they retain
unto this day, diverse of their ancient customs, the book in 20 Henry
6th. 8th. holdeth that Ireland is governed by laws and customs,
separate and diverse from the laws of England. A voyage royal may be
made into Ireland. Vid. 11. Henry 4th. 7th. and 7 Edward 4th. 27.
which proveth it a distinct dominion. And in anno 33 Elizabeth, it
was resolved by all the judges of England, in the case of Orurke,
an Irishman, who had committed high treason in Ireland, that he, by
the statute of 33. Henry 8th. c. 23, might be indicted, arraigned,
and tried for the same in England, according to the purview of that
statute; the words of which statute be, that all treasons, &c.
committed by any person out of the realm of England, shall be from
henceforth enquired of, &c. And they all resolved, (as afterwards
they did also in Sir John Perrot's case) that Ireland was out of
the realm of England, and that treasons committed there were to be
tried within England, by that statute. In the statute of 4 Henry
7th. c. 24 of fines, provision is made for them that be out of this
land, and it is holden in Plow. com. in Stowell's case 375, that he
that is in Ireland is out of this land, and consequently within that
proviso. Might not, then, the like plea be devised, as well against
any person born in Ireland, as (this is against Calvin a _Postnatus_)
in Scotland? For the Irishman is born _extra ligeantia regis, regni
sui Angliae_, &c. which be _verba operativa_ in the plea. But all
men know, that they are natural born subjects, and capable of, and
inheritable to lands in England."
I have been at the pains of transcribing this long passage for the
sake of a variety of important observations that may be made upon
it. 1. That exuberance of proof that is in it, both that Ireland
is annexed to the crown, and that it is not annexed to the realm
of England. 2. That the reasoning in the year book, that Ireland
has a parliament, and makes laws, and our statutes do not bind
them, because they do not send knights to parliament, is universal,
and concludes against these statutes binding, in which Ireland is
specially named, as much as against these in which it is not, and
therefore lord Coke's parenthesis, (which is to be understood unless
they be specially named) is wholly arbitrary and groundless, unless
it goes upon the supposition, that the king is absolute in Ireland,
it being a conquered country, and so has power to bind it at his
pleasure, by an act of parliament, or by an edict: or unless it goes
upon the supposition of Blackstone, that there had been an express
agreement and consent of the Irish nation to be bound by acts of the
English parliament; and in either case it is not applicable even by
analogy to America, because that is not a conquered country, and most
certainly never consented to be bound by all acts of parliament, in
which it should be named. 3. That the instance, request and consent
of the Irish is stated, as a ground upon which king John and his
discreet law-sages, first established the laws of England in Ireland.
4. The resolution of the judges in the cases of Orurke and Perrot,
is express that Ireland was without the realm of England, and the
late resolutions of both houses of parliament, and the late opinion
of the judges, that Americans may be sent to England upon the same
statute to be tried for treason, is also express that America is out
of the realm of England. So that we see what is to become of us, my
friends. When they want to get our money by taxing us, our privileges
by annihilating our charters, and to screen those from punishment
who shall murder us at their command, then we are told that we are
within the realm; but when they want to draw, hang, and quarter us,
for honestly defending those liberties which God and compact have
given and secured to us, oh, then, we are clearly out of the realm.
5. In Stowell's case, it is resolved that Ireland is out of the land,
that is the land of England. The consequence is, that it was out
of the reach and extent of the law of the land, that is the common
law. America surely is still further removed from that land; and
therefore is without the jurisdiction of that law which is called
the law of the land in England. I think it must appear by this time,
that America is not parcel of the realm, state, kingdom, government,
empire, or land of England, or Great Britain, in any sense, which can
make it subject universally to the supreme legislature of that island.
But for the sake of curiosity, and for the purpose of shewing that
the consent even of a conquered people has always been carefully
conciliated, I beg leave to look over lord Coke's 4. Inst. p. 12.
"After king Henry 2d." says he, "had conquered Ireland, he fitted
and transcribed this modus, meaning the ancient treatise called
_modus tenendi parliamentum_, which was rehearsed and declared before
the conqueror at the time of the conquest, and by him approved for
England, into Ireland, in a parchment roll, for the holding of
parliaments there, which no doubt H. 2. did by advice of his judges,
&c.--This _modus_, &c. was anno 6. H. 4. in the custody of sir
Christopher Preston, which roll H. 4. in the same year, _De assensu
Johannis Talbot Chevalier_, his lieutenant there, and of his council
of Ireland, exemplified, &c."
