Novanglus Essays/No. 8
It has often been observed by me, and it cannot be too often repeated, that colonization is casus omissus at common law. There is no such title known in that law. By common law, I mean that system of customs written and unwritten, which was known and in force in England in the time of King Richard I. This continued to be the case down to the reign of Elizabeth and King James I. In all that time, the laws of England were confined to the realm, and within the four seas. There was no provision made in this law for governing colonies beyond the Atlantic, or beyond the four seas, by authority of parliament; no, nor for the king to grant charters to subjects to settle in foreign countries. It was the king’s prerogative to prohibit the emigration of any of his subjects, by issuing his writ ne exeat regno. And, therefore, it was in the king’s power to permit his subjects to leave the kingdom. “It is a high crime to disobey the king’s lawful commands or prohibitions, as not returning from beyond sea upon the king’s letters to that purpose; for which the offender’s lands shall be seized until he return; and when he does return, he shall be fined, &c.; or going beyond sea against the king’s will, expressly signified, either by the writ ne exeat regno, or under the great or privy seal, or signet, or by proclamation.” When a subject left the kingdom by the king’s permission, and if the nation did not remonstrate against it, by the nation’s permission too, at least connivance, he carried with him, as a man, all the rights of nature. His allegiance bound him to the king, and entitled him to protection. But how? Not in France; the King of England was not bound to protect him in France. Nor in America. Nor in the dominions of Louis. Nor of Sassacus, or Massachusetts. He had a right to protection and the liberties of England, upon his return there, not otherwise. How, then, do we New Englandmen derive our laws? I say, not from parliament, not from common law, but from the law of nature, and the compact made with the king in our charters. Our ancestors were entitled to the common law of England when they emigrated, that is, to just so much of it as they pleased to adopt, and no more. They were not bound or obliged to submit to it, unless they chose it. By a positive principle of the common law they were bound, let them be in what part of the world they would, to do nothing against the allegiance of the king. But no kind of provision was ever made by common law for punishing or trying any man, even for treason committed out of the realm. He must be tried in some county of the realm by that law, the county where the overt act was done, or he could not be tried at all. Nor was any provision ever made, until the reign of Henry VIII., for trying treasons committed abroad, and the acts of that reign were made on purpose to catch Cardinal Pole.
So that our ancestors, when they emigrated, having obtained permission of the king to come here, and being never commanded to return into the realm, had a clear right to have erected in this wilderness a British constitution, or a perfect democracy, or any other form of government they saw fit. They, indeed, while they lived, could not have taken arms against the King of England, without violating their allegiance; but their children would not have been born within the king’s allegiance, would not have been natural subjects, and consequently not entitled to protection, or bound to the king.
Massachusettensis seems possessed of these ideas, and attempts in the most awkward manner to get rid of them. He is conscious that America must be a part of the realm, before it can be bound by the authority of parliament; and, therefore, is obliged to suggest that we are annexed to the realm, and to endeavor to confuse himself and his readers, by confounding the realm with the empire and dominions.
But will any man soberly contend, that America was ever annexed to the realm? to what realm? When New England was settled, there was a realm of England, a realm of Scotland, and a realm of Ireland. To which of these three realms was New England annexed? To the realm of England, it will be said. But by what law? No territory could be annexed to the realm of England but by an act of parliament. Acts of parliament have been passed to annex Wales, &c. &c. to the realm; but none ever passed to annex America. But if New England was annexed to the realm of England, how came she annexed to the realm of, or kingdom of Great Britain? The two realms of England and Scotland were, by the act of union, incorporated into one kingdom, by the name of Great Britain; but there is not one word about America in that act.
Besides, if America was annexed to the realm, or a part of the kingdom, every act of parliament that is made would extend to it, named or not named. But everybody knows, that every act of parliament, and every other record, constantly distinguishes between this kingdom and his majesty’s other dominions. Will it be said that Ireland is annexed to the realm, or a part of the kingdom of Great Britain? Ireland is a distinct kingdom, or realm, by itself, notwithstanding British parliament claims a right of binding it in all cases, and exercises it in some. And even so, the Massachusetts is a realm, New York is a realm, Pennsylvania another realm, to all intents and purposes, as much as Ireland is, or England or Scotland ever were. The King of Great Britain is the sovereign of all these realms.
This writer says, “that in denying that the colonies are annexed to the realm, and subject to the authority of parliament, individuals and bodies of men subvert the fundamentals of government, deprive us of British liberties, and build up absolute monarchy in the colonies.”
