Novanglus Essays/No. 11
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 to 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, Gascogne, 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 Legislator of the universe.
We ought to be cautious of the inaccuracies of the greatest men, for these are apt to lead us astray. Lord Coke1 says: “Wales was some time a kingdom, as it appeareth by 19 Henry VI. fol. 6, and by the act of parliament of 2 Henry V. 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, cap. 16; 1 Edward III. 14; 8 Edward III. 59; 13 Edward III., tit. Jurisdict.; 10 Henry IV. 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; Etheldredus, 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 Edward I. Wales was united and incorporated into England, and made parcel of England in possession; and, therefore, it is ruled, in 7 Henry IV. fol. 13, 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 VIII., that Wales was ever parcel of the realm of England, it is true in this sense, namely,—-that before 12 Edward I. 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 I., whilst it was only holden of England, were capable and inheritable of lands in England.”
Where my Lord Coke, or any other sage, shows 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. I., (which is the statutum Walliae 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 Edward I. nor any of his successors ever would relinquish the right of ruling it by mere will and discretion, until the reign of James I. 2. It is not recited in the 27 H. VIII., 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,” which 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:2 “Ireland originally came to the kings of England by conquest; but who was the first conqueror thereof hath been a question. I have seen a charter made by King Edgar, in these words: Ego Edgarus Anglorum Basileus, omniumque insularum oceani, quae 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 imperio omnia regna insularum oceani, &c., cum suis ferocissimis regibus usque Norvegiam, maximamque partem Hiberniae, 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 Henry II., the honor of the conquest of Ireland is attributed to him. That Ireland is a dominion separate and divided from England it is evident from our books, 20 H. VI. 8; Sir John Pilkington’s case, 32 H. VI. 25; 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 personae eorum sunt subjecti regis, sicut inhabitantes in Calesia, Gasconia, et Guyan. Wherein it is to be observed, that the Irishman (as to his subjection) is compared to men born in Calice, Gascoin, and Guienne. Concerning their laws, Ex rotulis petentium, de anno 11 Regis H. III., there is a charter which that king made, beginning in these words: Rex Baronibus, Militibus et omnibus libere tenentibus L. salutem. Satis, ut credimus vestra audivit discretio, quod quando bonae memoriae Johannes quondam rex Angliae, pater noster venit in Hiberniam, ipse duxit secum viros discretos et legis peritos, quorum communi consilio et ad instantiam Hibernensium statuit et praecepit leges Anglicanas in Hibernia, ita quod leges easdem in scripturas 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 Henry VI. 8, and 20 Elizabeth, Dyer, 360, and for that they retain unto this day divers of their ancient customs, the book in 20 Henry VI. 8, 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 IV. 7, and 7 Edward IV. 4, 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 O’Rurke, an Irishman, who had committed high treason in Ireland, that he, by the statute of 23 Henry VIII. 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 inquired 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 VII. 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, that is, a Postnatus) in Scotland? For the Irishman is born extra ligeantiam 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 those statutes binding in which Ireland is specially named, as much as against those 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 O’Rurke 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 showing, 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 II.” 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. II. did by advice of his judges, &c. This modus, &c. was, anno 6, H. IV., in the custody of Sir Christopher Preston, which roll H. IV., 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. II., the father of King 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 distinct 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 shows that even this establishment of English laws was made de communi omnium de Hibernia consensu.
This whole chapter is well worth attending to; because the records quoted in it show 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 era, 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. II., 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 Burrow’s Reports.3 Lord Mansfield has many observations upon the case of Wales, which ought not to be overlooked. He says,—-“Edward I. 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 maintained, ‘that all the 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 ofWales 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 fourth of December, in the ninth year of his reign, he issued a commission to inquire ‘per quas leges, et per quas consuetudines antecessores nostri reges regere consueverant principem Walliae et barones Wallenses Walliae 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 fourteen interrogatories, specifying the points to be inquired into. The statute of Rutland, 12 E. I., 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 Walliae, prius nobis jure feodali subjectam, jam in proprietatis nostrae dominium convertit, et coronae regni Angliae, tanquam partem corporis ejusdem, annexuit et univit.” The 27 H. VIII. 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 I., 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 politics as well as themselves, and that there are six hundred thousand men in it, between sixteen and sixty 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 seventy 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, first,—-it is an utter mistake, that Edward I. 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 Edward I., but Henry VII., who first conceived the great design of annexing it to the realm; and by him and Henry VIII. it was done in part, but never completed until James I. 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. Second,—-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.
Edward I. and Henry VIII. both considered Wales as the property and revenue of the crown, not as a part of the realm; and the expressions “coronae regni Angliae, 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. VIII., “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 show, thatWales never was entitled, by this annexation, to the laws of England, nor was 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 erected 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 complete 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.
 7 Rep. 21 b.
 7 Rep. 22 b.
 Vol. ii. 834. Rex v. Cowle.