VIII. (cont.). To the Inhabitants of the Colony of Massachusetts-Bay
Wales was a little portion of the island of Great-Britain, which the Saxons were never able to conquer. The Britons had reserved this tract of land to themselves and subsisted wholly by pasturage, among their mountains. Their princes however, during the Norman period, and untill the reign of king Edward the first, did homage to the crown of England, as their feudal sovereign, in the same manner as the prince of one independant state in Europe frequently did to the sovereign of another. This little principality of shepherds and cowherds, had however maintained their independence, through long and bloody wars against the omnipotence of England, for 800 years. It is needless to enumerate the causes of the war between Lewellyn and Edward the first. It is sufficient to say that the Welch prince refused to go to England to do homage, and Edward obtained a new aid of a fifteenth from his parliament, to march with a strong force into Wales. Edward was joined by David and Roderic, two brothers of Lewellyn, who made a strong party among the Welch themselves, to assist and second the attempts to enslave their native country. The English monarch however, with all these advantages, was afraid to put the valour of his enemies to a tryal, and trusted to the slow effects of famine to subdue them. Their pasturage, with such an enemy in their country, could not subsist them, and Lewellyn 19 Nov. 1277 at last submitted; and bound himself to pay a reparation of damages: to do homage to the crown of England, and almost to surrender his independence as a Prince by permitting all the other Barons of Wales, excepting four, to swear fealty to the same crown. But fresh complaints soon arose: The English grew insolent on their bloodless victory, and oppressed the inhabitants—many insults were offered, which at last raised the indignation of the Welch, so that they determined again to take arms, rather than bear any longer the oppression of the haughty victors. The war raged, some time, until Edward summoned all his military tenants, and advanced with an army too powerful for the Welch to resist. Lewellyn was at last surprized, by Edward’s General Mortimer, and fighting at a great disadvantage was slain with two thousand of his men. David, who succeeded in the principality, maintained the war for some time, but at last was betrayed to the enemy, sent in Chains to Shrewsbury, brought to a formal trial before the peers of England, and altho’ a sovereign prince, ordered by Edward to be hanged, drawn and quartered, as a traitor, for defending by arms the liberties of his native country! All the Welch nobility submitted to the conqueror: The laws of England, sheriffs, and other ministers of justice, were established in that principality, which had maintained its liberties and independency, 800 years.
Now Wales was always part of the dominions of England: “Wales was always feudatory to the kingdom of England.”1 It was always held of the crown of England, or the kingdom of England: that is, whoever was king of England, had a right to homage, &c. from the prince of Wales. But yet Wales was not parcel of the realm or kingdom, nor bound by the laws of England. I mention and insist upon this, because it shews, that altho’ the colonies are bound to the crown of England, or in other words, owe allegiance to whomsoever is king of England; yet it does not follow that the colonies are parcel of the realm or kingdom, and bound by its laws. As this is a point of great importance, I must beg pardon, however unentertaining it may be, to produce my authorities.
Comyns digest. v. 5. page 626. “Wales was always feudatory to the kingdom of England.
“Held of the crown but not parcel. Per Cook . 1 Roll. 247–2 Roll. 29.2 And therefore the kings of Wales did homage, and swore fealty to H. 2. and John and H. 3.
“And ii Ed. 1. Upon the conquest of Lewellyn prince or king of Wales that principality became a part of the dominion of the realm of England. And by the statute Walliae 12 Ed. 1. it was annexed and united to the crown of England, tanquam partem corporis ejusdem,3 &c.—Yet, if the statute Walliae, made at Rutland 12 Ed. 1. was not an act of parliament (as it seems that it was not) the incorporation made thereby was only an union jure feudali, et non jure proprietatis.”4
“Wales before the union with England was governed by its own proper laws.” &c.
By these authorities it appears, that Wales was subject by the feudal law, to the crown of England, before the conquest of Lewellyn; but not subject to the laws of England: and indeed after this conquest, Edward, and his nobles, did not seem to think it subject to the English parliament, but to the will of the king as a conqueror of it in war. Accordingly that instrument which is called Statutum Walliae, and to be found in the appendix to the statutes page 3, altho’ it was made by the advice of the peers, or officers of the army more properly, yet it never was passed as an act of parliament, but as an edict of the king. It begins not in the style of an act of parliament. Edwardus dei gratia Rex Angliae, Dominus Hyberniae, et Dux Aquitaniae, omnibus fidelibus suis, &c. in Wallia. Divina providentia, quae in sui dispositione, says he, nonfallitur, inter alia dispensations suae munera, quibus nos et Regnum nostram Angliae decorare dignata est, terram Walliae, cum incolis suis, prius nobis jure feudali subjectam, jam sui gratia, in proprietatis nostrae dominium, obstaculis quibuscumque cessantibus, totalliter, et cum integritate convertit, et coronae regni praedicti, tanquam partem corporis ejusdem annexuit et univit.5
Here is the most certain evidence that Wales was subject to the kings of England by the feudal law before the conquest, tho’ not bound by any laws but their own. 2. That the conquest was considered, in that day, as conferring the property as well as jurisdiction of Wales to the English crown. 3. The conquest was considered as annexing and uniting Wales to the English crown, both in point of property and jurisdiction, as a part of one body. Yet notwithstanding all this, parliament was not considered as acquiring any share in the government of Wales by this conquest. If then, it should be admitted that the colonies are all annexed and united to the crown of England, it will not follow that Lords and Commons have any authority over them.