This is the first time that I ever heard or read that the colonies are annexed to the realm. It is utterly denied that they are, and that it is possible they should be, without an act of parliament and acts of the colonies. Such an act of parliament cannot be produced, nor any such law of any one colony. Therefore, as this writer builds the whole authority of parliament upon this fact, namely,—-that the colonies are annexed to the realm, and as it is certain they never were so annexed, the consequence is, that his whole superstructure falls.
When he says, that they subvert the fundamentals of government, he begs the question. We say, that the contrary doctrines subvert the fundamentals of government. When he says, that they deprive us of British liberties, he begs the question again. We say, that the contrary doctrine deprives us of English liberties; as to British liberties, we scarcely know what they are, as the liberties of England and Scotland are not precisely the same to this day. English liberties are but certain rights of nature, reserved to the citizen by the English constitution, which rights cleaved to our ancestors when they crossed the Atlantic, and would have inhered in them if, instead of coming to New England, they had gone to Otaheite or Patagonia, even although they had taken no patent or charter from the king at all. These rights did not adhere to them the less, for their purchasing patents and charters, in which the king expressly stipulates with them, that they and their posterity should forever enjoy all those rights and liberties.
The human mind is not naturally the clearest atmosphere; but the clouds and vapors which have been raised in it by the artifices of temporal and spiritual tyrants, have made it impossible to see objects in it distinctly. Scarcely any thing is involved in more systematical obscurity than the rights of our ancestors, when they arrived in America. How, in common sense, came the dominions of King Philip, King Massachusetts, and twenty other sovereigns, independent princes here, to be within the allegiance of the Kings of England, James and Charles? America was no more within the allegiance of those princes, by the common law of England, or by the law of nature, than France and Spain were. Discovery, if that was incontestable, could give no title to the English king, by common law, or by the law of nature, to the lands, tenements, and hereditaments of the native Indians here. Our ancestors were sensible of this, and, therefore, honestly purchased their lands of the natives. They might have bought them to hold allodially, if they would.
But there were two ideas, which confused them, and have continued to confuse their posterity; one derived from the feudal, the other from the canon law. By the former of these systems, the prince, the general, was supposed to be sovereign lord of all the lands conquered by the soldiers in his army; and upon this principle, the King of England was considered in law as sovereign lord of all the land within the realm. If he had sent an army here to conquer King Massachusetts, and it had succeeded, he would have been sovereign lord of the land here upon these principles; but there was no rule of the common law that made the discovery of the country by a subject a title to that country in the prince. But conquest would not have annexed the country to the realm, nor have given any authority to the parliament. But there was another mist cast before the eyes of the English nation from another source. The pope claimed a sovereign propriety in, as well as authority over, the whole earth. As head of the Christian church, and vicar of God, he claimed this authority over all Christendom; and, in the same character, he claimed a right to all the countries and possessions of heathens and infidels; a right divine to exterminate and destroy them at his discretion, in order to propagate the Catholic faith. When King Henry VIII. and his parliament threw off the authority of the pope, stripped his holiness of his supremacy, and invested it in himself by an act of parliament, he and his courtiers seemed to think that all the rights of the holy see were transferred to him; and it was a union of these two, (the most impertinent and fantastical ideas that ever got into a human pericranium, namely,—-that, as feudal sovereign and supreme head of the church together, a king of England had a right to all the land his subjects could find, not possessed by any Christian state or prince, though possessed by heathen or infidel nations,) which seems to have deluded the nation about the time of the settlement of the colonies. But none of these ideas gave or inferred any right in parliament, over the new countries conquered or discovered; and, therefore, denying that the colonies are a part of the realm, and that as such they are subject to parliament, by no means deprives us of English liberties. Nor does it “build up absolute monarchy in the colonies.” For, admitting these notions of the common and feudal law to have been in full force, and that the king was absolute in America, when it was settled; yet he had a right to enter into a contract with his subjects, and stipulate that they should enjoy all the rights and liberties of Englishmen forever, in consideration of their undertaking to clear the wilderness, propagate Christianity, pay a fifth part of ore, &c. Such a contract as this has been made with all the colonies, royal governments, as well as charter ones. For the commissions to the governors contain the plan of the government, and the contract between the king and subject in the former, as much as the charters in the latter.
Indeed, this was the reasoning, and upon these feudal and catholic principles, in the time of some of the predecessors of Massachusettensis. This was the meaning of Dudley, when he asked, “Do you think that English liberties will follow you to the ends of the earth?” His meaning was, that English liberties were confined to the realm, and, out of that, the king was absolute. But this was not true; for an English king had no right to be absolute over Englishmen out of the realm, any more than in it; and they were released from their allegiance, as soon as he deprived them of their liberties.
