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 conqueror 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 Hiberniæ 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, though a conquered people, and the king absolute. Very unlike the minister of our æra, 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 merely 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 principam Walliæ et barones Wallenses Walliæ 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. 1. 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 Walliæ, prius nobis jure feodali subjectam, jam in proprietatis nostræ dominium convertit, et coronæ regni Angliæ, 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 1. 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 complete 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. "Nobis 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. 1. 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 completed, until Jac. 1. 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 a 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, "coronæ regni Angliæ, tanquam partem corporis ejusdem," 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.