Chapter IX: Preface (8)

Where my lord Coke or any other sage, shews us the ground on which his opinion stands, we can judge for ourselves, whether the ground is good, and his opinion just. And if we examine by this rule, we shall find in the foregoing words, several palpable inaccuracies of expression; 1, by the 12 E. 1. (which is the _Statutum Walliæ_ quoted by me before) it is certain "that Wales was not united and incorporated into England, and made parcel of England." It was annexed and united to the crown of England only. It was done by the king's sole and absolute authority; not by an act of parliament, but by a mere _constitutio imperatoria_, and neither E. 1. nor any of his successors, ever would relinquish the right of ruling it, by mere will and discretion until the reign of James 1.--2. It is not recited in the 27 H. 8, that Wales was ever parcel of the realm of England. The words of that statute are, "incorporated, annexed, united and subject to and under the imperial crown of this realm," is a decisive proof that a country may be annexed to the one, without being united with the other. And this appears fully in lord Coke himself, 7 rep. 22, b. "Ireland originally came to the kings of England by conquest, but who was the first conquerer thereof hath been a question. I have seen a charter made by king Edgar, in these words, _Ego Edgarus Anglorum Basileus, omnium quæ insularum oceani, quæ Britanniam circumjacent, imperator et dominus, gratias ago ipsi Deo omnipotenti regi meo, qui meum imperium sic ampliavit et exaltavit super regnum patrum meorum_, &c. _Mihi concessit propitia divinitas, cum anglorum imperis omnia regna insularum oceani_, &c. _Cum suis ferocibus regibus usque Norvegiam, maximamque partem Hiberniæ, cum sua nobilissima civitate de Dublina, Anglorum regno subjugare, quapropter et ego Christi gloriam et laudem in regno meo exaltare, et ejus servitium amplificare devotus disposui_, &c. Yet for that it was wholly conquered in the reign of H. 2. The honour of the conquest of Ireland is attributed to him. That Ireland is a dominion separate and divided from England it is evident by our books, 20 H. 6, 8. Sir John Pilkington's case, 32 H. 6, 26. 20 Eliz. Dyer 360. Plow. com. 360. and 2, r. 3. 12. _Hibernia habet parliamentum, et faciunt leges, et statuta nostra non ligant eos quia non mittunt milites ad parliamentum_, (which is to be understood unless they be specially named) _sed personæ eorum sunt, subjecti regis, sicut inhabitantes in Calesia, Gasconia et Guigan_. Wherein it is to be observed, that the Irishman (as to his subjection) is compared to men born in Calice, Gascoin and Guian. Concerning their laws, _Ex rotulis petentium, de anno_ 11. Regis 8. 3, there is a charter which that king made beginning in these words: _Rex Baronibus, Militibus et omnibus libere tenenibus L. salutem, satis, ut credimus vestra audivit discretio, quod quando bonæ memoriæ Johannes quondam rex Angliæ, pater noster venit in Hiberniam ipse duxit secum viros discretos et legis peritos, quorum communi consilio et adjunctorum Hiberniansium, statuit et præcepit leges Anglicanas in Hibernia, ita quod easdem inscripturas redactas reliquit sub sigillo suo ad saccarium Dublin_. So as now the laws of England became the proper laws of Ireland; and therefore because they have parliaments holden there, whereat they have made diverse particular laws, concerning that dominion, as it appeareth in 20 Hen. 6th, 8th. and 20 Eliz. Dyer, 360, and for that they retain unto this day, diverse of their ancient customs, the book in 20 Henry 6th. 8th. holdeth that Ireland is governed by laws and customs, separate and diverse from the laws of England. A voyage royal may be made into Ireland. Vid. 11. Henry 4th. 7th. and 7 Edward 4th. 27. which proveth it a distinct dominion. And in anno 33 Elizabeth, it was resolved by all the judges of England, in the case of Orurke, an Irishman, who had committed high treason in Ireland, that he, by the statute of 33. Henry 8th. c. 23, might be indicted, arraigned, and tried for the same in England, according to the purview of that statute; the words of which statute be, that all treasons, &c. committed by any person out of the realm of England, shall be from henceforth enquired of, &c. And they all resolved, (as afterwards they did also in Sir John Perrot's case) that Ireland was out of the realm of England, and that treasons committed there were to be tried within England, by that statute. In the statute of 4 Henry 7th. c. 24 of fines, provision is made for them that be out of this land, and it is holden in Plow. com. in Stowell's case 375, that he that is in Ireland is out of this land, and consequently within that proviso. Might not, then, the like plea be devised, as well against any person born in Ireland, as (this is against Calvin a _Postnatus_) in Scotland? For the Irishman is born _extra ligeantia regis, regni sui Angliae_, &c. which be _verba operativa_ in the plea. But all men know, that they are natural born subjects, and capable of, and inheritable to lands in England."