But “our charters suppose regal authority in the grantor.” True, they suppose it, whether there was any or not. “If that authority be derived from the British (he should have said English) crown, it presupposes this territory to have been a part of the British (he should have said English) dominion, and as such subject to the imperial sovereign.” How can this writer show this lords and commons? Is there the least color for such an authority, but in the popish and feudal ideas before mentioned? And do these popish and feudal ideas include parliament? Was parliament, were lords and commons, parts of the head of the church; or was parliament, that is, lords and commons, part of the sovereign feudatory? Never. But why was this authority derived from the English, any more than the Scottish or Irish crown? It is true, the land was to be held in socage, like the manor of East Greenwich; but this was compact, and it might have been as well to hold, as they held in Glasgow or Dublin.
But, says this writer, “if that authority was vested in the person of the king in a different capacity, the British constitution and laws are out of the question, and the king must be absolute as to us, as his prerogatives have never been limited.” Not the prerogatives limited in our charters, when in every one of them all the rights of Englishmen are secured to us? Are not the rights of Englishmen sufficiently known? and are not the prerogatives of the king among those rights?
As to those colonies which are destitute of charters, the commissions to their governors have ever been considered as equivalent securities, both for property, jurisdiction, and privileges, with charters; and as to the power of the crown being absolute in those colonies, it is absolute nowhere. There is no fundamental or other law that makes a king of England absolute anywhere, except in conquered countries; and an attempt to assume such a power, by the fundamental laws, forfeits the prince’s right even to the limited crown.
As to “the charter governments reverting to absolute monarchy, as their charters may happen to be forfeited by the grantees not fulfilling the conditions of them,” I answer, if they could be forfeited, and were actually forfeited, the only consequence would be, that the king would have no power over them at all. He would not be bound to protect the people, nor, that I can see, would the people here, who were born here, be, by any principle of common law, bound even to allegiance to the king. The connection would be broken between the crown and the natives of the country.
It has been a great dispute, whether charters granted within the realm can be forfeited at all. It was a question debated with infinite learning, in the case of the charter of London. It was adjudged forfeited in an arbitrary reign; but afterwards, after the revolution, it was declared in parliament not forfeited, and by an act of parliament made incapable of forfeiture. The charter of Massachusetts was declared forfeited too. So were other American charters. The Massachusetts alone were tame enough to give it up. But no American charter will ever be decreed forfeited again; or if any should, the decree will authority to be derived from the English crown, including in the idea of it be regarded no more than a vote of the lower house of the Robinhood society. The court of chancery has no authority without the realm; by common law, surely it has none in America. What! the privileges of millions of Americans depend on the discretion of a lord chancellor? God forbid! The passivity of this colony in receiving the present charter in lieu of the first, is, in the opinion of some, the deepest stain upon its character. There is less to be said in excuse for it than the witchcraft, or hanging the Quakers. A vast party in the province were against it at the time, and thought themselves betrayed by their agent. It has been a warning to their posterity, and one principal motive with the people never to trust any agent with power to concede away their privileges again. It may as well be pretended that the people of Great Britain can forfeit their privileges, as the people of this province. If the contract of state is broken, the people and king of England must recur to nature. It is the same in this province.We shall never more submit to decrees in chancery, or acts of parliament, annihilating charters, or abridging English liberties.
Whether Massachusettensis was born, as a politician, in the year 1764, I know not; but he often writes as if he knew nothing of that period. In his attempt to trace the denial of the supreme authority of the parliament, he commits such mistakes as a man of age at that time ought to blush at. He says, that “when the Stamp Act was made, the authority of parliament to impose external taxes, or, in other words, to lay duties upon goods and merchandise, was admitted,” and that when the Tea Act was made, “a new distinction was set up, that parliament had a right to lay duties upon merchandise for the purpose of regulating trade, but not for the purpose of raising a revenue.” This is a total misapprehension of the declared opinions of people at those times. The authority of parliament to lay taxes for a revenue has been always generally denied. And their right to lay duties to regulate trade has been denied by many, who have ever contended that trade should be regulated only by prohibitions.
The act of parliament of the 4th George III., passed in the year 1764, was the first act of the British parliament that even was passed, in which the design of raising a revenue was expressed. Let Massachusettensis name any statute, before that, in which the word revenue is used, or the thought of raising a revenue is expressed. This act is entitled “an act for granting certain duties in the British colonies and plantations in America,” &c. The word revenue, in the preamble of this act, instantly ran through the colonies, and rang an alarm, almost as much as if the design of forging chains for the colonists had been expressed in words. I have now before me a pamphlet, written and printed in the year 1764, entitled “The Sentiments of a British American,” upon this act. How the idea of a revenue, though from an acknowledged external tax, was relished in that time, may be read in the frontispiece of that pamphlet.
