XII. To the Inhabitants of the Colony of Massachusetts-Bay
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 palatine within the realm, shall conclude this fatigueing ramble. Chester was an earldom and a county, and in 21 year of king R. 2. 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. H. 4. c. 3. and in 1399, by the 1. H. 4. c. 18. Grievous complaints were made to the king in parliament, of murders, manslaughters, 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,1 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 kings 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. H. c. 5. for the making of justices of peace within Chester, &c. Recites the king, considering the manifold robberies, murthers, 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 ministred 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 impowered to constitute justices of peace, quorum, and goal delivery, in Chester, &c.
By the 32. H. 8. 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. H. 8. 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, shewing, “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 good civil and politick governance and maintenance of the common wealth, of their said country: 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 the 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. H. 3. st. 5. in 1266, which only provides that the justices of Chester, and other bailiffs, shall be answerable in the exchequer, for wards, estcheats, 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. H. 8. 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 Eliz. 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 priviledge of electing and sending any knights and burgesses to the high court of parliament, altho’ 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.” Enacts two knights for the county, and two burgesses for the city. Here it should be observed, that altho’ 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 irresistable 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 govern’d 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 currant 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.”2 This authority plainly shews that the great seal of England, has no more authority out of the realm, except to mandatory or preceptory writs,3 (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 synonimous words in the English law. There is no positive, artifical 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 don’t so much as prove that we are annexed to the English crown. And all the subtilty 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 notion 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 politick, 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 politick 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.
1. A writ commanding the recipient to appear in court on pain of being outlawed for nonappearance (OED description begins The Oxford English Dictionary, Oxford, 1933; 12 vols. and supplement. description ends ).
2. Moore, Cases Collect & Report, p. 804.
3. Writs commanding an action within the powers of the person served.