I have been at the pains of transcribing this long passage for the sake of a variety of important observations that may be made upon it. 1. That exuberance of proof that is in it, both that Ireland is annexed to the crown, and that it is not annexed to the realm of England. 2. That the reasoning in the year book, that Ireland has a parliament, and makes laws, and our statutes do not bind them, because they do not send knights to parliament, is universal, and concludes against these statutes binding, in which Ireland is specially named, as much as against these in which it is not, and therefore lord Coke's parenthesis, (which is to be understood unless they be specially named) is wholly arbitrary and groundless, unless it goes upon the supposition, that the king is absolute in Ireland, it being a conquered country, and so has power to bind it at his pleasure, by an act of parliament, or by an edict: or unless it goes upon the supposition of Blackstone, that there had been an express agreement and consent of the Irish nation to be bound by acts of the English parliament; and in either case it is not applicable even by analogy to America, because that is not a conquered country, and most certainly never consented to be bound by all acts of parliament, in which it should be named. 3. That the instance, request and consent of the Irish is stated, as a ground upon which king John and his discreet law-sages, first established the laws of England in Ireland. 4. The resolution of the judges in the cases of Orurke and Perrot, is express that Ireland was without the realm of England, and the late resolutions of both houses of parliament, and the late opinion of the judges, that Americans may be sent to England upon the same statute to be tried for treason, is also express that America is out of the realm of England. So that we see what is to become of us, my friends. When they want to get our money by taxing us, our privileges by annihilating our charters, and to screen those from punishment who shall murder us at their command, then we are told that we are within the realm; but when they want to draw, hang, and quarter us, for honestly defending those liberties which God and compact have given and secured to us, oh, then, we are clearly out of the realm. 5. In Stowell's case, it is resolved that Ireland is out of the land, that is the land of England. The consequence is, that it was out of the reach and extent of the law of the land, that is the common law. America surely is still further removed from that land; and therefore is without the jurisdiction of that law which is called the law of the land in England. I think it must appear by this time, that America is not parcel of the realm, state, kingdom, government, empire, or land of England, or Great Britain, in any sense, which can make it subject universally to the supreme legislature of that island.

But for the sake of curiosity, and for the purpose of shewing that the consent even of a conquered people has always been carefully conciliated, I beg leave to look over lord Coke's 4. Inst. p. 12. "After king Henry 2d." says he, "had conquered Ireland, he fitted and transcribed this modus, meaning the ancient treatise called _modus tenendi parliamentum_, which was rehearsed and declared before the conqueror at the time of the conquest, and by him approved for England, into Ireland, in a parchment roll, for the holding of parliaments there, which no doubt H. 2. did by advice of his judges, &c.--This _modus_, &c. was anno 6. H. 4. in the custody of sir Christopher Preston, which roll H. 4. in the same year, _De assensu Johannis Talbot Chevalier_, his lieutenant there, and of his council of Ireland, exemplified, &c."

Here we see the original of a parliament in Ireland, which is assigned as the cause or reason why Ireland is a distant kingdom from England: and in the same, 4. inst. 349. we find more evidence that all this was done at the instance and request of the people in Ireland. Lord Coke says, "H 2. the father of K. John, did ordain and command, at the instance of the Irish, that such laws as he had in England, should be of force and observed in Ireland. Hereby Ireland, being of itself a distant dominion, and no part of the kingdom of England, (as it directly appeareth by many authorities in Calvin's case) was to have parliaments holden there, as England, &c." See the record as quoted by lord Coke in the same page, which shews that even this establishment of English laws, was made _De communi omnium de Hiberniæ consensu_.

This whole chapter is well worth attending to, because the records quoted in it shew how careful the ancients were to obtain the consent of the governed to all laws, though a conquered people, and the king absolute. Very unlike the minister of our æra, who is for pulling down and building up the most sacred establishments of laws and government, without the least regard to the consent or good will of Americans. There is one observation more of lord Coke that deserves particular notice. "Sometimes the king of England called his nobles of Ireland to come to his parliament of England, &c. and by special words the parliament of England may bind the subjects of Ireland," and cites the record 8. E. 2. and subjoins "an excellent precedent to be followed, whensoever any act of parliament shall be made in England, concerning the state of Ireland, &c." By this lord Coke seems to intimate an opinion, that representatives had been and ought to be called from Ireland to the parliament of England, whenever it undertook to govern it by statutes, in which it should be specially named.