Ergo quid refert mea: Cui serviam? clitellas dum portem meas.—-Phaedrus.
The first objection to this act, which was made in that pamphlet, by its worthy author, Oxenbridge Thacher, who died a martyr to that anxiety for his country which the conduct of the junto gave him, is this:—-“that a tax is thereby laid on several commodities, to be raised and levied in the plantations, and to be remitted home to England. This is esteemed a grievance, inasmuch as the same are laid without the consent of the representatives of the colonists. It is esteemed an essential British right, that no person shall be subject to any tax, but what in person, or by his representative, he hath a voice in laying.” Here is a tax, unquestionably external, in the sense in which that word is used in the distinction that is made by some between external and internal taxes, and unquestionably laid in part for the regulation of trade, yet called a grievance, and a violation of an essential British right, in the year 1764, by one who was then at the head of the popular branch of our constitution, and as well acquainted with the sense of his constituents as any man living. And it is indisputable, that in those words he wrote the almost universal sense of this colony.
There are so many egregious errors in point of fact, and respecting the opinions of the people, in this writer, which it is difficult to impute to wilful misrepresentation, that I sometimes think he is some smart young gentleman, come up into life since this great controversy was opened; if not, he must have conversed wholly with the junto, and they must have deceived him respecting their own sentiments.
This writer sneers at the distinction between a right to lay the former duty of a shilling on the pound of tea, and the right to lay the threepence. But is there not a real difference between laying a duty to be paid in England upon exportation, and to be paid in America upon importation? Is there not a difference between parliament’s laying on duties within their own realm, where they have undoubted jurisdiction, and laying them out of their realm, nay, laying them on in our realm, where we say they have no jurisdiction? Let them lay on what duties they please in England, we have nothing to say against that.
“Our patriots most heroically resolved to become independent states, and flatly denied that parliament had a right to make any laws whatever, that should be binding upon the colonies.”
Our scribbler, more heroically still, is determined to show the world, that he has courage superior to all regard to modesty, justice, or truth. Our patriots have never determined or desired to be independent states, if a voluntary cession of a right to regulate their trade can make them dependent even on parliament; though they are clear in theory that, by the common law and the English constitution, parliament has no authority over them. None of the patriots of this province, of the present age, have ever denied that parliament has a right, from our voluntary cession, to make laws which shall bind the colonies, so far as their commerce extends.
“There is no possible medium between absolute independence and subjection to the authority of parliament.” If this is true, it may be depended upon, that all North America are as fully convinced of their independence, their absolute independence, as they are of their own existence; and as fully determined to defend it at all hazards, as Great Britain is to defend her independence against foreign nations. But it is not true. An absolute independence on parliament, in all internal concerns and cases of taxation, is very compatible with an absolute dependence on it, in all cases of external commerce.
“He must be blind indeed, that cannot see our dearest interest in the latter, (that is, in an absolute subjection to the authority of parliament,) notwithstanding many pant after the former,” (that is, absolute independence.) The man who is capable of writing, in cool blood, that our interest lies in an absolute subjection to parliament, is capable of writing or saying any thing for the sake of his pension. A legislature that has so often discovered a want of information concerning us and our country; a legislature interested to lay burdens upon us; a legislature, two branches of which, I mean the lords and commons, neither love nor fear us! Every American of fortune and common sense, must look upon his property to be sunk downright one half of its value, the moment such an absolute subjection to parliament is established.
That there are any who pant after “independence,” (meaning by this word a new plan of government over all America, unconnected with the crown of England, or meaning by it an exemption from the power of parliament to regulate trade,) is as great a slander upon the province as ever was committed to writing. The patriots of this province desire nothing new; they wish only to keep their old privileges. They were, for one hundred and fifty years, allowed to tax themselves, and govern their internal concerns as they thought best. Parliament governed their trade as they thought fit. This plan they wish may continue forever. But it is honestly confessed, rather than become subject to the absolute authority of parliament in all cases of taxation and internal polity, they will be driven to throw off that of regulating trade.
“To deny the supreme authority of the state, is a high misdemeanor; to oppose it by force, an overt act of treason.” True; and therefore, Massachusettensis, who denies the king represented by his governor, his majesty’s council by charter, and house of representatives, to be the supreme authority of this province, has been guilty of a high misdemeanor; and those ministers, governors, and their instruments, who have brought a military force here, and employed it against that supreme authority, are guilty of——, and ought to be punished with——. I will be more mannerly than Massachusettensis.
