Title: VIII. To the Inhabitants of the Colony of Massachusetts-Bay, 13 March 1775
From: Adams, John,Novanglus
To: Inhabitants of Massachusetts Bay Colony,Massachusettensis

       My Friends,

        13 March 1775

      It has been often observed by me, and it cannot be too often repeated, that Colonization is Casus omissus at common law. There is no such title known in that law. By common law, I mean that system of customs, written and unwritten, which was known and in force in England, in the time of king Richard the first. This continued to be the case, down to the reign of Elizabeth and king James the first. In all that time, the laws of England were confined to the realm, and within the four seas. There was no provision made in this law for governing colonies, beyond the Atlantic, or beyond the four seas, by authority of parliament, no nor for the king to grant charters to subjects to settle in foreign countries. It was the king’s prerogative to prohibit the emigration of any of his subjects, by issuing his writ Ne exeat Regno. And therefore it was in the king’s power to permit his subjects to leave the kingdom, 1 Hawk. P. C. c. 22. § 4. “It is a high crime to disobey the king’s lawful commands, or prohibitions,— as not returning from beyond sea, upon the king’s letters to that purpose; for which the offenders lands shall be seized ’till he return; and when he does return, he shall be fined,—&c.—or going beyond sea, against the king’s will, expressly signified, either by the writ Ne exeat Regnum, or under the great or privy seal, or signet, or by proclamation.” When a subject left the kingdom, by the king’s permission, and if the nation did not remonstrate against it, by the nation’s permission too, at least connivance, he carried with him, as a man, all the rights of nature. His allegiance bound him to the king, and intitled him to protection. But how? Not in France: the king of England was not bound to protect him in France, nor in America. Not in the dominions of Lewis, nor of Passachus, or Massachusett He had a right to protection, and the liberties of England upon his return there, not otherwise. How then do we New Englandmen derive our laws? I say, not from parliament, not from common law, but from the law of nature and the compact made with the king in our charters. Our ancestors were intitled to the common law of England, when they emigrated, that is, to just so much of it as they pleased to adopt, and no more. They were not bound or obliged to submit to it, unless they chose it. By a positive principle of the common law, they were bound, let them be in what part of the world they would, to do nothing against their allegiance to the king. But no kind of provision was ever made by common law, for punishing or trying any man even for treason, committed out of the realm. He must be tried in some county of the realm, by that law, the county whereof the overt-act was done, or he could not be tried at all. Nor was any provision ever made, until the reign of Henry the Eighth, for trying treasons committed abroad, and the acts of that reign were made on purpose to catch Cardinal Pole.
      So that our ancestors, when they emigrated, having obtained permission of the king to come here, and being never commanded to return into the realm, had a clear right to have erected in this wilderness a British constitution, or a perfect democracy, or any other form of government they saw fit. They indeed, while they lived, could not have taken arms against the king of England, without violating their allegiance, but their children would not have been born within the king’s allegiance, would not have been natural subjects, and consequently not intitled to protection, or bound to the king.
      Massachusettensis, Jan. 16, seems possessed of these ideas, and attempts in the most awkward manner, to get rid of them. He is conscious, that America must be a part of the realm, before it can be bound by the authority of parliament; and therefore is obliged to suggest, that we are annexed to the realm, and to endeavour to confuse himself and his readers, by confounding the realm, with the empire and dominions.
      But will any man soberly contend, that America was ever annexed to the realm? To what realm? When New-England was settled, there was a realm of England, a realm of Scotland, and a realm of Ireland. To which of these three realms was New England annexed? To the realm of England, it will be said. But by what law? No territory could be annexed to the realm of England, but by an act of parliament. Acts of parliament have been passed to annex Wales, &c. &c. to the realm. But none ever passed to annex America. But if New-England was annexed to the realm of England, how came she annexed to the realm of or kingdom of Great-Britain? The two realms of England and Scotland were by the act of union incorporated into one kingdom by the name of Great-Britain: But there is not one word about America in that act.