After all, I believe there is no evidence of any express contract of the Irish nation to be governed by the English parliament, and very little of an implied one; that the notion of binding it by acts in which it is expressly named is merely arbitrary. And that this nation which has ever had many and great virtues, has been most grievously oppressed: and it is to this day so greatly injured and oppressed, that I wonder American committees of correspondence and congresses, have not attended more to it than they have. Perhaps in some future time they may. But I am running beyond my line.

We must now turn to Burrows's reports, vol. 2. 834. Rex. vs. Cowle. Lord Mansfield has many observations upon the case of Wales, which ought not to be overlooked. Page 850, he says, "Edward 1st. conceived the great design of annexing all other parts of the island of Great Britain to the realm of England. The better to effectuate his idea, as time should offer occasion; he mentioned, 'that all parts thereof, not in his own hands or possession, were holden of his crown.' The consequence of this doctrine was, that, by the feudal law, supreme jurisdiction resulted to him, in right of his crown, as sovereign lord, in many cases, which he might lay hold of; and when the said territories should come into his hands and possession, they would come back as parcel of the realm of England, from which (by fiction of law at least) they had been originally severed. This doctrine was literally true as to the counties palatine of Chester and Durham. But (no matter upon what foundation) he maintained that the principality of Wales was holden of the imperial crown of England: he treated the prince of Wales as a rebellious vassal; subdued him; and took possession of the principality. Whereupon, on the 4th of December, in the 9th year of his reign, he issued a commission to enquire '_per quas leges et per quas consuetudines, antecessores nostri reges regni consueverant principam Walliæ et barones Wallenses Walliæ et pares suos et alios in priores et eorum pares, &c._' If the principality was feudatory, the conclusion necessarily followed, that it was under the government of the king's laws, and the king's courts, in cases proper for them to interpose; though (like counties palatine) they had peculiar laws and customs, _jura regalia_, and complete jurisdiction at home." There was a writ at the same time issued to all his officers in Wales, to give information to the commissioners: and there were 14 interrogatories specifying the points to be enquired into. The statute of Rutland 12. E. 1. refers to this inquiry. By that statute he does not annex Wales to England, but recites it as a consequence of its coming into his hands. "_Divina providentia terram Walliæ, prius nobis jure feodali subjectam, jam in proprietatis nostræ dominium convertit, et coronæ regni Angliæ, tanquam partem corporis ejusdem annexuit, et univit._" The 27. H. 8. c. 26. adheres to the same plan, and recites "that Wales ever hath been incorporated, annexed, united and subject to, and under the imperial crown of this realm, as a very member, and joint of the same." Edward 1. having succeeded as to Wales, maintained likewise that Scotland was holden of the crown of England. This opinion of the court was delivered by lord Mansfield in the year 1759. In conformity to the _system_ contained in these words, my lord Mansfield, and my lord North, together with their little friends Bernard and Hutchinson, have "conceived the great design of annexing" all North America "to the realm of England," and "the better to effectuate this idea, they all maintain, that North America is holden of the crown."

And, no matter upon what foundation, they all maintained that America is dependent on the imperial crown and parliament of Great Britain: and they are all very eagerly desirous of treating the Americans as rebellious vassals, to subdue them and take possession of their country. And when they do, no doubt America will come back as parcel of the realm of England, from which, by fiction of law at least, or by virtual representation, or by some other dream of a shadow of a shade, they had been originally severed.

But these noblemen and ignoblemen ought to have considered, that Americans understand the laws and the politicks as well as themselves, and that there are 600,000 men in it, between 16 and 60 years of age; and therefore it will be very difficult to chicane them out of their liberties by "fictions of law," and "no matter upon what foundation."