This statutum Walliae, as well as the whole case and history of that principality, is well worthy of the attention and study of Americans, because it abounds, with evidence, that a country may be subject to the crown of England, without being subject to the Lords and Commons of that realm, which entirely overthrows the whole argument of Governor Hutchinson and of Massachusettensis in support of the supreme authority of parliament, over all the dominions of the imperial crown. “Nos itaque,” &c. says King Ed. 1. “volentes predictam terram, &c. sicut et caeteras ditioni nostrae subjectas, &c. subdebito regimine gubernari, et incolas seu habitatores terarum illarum, qui alto et basso, Se submiserunt voluntati nostrae, et quos sic ad nostram recepimus voluntatem, certis legibus et consuetudinibus, &c. tractari Leges, et consuetudines, partum illarum hactenus usitatas coram nobis et proceribus regni nostri secimus necitari, quibus diligenter auditas, et plenus intellectis, quasdam ipsarum de concilio procerum predictorum delevimus, quasdampertmisimus, et quasdam correximus, et etiam quasdam alias adjungendas et statuendas decrevimus, et eas, &c. observari volumus in forma subscripta.”6
And then goes on to prescribe and establish a whole code of laws for the principality, in the style of a sole legislator, and concludes,
Et ideo vobis mandamus, quod premissa de cetero in omnibus firmiter observetis. Ita tamen quod quotiescunque, et quandocunque, et ubicunque, nobis placuerit, possimus predicta statuta et coram partes singulas declarare, interpretari, addere sive diminuere, pro nostro libito voluntatis, et prout securitati nostrae et tense, nostrae predictae viderimus expedire.7
Here is then a conquered people submitting, to a system of laws framed by the mere will of the conqueror, and agreeing to be forever governed by his mere will. This absolute monarch then might afterwards govern this country, with or without the advice of his English lords and commons.
To shew that Wales was held before the conquest of Lewellyn, of the king of England, altho’ governed by its own laws, hear lord Coke, 2 Inst. 194, in his commentary on the statute of Westminster. “At this time viz. in 3. Ed. 1. Lewellyn was a prince or king of Wales, who held the same of the king of England, as his superior lord, and owed him liege homage and fealty; and this is proved by our act, viz. that the king of England was superior dominus, i.e. sovereign lord of the kingdom or principality of Wales.”
Lord Coke in 4 Inst. 239. says “Wales was sometime a realm, or kingdom (realm from the French word royaume, and both a regno) and governed per suas regulas,” and afterwards, “but jure feudali, the kingdom of Wales was holden of the crown of England, and thereby as Bracton saith, was sub potestate regis. And so it continued until the 11 year of king E. 1. when he subdued the prince of Wales, rising against him, and executed him for treason.” “The next year, viz. in the 12 year of king E. 1. by authority of parliament, it is declared thus, speaking in the person of the king (as ancient statutes were wont to do) divina providentia,” &c. as in the statute Walliae before recited. But here is an inaccuracy for the statutum Walliae, was not an act of parliament, but made by the king with the advice of his officers of the army, by his sole authority, as the statute itself sufficiently shews. Note, says Lord Coke, “diverse monarchs hold their kingdoms of others jure feudali, as the duke of Lombardy, Cicill, Naples, and Bohemia of the empire, Granado, Leons, of Aragon, Navarre, Portugal of Castile. And so others.”