“The realm of England is an appropriate term for the ancient realm of England, in contradistinction to Wales and other territories that have been annexed to it.”
There are so many particulars in the case of Wales analogous to the case of America, that I must beg leave to enlarge upon it.
Wales was a little portion of the island of Great Britain, which the Saxons were never able to conquer. The Britons had reserved this tract of land to themselves, and subsisted wholly by pasturage among their mountains. Their princes, however, during the Norman period, and until the reign of King Edward I., did homage to the crown of England, as their feudal sovereign, in the same manner as the prince of one independent state in Europe frequently did to the sovereign of another. This little principality of shepherds and cowherds had, however, maintained its independence through long and bloody wars against the omnipotence of England, for eight hundred years. It is needless to enumerate the causes of the war between Lewellyn and Edward I. It is sufficient to say, that theWelsh prince refused to go to England to do homage, and Edward obtained a new aid of a fifteenth from his parliament, to march with a strong force into Wales. Edward was joined by David and Roderic, two brothers of Lewellyn, who made a strong party among the Welsh themselves, to assist and second the attempts to enslave their native country. The English monarch, however, with all these advantages, was afraid to put the valor of his enemies to a trial, and trusted to the slow effects of famine to subdue them. Their pasturage, with such an enemy in their country, could not subsist them, and Lewellyn at last submitted, and bound himself to pay a reparation of damages, to do homage to the crown of England, and almost to surrender his independence as a prince, by permitting all the other barons of Wales, excepting four, to swear fealty to the same crown. But fresh complaints soon arose. The English grew insolent on their bloodless victory, and oppressed the inhabitants; many insults were offered, which at last raised the indignation of the Welsh, so that they determined again to take arms, rather than bear any longer the oppression of the haughty victors. The war raged some time, until Edward summoned all his military tenants, and advanced with an army too powerful for the Welsh to resist. Lewellyn was at last surprised by Edward’s General, Mortimer, and fighting at a great disadvantage, was slain, with two thousand of his men. David, who succeeded in the principality, maintained the war for some time, but at last was betrayed to the enemy, sent in chains to Shrewsbury, brought to a formal trial before the peers of England, and, although a sovereign prince, ordered by Edward to be hanged, drawn, and quartered, as a traitor, for defending by arms the liberties of his native country! All the Welsh nobility submitted to the conqueror. The laws of England, sheriffs, and other ministers of justice were established in that principality.
Now Wales was always part of the dominions of England. “Wales was always feudatory to the kingdom of England.” It was always held of the crown of England, or the kingdom of England: that is, whoever was King of England had a right to homage, &c. from the Prince of Wales. But yet Wales was not parcel of the realm or kingdom, nor bound by the laws of England. I mention and insist upon this, because it shows that, although the colonies are bound to the crown of England; or, in other words, owe allegiance to whosoever is King of England; yet it does not follow that the colonies are a parcel of the realm or kingdom, and bound by its laws. As this is a point of great importance, I must beg pardon, however unentertaining it may be, to produce my authorities.
“Wales was always feudatory to the kingdom of England.”1
Held of the crown, but not parcel;2 and, therefore, the Kings of Wales did homage and swore fealty to Henry II. and John and Henry III.
And 11 Edward I. Upon the conquest of Lewellyn, Prince or King of Wales, that principality became a part of the dominion of the realm of England. And by the statute Walliae, 12 Edward I., it was annexed and united to the crown of England, tanquam partem corporis ejusdem, &c. Yet, if the statute Walliae, made at Rutland, 12 Edward I., was not an act of parliament, (as it seems that it was not,) the incorporation made thereby was only a union jure feudali, et non jure proprietatis.”
“Wales, before the union with England, was governed by its proper laws,” &c.
By these authorities it appears, that Wales was subject, by the feudal law, to the crown of England before the conquest of Lewellyn, but not subject to the laws of England; and indeed, after this conquest, Edward and his nobles did not seem to think it subject to the English parliament, but to the will of the king, as a conqueror of it in war. Accordingly, that instrument which is called Statutum Walliae, and to be found in the appendix to the statutes, although it was made by the advice of the peers, or officers of the army more properly, yet it never was passed as an act of parliament, but as an edict of the king. It begins, not in the style of an act of parliament: “Edwardus Dei gratia Rex Angliae, Dominus Hyberniae, et Dux Aquitaniae, omnibus fidelibus suis, &c. in Wallia. Divina Providentia, quae in sui dispositione, says he, non fallitur, inter alia dispensationis suae munera, quibus nos et Regnum nostrum Angliae decorare dignata est, terram Walliae, cum incolis suis prius nobis jure feudali subjectam, jam sui gratia, in proprietatis nostrae dominium, obstaculis quibuscumque cessantibus, totaliter et cum integritate convertit, et coronae regni praedicti, tanquam partem corporis ejusdem annexuit et univit.”
