4 ditions; it may be, only to render homage; it may be to render a rent; it may be to pay a tribute; if his lordship by feudatory means the original notion of feuds, it is true that the king, the general imperator, was absolute, and the tenant held his estate only at will, and the subject, not only his estate, but his person and life, at his will. But this notion of feuds had been relaxed in an infinite variety of degrees; in some, the estate is held at will, in others for life, in others for years, in others forever, to heirs, &c.; in some to be governed by the prince alone, in some by princes and nobles, and in some by prince, nobles, and commons, &c. So that being feudatory by no means proves that English lords and commons have any share in the government over us. As to counties palatine, these were not only holden of the king and crown, but were erected 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 complete 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. ΝΟ. ΧΙΙ. WE NOW come to Jersey and Guernsey, which Massachusettensis says, "are no part of the realm of England, nor are they represented in parliament, but are subject to its authority." A little knowledge of this subject will do us no harm; and, as soon as we shall acquire it, we shall be satisfied how these islands came to be subject to the authority of parliament. It is either upon the principle that the king is absolute there, and has a right to make laws for them by his mere will, and, therefore, may express his will by an act of parliament, or an edict, at his pleasure; or it is an usurpation. If it is an usurpation, it ought not to be a precedent for the colonies; but it ought to be re formed, and they ought to be incorporated into the realm by act of parliament and their own act. Their situation is no objection to this. Ours is an insurmountable obstacle. Thus, we see, that in every instance which can be found, the observation proves to be true, that, by the common law, the laws of England, the authority of parliament, and the limits of the realm, were confined within seas. That the kings of England had frequently foreign dominions, some by conquest, some by marriage, and some by descent. But, in all those cases, the kings were either absolute in those dominions, or bound to govern them according to their own respective laws, and by their own legislative and executive councils. That the laws of England did not extend there, and the English parliament pretended no jurisdiction there, nor claimed any right to control the king in his government of those dominions. And, from this extensive survey of all the foregoing cases, there results a confirmation of what has been so often said, that there is no provision in the common law, in English precedents, in the English government or constitution, made for the case of the colonies. It is not a conquered, but a discovered country. It came not to the king by descent, but was explored by the settlers. It came not by marriage to the king, but was purchased by the settlers of the savages. It was not granted by the king of his grace, but was dearly, very dearly earned by the planters, in the labor, blood, and treasure which they expended to subdue it to cultivation. It stands upon no grounds, then, of law or policy, but what are found in the law of nature, and their express contracts in their charters, and their implied contracts in the commissions to governors and terms of settlement. The cases of Chester and Durham, counties palatine within the realm, shall conclude this fatiguing ramble. Chester was an earldom and a county; and in the 21st year of King Richard II. A. D. 1397, it was, by an act of parliament, erected into a principality, and several castles and towns were annexed to it, saving to the king the rights of his crown. This was a county palatine, and had jura regalia before this erection of it into a principality. But the statute which made it a principality, was again repealed by 1 Henry IV. c. 3, and in 1399, by the 1 Henry IV. c. 18. Grievous complaints were made to the king, in parliament, of murders, manslaughters, robberies, batteries, riots, &c. done by people of the county of Chester in divers counties of England. For remedy of which it is enacted, "that if any person of the county of Chester commit any murder or felony in any place out of that county, process shall be made against him by the common law, till the exigent, in the county where such murder or felony was done; and if he flee into the county of Chester, and be outlawed and put in exigent for such murder or felony, the same outlawry or exigent shall be certified to the officers and ministers of the same county of Chester, and the same felon shall be taken, his lands and goods within that county shall be seized as forfeit into the hands of the prince, or of him that shall be lord of the same county of Chester for the time, and the king shall have the year and day, and the waste; and the other lands and goods of such felon, out of said county, shall remain wholly to the king, &c. as forfeit." And a similar provision, in case of battery or trespass, &c. Considering the great seal of England and the process of the king's courts did not run into Chester, it was natural that malefactors should take refuge there, and escape punishment, and, therefore, a statute like this was of indispensable necessity; and, afterwards, in 1535, another statute was made, 27 Henry VIII. c. 5, for the making of justices of the peace within Chester, &c. It recites, "the king, considering the manifold robberies, murders, thefts, trespasses, riots, routs, embraceries, maintenances, oppressions, ruptures of his peace, &c., which have been daily done within his county palatine of Chester, &c., by reason that common justice