[13 March 1775]
[salute] My Friends,
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. § 4.2
“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 Massachusett3
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.4
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 regu•
late 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.5
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.6
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 ca•
pable 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.)