Here is the most certain evidence,—-1. That Wales was subject to the kings of England by the feudal law before the conquest, though not bound by any laws but their own. 2. That the conquest was considered, in that day, as conferring the property, as well as jurisdiction of Wales, to the English crown. 3. The conquest was considered as annexing and unitingWales to the English crown, both in point of property and jurisdiction, as a part of one body. Yet, notwithstanding all this, parliament was not considered as acquiring any share in the government ofWales by this conquest. If, then, it should be admitted that the colonies are all annexed and united to the crown of England, it will not follow that lords and commons have any authority over them.
This statutum Walliae, as well as the whole case and history of that principality, is well worthy of the attention and study of Americans, because it abounds with evidence, that a country may be subject to the crown of England, without being subject to the lords and commons of that realm, which entirely overthrows the whole argument of Governor Hutchinson and of Massachusettensis, in support of the supreme authority of parliament over all the dominions of the imperial crown. “Nos itaque,” &c. says King Edward I., “volentes praedictam terram, &c. sicut et caeteras ditioni nostrae subjectas, &c. sub debito regimine gubernari, et incolas seu habitatores terrarum illarum, qui alto et basso se submiserunt voluntati nostrae, et quos sic ad nostram recepimus voluntatem, certis legibus et consuetudinibus &c. tractari, leges et consuetudines partium illarum hactenus usitatas coram nobis et proceribus regni nostri fecimus recitari, quibus diligenter auditis, et plenius intellectis, quasdam ipsarum de concilio procerum praedictorum delevimus, quasdam permisimus, et quasdam correximus, et etiam quasdam alias adjiciendas et statuendas decrevimus, et eas &c. observari volumus in forma subscripta.”
And then goes on to prescribe and establish a whole code of laws for the principality, in the style of a sole legislature, and concludes:
“Et ideo vobis mandamus, quod praemissa de cetero in omnibus firmiter observetis. Ita tamen quod quotiescunque, et quandocunque, et ubicunque, nobis placuerit, possimus praedicta statuta et eorum partes singulas declarare, interpretari, addere sive diminuere, pro nostrae libito voluntatis, et prout securitati nostrae et terrae nostrae praedictae viderimus expedire.”
Here is then a conquered people submitting to a system of laws framed by the mere will of the conqueror, and agreeing to be forever governed by his mere will. This absolute monarch, then, might afterwards govern this country with or without the advice of his English lords and commons.
To show that Wales was held, before the conquest of Lewellyn, of the King of England, although governed by its own laws, hear Lord Coke, in his commentary on the statute of Westminster. “At this time, namely, in 3 Edward I., Lewellyn was a Prince or King of Wales, who held the same of the King of England as his superior lord, and owed him liege homage, and fealty; and this is proved by our act, namely, that the King of England was superior dominus, that is, sovereign lord of the kingdom or principality of Wales.”
Lord Coke says, “Wales was sometime a realm, or kingdom, (realm, from the French word royaume, and both a regno,) and governed per suas regulas;” and afterwards, “but, jure feodali, the kingdom of Wales was holden of the crown of England, and thereby, as Bracton saith, was sub potestate regis. And so it continued until the eleventh year of King Edward I., when he subdued the Prince of Wales, rising against him, and executed him for treason. The next year, namely, in the twelfth year of King Edward I., by authority of parliament, it is declared thus, speaking in the person of the king, (as ancient statutes were wont to do) Divina Providentia,” &c. as in the statute Walliae, before recited. But here is an inaccuracy; for the statutum Walliae was not an act of parliament, but made by the king, with the advice of his officers of the army, by his sole authority, as the statute itself sufficiently shows. “Note,” says Lord Coke, “divers monarchs hold their kingdoms of others jure feodali, as the Duke of Lombardy, Cicill, Naples, and Bohemia of the empire, Granado, Leons of Aragon, Navarre, Portugal of Castile; and so others.”