      Besides, if America was annexed to the realm, or a part of the kingdom, every act of parliament that is made, would extend to it, named or not named. But every body knows that every act of parliament, and every other record, constantly distinguishes between this kingdom, and his Majesty’s other dominions. Will it be said that Ireland is annex’d to the realm, or a part of the kingdom of Great-Britain? Ireland is a distinct kingdom or realm by itself, notwithstanding British parliament claims a right of binding it in all cases, and exercises it in some. And even so the Massachusetts is a realm, New-York is a realm, Pennsylvania another realm, to all intents and purposes, as much as Ireland is, or England or Scotland ever were. The king of Great Britain is the sovereign of all these realms.
      This writer says, “that in denying that the colonies are annexed to the realm, and subject to the authority of parliament, individuals and bodies of men, subvert the fundamentals of government, deprive us of British liberties, and build up absolute monarchy in the colonies.”
      This is the first time that I ever heard or read that the colonies are annexed to the realm. It is utterly denied that they are, and that it is possible they should be, without an act of parliament, and acts of the colonies. Such an act of parliament cannot be produced, nor any such law of any one colony. Therefore as this writer builds the whole authority of parliament upon this fact, viz. That the colonies are annexed to the realm; and as it is certain they never were so annexed: the consequence is, that his whole superstructure falls.
      When he says, that they subvert the fundamentals of government, he begs the question. We say that the contrary doctrines subvert the fundamentals of government. When he says, that they deprive us of British liberties, he begs the question again: We say that the contrary doctrine deprives us of English Liberties; as to British Liberties, we scarcely know what they are, as the liberties of England and Scotland are not precisely the same to this day. English liberties are but certain rights of nature reserved to the citizen, by the English constitution, which rights cleaved to our ancestors when they crossed the Atlantic, and would have inbred in them, if instead of coming to New-England they had gone to Outaheite, or Patagonia, even altho’ they had taken no patent or charter from the king at all. These rights did not adhere to them the less, for their purchasing patents and charters, in which the king expressly stipulates with them, that they and their posterity should forever enjoy all those rights and liberties.
      The human mind is not naturally the clearest atmosphere; but the clouds and vapours which have been raised in it, by the artifices of temporal and spiritual tyrants, have made it impossible to see objects in it distinctly. Scarcely any thing is involved in more systematical obscurity, than the rights of our ancestors, when they arrived in America. How, in common sense, came the dominions of king Philip, king Massachusetts, and twenty other sovereign, independent princes here, to be within the allegiance of the king of England, James and Charles? America was no more within the allegiance of those princes, by the common law of England, or by the law of nature, than France and Spain were. Discovery, if that was incontestible could give no title to the English king, by common law, or by the law of nature, to the lands, tenements and hereditaments of the native Indians here. Our ancestors were sensible of this, and therefore honestly purchased their lands of the natives. They might have bought them to hold allodially, if they would.