hath not been indifferently ministered there, like and in such form as it is in other places of this his realm, by reason whereof the said crimes have remained unpunished; for redress whereof, and to the intent that one order of law should be had, the king is empowered to constitute justices of peace, quorum, and gaol delivery in Chester," &c. By the 32 Henry VIII. c. 43, another act was made concerning the county palatine of Chester, for shire days. These three acts soon excited discontent in Chester. They had enjoyed an exemption from the king's English courts, legislative and executive, and they had no representatives in the English parliament, and, therefore, they thought it a violation of their rights, to be subjected even to those three statutes, as reasonable and absolutely necessary as they appear to have been. And, accordingly, we find, in 1542, 34 and 35 Henry VIII. c. 13, a zealous petition to be represented in parliament, and an act was made for making of knights and burgesses within the county and city of Chester. It recites a part of the petition to the king, from the inhabitants of Chester, stating, "that the county palatine had been excluded from parliament, to have any knights and burgesses there; by reason whereof, the said inhabitants have hitherto sustained manifold disherisons, losses, and damages, as well in their lands, goods, and bodies, as in the good civil and politic governance and maintenance of the commonwealth of their said country; and, forasmuch as the said inhabitants have always hitherto been bound by the acts and statutes, made by your highness and progenitors in said court," (meaning when expressly named, not otherwise,) "as far forth as other counties, cities, and boroughs, which have had knights and burgesses, and yet have had neither knight nor burgess there, for the said county palatine; the said inhabitants, for lack thereof, have been oftentimes touched and grieved with acts and statutes made within the said court, as well derogatory unto the most ancient jurisdictions, liberties, and privileges of your said county palatine, as prejudicial unto the common weal, quietness, rest, and peace of your subjects, &c." For remedy whereof, two knights of the shire and two burgesses for the city are established. I have before recited all the acts of parliament which were ever made to meddle with Chester, except the 51 Henry III. stat. 5, in 1266, which only provides that the justices of Chester and other bailiffs shall be answerable in the exchequer, for wards, escheats, and other bailiwicks; yet Chester was never severed from the crown or realm of England, nor ever expressly exempted from the authority of parliament; yet, as they had generally enjoyed an exemption from the exercise of the authority of parliament, we see how soon they complain of it as grievous, and claim a representation as a right; and we see how readily it was granted. America, on the contrary, is not in the realm; never was subject to the authority of parliament by any principle of law; is so far from Great Britain that she never can be represented; yet, she is to be bound in all cases whatsoever! The first statute which appears in which Durham is named, is 27 Henry VIII. c. 24, § 21; Cuthbert, Bishop of Durham, and his successors, and their temporal chancellor of the county palatine of Durham, are made justices of the peace. The next is 31 Elizabeth, c. 9, and recites, that "Durham is, and of long time hath been, an ancient county palatine, in which the Queen's writ hath not, nor yet doth run." It enacts that a writ of proclamation upon an exigent against any person dwelling in the bishopric shall run there for the future. And § 5 confirms all the other liberties of the bishop and his officers. And after this, we find no other mention of that bishopric in any statute until 25 Charles II. c. 9. This statute recites, "whereas, the inhabitants of the county palatine of Durham have not hitherto had the liberty and privilege of electing and sending any knights and burgesses to the high court of parliament, although the inhabitants of the said county palatine are liable to all payments, rates, and subsidies granted by parliament, equally with the inhabitants of other counties, cities, and boroughs, in this kingdom, who have their knights and burgesses in the parliament, and are therefore concerned equally with others, the inhabitants of this kingdom, to have knights and burgesses in the said high court of parliament, of their own election, to represent the condition of their county, as the inhabitants of other counties, cities, and boroughs of this kingdom have." It enacts two knights for the county, and two burgesses for the city. Here, it should be observed, that, although they acknowledge that they had been liable to all rates, &c. granted by parliament, yet none had actually been laid upon them before this statute. Massachusettensis then comes to the first charter of this province; and he tells us, that in it we shall find irresistible evidence, that our being a part of the empire, subject to the supreme authority of the state, bound by its laws, and subject to its protection, were the very terms and conditions by which our ancestors held their lands and settled the province. This is roundly and warmly said, but there is more zeal in it than knowledge. As to our being part of the empire, it could not be the British empire, as it is called, because that was not then in being, but was created seventy or eighty years afterwards. It must be the English empire, then; but the nation was not then polite enough to have introduced into the language of the law, or common parlance, any such phrase or idea. Rome never introduced the terms Roman empire until the tragedy of her freedom was com |