After this, the Welsh seem to have been fond of the English laws, and desirous of being incorporated into the realm, to be represented in parliament, and enjoy all the rights of Englishmen, as well as to be bound by the English laws. But kings were so fond of governing this principality by their discretion alone, that they never could obtain these blessings until the reign of Henry VIII., and then they only could obtain a statute which enabled the king to alter their laws at his pleasure. They did, indeed, obtain, in the 15 Edward II., a writ to call twenty-four members to the parliament at York from South Wales, and twenty-four from North Wales; and again, in the 20 Edward II., the like number of forty-eight members for Wales, at the parliament of Westminster. But Lord Coke tells us, “that this wise and warlike nation was, long after the statutum Walliae, not satisfied nor contented, and especially for that they truly and constantly took part with their rightful sovereign and liege lord, King Richard II.; in revenge whereof, they had many severe and invective laws made against them in the reigns of Henry IV., Henry V., &c., all which, as unjust, are repealed and abrogated. And, to say the truth, this nation was never in quiet, until King Henry VII., their own countryman, obtained the crown. And yet not so really reduced in his time as in the reign of his son, Henry VIII., in whose time, by certain just laws, made at the humble suit of the subjects of Wales, the principality and dominion of Wales was incorporated and united to the realm of England; and enacted that every one born in Wales should enjoy the liberties, rights, and laws of this realm, as any subjects naturally born within this realm should have and inherit, and that they should have knights of shires and burgesses of parliament.” Yet we see they could not obtain any security for their liberties, for Lord Coke tells us, “in the act of 34 Henry VIII. it was enacted, that the king’s most royal majesty should, from time to time, change, &c. all manner of things before in that act rehearsed, as to his most excellent wisdom and discretion should be thought convenient; and also to make laws and ordinances for the commonwealth of his said dominion of Wales at his majesty’s pleasure. Yet for that the subjects of the dominion of Wales, &c. had lived in all dutiful subjection to the crown of England, &c., the said branch of the said statute of 34 Henry VIII. is repealed and made void, by 21 Jac. c. 10.”
But if we look into the statute itself, of 27 Henry VIII. c. 26, we shall find the clearest proof, that being subject to the imperial crown of England did not entitle Welshmen to the liberties of England, nor make them subject to the laws of England. “Albeit the dominion, principality, and country of Wales justly and righteously is, and 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, wherefore the King’s most royal majesty, of mere droit, and very right, is very head, king, lord, and ruler; yet notwithstanding, because that in the same country, principality and dominion, diverse rights, usages, laws, and customs, be far discrepant from the laws and customs of this realm, &c.” Wherefore it is enacted by king, lords, and commons, “that his” (that is, the king’s) “said country or dominion of Wales, shall be, stand, and continue forever from henceforth, incorporated, united, and annexed to and with this his realm of England, and that all and singular person and persons, born and to be born in the said principality, country, or dominion of Wales, shall have, enjoy, and inherit, all and singular freedoms, liberties, rights, privileges, and laws within this his realm, and other the king’s dominions, as other the king’s subjects naturally born within the same, have, enjoy, and inherit.” Section 2 enacts that the laws of England shall be introduced and established in Wales, and that the laws, ordinances, and statutes of this realm of England forever, and none other, shall be used and practised forever thereafter, in the said dominion of Wales. The 27th section of this long statute enacts, that commissioners shall inquire into the laws and customs of Wales, and report to the king, who with his privy council are empowered to establish such of them as they should think proper. The twenty-eighth enacts that in all future parliaments for this realm, two knights for the shire of Monmouth, and one burgess for the town, shall be chosen, and allowed such fees as other knights and burgesses of parliament were allowed. Section twenty-nine enacts that one knight shall be elected for every shire within the country or dominion of Wales, and one burgess for every shire town, to serve in that and every future parliament to be holden for this realm. But by section thirty-six, the king is empowered to revoke, repeal, and abrogate that whole act, or any part of it, at any time within three years.
Upon this statute, let it be observed,—-1. That the language of Massachusettensis, “imperial crown,” is used in it; and Wales is affirmed to have ever been annexed and united to that imperial crown, as a very member and joint; which shows that being annexed to the imperial crown does not annex a country to the realm, or make it subject to the authority of parliament; becauseWales certainly, before the conquest of Lewellyn, never was pretended to be so subject, nor afterwards ever pretended to be annexed to the realm at all, nor subject to the authority of parliament any otherwise than as the king claimed to be absolute in Wales, and therefore to make laws for it by his mere will, either with the advice of his proceres or without. 2. ThatWales never was incorporated with the realm of England, until this statute was made, nor subject to any authority of English lords and commons. 3. That the king was so tenacious of his exclusive power over Wales, that he would not consent to this statute, without a clause in it to retain the power in his own hands of giving it what system of law he pleased. 4. That knights and burgesses, that is, representatives, were considered as essential and fundamental in the constitution of the new legislature which was to govern Wales. 5. That since this statute, the distinction between the realm of England and the realm of Wales has been abolished, and the realm of England, now and ever since, comprehends both; so that Massachusettensis is mistaken when he says, that the realm of England is an appropriate term for the ancient realm of England, in contradistinction from Wales, &c. 6. That this union and incorporation were made by the consent and upon the supplication of the people of Wales, as Lord Coke and many other authors inform us; so that here was an express contract between the two bodies of people. To these observations let me add a few questions:—-
1. Was there ever any act of parliament, annexing, uniting, and consolidating any one of all the colonies to and with the realm of England or the kingdom of Great Britain?