      But there were two ideas, which confused them, and have continued to confuse their posterity, one derived from the feudal, the other from the cannon law. By the former of these systems, the prince, the general, was supposed to be sovereign Lord of all the lands, conquered by the soldiers in his army; and upon this principle, the king of England was considered in law as Sovereign Lord of all the land within the realm. If he had sent an Army here to conquer king Massachusetts, and it had succeeded he would have been sovereign lord of the land here upon these principles; but there was no rule of the common law, that made the discovery of a country by a subject, a title to that country in the prince. But conquest would not have annexed the country to the realm, nor have given any authority to the parliament. But there was another mist cast before the eyes of the English nation from another source. The pope claimed a sovereign propriety in, as well as authority over the whole earth. As head of the Christian church, and vicar of God, he claimed this authority over all Christendom; and in the same character he claimed a right to all the countries and possessions of heathens and infidels: a right divine to exterminate and destroy them at his discretion, in order to propagate the catholic faith. When king Henry the eighth, and his parliament, threw off the authority of the pope, stripped his holiness of his supremacy, and invested it in himself by an act of parliament, he and his courtiers seemed to think that all the right of the holy see, were transferred to him: and it was a union of these two the most impertinent and fantastical ideas that ever got into an human pericranium, viz. that as feudal sovereign and supream head of the church together, a king of England had a right to all the land their subjects could find, not possessed by any Christian state or prince, tho’ possessed by heathen or infidel nations, which seems to have deluded the nation about the time of the settlement of the colonies. But none of these ideas gave or inferred any right in parliament, over the new countries conquered or discovered; and therefore denying that the colonies are a part of the realm, and that as such they are subject to parliament, by no means deprives us of English liberties. Nor does it “build up absolute monarchy in the colonies.” For admitting these notions of the common canon and feudal law to have been in full force, and that the king was absolute in America, when it was settled; yet he had a right to enter into a contract with his subjects, and stipulate that they should enjoy all the rights and liberties of Englishmen forever, in consideration of their undertaking to clear the wilderness, propagate Christianity, pay a fifth part of oar, &c. Such a contract as this has been made with all the colonies, royal governments as well as charter ones. For the commissions to the governors contain the plan of the government, and the contract between the king and subject, in the former, as much as the charters in the latter.
      Indeed this was the reasoning, and upon these feudal and catholic principles in the time of some of the predecessors of Massachusettensis.—This was the meaning of Dudley, when he asked, “Do you think that English liberties will follow you to the ends of the earth?” His meaning was, that English liberties were confined to the realm, and out of that the king was absolute. But this was not true, for an English King had no right to be absolute over Englishmen, out of the realm, any more than in it, and they were released from their allegiance, as soon as he deprived them of their liberties.
      But “our charters suppose regal authority in the grantor”. True they suppose it, whether there was any or not. “If that authority be derived from the British, (he should have said English) crown, it presupposes this territory to have been a part of the British (he should have said English) dominion, and as such subject to the imperial Sovereign.” How can this writer shew this authority to be derived from the English crown, including in the idea of it Lords and Commons? Is there the least colour for such an authority but in the popish and feudal ideas before mentioned? And do these popish and feudal ideas, include parliament? Was parliament, were Lords and Commons parts of the head of the church or was parliament, that is, Lords and Commons, part of the sovereign feudatory? Never. But why was this authority derived from the English, any more than the Scottish or Irish Crown? It is true the land was to be held in socage like the manor of East Greenwich, but this was compact, and it might have been as well to hold, as they held in Glasgow or Dublin.
      But says this writer, “if that authority was vested in the person of the king in a different capacity, the British constitution and laws are out of the question, and the king must be absolute as to us, as his prerogatives have never been limitted.”—Not the prerogative limited in our charters, when in every one of them all the rights of Englishmen are secured to us! Are not the rights of Englishmen sufficiently known, and are not the prerogatives of the king’s among those rights?