Methinks I hear his lordship upon this occasion, in a soliloquy somewhat like this. "We are now in the midst of a war, which has been conducted with unexampled success and glory. We have conquered a great part, and shall soon complete the conquest of the French power in America. His majesty is near 70 years of age, and must soon yield to nature. The amiable, virtuous and promising successor, educated under the care of my nearest friends, will be influenced by our advice. We must bring the war to a conclusion, for we have not the martial spirit and abilities of the great commoner: but we shall be obliged to leave upon the nation an immense debt. How shall we manage that? Why, I have seen letters from America, proposing that parliament should bring America to a closer dependence upon it, and representing that if it does not, she will fall a prey to some foreign power, or set up for herself. These hints may be improved, and a vast revenue drawn from that country and the East Indies, or at least the people here may be flattered and quieted with the hopes of it. It is the duty of a judge to declare law, but under this pretence, many we know have given law or made law, and none in all the records of Westminster hall more than of late. Enough has been already made, if it is wisely improved by others, to overturn this constitution. Upon this occasion I will accommodate my expressions, to such a design upon America and Asia, and will so accommodate both law and fact, that they may hereafter be improved to admirable effect in promoting our design." This is all romance, no doubt, but it has as good a moral as most romances. For 1st. It is an utter mistake that Ed. 1st. conceived the great design of annexing all to England, as one state, under one legislature. He conceived the design of annexing Wales, &c. to his crown. He did not pretend that it was before subject to the crown, but to him. "_Nobis jure feodali_" are his words. And when he annexes it to his crown, he does it by an edict of his own, not an act of parliament: and he never did in his whole life allow, that his parliament, that is his lords and commons, had any authority over it, or that he was obliged to take or ask their advice, in any one instance, concerning the management of it, nor did any of his successors for centuries. It was not Ed. 1. but Henry 7. who first conceived the great design of annexing it to the realm, and by him and H. 8. it was done, in part, but never completed, until Jac. 1. There is a sense indeed, in which annexing a territory to the crown, is annexing it to the realm, as putting a crown upon a man's head, is putting it on the man, but it does not make it a part of the man. 2d. His lordship mentions the statute of Rutland; but this was not an act of parliament, and therefore could not annex Wales to the realm, if the king had intended it, for it never was in the power of the king alone to annex a country to the realm. This cannot be done, but by act of parliament. As to Edward's treating the prince of Wales as a "rebellious vassal," this was arbitrary, and is spoken of by all historians as an infamous piece of tyranny.

Ed. 1. and H. 8. both considered Wales, as the property and revenue of the crown, not as a part of the realm, and the expressions, "_coronæ regni Angliæ, tanquam partem corporis ejusdem_," signified "as part of the same body," that is of the same "crown," not "realm" or "kingdom"; and the expressions in 27 H. 8. under the imperial crown of this realm, as a very member "and joint of the same," mean, as a member and joint of the "imperial crown," not of the realm. For the whole history of the principality, the acts of kings, parliaments, and people shew, that Wales never was intituled by this annexation to the laws of England, nor bound to obey them. The case of Ireland is enough to prove that the crown and realm are not the same. For Ireland is certainly annexed to the crown of England, and it certainly is not annexed to the realm.

There is one paragraph in the foregoing words of lord Mansfield, which was quoted by his admirer governor Hutchinson in his dispute with the house, with a profound compliment. "He did not know a greater authority," &c. But let the authority be as great as it will, the doctrine will not bear the test.

"If the principality was feudatory, the conclusion necessarily follows, that it was under the government of the king's laws." Ireland is feudatory to the crown of England, but would not be subject to the king's English laws, without its consent and compact. An estate may be feudatory to a lord, a country may be feudatory to a sovereign lord, upon all possible variety of conditions; it may be only to render homage; it may be to render a rent; it may be to pay a tribute; if his lordship by feudatory means, the original notion of feuds, it is true that the king the general imperator, was absolute, and the tenant held his estate only at will, and the subject not only his estate but his person and life at his will. But this notion of feuds had been relaxed in an infinite variety of degrees, in some the estate is held at will, in others for life, in others for years, in others forever, to heirs, &c. in some to be governed by the prince alone, in some by princes and nobles, and in some by prince, nobles and commons, &c. So that being feudatory, by no means proves that English lords and commons have any share in the government over us. As to counties palatine; these were not only holden of the king and crown, but were exerted by express acts of parliament, and therefore were never exempted from the authority of parliament. The same parliament, which erected the county palatine, and gave it its _jura regalia_, and compleat jurisdiction, might unmake it, and take away those regalia and jurisdiction. But American governments and constitutions were never erected by parliament, their _regalia_ and jurisdiction were not given by parliament, and therefore parliament have no authority to take them away.

But if the colonies are feudatory to the kings of England, and subject to the government of the king's laws, it is only to such laws as are made in their general assemblies, their provincial legislatures.

NOVANGLUS.

ADDRESSED

_To the Inhabitants of the Colony of Massachusetts Bay_,

April 17, 1775.

MY FRIENDS,

We now come to Jersey and Guernsey, which Massachusettensis says, "are no part of the realm of England, nor are they represented in parliament, but are subject to its authority." A little knowledge of this subject will do us no harm; and as soon as we shall acquire it, we shall be satisfied how these islands came to be subject to the authority of parliament. It is either upon the principle that the king is absolute there, and has a right to make laws for them by his mere will; and therefore may express his will by an act of parliament, or an edict at his pleasure: or it is an usurpation. If it is an usurpation, it ought not to be a precedent for the colonies, but it ought to be reformed, and they ought to be incorporated into the realm, by act of parliament, and their own act. Their situation is no objection to this. Ours is an insurmountable obstacle.