Here we see the original of a parliament in Ireland, which is
assigned as the cause or reason why Ireland is a distant kingdom
from England: and in the same, 4. inst. 349. we find more evidence
that all this was done at the instance and request of the people in
Ireland. Lord Coke says, "H 2. the father of K. John, did ordain and
command, at the instance of the Irish, that such laws as he had in
England, should be of force and observed in Ireland. Hereby Ireland,
being of itself a distant dominion, and no part of the kingdom of
England, (as it directly appeareth by many authorities in Calvin's
case) was to have parliaments holden there, as England, &c." See the
record as quoted by lord Coke in the same page, which shews that
even this establishment of English laws, was made _De communi omnium
de Hiberniæ consensu_.
This whole chapter is well worth attending to, because the records
quoted in it shew how careful the ancients were to obtain the consent
of the governed to all laws, though a conquered people, and the king
absolute. Very unlike the minister of our æra, who is for pulling
down and building up the most sacred establishments of laws and
government, without the least regard to the consent or good will of
Americans. There is one observation more of lord Coke that deserves
particular notice. "Sometimes the king of England called his nobles
of Ireland to come to his parliament of England, &c. and by special
words the parliament of England may bind the subjects of Ireland,"
and cites the record 8. E. 2. and subjoins "an excellent precedent
to be followed, whensoever any act of parliament shall be made in
England, concerning the state of Ireland, &c." By this lord Coke
seems to intimate an opinion, that representatives had been and ought
to be called from Ireland to the parliament of England, whenever it
undertook to govern it by statutes, in which it should be specially
named.
After all, I believe there is no evidence of any express contract of
the Irish nation to be governed by the English parliament, and very
little of an implied one; that the notion of binding it by acts in
which it is expressly named is merely arbitrary. And that this nation
which has ever had many and great virtues, has been most grievously
oppressed: and it is to this day so greatly injured and oppressed,
that I wonder American committees of correspondence and congresses,
have not attended more to it than they have. Perhaps in some future
time they may. But I am running beyond my line.
We must now turn to Burrows's reports, vol. 2. 834. Rex. vs. Cowle.
Lord Mansfield has many observations upon the case of Wales, which
ought not to be overlooked. Page 850, he says, "Edward 1st. conceived
the great design of annexing all other parts of the island of Great
Britain to the realm of England. The better to effectuate his idea,
as time should offer occasion; he mentioned, 'that all parts thereof,
not in his own hands or possession, were holden of his crown.' The
consequence of this doctrine was, that, by the feudal law, supreme
jurisdiction resulted to him, in right of his crown, as sovereign
lord, in many cases, which he might lay hold of; and when the said
territories should come into his hands and possession, they would
come back as parcel of the realm of England, from which (by fiction
of law at least) they had been originally severed. This doctrine was
literally true as to the counties palatine of Chester and Durham. But
(no matter upon what foundation) he maintained that the principality
of Wales was holden of the imperial crown of England: he treated
the prince of Wales as a rebellious vassal; subdued him; and took
possession of the principality. Whereupon, on the 4th of December, in
the 9th year of his reign, he issued a commission to enquire '_per
quas leges et per quas consuetudines, antecessores nostri reges regni
consueverant principam Walliæ et barones Wallenses Walliæ et pares
suos et alios in priores et eorum pares, &c._' If the principality
was feudatory, the conclusion necessarily followed, that it was
under the government of the king's laws, and the king's courts, in
cases proper for them to interpose; though (like counties palatine)
they had peculiar laws and customs, _jura regalia_, and complete
jurisdiction at home." There was a writ at the same time issued to
all his officers in Wales, to give information to the commissioners:
and there were 14 interrogatories specifying the points to be
enquired into. The statute of Rutland 12. E. 1. refers to this
inquiry. By that statute he does not annex Wales to England, but
recites it as a consequence of its coming into his hands. "_Divina
providentia terram Walliæ, prius nobis jure feodali subjectam, jam
in proprietatis nostræ dominium convertit, et coronæ regni Angliæ,
tanquam partem corporis ejusdem annexuit, et univit._" The 27. H.