      As to those colonies which are destitute of charters, the commissions to their governors have ever been considered as equivalent securities both for property, jurisdiction and privileges, with charters; and as to the power of the crown being absolute in those colonies, it is absolute no where. There is no fundamental or other law, that makes a king of England absolute any where, except in conquered countries, and an attempt to assume such a power, by the fundamental laws, forfeits the princes right even to the limited crown.
      As to “the charter governments reverting to absolute monarchy, as their charters may happen to be forfeited, by the grantees not fulfilling the conditions of them,”—I answer, if they could be forfeited, and were actually forfeited, the only consequence would be, that the king would have no power over them at all: He would not be bound to protect the people, nor, that I can see, would the people here, who were born here, be by any principle of common law, bound even to allegiance to the king. The connection would be broken between the crown and the natives of the country.
      It has been a great dispute whether charters granted within the realm, can be forfeited at all. It was a question debated with infinite learning, in the case of the charter of London: it was adjudged forfeited, in an arbitrary reign: but afterwards, after the revolution, it was declared in parliament, not forfeited, and by an act of parliament made incapable of forfeiture. The charter of Massachusetts was declared forfeited too. So were other American charters. The Massachusetts alone, were tame enough to give it up. But no American charter will ever be decreed forfeited again, or if any should, the decree will be regarded no more, than a vote of the lower house of the robbinhood society. The court of chancery has no authority without the realm; by common law, surely it has none in America. What! The privileges of millions of Americans depend on the discretion of a lord chancellor? God forbid! The passivity of this colony in receiving the present charter in lieu of the first, is in the opinion of some the deepest stain upon its character. There is less to be said in excuse for it, than the witchcraft, or hanging the quakers. A vast party in the province were against it at the time, and thought themselves betrayed by their agent. It has been a warning to their posterity, and one principal motive with the people, never to trust any agent with power to conceed away their privileges again. It may as well be pretended that the people of Great-Britain can forfeit their privileges, as the people of this province: if the contract of state is broken, the people and king of England, must recur to nature. It is the same in this province. We shall never more submit to decrees in chancery, or acts of parliament, annihilating charters, or abridging English liberties.
      Whether Massachusettensis was born as a politician, in the year 1764, I know not: but he often writes as if he knew nothing of that period. In his attempt to trace the denial of the supreme authority of the parliament, he commits such mistakes, as a man of age at that time ought to blush at. He says, that “when the stamp-act was made the authority of parliament to impose external taxes, or in other words to lay duties upon goods and merchandize was admitted,” and that when the tea act was made, “a new distinction was set up, that parliament had a right to lay duties upon merchandize, for the purpose of regulating trade, but not for the purpose of raising a revenue.” This is a total misapprehension of the declared opinions of people at those times. The authority of parliament to lay taxes for a revenue, has been always generally denied: and their right to lay duties to regulate trade, has been denied by many, who have ever contended, that trade should be regulated only by prohibitions.
      The act of parliament of the 4 G, the third, passed in the year 1764, was the first act of the British parliament that ever was passed, in which the design of raising a revenue, was expressed. Let Massachusettensis name any statute before that in which the word revenue is used, or the thought of raising a revenue, is expressed. This act is intitled, “An act for granting certain duties in the British colonies and plantations in America,” &c. The word revenue, in the preamble of this act, instantly ran through the colonies, and rang an alarm, almost as much as if the design of forging chains for the Colonists had been expressed in words. I have now before me, a pamphlet, written and printed in the year 1764 intitled, “The sentiments of a British American,” upon this act. How the idea of a revenue, tho’ from an acknowledged external tax, was relished in that time, may be read in the frontispiece of that pamphlet—

