Chapter VIII: Preface (7)

From the conquest of Lewellyn to this statute of James is near 350 years, during all which time the Welch 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, or 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 Welch fusileers.[1]

[Footnote 1: One of the Regiments then in Boston.--_Note by the Publishers._]

In the celebration of their late festival, they discovered that they are not insensible of 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 1100 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.

NOVANGLUS.

ADDRESSED

_To the Inhabitants of the Colony of Massachusetts Bay_,

March 27, 1775.

MY FRIENDS,

Massachusettensis in some of his writings has advanced, that our allegiance is due to the political capacity of the king, and therefore involves in it obedience to the British parliament. Gov. Hutchinson, in his memorable speech, laid down the same position. I have already shewn, from the case of Wales, that this position is groundless, and that allegiance was due from the Welch to the king, _jure feodali_, before the conquest of Lewellyn, and after that to the crown, until it was annexed to the realm, without being subject to acts of parliament any more than to acts of the king, without parliament. I shall hereafter shew from the case of Ireland, that subjection to the crown implies no obedience to parliament. But before I come to this, I must take notice of a pamphlet, entitled "A candid examination of the mutual claims of Great Britain and the colonies, with a plan of accommodation on constitutional principles." This author, p. 8, says, "to him (i. e. the king) in his representative capacity, and as supreme executor of the laws, made by a joint power of him and others, the oaths of allegiance are taken," and afterwards: "hence these professions, (i. e. of allegiance) are not made to him either in his legislative, or executive capacities; but yet it seems they are made to the king. And into this distinction, _which is no where to be found_ either in the constitution of the government, in reason or common sense, the ignorant and thoughtless have been deluded ever since the passing of the stamp act, and they have rested satisfied with it without the least examination." And in p. 9, he says, "I do not mean to offend the inventers of this refined distinction, when I ask them, is this acknowledgement made to the king, in his politic capacity as king of Great Britain, &c.? if so, it includes a promise of obedience to the British laws." There is no danger of this gentleman's giving offence to the inventers of this distinction, for they have been many centuries in their graves. This distinction is to be found every where. In the case of Wales, Ireland, and elsewhere, as I shall shew most abundantly before I have done, it is to be found in two of the greatest cases, and most deliberate and solemn judgments that were ever passed. One of them is Calvin's case, 7 Rep. which, as lord Coke tells us, was as elaborately, substantially, and judiciously argued, as he ever heard, or read of any. After it had been argued in the court of king's bench, by learned council, it was adjourned to the exchequer chamber, and there argued again, first by council on both sides, and then by the lord chancellor, and all the twelve judges of England, and among these were the greatest men, that Westminster-Hall ever could boast. Ellismore, Bacon, Hide, Hobart, Crook, and Coke, were all among them: and the chancellor and judges were unanimous in resolving. What, says the book? 7. Rep. 10. "Now seeing the king hath but one person, and several capacities, and one politic capacity for the realm of England, and another for the realm of Scotland, it is necessary to be considered to which capacity _ligeance_ is due. _And it was resolved_ that it was due to the _natural person_ of the king (which is ever accompanied with the politic capacity, and the politic capacity as it were appropriated to the natural capacity) and it is not due to the politic capacity only, that is, to the crown or kingdom, distinct from his natural capacity." And further on 7. Rep. 11. "But it was clearly resolved by all the judges, that presently by the descent his majesty was completely and absolutely king," &c. and that coronation was but a royal ornament. 6. "In the reign of Edward 2d. the Spencers, to cover the treason hatched in their hearts, invented this damnable and damned opinion, that homage and oath of allegiance was more by reason of the king's crown, (that is of his politic capacity) than by reason of the person of the king, upon which opinion they inferred execrable and detestable consequences." And afterwards, 12. "Where books and acts of parliament speak of the ligeance of England, &c. speaking briefly in a vulgar manner, are to be understood of the ligeance due by the people of England to the king; for no man will affirm, that England itself, taking it for the continent thereof, doth owe any ligeance or faith, or that _any faith or ligeance should be due to it_: but it manifestly appeareth, that the ligeance or faith of the subject is _proprium quarto modo_ to the king, _omni, soli, et semper_. And oftentimes in the reports of our book cases, and in acts of parliament also, the crown or kingdom is taken for the king himself," &c. "Tenure in _capite_ is a tenure of the crown, and is a _seigniorie in grosse_, that is of the person of the king." And afterwards 6, "for special purposes _the law makes him a body politic, immortal and invisible, whereunto our allegiance cannot appertain_." I beg leave to observe here, that these words in the foregoing adjudication, that "the natural person of the king is ever accompanied with the politic capacity, and the politic capacity as it were appropriated to the natural capacity," neither imply nor infer allegiance or subjection to the politic capacity; because in the case of king James 1st. his natural person was "accompanied" with three politic capacities at least, as king of England, Scotland, and Ireland: yet the allegiance of an Englishman to him did not imply or infer subjection to his politic capacity, as king of Scotland.