After this the Welsh seem to have been fond of the English laws, and desirous of being incorporated into the realm, to be represented in parliament, and enjoy all the rights of Englishmen, as well as to be bound by the English laws. But Kings were so fond of governing this principality by their discretion alone, that they never could obtain these blessings until the reign of Henry the Eighth, and then they only could obtain a statute, which enabled the king to alter their laws at his pleasure. They did indeed obtain in the 15 Ed. 2. a writ, to call 24 members to the parliament at York from south Wales, and twenty four from North Wales, and again in the 20 Ed. 2, the like number of 48 members for Wales, at the parliament of Westminster. But lord Coke tells us “that this wise and warlike nation was long after, the statutum Walliae not satisfied nor contented, and especially, for that they truly and constantly took part with their rightful sovereign and liege lord, king Richard the second; in revenge whereof they had many severe and invective laws made against them in the reigns of H. 4, H. 5, &c. all which as unjust are repealed and abrogated. And to say the truth, this nation was never in quiet, until king H. 7, their own countryman obtained the crown. And yet not so really reduced in his time, as in the reign of his son H. 8, in whose time certain just laws, made at the humble suit of the subjects of Wales, the principality and dominion of Wales was incorporated and united to the realm of England; and enacted that every one born in Wales, should enjoy the liberties, rights and laws of this realm, as any subjects naturally born within this realm should have and inherit, and that they should have knights of shires, and burgesses of parliament.” Yet we see they could not obtain any security for their liberties, for lord Coke tells us, “in the act of 34. H. 8. it was enacted, that the king’s most royal majesty should from time to time change, &c. all manner of things in that act rehearsed, as to his most excellent wisdom and discretion should be thought convenient, and also to make laws and ordinances for the commonwealth of his said dominion, of Wales at his majesty’s pleasure.” But for that, the subjects of the dominion of Wales, &c. had lived in all dutiful subjection to the crown of England, &c. the said branch of the said statute of 34. H. 8. is repealed, and made void by 21 Jac.  c. 10.
But if we look into the statute itself of 27. H. 8 c. 26, we shall find the clearest proof that being subject to the imperial crown of England, did not intitle Welchmen to the liberties of England, nor make them subject to the laws of England. “Albeit the dominion, principality and country of Wales justly and righteously is, and ever hath been incorporated, annexed, united, and subject to and under the imperial crown of this realm, as a very member and joint of the same; wherefore, the king’s most royal majesty of mere droit, and very right, is very head, king, lord and ruler; yet, notwithstanding, because that in the same country, principality and dominion, diverse rights, usages, laws and customs be far discrepant from the laws and customs of this realm, &c. Wherefore it is enacted, by king, lords and commons,” that “his” (i.e. the king’s) said country or dominion of Wales shall be, stand and continue for ever from henceforth, incorporated, united, and annexed to and with this, his realm of England; and that all and singular person and persons, born or to be born, in the said principality, country, or dominion of Wales, shall have, enjoy, and inherit, all and singular freedoms, liberties, rights, privileges, and laws, within this his realm, and other the king’s dominions, as other the king’s subjects naturally born within the same have, enjoy, and inherit.” § 2. enacts that the laws of England shall be introduced and established in Wales: and that the laws, ordinances and statutes of this realm of England, forever and none other shall be used and practiced, forever thereafter in the said dominion of Wales. The 27th § of this long statute enacts, that commissioners shall enquire into the laws and customs of Wales, and report to the king, who with his privy council, are impowered to establish such of them as they should think proper. § 28 enacts that in all future parliaments for this realm, two knights for the shire of Monmouth and one burgess for the town, shall be chosen, and allowed such fees as other knights and burgesses of parliament were allowed. § 29 enacts, that one knight shall be elected for every shire within the country or dominion of Wales, and one burgess for every shire town, to serve in that and every future parliament to be holden for this realm. But by § 36 the king is impowered to revoke, repeal and abrogate that whole act, or any part of it, at any time within three years.
Upon this statute let it be observed 1. That the language of Massachusettensis “imperial crown” is used in it: and Wales is affirmed to have ever been annexed, and united to that imperial crown, as a very member and joint: which shews that being annexed to the imperial crown, does not annex a country to the realm, or make it subject to the authority of parliament: because Wales, certainly before the conquest of Lewellyn never was pretended to be so subject, nor afterwards ever pretended to be annexed to the realm, at all, nor subject to the authority of parliament, any otherwise than as the king claimed to be absolute in Wales, and therefore to make laws for it, by his mere will, either with the advice of his proceres, or without. 2. That Wales never was incorporated with the realm of England, until this statute was made, nor subject to any authority of English lords and commons. 3. That the king was so tenacious of his exclusive power over Wales that he would not consent to this statute, without a clause in it, to retain the power in his own hands of giving it what system of law he pleased. 4. That knights and burgesses, i.e. representatives, were considered as essential and fundamental in the constitution of the new legislature, which was to govern Wales. 5. That since this statute, the distinction between the realm of England and the realm of Wales, has been abolished, and the realm of England, now, and ever since, comprehends both; so that Massachusettensis is mistaken, when he says, that the realm of England is an appropriate term for the ancient realm of England, in contradistinction from Wales, &c. 6. That this union and incorporation was made by the consent, and upon the supplication of the people of Wales, as Lord Coke, and many other authors inform us, so that here was an express contract between the two bodies of people. To these observations, let me add a few questions.