Thus we see that in every instance which can be found, the observation proves to be true, that by the common law, the laws of England, and the authority of parliament, and the limits of the realm were confined within seas. That the kings of England had frequently foreign dominions, some by conquest, some by marriage, and some by descent. But in all those cases the kings were either absolute in those dominions, or bound to govern them according to their own respective laws, and by their own legislative and executive councils. That the laws of England did not extend there, and the English parliament pretended no jurisdiction there, nor claimed any right to controul the king in his government of those dominions. And from this extensive survey of all the foregoing cases, there results a confirmation of what has been so often said, that there is no provision in the common law, in English precedents, in the English government or constitution, made for the case of the colonies. It is not a conquered, but a discovered country. It came not to the king by descent, but was explored by the settlers. It came not by marriage to the king, but was purchased by the settlers of the savages. It was not granted by the king of his grace, but was dearly, very dearly earned by the planters, in the labour, blood, and treasure which they expended to subdue it to cultivation. It stands upon no grounds, then, of law or policy, but what are found in the law of nature, and their express contracts in their charters, and their implied contracts in the commissions to governors and terms of settlement.

The cases of Chester and Durham, counties palantine within the realm, shall conclude this fatiguing ramble. Chester was an earldom and a county; and in the 21st year of king Richard 2d. A. D. 1397, it was, by an act of parliament, erected into a principality, and several castles and towns, were annexed to it, saving to the king the rights of his crown. This was a county palatine, and had _jura regalia_, before this erection of it into a principality. But the statute which made it a principality, was again repealed by 1. Henry 4th. c. 3, and in 1399, by the 1. Henry 4th. c. 18. Grievous complaints were made to the king, in parliament, of murders, man-slaughters, robberies, batteries, riots, &c. done by people of the county of Chester, in divers counties of England. For remedy of which it is enacted, that if any person of the county of Chester commit any murder or felony in any place out of that county, process shall be made against him by the common law, till the exigent in the county where such murder or felony was done: and if he flee into the county of Chester, and be outlawed, and put in exigent for such murder or felony, the same outlawry or exigent, shall be certified to the officers and ministers of the same county of Chester, and the felon shall be taken, his lands and goods within that county shall be seized as forfeit into the hands of the prince, or of him that shall be lord of the same county of Chester, and the king shall have the year and day and waste; and the other lands and goods of such felons, out of said county, shall remain wholly to the king, &c. as forfeit. And a similar provision in case of battery or trespass, &c.

Considering the great seal of England, and the process of the king's contracts did not run into Chester, it was natural that malefactors should take refuge there, and escape punishment, and therefore a statute like this was of indispensible necessity, and afterwards, in 1535, another statute was made, 27. Henry c. 5th. for the making of justices of peace, within Chester, &c. It recites, "the king, considering the manifold robberies, murders, thefts, trespasses, riots, routs, embraceries, maintenances, oppressions, ruptures of his peace, &c. which have been daily done within his county palatine of Chester, &c. by reason that common justice hath not been indifferently ministered there, like and in form as it is in other places of this his realm, by reason whereof the said criminals have remained unpunished; for redress whereof, and to the intent that one order of law should be had, the king is empowered to constitute justices of peace, quorum, and goal delivery, in Chester, &c."

By the 32. Henry 8th. c. 43, another act was made concerning the county palatine of Chester, for shire days.

These three acts soon excited discontent in Chester. They had enjoyed an exemption from the king's English courts, legislative and executive, and they had no representatives in the English parliament, and therefore they thought it a violation of their rights, to be subjected even to those three statutes, as reasonable and absolutely necessary as they appear to have been. And accordingly we find in 1542--34 and 35, Henry 8th. c. 13, a zealous petition to be represented in parliament, and an act was made for making of knights and burgesses within the county and city of Chester. It recites a part of the petition to the king from the inhabitants of Chester, stating, "that the county palatine, had been excluded from parliament, to have any knights and burgesses there; by reason whereof, the said inhabitants have hitherto sustained manifold disherisons, losses, and damages, in lands, goods, and bodies, as well as in the goods civil and politic governance and maintenance of the commonwealth of their said county: and forasmuch as the said inhabitants have always hitherto been bound by the acts and statutes, made by your highness and progenitors in said court, meaning, when expressly named, not otherwise, as far forth as other counties, cities, and boroughs, which have had knights and burgesses, and yet have had neither knight, nor burgess there, for the said county palatine; the said inhabitants, for lack thereof, have been oftentimes touched and grieved with acts and statutes, made within said court, as well derogatory unto the most ancient jurisdictions, liberties, and privileges of your said county palatine, as prejudicial unto the common weal, quietness, rest and peace of your subjects, &c." For remedy whereof, two knights of the shire, and two burgesses for the city are established.