       —Ergo quid refert mea
       Cui serviam? clitellas dum portem meas.
       Phaedrus.

      The first objection to this act, which was made in that pamphlet, by its worthy author, OXENBRIDGE THACHER, Esq; who died a Martyr to that amity for his country, which the conduct of the Junto gave him, is this, “The first objection is, that a tax is thereby laid on several commodities, to be raised and levied in the plantations, and to be remitted home to England. This is esteemed a grievance inasmuch as the same are laid, without the consent of the representatives of the colonists. It is esteemed an essential British right, that no person shall be subject to any tax; but what in person, or by his representative, he hath a voice in laying.” Here is a tax unquestionably external, in the sense in which that word is used in the distinction that is made by some between external and internal taxes, and unquestionably laid in part for the regulation of trade; yet called a grievance, and a violation of an essential British right in the year 1764, by one who was then at the head of the popular branch of our constitution, and as well acquainted with the sense of his constituents, as any man living. And it is indisputable that in those words he wrote, the almost universal sense of this colony.
      There are so many egregious errors in point of fact, and respecting the opinions of the people in this writer, that it is difficult to impute to wilful misrepresentation, that I sometimes think he is some smart young gentleman, come up, into life, since this great controversy was opened; if not, he must have conversed wholly with the junto, and they must have deceived him, respecting their own sentiments.
      This writer sneers at the distinction between a right to lay the former duty of a shilling on the pound of tea, and the right to lay the three pence. But is there not a real difference between laying a duty to be paid in England upon exportation, and to be paid in America upon importation? Is there not a difference between parliament’s laying on duties within their own realm, where they have undoubtedly jurisdiction, and laying them out of their realm, nay laying them on in our realm, where we say they have no jurisdiction? Let them lay on what duties they please in England, we have nothing to say against that.
      “Our patriots most heroically resolved to become independent states, and flatly denied that parliament had a right to make any laws what ever that should be binding upon the colonies.”
      Our scribler more heroically still, is determined to shew the world, that he has courage superior to all regard to modesty, justice or truth. Our patriots have never determined or desired to be independent states, if a voluntary cession of a right to regulate their trade, can make them dependent even on parliament, tho’ they are clear in theory, that by the common law, and the English constitution, parliament has no authority over them. None of the patriots of this province, of the present age, have ever denied that parliament has a right from our voluntary cession, to make laws which shall bind the colonies, as far as their commerce extends.
      “There is no possible medium between absolute independence and subjection to the authority of parliament.” If this is true, it may be depended upon that all North America are as fully convinced of their independence, their absolute independence, as they are of their own existence, and as fully determined to defend it at all hazards, as Great Britain is to defend her independence, against foreign nations. But it is not true. An absolute independence on parliament, in all internal concerns and cases of taxation, is very compatible with an absolute dependence on it in all cases of external commerce.
      “He must be blind indeed that cannot see our dearest interest, in the latter (that is, in an “absolute subjection to the authority of parliament”) notwithstanding many pant after the former” (that is, absolute independence). The man who is capable of writing, in cool blood, that our interest lies in an absolute subjection to parliament, is capable of writing or saying any thing for the sake of his pension. A legislature that has so often discovered a want of information concerning us, and our country; a legislature interested to lay burdens upon us; a legislature, two branches of which, I mean the Lords and Commons, neither love nor fear us! Every American of fortune and common sense, must look upon his property to be sunk downright one half of its value, the moment such an absolute subjection to parliament is established.
      That there are any who pant after “independence,” (meaning by this word a new plan of government over all America, unconnected with the crown of England, or meaning by it an exemption from the power of parliament to regulate trade) is as great a slander upon the province as ever was committed to writing. The patriots of this province desire nothing new—they wish only to keep their old privileges. They were for 150 years allowed to tax themselves, and govern their internal concerns, as they tho’t best. Parliament governed their trade as they tho’t fit. This plan, they wish may continue forever. But it is honestly confessed, rather than become subject to the absolute authority of parliament, in all cases of taxation and internal polity, they will be driven to throw off that of regulating trade.
      “To deny the supreme authority of the state, is a high misdemeanor; to oppose it by force, an overt act of treason.” True: and therefore Massachusettensis, who denies the king represented by his governor, his majesty’s council, by charter, and house of representatives, to be the supreme authority of this province, has been guilty of a high misdemeanour: and those ministers, governors, and their instruments, who have brought a military force here, and employed it against that supreme authority, are guilty of  and ought to be punished with . I will be more mannerly than Massachusettensis.
      “The realm of England is an appropriate term for the ancient realm of England, in contradistinction to Wales and other territories, that have been annexed to it.”
      There are so many particulars in the case of Wales, analogous to the case of America, that I must beg leave to enlarge upon it.
      (For want of Room we are obliged to deferr the Remainder of this NOVANGLUS till our next.)


