shall conclude this fatiguing ramble. Chester was an earldom and a
county; and in the 21st year of king Richard 2d. A. D. 1397, it was,
by an act of parliament, erected into a principality, and several
castles and towns, were annexed to it, saving to the king the rights
of his crown. This was a county palatine, and had _jura regalia_,
before this erection of it into a principality. But the statute which
made it a principality, was again repealed by 1. Henry 4th. c. 3, and
in 1399, by the 1. Henry 4th. c. 18. Grievous complaints were made
to the king, in parliament, of murders, man-slaughters, robberies,
batteries, riots, &c. done by people of the county of Chester, in
divers counties of England. For remedy of which it is enacted, that
if any person of the county of Chester commit any murder or felony
in any place out of that county, process shall be made against him
by the common law, till the exigent in the county where such murder
or felony was done: and if he flee into the county of Chester, and
be outlawed, and put in exigent for such murder or felony, the
same outlawry or exigent, shall be certified to the officers and
ministers of the same county of Chester, and the felon shall be
taken, his lands and goods within that county shall be seized as
forfeit into the hands of the prince, or of him that shall be lord
of the same county of Chester, and the king shall have the year and
day and waste; and the other lands and goods of such felons, out of
said county, shall remain wholly to the king, &c. as forfeit. And a
similar provision in case of battery or trespass, &c.
Considering the great seal of England, and the process of the king's
contracts did not run into Chester, it was natural that malefactors
should take refuge there, and escape punishment, and therefore a
statute like this was of indispensible necessity, and afterwards,
in 1535, another statute was made, 27. Henry c. 5th. for the making
of justices of peace, within Chester, &c. It recites, "the king,
considering the manifold robberies, murders, thefts, trespasses,
riots, routs, embraceries, maintenances, oppressions, ruptures
of his peace, &c. which have been daily done within his county
palatine of Chester, &c. by reason that common justice hath not been
indifferently ministered there, like and in form as it is in other
places of this his realm, by reason whereof the said criminals have
remained unpunished; for redress whereof, and to the intent that
one order of law should be had, the king is empowered to constitute
justices of peace, quorum, and goal delivery, in Chester, &c."
By the 32. Henry 8th. c. 43, another act was made concerning the
county palatine of Chester, for shire days.
These three acts soon excited discontent in Chester. They had
enjoyed an exemption from the king's English courts, legislative
and executive, and they had no representatives in the English
parliament, and therefore they thought it a violation of their
rights, to be subjected even to those three statutes, as reasonable
and absolutely necessary as they appear to have been. And accordingly
we find in 1542--34 and 35, Henry 8th. c. 13, a zealous petition
to be represented in parliament, and an act was made for making of
knights and burgesses within the county and city of Chester. It
recites a part of the petition to the king from the inhabitants
of Chester, stating, "that the county palatine, had been excluded
from parliament, to have any knights and burgesses there; by reason
whereof, the said inhabitants have hitherto sustained manifold
disherisons, losses, and damages, in lands, goods, and bodies, as
well as in the goods civil and politic governance and maintenance
of the commonwealth of their said county: and forasmuch as the
said inhabitants have always hitherto been bound by the acts and
statutes, made by your highness and progenitors in said court,
meaning, when expressly named, not otherwise, as far forth as other
counties, cities, and boroughs, which have had knights and burgesses,
and yet have had neither knight, nor burgess there, for the said
county palatine; the said inhabitants, for lack thereof, have been
oftentimes touched and grieved with acts and statutes, made within
said court, as well derogatory unto the most ancient jurisdictions,
liberties, and privileges of your said county palatine, as
prejudicial unto the common weal, quietness, rest and peace of your
subjects, &c." For remedy whereof, two knights of the shire, and two
burgesses for the city are established.
I have before recited all the acts of parliament, which were ever
made to meddle with Chester, except the 51. Henry 3d. stat. 5, in
1266, which only provides that the justices of Chester, and other
bailiffs, shall be answerable in the exchequer, for wards, escheats,
and other bailiwicks; yet Chester was never severed from the crown
or realm of England, nor ever expressly exempted from the authority
of parliament; yet as they had generally enjoyed an exemption from
the exercise of the authority of parliament, we see how soon they
complain of it as grievous, and claim a representation, as a right;
and we see how readily it was granted. America, on the contrary, is
not in the realm, never was subject to the authority of parliament,
by any principle of law, is so far from Great Britain, that she never
can be represented; yet she is to be bound in all cases whatsoever.
