Novanglus Essays/No. 9

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 shown, from the case of Wales, that this position is groundless, and that allegiance was due from the Welsh to the king, jure feudali, 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 show from the case of Ireland, that subjection to the crown implies no obedience to parliament. But before I come to this, I must take notice of a pamphlet entitled “A Candid Examination of the Mutual Claims of Great Britain and the Colonies, with a Plan of Accommodation on Constitutional Principles.” This author says,—-“To him, (that is, the king,) in his representative capacity, and as supreme executor of the laws made by a joint power of him and others, the oaths of allegiance are taken;” and afterwards,—-“Hence, these professions (that is, 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 nowhere 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 page 9, he says,—-“I do not mean to offend the inventors of this refined distinction, when I ask them, is this acknowledgment made to the king in his politic capacity as king of Great Britain? If so, it includes a promise of obedience to the British laws.” There is no danger of this gentleman’s giving offence to the inventors of this distinction; for they have been many centuries in their graves. This distinction is to be found everywhere,—-in the case of Wales, Ireland, and elsewhere, as I shall show 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, 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 counsel, it was adjourned to the exchequer chamber, and there argued again, first by counsel 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. Ellesmere, Bacon, Hyde, Hobart, Crook, and Coke, were all among them; and the chancellor and judges were unanimous in resolving. What says the book?$1$ “Now, seeing the king hath but one person, and several capacities, and one politic capacity for the realm of England, and another for the realm of Scotland, it is necessary to be considered to which capacity ligeance is due. And it was resolved that it was due to the natural person of the king, (which is ever accompanied with the politic capacity, and the politic capacity as it were appropriated to the natural capacity,) and it is not due to the politic capacity only, that is, to the crown or kingdom distinct from his natural capacity.” And further on,—-“But it was clearly resolved by all the judges, that presently by the descent his majesty was completely and absolutely king, &c. and that coronation was but a royal ornament. . . . In the reign of Edward II., the Spencers, to cover the treason hatched in their hearts, invented this damnable and damned opinion, that homage and oath of allegiance was more by reason of the king’s crown (that is, of his politic capacity) than by reason of the person of the king, upon which opinion they inferred execrable and detestable consequences.” And afterwards,—-“Where divers books and acts of parliament speak of the ligeance of England, &c., all these, 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,—-“For special purposes the law makes him a body politic, immortal and invisible, whereunto our allegiance cannot appertain.” I beg leave to observe here that these words in the foregoing adjudication, that “the natural person of the king is ever accompanied with the politic capacity, and the politic capacity as it were appropriated to the natural capacity,” neither imply nor infer allegiance or subjection to the politic capacity; because in the case of King James I. his natural person was “accompanied” with three politic capacities at least, as king of England, Scotland, and Ireland; yet the allegiance of an Englishman to him did not imply or infer subjection to his politic capacity as king of Scotland.

Another place in which this distinction is to be found is in Moore’s Reports.$2$ “The case of the union of the realm of Scotland with England.” And this deliberation, I hope, was solemn enough. This distinction was agreed on by commissioners of the English lords and commons, in a conference with commissioners of the Scottish parliament, and after many arguments and consultations by the lord chancellor and all the judges, and afterwards adopted by the lords and commons of both nations. “The judges answered with one assent,” says the book, “that allegiance and laws were not of equiparation, for six causes;” the sixth and last of which is, “allegiance followeth the natural person, not the politic. . . If the king go out of England, with a company of his servants, allegiance remaineth among his subjects and servants, although he be out of his own realm, whereto his laws are confined, &c.;. . . and to prove the allegiance to be tied to the body natural of the king, not to the body politic, the Lord Coke cited the phrases of divers statutes, &c. And to prove that allegiance extended further than the laws national, they (the judges) showed, that every king of diverse kingdoms, or dukedoms, is to command every people to defend any of his kingdoms, without respect of that nation where he is born; as, if the king of Spain be invaded in Portugal, he may levy for defence of Portugal armies out of Spain, Naples, Castile, Milan, Flanders, and the like; as a thing incident to the allegiance of all his subjects, to join together in defence of any one of his territories, without respect of 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 politic respectively in every kingdom.” There is one observation, not immediately to the present point, but so connected with our controversy that it ought not be overlooked. “For the matter of the great seal, the judges showed, 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 to the king without parliament, not 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 upon complaint of the subjects, and thereupon writs are addressed under the great seal of England, which writs are limited, their precinct to be within the places of the jurisdiction of the court that must 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 or things there. But the great seal hath a power preceptory to the person, which power extendeth to any place where the person may be found.” Ludlow’s case, &c. who “being at Rome, a commandment under the great seal was sent to him to return. So, Bertie’s case in Queen Mary’s time, and Inglefield’s case in Queen Elizabeth’s, the privy seal went to command them to return into the realm; and for not coming, their lands were seized,” &c. But to return to the point: “And as to the objection,” says the book, “that none can be born a natural subject of two kingdoms, they denied that absolutely; for although locally he can be born but in one, yet effectually the allegiance of the king extending to both, his birthright shall extend to both.” And afterwards,—-“But that his kingly power extendeth to divers nations and kingdoms, all owe him equal subjection, and are equally born to the benefit of his protection; and although he is to govern them by their distinct laws, yet any one of the people coming into the other, is to have the benefit of the laws, wheresoever he cometh;. . . but living in one, or for his livelihood in one, he is not to be taxed in the other; because laws ordain taxes, impositions, and charges, as a discipline of subjection particularized to every particular nation.” Another place where this distinction is to be found is in Foster’s Crown Law. “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 feudal law, to be taken by the vassal or tenant, is nearly in the very words of 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 III., 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, “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, 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 honor, 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 favor too much the notion of non-resistance, the present form was introduced by the convention parliament, which is more general and indeterminate than the former, the subject 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 show 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 Welsh 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 I., being not at all subject to the parliament or crown of England.