Another place in which this distinction is to be found is in Moore's reports, p. 790. "The case of the union of the realm of Scotland with England." And this deliberation, I hope was solemn enough. This distinction was agreed on by commissioners of the English lords and commons in a conference with commissioners of the Scottish parliament, and after many arguments and consultations by the lord chancellor and all the judges, and afterwards adopted by the lords and commons of both nations. "The judges answered with one assent, says the book, that allegiance and laws were not of equiparation for six causes;" the sixth and last of which is, "allegiance followeth the _natural person_ not the politick." "If the king go out of England with a company of his servants, allegiance remaineth among his subjects and servants, although he be out of his own realm, _whereto his laws are confined_, &c. and to prove the allegiance to be tied to the body natural of the king, not to the body politic, the lord Coke cited the phrases of diverse statutes, &c. And to prove that allegiance extended further than the laws national, they (the judges) shewed that every king of diverse kingdoms, or dukedoms, is to command every people to defend any of his kingdoms, without respect of that nation where he is born; as if the king of Spain be invaded in Portugal, he may levy for defence of Portugal armies out of Spain, Naples, Castile, Milan, Flanders and the like; as a thing incident to the allegiance of all his subjects, to join together in defence of any of his territories, without respect of the extent of the laws of that nation where he was born; whereby it manifestly appeareth, that allegiance followeth the natural person of the king, and is not tied to the body politick respectively in every kingdom. There is one observation, not immediately to the present point, but so connected with our controversy, that it ought not to be overlooked. "For the matter of the great seal, the judges shewed that the seal was alterable by the king at his pleasure, and he might make one seal for both kingdoms, for seals, coin, and leagues, and of absolute prerogative of the king without parliament, nor restrained to any assent of the people." "But for further resolution of this point, 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 subjects, 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 nor the Isles, nor Wales, nor the counties palatine, because the king's courts here have not power to hold plea of lands, nor 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." Ludlow's case, &c. who being at Rome, a commandment under the great seal was sent for him to return." So Bertie's case in queen Mary's time, and Inglefield's case in queen Elizabeth's, the privy seal went to command them to return into the realm, and for not coming their lands were seized," &c. But to return to the point: "And as to the objection," says the book, "that none can be born a natural subject of two kingdoms, they denied that absolutely, for although locally, he can be born but in one, yet effectually, the allegiance of the king extending to both, his birthright shall extend to both." And afterwards, "but that his kingly power extendeth to diverse nations and kingdoms, all owe him equal subjection, and are equally born to the benefit of his protection; and although he is to govern them by _their distinct laws_, yet any one of the people coming into the other, is to have the benefit of the laws, wheresoever he cometh; but living in one, or for his livelihood in one, he is not to be taxed in the other, because laws ordain taxes, impositions, and charges, as a discipline of subjection particularized to every particular nation." Another place where this distinction is to be found is in Foster's crown law, p. 184. "There have been writers, who have carried the notion of natural, perpetual, unalienable allegiance much farther than the subject of this discourse will lead me. They say, very truly, that it is due to the _person_ of the king, &c." It is undoubtedly due to the person of the king; but in that respect natural allegiance differeth nothing from what we call local. For allegiance considered in every light is alike due to the person of the king; and is paid, and in the nature of things must be constantly paid, to that prince, who for time being, is in the actual and full possession of the regal dignity."

Indeed allegiance to a sovereign lord, is nothing more than fealty to a subordinate lord, and in neither case, has any relation to, or connection with laws or parliaments, lords or commons. There was a reciprocal confidence between the lord and vassal. The lord was to protect the vassal in the enjoyment of his land. The vassal was to be faithful to his lord, and defend him against his enemies. This obligation on the part of the vassal, was his fealty, _fidelitas_. The oath of fealty, by the feodal law to be taken by the vassal or tenant, is nearly in the very words as the ancient oath of allegiance. But neither fealty, allegiance, or the oath of either implied any thing about laws, parliaments, lords or commons.

The fealty and allegiance of Americans then is undoubtedly due to the person of king George the third, whom God long preserve and prosper. It is due to him, in his natural person, as that natural person is intituled to the crown, the kingly office, the royal dignity of the realm of England. And it becomes due to his natural person, because he is intituled to that office. And because by the charters, and other express and implied contracts made between the Americans and the kings of England, they have bound themselves to fealty and allegiance to the natural person of that prince, who shall rightfully hold the kingly office in England, and no otherwise.