The first statute, which appears in which Durham is named, is
27 Henry 8th. c. 24, § 21. Cuthbert, bishop of Durham, and his
successors, and their temporal chancellor of the county palatine of
Durham, are made justices of the peace. The next is 31 Elizabeth, c.
9, recites, that Durham is, and of long time hath been, an ancient
county palatine, in which the Queen's writ hath not, and yet doth not
run; enacts that a writ of proclamation upon an exigent against any
person dwelling in the bishoprick shall run there for the future. And
§ 5 confirms all the other liberties of the bishop and his officers.
And after this, we find no other mention of that bishoprick in any
statute until 25 Char. 2. c. 9. This statute recites "whereas the
inhabitants of the county palatine of Durham, have not hitherto had
the liberty and privilege of electing and sending any knights and
burgesses to the high court of parliament, although the inhabitants
of the said county palatine are liable to all payments, rates, and
subsidies, granted by parliament, equally with the inhabitants of
other counties, cities, and burroughs, in this kingdom, who have
their knights and burgesses in the parliament, and are therefore
concerned equally with others, the inhabitants of this kingdom, to
have knights and burgesses in the said high court of parliament of
their own election, to represent the condition of their county,
as the inhabitants of other counties, cities, and burroughs, of
this kingdom have." It enacts two knights for the county, and two
burgesses for the city. Here it should be observed, that although
they acknowledge that they had been liable to all rates, &c. granted
by parliament, yet none had actually been laid upon them before this
statute.
Massachusettensis then comes to the first charter of this province,
and he tells us, that in it "we shall find irresistible evidence,
that our being a part of the empire, subject to the supreme authority
of the state, bound by its laws, and subject to its protection, was
the very terms and conditions by which our ancestors held their
lands and settled the province." This is roundly and warmly said:
but there is more zeal in it than knowledge. As to our being part
of the empire, it could not be the British empire, as it is called,
because that was not then in being, but was created seventy or
eighty years afterwards. It must be the English empire then, but
the nation was not then polite enough to have introduced into the
language of the law, or common parlance any such phrase or idea.
Rome never introduced the terms Roman empire until the tragedy of
her freedom was compleated. Before that, it was only the republic,
or the city. In the same manner the realm or the kingdom, or the
dominions of the king, were the fashionable style in the age of the
first charter. As to being subject to the supreme authority of the
state, the prince who granted that charter thought it resided in
himself, without any such troublesome tumults as lords and commons;
and before the granting that charter, had dissolved his parliament,
and determined never to call another, but to govern without. It
is not very likely then, that he intended our ancestors should be
governed by parliament, or bound by its laws. As to being subject to
its protection, we may guess what ideas king and parliament had of
that, by the protection they actually afforded to our ancestors. Not
one farthing was ever voted or given by the king or his parliament,
or any one resolution taken about them. As to holding their lands,
surely they did not hold their lands of lords and commons. If they
agreed to hold their lands of the king, this did not subject them to
English lords and commons, any more than the inhabitants of Scotland
holding their lands of the same king, subjected them. But there is
not a word about the empire, the supreme authority of the state,
being bound by its laws, or obliged for its protection in that whole
charter. But "our charter is in the royal style." What then? Is that
the parliamentary style? The style is this, "Charles, by the grace
of God, king of England, Scotland, France and Ireland, defender of
the faith, &c."--Now in which capacity did he grant that charter?
as king of France, or Ireland, or Scotland, or England? He governed
England by one parliament, Scotland by another. Which parliament were
we to be governed by? And Ireland by a third; and it might as well
be reasoned that America was to be governed by the Irish parliament,
as by the English. But it was granted "under the great seal of
England"--true. But this seal runneth not out of the realm, except
to mandatory writs; and when our charter was given, it was never
intended to go out of the realm. The charter and the corporation were
intended to abide and remain within the realm, and be like other
corporations there. But this affair of the seal is a mere piece of
imposition.