Title: VIII. (cont.). To the Inhabitants of the Colony of Massachusetts-Bay, 20 March 1775
From: Adams, John,Novanglus
To: Inhabitants of Massachusetts Bay Colony,Massachusettensis

        20 March 1775

      Remainder of the NOVANGLUS begun in our last.
      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.” 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 Coke. 1 Roll. 247–2 Roll. 29. 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, &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.”
      “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.
      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.”
      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.

      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. 1 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. 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.

       NOVANGLUS


Title: IX. To the Inhabitants of the Colony of Massachusetts-Bay, 27 March 1775
From: Adams, John,Novanglus
To: Inhabitants of Massachusetts Bay Colony,Massachusettensis

       My Friends,

        27 March 1775

      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. Governor 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, intitled, “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 this 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 acknowledgment made to the king, in his politick 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 Ellesmere, Bacon, Hide Hyde, Hobart, Crook Croke, 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 politick 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 politick capacity, and the politick capacity as it were appropriated to the natural capacity) and it is not due to the politick 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 compleatly and absolutely king,” &c. and that coronation was but a royal ornament! 6. b. “In the reign of Ed. 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 politick capacity) than by reason of the person of the king, upon which opinion they inferred execrable and detestible 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. b. “for special purposes the law makes him a body politick, 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 politick capacity, and the politick capacity as it were appropriated to the natural capacity”; neither imply nor infer allegiance, or subjection to the politick capacity, because in the case of King James the first, his natural person was “accompanied” with three politick 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 politick 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 conferrence 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, altho’ 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 politick, 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, Millen, 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, are 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 limitted, 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,” &c. “So Bertie’s case in Q. Mary’s time, and Inglefield’s case in Q. 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 altho’ 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 altho’ 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 that 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 the 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 to their prince, as well as those duties which were 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 honour, and not to know, or hear of any ill or damage intended him, without defending him therefrom.’” “But at the revolution, the terms of this oath, being thought perhaps to favour 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 only promising ’that he will be faithful and bear true allegiance to the king,’ without mentioning his heirs, or specifying in 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 ist, 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 don’t 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 vs Galdy–“In debt upon a bond, the defendant prayed oyer of the condition, and pleaded the stat. 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 marshall 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 plantiff replied, that Jamaica is an island beyond the seas, which was conquered from the Indians and Spaniards in Q. 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 plantiff, 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 Curia. 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 conquerer, 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,” altho’ 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.
      2d. 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 their king. 3d. 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 Ed. 1, 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 intitled to the laws of England, although bound to be govern’d 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 intituled 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 2d. 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, ist. That if there be a new and uninhabited country, found out by English subjects, as the law is the birthright 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; tho’ 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 a 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


Title: XI. To the Inhabitants of the Colony of Massachusetts-Bay, 10 April 1775
From: Adams, John,Novanglus
To: Inhabitants of Massachusetts Bay Colony,Massachusettensis