I have before recited all the acts of parliament, which were ever made to meddle with Chester, except the 51. Henry 3d. stat. 5, in 1266, which only provides that the justices of Chester, and other bailiffs, shall be answerable in the exchequer, for wards, escheats, and other bailiwicks; yet Chester was never severed from the crown or realm of England, nor ever expressly exempted from the authority of parliament; yet as they had generally enjoyed an exemption from the exercise of the authority of parliament, we see how soon they complain of it as grievous, and claim a representation, as a right; and we see how readily it was granted. America, on the contrary, is not in the realm, never was subject to the authority of parliament, by any principle of law, is so far from Great Britain, that she never can be represented; yet she is to be bound in all cases whatsoever.

The first statute, which appears in which Durham is named, is 27 Henry 8th. c. 24, § 21. Cuthbert, bishop of Durham, and his successors, and their temporal chancellor of the county palatine of Durham, are made justices of the peace. The next is 31 Elizabeth, c. 9, recites, that Durham is, and of long time hath been, an ancient county palatine, in which the Queen's writ hath not, and yet doth not run; enacts that a writ of proclamation upon an exigent against any person dwelling in the bishoprick shall run there for the future. And § 5 confirms all the other liberties of the bishop and his officers.

And after this, we find no other mention of that bishoprick in any statute until 25 Char. 2. c. 9. This statute recites "whereas the inhabitants of the county palatine of Durham, have not hitherto had the liberty and privilege of electing and sending any knights and burgesses to the high court of parliament, although the inhabitants of the said county palatine are liable to all payments, rates, and subsidies, granted by parliament, equally with the inhabitants of other counties, cities, and burroughs, in this kingdom, who have their knights and burgesses in the parliament, and are therefore concerned equally with others, the inhabitants of this kingdom, to have knights and burgesses in the said high court of parliament of their own election, to represent the condition of their county, as the inhabitants of other counties, cities, and burroughs, of this kingdom have." It enacts two knights for the county, and two burgesses for the city. Here it should be observed, that although they acknowledge that they had been liable to all rates, &c. granted by parliament, yet none had actually been laid upon them before this statute.

Massachusettensis then comes to the first charter of this province, and he tells us, that in it "we shall find irresistible evidence, that our being a part of the empire, subject to the supreme authority of the state, bound by its laws, and subject to its protection, was the very terms and conditions by which our ancestors held their lands and settled the province." This is roundly and warmly said: but there is more zeal in it than knowledge. As to our being part of the empire, it could not be the British empire, as it is called, because that was not then in being, but was created seventy or eighty years afterwards. It must be the English empire then, but the nation was not then polite enough to have introduced into the language of the law, or common parlance any such phrase or idea. Rome never introduced the terms Roman empire until the tragedy of her freedom was compleated. Before that, it was only the republic, or the city. In the same manner the realm or the kingdom, or the dominions of the king, were the fashionable style in the age of the first charter. As to being subject to the supreme authority of the state, the prince who granted that charter thought it resided in himself, without any such troublesome tumults as lords and commons; and before the granting that charter, had dissolved his parliament, and determined never to call another, but to govern without. It is not very likely then, that he intended our ancestors should be governed by parliament, or bound by its laws. As to being subject to its protection, we may guess what ideas king and parliament had of that, by the protection they actually afforded to our ancestors. Not one farthing was ever voted or given by the king or his parliament, or any one resolution taken about them. As to holding their lands, surely they did not hold their lands of lords and commons. If they agreed to hold their lands of the king, this did not subject them to English lords and commons, any more than the inhabitants of Scotland holding their lands of the same king, subjected them. But there is not a word about the empire, the supreme authority of the state, being bound by its laws, or obliged for its protection in that whole charter. But "our charter is in the royal style." What then? Is that the parliamentary style? The style is this, "Charles, by the grace of God, king of England, Scotland, France and Ireland, defender of the faith, &c."--Now in which capacity did he grant that charter? as king of France, or Ireland, or Scotland, or England? He governed England by one parliament, Scotland by another. Which parliament were we to be governed by? And Ireland by a third; and it might as well be reasoned that America was to be governed by the Irish parliament, as by the English. But it was granted "under the great seal of England"--true. But this seal runneth not out of the realm, except to mandatory writs; and when our charter was given, it was never intended to go out of the realm. The charter and the corporation were intended to abide and remain within the realm, and be like other corporations there. But this affair of the seal is a mere piece of imposition.