In Moore's reports in the case of the union of the realm of Scotland
with England, it is resolved by the judges that "the seal is
alterable by the king at his pleasure, and he might make one seal
for both kingdoms (of England and Scotland) for seals, coin, and
leagues are of absolute prerogative to the king, without parliament,
nor restrained to any assent of the people;" and in determining
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 subject, 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, or the isles, nor Wales, nor the
counties palatine, because the king's courts here have not power to
hold pleas of lands or 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, &c." This authority plainly shews, that the
great seal of England has no more authority out of the realm, except
to mandatory or preceptory writs, and surely the first charter was no
preceptory writ, than the privy seal, or the great seal of Scotland,
or no seal at all. In truth, the seal and charter were intended to
remain within the realm, and be of force to a corporation there; but
the moment it was transferred to New England, it lost all its legal
force, by the common law of England; and as this translation of it
was acquiesced in by all parties, it might well be considered as good
evidence of a contract between the parties, and in no other light;
but not a whit the better or stronger for being under the great seal
of England. But, "the grants are made by the king for his heirs and
successors." What then? So the Scots held their lands of him, who was
then king of England, his heirs and successors, and were bound to
allegiance to him, his heirs and successors, but it did not follow
from thence that the Scots were subject to the English parliament. So
the inhabitants of Aquitain, for ten descents, held their lands, and
were tied by allegiance to him who was king of England, his heirs and
successors, but were under no subjection to English lords and commons.
Heirs and successors of the king, are supposed to be the same
persons, and are used as synonymous words in the English law. There
is no positive artificial provision made by our laws, or the British
constitution for revolutions. All our positive laws suppose that the
royal office will descend to the eldest branch of the male line, or
in default of that, to the eldest female, &c. forever, and that the
succession will not be broken. It is true, that nature, necessity,
and the great principles of self-preservation, have often over-ruled
the succession. But this was done without any positive instruction
of law. Therefore, the grants being by the king, for his heirs
and successors, and the tenures being of the king, his heirs and
successors, and the preservation being to the king, his heirs, and
successors, are so far from proving that we were to be part of an
empire, as one state, subject to the supreme authority of the English
or British state, and subject to its protection, that they do not so
much as prove that we are annexed to the English crown. And all the
subtility of the writers on the side of the ministry, has never yet
proved, that America is so much as annexed to the crown, much less
to the realm. "It is apparent the king acted in his royal capacity,
as king of England." This I deny. The laws of England gave him no
authority to grant any territory out of the realm. Besides, there is
no colour for his thinking that he acted in that capacity, but his
using the great seal of England: but if the king is absolute in the
affair of the seal, and may make or use any seal that he pleases,
his using that seal which had been commonly used in England, is no
certain proof that he acted as king of England; for it is plain, he
might have used the English seal in the government of Scotland, and
in that case it will not be pretended that he would have acted in
his royal capacity, as king of England. But his acting as king of
England, "necessarily supposes the territory granted to be a part
of the English dominions, and holden of the crown of England." Here
is the word "dominions," systematically introduced instead of the
word "realm." There was no English dominions, but the realm. And I
say that America was not any part of the English realm or dominions.
And therefore, when the king granted it, he could not act as king of
England, by the laws of England. As to the "territory being holden of
the crown, there is no such thing in nature or art." Lands are holden
according to the original notices of feuds of the natural person of
the lord. Holding lands, in feudal language, means no more than the
relation between lord and tenant. The reciprocal duties of these
are all personal. Homage, fealty, &c. and all other services, are
personal to the lord; protection, &c. is personal to the tenant. And
therefore no homage, fealty, or other services, can ever be rendered
to the body politic, the political capacity, which is not corporated,
but only a frame in the mind, an idea. No lands here, or in England,
are held of the crown, meaning by it, the political capacity; they
are all held of the royal person, the natural person of the king.
Holding lands, &c. of the crown, is an impropriety of expression,
but it is often used, and when it is, it can have no other sensible
meaning than this: that we hold lands of that person, whoever he is,
who wears the crown; the law supposes he will be a right, natural
heir of the present king forever.
Massachusettensis then produces a quotation from the first charter,
to prove several points. It is needless to repeat the whole, but
the parts chiefly relied on, are italicised. It makes the company
a body politic in fact and name, &c. and enables it "to sue and be
sued." Then the writer asks, "whether this looks like a distinct
state, or independent empire?" I answer no. And that it is plain and
uncontroverted, that the first charter was intended only to erect
a corporation within the realm, and the governor and company were
to reside within the realm, and their general courts were to be
held there. Their agents, deputies, and servants only were to come
to America. And if this had taken place, nobody ever doubted but
they would have been subject to parliament. But this intention was
not regarded on either side, and the company came over to America,
and brought their charter with them. And as soon as they arrived
here, they got out of the English realm, dominions, state, empire,
call it by what name you will, and out of the legal jurisdiction
of parliament. The king might, by his writ or proclamation, have
commanded them to return; but he did not.
