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 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 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.
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.
We ought to be cautious of the inaccuracies of the greatest men, for 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.
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.
The cases of Chester and Durham, counties palantine within the realm, 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.