Was there ever any act of parliament, annexing, uniting, and consolidating any one of all the colonies to and with the realm of England or the kingdom of Great-Britain? 2. If such an act of parliament should be made, would it upon any principles of English laws and government, have any validity, without the consent, petition or supplication of the colonies? 3. Can such an union and incorporation, ever be made, upon any principles of English laws and government, without admitting representatives for the colonies in the house of commons, and American lords into the house of peers? 4. Would not representatives in the house of commons, unless they were numerous in proportion to the numbers of people in America, be a snare rather than a blessing? 5. Would Britain ever agree to a proportionable number of American members, and if she would, could America support the expence of them? 6. Could American representatives, possibly know the sense, the exigencies, &c. of their constituents, at such a distance, so perfectly as it is absolutely necessary legislators should know? 7. Could Americans ever come to the knowledge of the behaviour of their members, so as to dismiss the unworthy? 8. Would Americans in general, ever submit to septennial elections? 9. Have we not sufficient evidence, in the general frailty and depravity of human nature, and especially the experience we have had of Massachusettensis and the junto, that a deep, treacherous, plausible, corrupt minister, would be able to seduce our Members to betray us, as fast as we could send them?
To return to Wales: In the statute of 34 and 35 of Henry 8. c. 26. We find a more compleat system of laws and regulations for Wales. But the king is still tenacious of his absolute authority over it. It begins “our sovereign lord the king, of his tender zeal and affection, &c. to his obedient subjects, &c. of Wales, &c. hath devised and made divers sundry good and necessary ordinances, which his majesty of his most abundant goodness, at the humble suit and petition of his said subjects of Wales, is pleased and contented to be enacted by the assent of the lords spiritual and temporal, and the commons, &c.”
Nevertheless, the king would not yet give up his unlimited power over Wales, for by the 119 § of this statute—the king, &c. may at all times hereafter, from time to time, change, add, alter, order, minish and reform all manner of things afore rehearsed, as to his most excellent wisdom and discretion, shall be thought convenient; and also to make laws and ordinances for the common wealth and good quiet of his said dominion of Wales, and his subjects of the same, from time to time, at his majesty’s pleasure.
And this last section was never repealed, until the 21. Jac. 1. c. 10. §. 4.
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 compleatly done, because it claimed an authority to rule it by discretion: It is conceived, therefore that there cannot be a more compleat 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 common wealth, 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 or 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.8 In the celebration of their late festival, they discover’d 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 intreat 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.
1. Sir John Comyns, A Digest of the Laws of England, 5:626. This quotation when repeated below is followed by three paragraphs from Comyns.
2. Henry Rolle, Abridgement of the Common Law.
3. As part of the body of the same.
4. By feudal right, not by right of property.
5. Edward by the grace of God King of England, Lord of Ireland and Duke of Aquitaine to all his subjects &c. in Wales [Greeting]. The divine providence, which is unerring in its government, among other gifts of its dispensation, wherewith it has vouchsafed to distinguish us and our realm of England, has now, all obstacles having been overcome, of its favor wholly and entirely transferred under our dominion the land of Wales, with its inhabitants, heretofore subject to us in feudal right, and has annexed and united the same unto the crown of the aforesaid realm, as a part of the same body.
6. We therefore &c. being desirous that the aforesaid land &c. like others subject to our power, should be governed with due order, as that the people or inhabitants of those lands who have submitted themselves absolutely to our will, and whom we have so accepted, should be treated under fixed laws and customs, we have caused to be rehearsed before us and the magnates of our realm the laws and customs hitherto in use in those parts, which being carefully heard as fully understood we have, with the advice of the aforesaid magnates, abolished some of them, allowed some and corrected some. We have also commanded certain others to be added and ordained and these &c. we wish to be observed in the form underwritten.
7. We therefore order you that from henceforth you steadfastly observe them completely. In such a way that whensoever and as often as it shall be our pleasure, we may declare, interpret, enlarge, or diminish the aforesaid statutes and the several parts of them, according to our free will and as to us shall seem expedient for the security of us and our lands aforesaid.
8. The 23d Regiment of Foot, or Royal Welsh Fusiliers, came to New York in 1773 and in the following year were transferred to Boston to help Gen. Gage enforce the Coercive Acts in Massachusetts (Gage, Corr. description begins The Correspondence of General Thomas Gage with the Secretaries of State, 1763–1775, ed. Clarence E. Carter, New Haven, 1931–1933; 2 vols. description ends , 2:639; John Shy, Toward Lexington, Princeton, 1965, p. 398, 413).