2. If such an act of parliament should be made, would it, upon any principles of English laws and government, have any validity without the consent, petition, or supplication of the colonies?
3. Can such a union and incorporation ever be made, upon any principles of English laws and government, without admitting representatives for the colonies in the house of commons, and American lords into the house of peers?
4. Would not representatives in the house of commons, unless they were numerous in proportion to the numbers of people in America, be a snare rather than a blessing?
5. Would Britain ever agree to a proportionable number of American members; and if she would, could America support the expense of them?
6. Could American representatives possibly know the sense, the exigencies, &c. of their constituents, at such a distance, so perfectly as it is absolutely necessary legislators should know?
7. Could Americans ever come to the knowledge of the behavior of their members, so as to dismiss the unworthy?
8. Would Americans in general ever submit to septennial elections?
9. Have we not sufficient evidence, in the general frailty and depravity of human nature, and especially the experience we have had of Massachusettensis and the junto, that a deep, treacherous, plausible, corrupt minister would be able to seduce our members to betray us as fast as we could send them?
To return to Wales. In the statute of 34 and 35 Henry VIII. c. 26, we find a more complete system of laws and regulations for Wales. But the king is still tenacious of his absolute authority over it. It begins, “Our sovereign lord the king’s majesty, of his tender zeal and affection, &c. towards his obedient subjects, &c. of Wales, &c. hath devised and made divers sundry good and necessary ordinances, which his majesty of his most abundant goodness at the humble suit and petition of his said subjects of Wales, is pleased and contented to be enacted by the assent of the lord spiritual and temporal, and the commons,” &c.
Nevertheless, the king would not yet give up his unlimited power over Wales; for by the one hundred and nineteenth section of this statute, the king, &c., may at all times hereafter, from time to time, change, add, alter, order, minish, and reform, all manner of things afore rehearsed, as to his most excellent wisdom and discretion shall be thought convenient; and also to make laws and ordinances for the commonwealth and good quiet of his said dominion of Wales, and his subjects of the same, from time to time, at his majesty’s pleasure.
And this last section was never repealed until the 21 Jac. 1, c. 10, s. 4.
From the conquest of Lewellyn to this statute of James, is near three hundred and fifty years, during all which time the Welsh were very fond of being incorporated, and enjoying the English laws; the English were desirous that they should be; yet the crown would never suffer it to be completely done, because it claimed an authority to rule it by discretion. It is conceived, therefore, that there cannot be a more complete and decisive proof of any thing, than this instance is that a country may be subject to the crown of England, the imperial crown, and yet not annexed to the realm, nor subject to the authority of parliament.
The word crown, like the word throne, is used in various figurative senses; sometimes it means the kingly office, the head of the commonwealth; but it does not always mean the political capacity of the king; much less does it include in the idea of it, lords and commons. It may as well be pretended that the house of commons includes or implies a king. Nay, it may as well be pretended that the mace includes the three branches of the legislature.
By the feudal law, a person or a country might be subject to a king, a feudal sovereign, three several ways.
1. It might be subject to his person; and in this case it would continue so subject, let him be where he would, in his dominions or without. 2. To his crown; and in this case subjection was due to whatsoever person or family wore that crown, and would follow it, whatever revolutions it underwent. 3. To his crown and realm of state; and in this case it was incorporated as one body with the principal kingdom; and if that was bound by a parliament, diet, or cortes, so was the other.
It is humbly conceived, that the subjection of the colonies by compact and law, is of the second sort.
Suffer me, my friends, to conclude by making my most respectful compliments to the gentlemen of the regiment of royal Welsh fusileers. In the celebration of their late festival, they discovered that they are not insensible to the feelings of a man for his native country. The most generous minds are the most exquisitely capable of this sentiment. Let me entreat them to recollect the history of their brave and intrepid countrymen, who struggled at least eleven hundred years for liberty. Let them compare the case of Wales with the case of America, and then lay their hands upon their hearts and say whether we can in justice be bound by all acts of parliament without being incorporated with the kingdom.
[1] Comyn’s Digest, vol. v. p. 626.
[2] Per Cook. 1 Roll. 247; 2 Roll. 29.