8. c. 26. adheres to the same plan, and recites "that Wales 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." Edward 1. having succeeded as to Wales, maintained likewise
that Scotland was holden of the crown of England. This opinion of the
court was delivered by lord Mansfield in the year 1759. In conformity
to the _system_ contained in these words, my lord Mansfield, and
my lord North, together with their little friends Bernard and
Hutchinson, have "conceived the great design of annexing" all North
America "to the realm of England," and "the better to effectuate this
idea, they all maintain, that North America is holden of the crown."
And, no matter upon what foundation, they all maintained that America
is dependent on the imperial crown and parliament of Great Britain:
and they are all very eagerly desirous of treating the Americans
as rebellious vassals, to subdue them and take possession of their
country. And when they do, no doubt America will come back as parcel
of the realm of England, from which, by fiction of law at least, or
by virtual representation, or by some other dream of a shadow of a
shade, they had been originally severed.
But these noblemen and ignoblemen ought to have considered,
that Americans understand the laws and the politicks as well as
themselves, and that there are 600,000 men in it, between 16 and 60
years of age; and therefore it will be very difficult to chicane them
out of their liberties by "fictions of law," and "no matter upon what
foundation."
Methinks I hear his lordship upon this occasion, in a soliloquy
somewhat like this. "We are now in the midst of a war, which has
been conducted with unexampled success and glory. We have conquered
a great part, and shall soon complete the conquest of the French
power in America. His majesty is near 70 years of age, and must soon
yield to nature. The amiable, virtuous and promising successor,
educated under the care of my nearest friends, will be influenced
by our advice. We must bring the war to a conclusion, for we have
not the martial spirit and abilities of the great commoner: but we
shall be obliged to leave upon the nation an immense debt. How shall
we manage that? Why, I have seen letters from America, proposing
that parliament should bring America to a closer dependence upon it,
and representing that if it does not, she will fall a prey to some
foreign power, or set up for herself. These hints may be improved,
and a vast revenue drawn from that country and the East Indies, or
at least the people here may be flattered and quieted with the hopes
of it. It is the duty of a judge to declare law, but under this
pretence, many we know have given law or made law, and none in all
the records of Westminster hall more than of late. Enough has been
already made, if it is wisely improved by others, to overturn this
constitution. Upon this occasion I will accommodate my expressions,
to such a design upon America and Asia, and will so accommodate
both law and fact, that they may hereafter be improved to admirable
effect in promoting our design." This is all romance, no doubt, but
it has as good a moral as most romances. For 1st. It is an utter
mistake that Ed. 1st. conceived the great design of annexing all to
England, as one state, under one legislature. He conceived the design
of annexing Wales, &c. to his crown. He did not pretend that it was
before subject to the crown, but to him. "_Nobis jure feodali_"
are his words. And when he annexes it to his crown, he does it by
an edict of his own, not an act of parliament: and he never did in
his whole life allow, that his parliament, that is his lords and
commons, had any authority over it, or that he was obliged to take
or ask their advice, in any one instance, concerning the management
of it, nor did any of his successors for centuries. It was not Ed.
1. but Henry 7. who first conceived the great design of annexing it
to the realm, and by him and H. 8. it was done, in part, but never
completed, until Jac. 1. There is a sense indeed, in which annexing
a territory to the crown, is annexing it to the realm, as putting a
crown upon a man's head, is putting it on the man, but it does not
make it a part of the man. 2d. His lordship mentions the statute of
Rutland; but this was not an act of parliament, and therefore could
not annex Wales to the realm, if the king had intended it, for it
never was in the power of the king alone to annex a country to the
realm. This cannot be done, but by act of parliament. As to Edward's
treating the prince of Wales as a "rebellious vassal," this was
arbitrary, and is spoken of by all historians as an infamous piece of
tyranny.