"With us in England, says Blackstone, v. 1, 367. it becoming a settled principle of tenure, that all lands in the kingdom are holden of the king as their sovereign and lord paramount, &c. the oath of allegiance was necessarily confined to the person of the king alone. By an easy analogy, the term of allegiance was soon brought to signify all other engagements, which are due from subjects simply and merely territorial. And the oath of allegiance, as administered for upwards of six hundred years, contained a promise to be true and faithful to the king and his heirs, and truth and faith to bear of life and limb and terrene honor, and not to know, or hear of any ill or damages intended him, without defending him therefrom." But at the revolution, the terms of this oath being thought perhaps to favor too much the notion of non-resistance, the present form was introduced by the convention parliament, which is more general and indeterminate than the former, the subject promising "that he will be faithful, and bear true allegiance to only the king," without mentioning his heirs, or specifying the least wherein that allegiance consists.

Thus I think that all the authorities in law, coincide exactly with the observation which I have heretofore made upon the case of Wales, and shew that subjection to a king of England does not necessarily imply subjection to the crown of England; and that subjection to the crown of England, does not imply subjection to the parliament of England; for allegiance is due to the person of the king, and to that alone, in all three cases, that is, whether we are subject to his parliament and crown, as well as his person, as the people in England are, whether we are subject to his crown and person, without parliament, as the Welch were after the conquest of Lewellyn, and before the union, or as the Irish were after the conquest and before Poyning's law, or whether we are subject to his person alone, as the Scots were to the king of England, after the accession of James 1st. being not at all subject to the parliament or crown of England.

We do not admit any binding authority in the decisions and adjudications of the court of king's bench or common pleas, or the court of chancery over America: but we quote them as the opinions of learned men. In these we find a distinction between a country conquered, and a country discovered. Conquest, they say, gives the crown an absolute power: discovery, only gives the subject a right to all the laws of England. They add, that all the laws of England are in force there. I confess I do not see the reason of this. There are several cases in books of law which may be properly thrown before the public. I am no more of a lawyer than Massachusettensis, but have taken his advice, and conversed with many lawyers upon our subject, some honest, some dishonest, some living, some dead, and am willing to lay before you what I have learned from all of them. In Salk. 411, the case of Blankard and Galdy. "In debt upon a bond, the defendant prayed oyer of the condition, and pleaded the statutes E. 6. against buying offices concerning the administration of justice; and averred that this bond was given for the purchase of the office of provost marshal in Jamaica, and that it concerned the administration of justice, and _that Jamaica is part of the revenue and possessions of the crown of England_. The plaintiff replied, that Jamaica is an island _beyond the seas_, which was conquered from the Indians and Spaniards in Queen Elizabeth's time, and the inhabitants are governed by their own laws, and not by the laws of England. The defendant rejoined, that before such conquest, they were governed by their own laws; but since that, by the laws of England. Shower argued for the plaintiff, that on a judgment in Jamaica, no writ of error lies here, but only an appeal to the council; _and as they are not represented in our parliament, so they are not bound by our statutes_, unless specially named. Vid. And. 115. Pemberton contra argued, that, _by the conquest of a nation, its liberties, rights, and properties, are quite lost_; that by consequence their laws are lost too, for the law is but the rule and guard of the other; those that conquer cannot, by their victory, lose their laws, and become subject to others. Vid. Vaugh. 405. That error lies here upon a judgment in Jamaica, which could not be, if they were not under the same law. Et. per Holt, C. J. and Cur. 1st. In case of an uninhabited country, newly found out by English subjects, all laws in force in England are in force there; so it seemed to be agreed. 2. Jamaica being conquered, and not pleaded to be parcel of the kingdom of England, but part of the possessions and revenue of the crown of England; the laws of England did not take place there, until declared so by the conqueror, or his successors. The Isle of Man and Ireland are part of the _possessions_ of the crown of England, yet retain their ancient laws, that in Davis, 36, it is not pretended that the custom of tanistry was determined by the conquest of Ireland, but by the new settlement made there after the conquest: that it was impossible the laws of this nation, by mere conquest, without more should take place, in a conquered country, because for a time, there must want officers, without which our laws can have no force; that if our law did take place, yet they, in Jamaica, having power to make new laws, our general laws may be altered by theirs in particulars; also they held that in case of an infidel country; their laws by conquest do not entirely cease, but only such as are against the law of God; and that in such cases where the laws are rejected or silent, the conquered country shall be governed according to the rule of natural equity. Judgment, pro quer."