       My Friends,

        10 April 1775

      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 H. 6. fol. 6, and by the act of parliament of 2 H. 5. cap. 6, but while it was a kingdom, the same was holden, and within the see of the king of England: and this appeareth by our books, Fleta, lib. 1. E. 3, 14, 8. E. 3, 59, 13. E. 3. Tit. Jurisdict. 10. H. 4, 6. Plow. com, 368. And in this respect, in diverse ancient charters, kings of old time stiled 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 Ed. I. Wales was united and incorporated into England and made parcel of England in possession; and therefore it is ruled in 7. H. 4. 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 H. 8. that Wales was ever parcel of the realm of England, it is true in this sense, viz. that before 12 E. I. it was parcel in tenure, and since it is parcel of the body of the realm. And whosoever is born within the see 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 E. I. while it was only holden of England, were capable and inheritable of lands in England.”
      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. I. (which is the Statutum Walliae quoted by me before) it is certain, that Wales was not united and incorporated into England, and made parcel of England. It was annexed and united to the crown of England only. It was done by the king’s sole and absolute authority—not by an act of parliament, but by a mere constitutio imperatoria, and neither E. I, nor any of his successors, ever would relinquish the right of ruling it, by mere will and discretion, until the reign of James I. 2d. 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,” which is a decisive proof that a country may be annexed to the one, without being united with the other. And this appears fully in lord Coke himself, 7 rep. 22, b. “Ireland originally came to the kings of England by conquest, but who was the first conqueror thereof hath been a question. I have seen a charter made by king Edgar, in these words, Ego Edgarus Anglorum Basileus, omnium quae insularum oceani, quae Britanniam circumjacent, imperatur 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 ferocissibus regibus usque Norvegiam, maximamque partem Hiberniae, cum sua nobilissima civitate de Dublina, Anglorum regno subjugare, quapropter et ego Christi gloriam et laudem in regno meo exaltare, et ejus servitium amplificare devotus disposui, &c. Yet for that it was wholly conquered in the reign of 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 saciunt leges, et statuta nostra, non ligant eos, quia non mittunt milites ad parliamentum (which is to be understood unless they be specially named) sed personae eorum sunt subjecti regis, sicut inhabitantes in Calesia, Gasconia et 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 patentium de anno 11. Regis H. 3, there is a charter which that king made beginning in these words: Rex Baronibus, Militibus et omnibus libere tenentibus L. salutem, satis, ut credimus vestra audivit discretio, quod quando bonae memoriae Johannes quondam rex Angliae, pater noster venit in Hiberniam, ipse duxit secum vires discretos et legis peritos, quorum communi consilio et ad juctantiam adjunctorum Hiberniansium statuit et praecepit leges Anglicanas in Hibernia, ita quod leges easdem in scripturas redactas reliquit sub sigillo suo ad scaccarium 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 H. 6, 8, and 20 Eliz. Dyer 360, and for that they retain unto this day diverse of their ancient customs, the book in 20 H. 6, 8, holdeth, that Ireland is governed by laws and customs, separate and diverse from the laws of England. A voyage royal may be made into Ireland. Vid. 11. H. 4. 7. and 7. E. 4. 27. which proveth it a distinct dominion. And in anno 33. Eliz. 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 H. 8. c. 23, might be indicted, arraigned, and tried for the same in England, according to the purview of that statute: the words of which statute be, that all treasons, &c. committed by any person out of the realm of England, shall be from henceforth inquired of, &c. And they all resolved (as afterwards they did also in sir John Perrot’s case) that Ireland was out of the realm of England, and that treasons committed there were to be tried within England, by that statute. In the statute of 4 H. 7, 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 don’t bind them, because they don’t 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 this 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 conquerer 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 Hiberniae 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, tho’ a conquered people and the king absolute. Very unlike the minister of our aera, 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 meerly 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 principem Walliae et barones wallenses Wallieae 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. I. refers to this inquiry. By that statute he does not annex Wales to England, but recites it as a consequence of its coming into his hands. ’Divina providentia terram Walliae, prius, nobis jure feodali sulojectam, jam in proprietatis nostrae dominium convertit, et coronae regni angliae, 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 I. having succeeded as to Wales, maintained likewise that Scotland was holden of the crown of England.” This opinion of the court was delivered by lord Mansfield in the year 1759. In conformity to the system contained in these words, my lord Mansfield, and my lord North, together with their little friends Bernard and Hutchinson, have “conceived the great design of annexing” all North-America “to the realm of England,” and “the better to effectuate this idea, they all maintain, that North-America is holden of the crown.”
      And (no matter upon what foundation) they all maintained that America is dependent on the imperial crown and parliament of Great Britain: and they are all very eagerly desirous of treating the Americans as rebellious vassals, to subdue them and take possession of their country. And when they do, no doubt America will come back as parcel of the realm of England, from which (by fiction of law at least) or by virtual representation, or by some other dream of a shadow of a shade, they had been originally severed.
      But these noblemen and ignoblemen ought to have considered, that Americans understand the laws and the 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 compleat 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. “Note 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. I. 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 compleated until Jac. I. There is a sense indeed in which annexing a territory to the crown, is annexing it to the realm, as putting a crown upon a man’s head, is putting it on the man, but it does not make it 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, “coronae, regni angliae, tanquam partem carports ejesdem,” 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 by 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 govern’d by prince alone, in some by prince 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