In Moore's reports in the case of the union of the realm of Scotland with England, it is resolved by the judges that "the seal is alterable by the king at his pleasure, and he might make one seal for both kingdoms (of England and Scotland) for seals, coin, and leagues are of absolute prerogative to the king, without parliament, nor restrained to any assent of the people;" and in determining how far the great seal doth command out of England, they made this distinction. "That the great seal was current for remedials, which groweth on complaint of the subject, and thereupon writs are addressed under the great seal of England, which writs are limited, their precinct to be within the places of the jurisdiction of the court, that was to give the redress of the wrong. And therefore writs are not to go into Ireland, or the isles, nor Wales, nor the counties palatine, because the king's courts here have not power to hold pleas of lands or things there. But the great seal hath a power preceptory to the person, which power extendeth to any place, where the person may be found, &c." This authority plainly shews, that the great seal of England has no more authority out of the realm, except to mandatory or preceptory writs, and surely the first charter was no preceptory writ, than the privy seal, or the great seal of Scotland, or no seal at all. In truth, the seal and charter were intended to remain within the realm, and be of force to a corporation there; but the moment it was transferred to New England, it lost all its legal force, by the common law of England; and as this translation of it was acquiesced in by all parties, it might well be considered as good evidence of a contract between the parties, and in no other light; but not a whit the better or stronger for being under the great seal of England. But, "the grants are made by the king for his heirs and successors." What then? So the Scots held their lands of him, who was then king of England, his heirs and successors, and were bound to allegiance to him, his heirs and successors, but it did not follow from thence that the Scots were subject to the English parliament. So the inhabitants of Aquitain, for ten descents, held their lands, and were tied by allegiance to him who was king of England, his heirs and successors, but were under no subjection to English lords and commons.

Heirs and successors of the king, are supposed to be the same persons, and are used as synonymous words in the English law. There is no positive artificial provision made by our laws, or the British constitution for revolutions. All our positive laws suppose that the royal office will descend to the eldest branch of the male line, or in default of that, to the eldest female, &c. forever, and that the succession will not be broken. It is true, that nature, necessity, and the great principles of self-preservation, have often over-ruled the succession. But this was done without any positive instruction of law. Therefore, the grants being by the king, for his heirs and successors, and the tenures being of the king, his heirs and successors, and the preservation being to the king, his heirs, and successors, are so far from proving that we were to be part of an empire, as one state, subject to the supreme authority of the English or British state, and subject to its protection, that they do not so much as prove that we are annexed to the English crown. And all the subtility of the writers on the side of the ministry, has never yet proved, that America is so much as annexed to the crown, much less to the realm. "It is apparent the king acted in his royal capacity, as king of England." This I deny. The laws of England gave him no authority to grant any territory out of the realm. Besides, there is no colour for his thinking that he acted in that capacity, but his using the great seal of England: but if the king is absolute in the affair of the seal, and may make or use any seal that he pleases, his using that seal which had been commonly used in England, is no certain proof that he acted as king of England; for it is plain, he might have used the English seal in the government of Scotland, and in that case it will not be pretended that he would have acted in his royal capacity, as king of England. But his acting as king of England, "necessarily supposes the territory granted to be a part of the English dominions, and holden of the crown of England." Here is the word "dominions," systematically introduced instead of the word "realm." There was no English dominions, but the realm. And I say that America was not any part of the English realm or dominions. And therefore, when the king granted it, he could not act as king of England, by the laws of England. As to the "territory being holden of the crown, there is no such thing in nature or art." Lands are holden according to the original notices of feuds of the natural person of the lord. Holding lands, in feudal language, means no more than the relation between lord and tenant. The reciprocal duties of these are all personal. Homage, fealty, &c. and all other services, are personal to the lord; protection, &c. is personal to the tenant. And therefore no homage, fealty, or other services, can ever be rendered to the body politic, the political capacity, which is not corporated, but only a frame in the mind, an idea. No lands here, or in England, are held of the crown, meaning by it, the political capacity; they are all held of the royal person, the natural person of the king. Holding lands, &c. of the crown, is an impropriety of expression, but it is often used, and when it is, it can have no other sensible meaning than this: that we hold lands of that person, whoever he is, who wears the crown; the law supposes he will be a right, natural heir of the present king forever.