Upon this case I beg leave to make a few observations. 1. That Shower's reasoning, that we are not bound by statutes, because not represented in parliament, is universal, and therefore his exception, "unless specially named," although it is taken from analogy to the case of Ireland, by lord Coke and others, yet it is not taken from the common law, but is merely arbitrary and groundless, as applied to us: because, if the want of representation could be supplied, by "expressly naming" a country, the right of representation might be rendered null and nugatory. But of this, more another time.

2. That by the opinion of Holt, and the whole court, the laws of England, common and statute, are in force in a vacant country, discovered by Englishmen. But America was not a vacant country; it was full of inhabitants; our ancestors purchased the land; but if it had been vacant, his lordship has not shewn us any authority at common law, that the laws of England would have been in force there. On the contrary, by that law, it is clear they did not extend beyond seas, and therefore could not be binding there, any further than the free will of the discoverers should make them. The discoverers had a right by nature, to set up those laws, if they liked them, or any others, that pleased them better, provided they were not inconsistent with their allegiance to the king. 3. The court held that a country must be parcel of the kingdom of England, before the laws of England could take place there; which seems to be inconsistent with what is said before, because discovery of a vacant country does not make it parcel of the kingdom of England, which shews, that the court, when they said that all laws in _force_ in England, are in _force_ in the discovered country, meant no more than that the discoverers had a right to all such laws, if they chose to adopt them. 4. The idea of the court, in this case, is exactly conformable to, if not taken from the case of Wales. They consider a conquered country as Edward 1st. and his successors did Wales, as by the conquest annexed to the crown, as an absolute property, possession, or revenue, and therefore to be disposed of at its will; not entitled to the laws of England, although bound to be governed by the king's will, in parliament or out of it, as he pleased. 5. The Isle of Man and Ireland, are considered like Wales, as conquered countries, and part of the possessions (by which they mean property or revenue) of the crown of England, yet have been allowed by the king's will to retain their ancient laws. 6. That the case of America differs totally from the case of Wales, Ireland, Man, or any other case, which is known at common law, or in English history. There is no one precedent in point, in any English records, and therefore it can be determined only by eternal reason, and the law of nature. But yet that the analogy of all these cases of Ireland, Wales, Man, Chester, Durham, Lancaster, &c. clearly concur with the dictates of reason and nature, that Americans are entitled to all the liberties of Englishmen, and that they are not bound by any acts of parliament whatever, by any law known in English records or history, excepting those for the regulation of trade, which they have consented to and acquiesced in. 7. To these let me add, that as the laws of England, and the authority of parliament were by common law confined to the realm, and within the four seas, so was the force of the great seal of England. Salk. 510. "The great seal of England is appropriated to England, and what is done under it has relation to England, and to no other place." So that the king, by common law, had no authority to create peers or governments, or any thing out of the realm, by his great seal; and therefore our charters and commissions to governors, being under the great seal, gives us no more authority, nor binds us to any other duties, than if they had been given under the privy seal, or without any seal at all. Their binding force, both upon the crown and us, is wholly from compact and the law of nature.

There is another case in which the same sentiments are preserved; it is in 2. P. Williams, 75, memorandum 9th August, 1722. It was said by the master of the rolls to have been determined by the lords of the privy council, upon an appeal to the king in council from the foreign plantations. 1st. That if there be a new and uninhabited country, found out by English subjects, as the law is the birth right of every subject, so, wherever they go, they carry their laws with them, and therefore such new found country is to be governed by the laws of England; though after such country is inhabited by the English, acts of parliament made in England, without naming the foreign plantations, will not bind them; for which reason it has been determined that the statute of frauds and perjuries, which requires three witnesses, and that these should subscribe in the testators presence in the case of devise of land, does not bind Barbadoes, but that 2dly. Where the king of England conquers a country, it is a different consideration; for there the conqueror, by saving the lives of the people conquered, gains a right and property in such people! In consequence of which he may impose upon them what laws he pleases. But 3dly. Until such laws, given by the conquering prince, the laws and customs of the conquered country shall hold place, unless where these are contrary to our religion, or enact any thing that is _malum in se_, or are silent; for in all such cases the laws of the conquering country shall prevail.

NOVANGLUS.

ADDRESSED

_To the Inhabitants of the Colony of Massachusetts Bay_,

April 3, 1775.

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 [Errata: delete '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 [Errata: conquest] 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.

ADDRESSED

_To the Inhabitants of the Colony of Massachusetts Bay_,

April 10, 1775.

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."