Ed. 1. and H. 8. both considered Wales, as the property and revenue
of the crown, not as a part of the realm, and the expressions,
"_coronæ regni Angliæ, tanquam partem corporis ejusdem_," signified
"as part of the same body," that is of the same "crown," not "realm"
or "kingdom"; and the expressions in 27 H. 8. under the imperial
crown of this realm, as a very member "and joint of the same,"
mean, as a member and joint of the "imperial crown," not of the
realm. For the whole history of the principality, the acts of kings,
parliaments, and people shew, that Wales never was intituled by this
annexation to the laws of England, nor bound to obey them. The case
of Ireland is enough to prove that the crown and realm are not the
same. For Ireland is certainly annexed to the crown of England, and
it certainly is not annexed to the realm.
There is one paragraph in the foregoing words of lord Mansfield,
which was quoted by his admirer governor Hutchinson in his dispute
with the house, with a profound compliment. "He did not know a
greater authority," &c. But let the authority be as great as it will,
the doctrine will not bear the test.
"If the principality was feudatory, the conclusion necessarily
follows, that it was under the government of the king's laws."
Ireland is feudatory to the crown of England, but would not be
subject to the king's English laws, without its consent and compact.
An estate may be feudatory to a lord, a country may be feudatory to
a sovereign lord, upon all possible variety of conditions; it may be
only to render homage; it may be to render a rent; it may be to pay a
tribute; if his lordship by feudatory means, the original notion of
feuds, it is true that the king the general imperator, was absolute,
and the tenant held his estate only at will, and the subject not
only his estate but his person and life at his will. But this notion
of feuds had been relaxed in an infinite variety of degrees, in
some the estate is held at will, in others for life, in others for
years, in others forever, to heirs, &c. in some to be governed by the
prince alone, in some by princes and nobles, and in some by prince,
nobles and commons, &c. So that being feudatory, by no means proves
that English lords and commons have any share in the government
over us. As to counties palatine; these were not only holden of the
king and crown, but were exerted by express acts of parliament, and
therefore were never exempted from the authority of parliament. The
same parliament, which erected the county palatine, and gave it its
_jura regalia_, and compleat jurisdiction, might unmake it, and take
away those regalia and jurisdiction. But American governments and
constitutions were never erected by parliament, their _regalia_ and
jurisdiction were not given by parliament, and therefore parliament
have no authority to take them away.
But if the colonies are feudatory to the kings of England, and
subject to the government of the king's laws, it is only to such
laws as are made in their general assemblies, their provincial
legislatures.
NOVANGLUS.
ADDRESSED
_To the Inhabitants of the Colony of Massachusetts Bay_,
April 17, 1775.
MY FRIENDS,
We now come to Jersey and Guernsey, which Massachusettensis says,
"are no part of the realm of England, nor are they represented in
parliament, but are subject to its authority." A little knowledge
of this subject will do us no harm; and as soon as we shall acquire
it, we shall be satisfied how these islands came to be subject to
the authority of parliament. It is either upon the principle that
the king is absolute there, and has a right to make laws for them
by his mere will; and therefore may express his will by an act of
parliament, or an edict at his pleasure: or it is an usurpation. If
it is an usurpation, it ought not to be a precedent for the colonies,
but it ought to be reformed, and they ought to be incorporated into
the realm, by act of parliament, and their own act. Their situation
is no objection to this. Ours is an insurmountable obstacle.
Thus we see that in every instance which can be found, the
observation proves to be true, that by the common law, the laws of
England, and the authority of parliament, and the limits of the
realm were confined within seas. That the kings of England had
frequently foreign dominions, some by conquest, some by marriage,
and some by descent. But in all those cases the kings were either
absolute in those dominions, or bound to govern them according to
their own respective laws, and by their own legislative and executive
councils. That the laws of England did not extend there, and the
English parliament pretended no jurisdiction there, nor claimed any
right to controul the king in his government of those dominions. And
from this extensive survey of all the foregoing cases, there results
a confirmation of what has been so often said, that there is no
provision in the common law, in English precedents, in the English
government or constitution, made for the case of the colonies. It is
not a conquered, but a discovered country. It came not to the king by
descent, but was explored by the settlers. It came not by marriage to
the king, but was purchased by the settlers of the savages. It was
not granted by the king of his grace, but was dearly, very dearly
earned by the planters, in the labour, blood, and treasure which they
expended to subdue it to cultivation. It stands upon no grounds,
then, of law or policy, but what are found in the law of nature,
and their express contracts in their charters, and their implied
contracts in the commissions to governors and terms of settlement.