Massachusettensis then produces a quotation from the first charter, to prove several points. It is needless to repeat the whole, but the parts chiefly relied on, are italicised. It makes the company a body politic in fact and name, &c. and enables it "to sue and be sued." Then the writer asks, "whether this looks like a distinct state, or independent empire?" I answer no. And that it is plain and uncontroverted, that the first charter was intended only to erect a corporation within the realm, and the governor and company were to reside within the realm, and their general courts were to be held there. Their agents, deputies, and servants only were to come to America. And if this had taken place, nobody ever doubted but they would have been subject to parliament. But this intention was not regarded on either side, and the company came over to America, and brought their charter with them. And as soon as they arrived here, they got out of the English realm, dominions, state, empire, call it by what name you will, and out of the legal jurisdiction of parliament. The king might, by his writ or proclamation, have commanded them to return; but he did not.

NOVANGLUS.

NOTE.

Hostilities, at Lexington, between Great Britain and her
colonies, commenced on the nineteenth of April, two days
succeeding the publication of this last essay. Several
others were written, and sent to the printers of the
_Boston Gazette_, which were probably lost, amidst the
confusion occasioned by that event.

MASSACHUSETTENSIS.

ADDRESSED

_To the Inhabitants of the Province of Massachusetts Bay_,

December 12, 1774.

MY DEAR COUNTRYMEN,

When a people, by what means soever, are reduced to such a situation, that every thing they hold dear, as men and citizens, is at stake, it is not only excuseable, but even praiseworthy for an individual to offer to the public any thing, that he may think has a tendency to ward off the impending danger; nor should he be restrained from an apprehension that what he may offer will be unpopular, any more than a physician should be restrained from prescribing a salutary medicine, through fear it might be unpalatable to his patient.

The press, when open to all parties and influenced by none, is a salutary engine in a free state, perhaps a necessary one to preserve the freedom of that state; but, when a party has gained the ascendancy so far as to become the licensers of the press, either by an act of government, or by playing off the resentment of the populace against printers and authors, the press itself becomes an engine of oppression or licentiousness, and is as pernicious to society, as otherwise it would be beneficial. It is too true to be denied, that ever since the origin of our controversy with Great Britain, the press, in this town, has been much devoted to the partizans of liberty; they have been indulged in publishing what they pleased, _fas vel nefas_, while little has been published on the part of government. The effect this must have had upon the minds of the people in general is obvious; they must have formed their opinion upon a partial view of the subject, and of course it must have been in some degree erroneous. In short, the changes have been rung so often upon oppression, tyranny and slavery, that, whether sleeping or waking, they are continually vibrating in our ears; and it is now high time to ask ourselves, whether we have not been deluded by sound only.

My dear countrymen, let us divest ourselves of prejudice, take a view of our present wretched situation, contrast it with our former happy one, carefully investigate the cause, and industriously seek some means to escape the evils we now feel, and prevent those that we have reason to expect.

We have been so long advancing to our present state, and by such gradations, that perhaps many of us are insensible of our true state and real danger. Should you be told that acts of high treason are flagrant through the country, that a great part of the province is in actual rebellion, would you believe it true? Should you not deem the person asserting it, an enemy to the province? Nay, should you not spurn him from you with indignation? Be calm, my friends; it is necessary to know the worst of a disease, to enable us to provide an effectual remedy. Are not the bands of society cut asunder, and the sanctions that hold man to man, trampled upon? Can any of us recover a debt, or obtain compensation for an injury, by law? Are not many persons, whom once we respected and revered, driven from their homes and families, and forced to fly to the army for protection, for no other reason but their having accepted commissions under our king? Is not civil government dissolved? Some have been made to believe that nothing short of attempting the life of the king, or fighting his troops, can amount to high treason or rebellion. If, reader, you are one of those, apply to an honest lawyer, (if such an one can be found) and enquire what kind of offence it is for a number of men to assemble armed, and forcibly to obstruct the course of justice, even to prevent the king's courts from being held at their stated terms; for a body of people to seize upon the king's provincial revenue; I mean the monies collected by virtue of grants made by the general court to his majesty for the support of his government, within this province; for a body of men to assemble without being called by authority, and to pass governmental acts; or for a number of people to take the militia out of the hands of the king's representative, or to form a new militia, or to raise men and appoint officers for a public purpose, without the order or permission of the king, or his representative; or for a number of men to take to their arms, and march with a professed design of opposing the king's troops; ask, reader, of such a lawyer, what is the crime, and what the punishment; and if, perchance, thou art one that hast been active in these things, and art not insensibility itself, his answer will harrow up thy soul.