We do not admit any binding authority in the decisions and adjudications of the court of king’s bench or common pleas, or the court of chancery, over America; but we quote them as the opinions of learned men. In these we find a distinction between a country conquered and a country discovered. Conquest, they say, gives the crown an absolute power; discovery only gives the subject a right to all the laws of England. They add, that all the laws of England are in force there. I confess I do not see the reason of this. There are several cases in books of law which may be properly thrown before the public. I am no more of a lawyer than Massachusettensis, but have taken his advice, and conversed with many lawyers upon our subject, some honest, some dishonest, some living, some dead, and am willing to lay before you what I have learned from all of them. In Salkeld, 411, the case of Blankard and Galdy: “In debt on a bond, the defendant prayed oyer of the condition, and pleaded the statute E. 6, against buying offices concerning the administration of justice; and averred, that this bond was given for the purchase of the office of provost-marshal in Jamaica, and that it concerned the administration of justice, and that Jamaica is part of the revenue and possessions of the crown of England. The plaintiff replied, that Jamaica is an island beyond the seas, which was conquered from the Indians and Spaniards in Queen Elizabeth’s time, and the inhabitants are governed by their own laws, and not by the laws of England. The defendant rejoined, that, before such conquest, they were governed by their own laws; but since that, by the laws of England. Shower argued for the plaintiff, that, on a judgment in Jamaica, no writ of error lies here, but only an appeal to the council; and as they are not represented in our parliament, so they are not bound by our statutes, unless specially named.$3$ 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.$4$ That error lies here upon a judgment in Jamaica, which could not be, if they were not under the same law. Et per Holt, C. J. and Cur. 1st. In case of an uninhabited country, newly found out by English subjects, all laws in force in England are in force there; so it seemed to be agreed. 2. Jamaica being conquered, and not pleaded to be parcel of the kingdom of England, but part of the possessions and revenue of the crown of England, the laws of England did not take place there, until declared so by the conqueror or his successors. The Isle of Man and Ireland are part of the possessions of the crown of England, yet retain their ancient laws; that, in Davis, 36, it is not pretended that the custom of tanistry was determined by the conquest of Ireland, but by the new settlement made there after the conquest; that it was impossible the laws of this nation, by mere conquest, without more, should take place in a conquered country; because, for a time, there must want officers, without which our laws can have no force; that if our law did take place, yet they, in Jamaica, having power to make new laws, our general laws may be altered by theirs in particulars; also, they held that in case of an infidel country, their laws, by conquest, do not entirely cease, but only such as are against the law of God; and that in such cases, where the laws are rejected or silent, the conquered country shall be governed according to the rule of natural equity. Judgment pro quer’.”

Upon this case I beg leave to make a few observations:—-

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

2. That, by the opinion of Holt and the whole court, the laws of England, common and statute, are in force in a vacant country, discovered by Englishmen. But America was not a vacant country; it was full of inhabitants; our ancestors purchased the land; but, if it had been vacant, his lordship has not shown us any authority at common law, that the laws of England would have been in force there. On the contrary, by that law, it is clear they did not extend beyond seas, and therefore could not be binding there, any further than the free will of the discoverers should make them. The discoverers had a right by nature to set up those laws if they liked them, or any others that pleased them better, provided they were not inconsistent with their allegiance to the king.

3. The court held, that a country must be parcel of the kingdom of England, before the laws of England could take place there; which seems to be inconsistent with what is said before, because discovery of a vacant country does not make it parcel of the kingdom of England, which shows 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 ofWales. They consider a conquered country as Edward I. and his successors did Wales, as by the conquest annexed to the crown, as an absolute property, possession, or revenue, and, therefore, to be disposed of at its will; not entitled to the laws of England, although bound to be governed by the king’s will, in parliament or out of it, as he pleased.

5. The Isle of Man and Ireland are considered, like Wales, as conquered countries, and part of the possessions (by which they mean property or revenue) of the crown of England, yet have been allowed by the king’s will to retain their ancient laws.

6. That the case of America differs totally from the case ofWales, Ireland, Man, or any other case which is known at common law or in English history. There is no one precedent in point in any English records, and, therefore, it can be determined only by eternal reason and the law of nature. But yet that the analogy of all these cases of Ireland, Wales, Man, Chester, Durham, Lancaster, &c. clearly concur with the dictates of reason and nature, that Americans are entitled to all the liberties of Englishmen, and that they are not bound by any acts of parliament whatever, by any law known in English records or history, excepting those for the regulation of trade, which they have consented to and acquiesced in.

7. To these let me add, that, as the laws of England and the authority of parliament were by common law confined to the realm and within the four seas, so was the force of the great seal of England. “The great seal of England is appropriated to England, and what is done under it has relation to England, and to no other place.”$5$ 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.$6$ “It was said by the master of the rolls to have been determined by the lords of the privy council, upon an appeal to the king in council from the foreign plantations; 1st. That if there be a new and uninhabited country, found out by English subjects, as the law is the 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; though after such country is inhabited by the English, acts of parliament made in England, without naming the foreign plantations, will not bind them; for which reason it has been determined, that the statute of frauds and perjuries, which requires three witnesses, and that these should subscribe in the testator’s 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.”

[1] 7 Rep. 19. [2] Page 790. [3] And. 115. [4] Vaugh. 405. [5] Salkeld, 510. [6] It is in 2 P. Williams, 75, Memorandum, 9th August, 1722.