NOVANGLUS.
NOTE.
Hostilities, at Lexington, between Great Britain and her
colonies, commenced on the nineteenth of April, two days
succeeding the publication of this last essay. Several
others were written, and sent to the printers of the
_Boston Gazette_, which were probably lost, amidst the
confusion occasioned by that event.
MASSACHUSETTENSIS.
ADDRESSED
_To the Inhabitants of the Province of Massachusetts Bay_,
December 12, 1774.
MY DEAR COUNTRYMEN,
When a people, by what means soever, are reduced to such a situation,
that every thing they hold dear, as men and citizens, is at stake,
it is not only excuseable, but even praiseworthy for an individual
to offer to the public any thing, that he may think has a tendency
to ward off the impending danger; nor should he be restrained from
an apprehension that what he may offer will be unpopular, any more
than a physician should be restrained from prescribing a salutary
medicine, through fear it might be unpalatable to his patient.
The press, when open to all parties and influenced by none, is
a salutary engine in a free state, perhaps a necessary one to
preserve the freedom of that state; but, when a party has gained the
ascendancy so far as to become the licensers of the press, either
by an act of government, or by playing off the resentment of the
populace against printers and authors, the press itself becomes an
engine of oppression or licentiousness, and is as pernicious to
society, as otherwise it would be beneficial. It is too true to be
denied, that ever since the origin of our controversy with Great
Britain, the press, in this town, has been much devoted to the
partizans of liberty; they have been indulged in publishing what they
pleased, _fas vel nefas_, while little has been published on the part
of government. The effect this must have had upon the minds of the
people in general is obvious; they must have formed their opinion
upon a partial view of the subject, and of course it must have been
in some degree erroneous. In short, the changes have been rung so
often upon oppression, tyranny and slavery, that, whether sleeping or
waking, they are continually vibrating in our ears; and it is now
high time to ask ourselves, whether we have not been deluded by sound
only.
My dear countrymen, let us divest ourselves of prejudice, take a view
of our present wretched situation, contrast it with our former happy
one, carefully investigate the cause, and industriously seek some
means to escape the evils we now feel, and prevent those that we have
reason to expect.
We have been so long advancing to our present state, and by such
gradations, that perhaps many of us are insensible of our true state
and real danger. Should you be told that acts of high treason are
flagrant through the country, that a great part of the province is
in actual rebellion, would you believe it true? Should you not deem
the person asserting it, an enemy to the province? Nay, should you
not spurn him from you with indignation? Be calm, my friends; it is
necessary to know the worst of a disease, to enable us to provide an
effectual remedy. Are not the bands of society cut asunder, and the
sanctions that hold man to man, trampled upon? Can any of us recover
a debt, or obtain compensation for an injury, by law? Are not many
persons, whom once we respected and revered, driven from their homes
and families, and forced to fly to the army for protection, for no
other reason but their having accepted commissions under our king?
Is not civil government dissolved? Some have been made to believe
that nothing short of attempting the life of the king, or fighting
his troops, can amount to high treason or rebellion. If, reader, you
are one of those, apply to an honest lawyer, (if such an one can be
found) and enquire what kind of offence it is for a number of men to
assemble armed, and forcibly to obstruct the course of justice, even
to prevent the king's courts from being held at their stated terms;
for a body of people to seize upon the king's provincial revenue; I
mean the monies collected by virtue of grants made by the general
court to his majesty for the support of his government, within this
province; for a body of men to assemble without being called by
authority, and to pass governmental acts; or for a number of people
to take the militia out of the hands of the king's representative,
or to form a new militia, or to raise men and appoint officers for a
public purpose, without the order or permission of the king, or his
representative; or for a number of men to take to their arms, and
march with a professed design of opposing the king's troops; ask,
reader, of such a lawyer, what is the crime, and what the punishment;
and if, perchance, thou art one that hast been active in these
things, and art not insensibility itself, his answer will harrow up
thy soul.