The Works of John Adams Vol. 4

Novanglus, Thoughts on Government, Defence of the Constitution I (Annotated)

John Adams

• Publisher: Jazzybee Verlag
• Year: 2015
• eBook ISBN: 9783849648206
• Topic: Política y relaciones internacionales
• Subtopic: Biografías políticas

John Adams was the second President of the United States, ruling the country from 1797 to 1801, and one of the Founding Fathers. He was also a major leader of American independence from Great Britain. This is volume four out of ten of his works, this book containing Novanglus, Thoughts on the Government and the first Defence of the Constitution. The text is annotated with more than 380 endnotes.

NO. XI.

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 to 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, Gascogne, 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 Legislator 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 ^{Endnote 060} says: “Wales was some time a kingdom, as it appeareth by 19 Henry VI. fol. 6, and by the act of parliament of 2 Henry V. cap. 6; but while it was a kingdom, the same was holden and within the fee of the King of England; and this appeareth by our books, Fleta, lib. 1, cap. 16; 1 Edward III. 14; 8 Edward III. 59; 13 Edward III., tit. Jurisdict.; 10 Henry IV. 6; Plow. Com. 368. And in this respect, in divers ancient charters, kings of old time styled themselves in several manners, as King Edgar, Britanniæ Basileus; Etheldredus, Totius Albionis Dei providentia Imperator; Edredus, magnæ Britanniæ Monarcha, which, among many others of like nature, I have seen. But, by the statute of 12 Edward I. Wales was united and incorporated into England, and made parcel of England in possession; and, therefore, it is ruled, in 7 Henry IV. fol. 13, 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 Henry VIII., that Wales was ever parcel of the realm of England, it is true in this sense, namely,—that before 12 Edward I. it was parcel in tenure, and since, it is parcel of the body of the realm. And whosoever is born within the fee 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 Edward I., whilst it was only holden of England, were capable and inheritable of lands in England.”

Where my Lord Coke, or any other sage, shows 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 Edward 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. 2. It is not recited in the 27 H. VIII., 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: ^{Endnote 061} “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, omniumque insularum oceani, quæ Britanniam circumjacent, imperator 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 imperio omnia regna insularum oceani, &c., cum suis ferocissimis regibus usque Norvegiam, maximamque partem Hiberniæ, 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 Henry II., the honor of the conquest of Ireland is attributed to him. That Ireland is a dominion separate and divided from England it is evident from our books, 20 H. VI. 8; Sir John Pilkington’s case, 32 H. VI. 25; 20 Eliz.; Dyer, 360; Plow. Com. 360, and 2 R. 3, 12: Hibernia habet parliamentum, et faciunt leges, et statuta nostra non ligant eos quia non mittunt milites ad parliamentum, (which is to be understood, unless they be specially named,) sed personæ eorum sunt subjecti regis, sicut inhabitantes in Calesia, Gasconia, et Guyan. Wherein it is to be observed, that the Irishman (as to his subjection) is compared to men born in Calice, Gascoin, and Guienne. Concerning their laws, Ex rotulis petentium, de anno 11 Regis H. III., 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 bonæ memoriæ Johannes quondam rex Angliæ, pater noster venit in Hiberniam, ipse duxit secum viros discretos et legis peritos, quorum communi consilio et ad instantiam Hibernensium statuit et præcepit leges Anglicanas in Hibernia, ita quod leges easdem in scripturas redactas reliquit sub sigillo suo ad saccarium 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 Henry VI. 8, and 20 Elizabeth, Dyer, 360, and for that they retain unto this day divers of their ancient customs, the book in 20 Henry VI. 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 Henry IV. 7, and 7 Edward IV. 4, 27, which proveth it a distinct dominion. And in anno 33 Elizabeth, it was resolved by all the judges of England, in the case of O’Rurke, an Irishman, who had committed high treason in Ireland, that he, by the statute of 23 Henry VIII. 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 Henry VII. 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, that is, a Postnatus) in Scotland? For the Irishman is born extra ligeantiam regis, regni sui Angliæ, &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 do not bind them, because they do not send knights to parliament, is universal, and concludes against those statutes binding in which Ireland is specially named, as much as against those 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 O’Rurke 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 the 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 showing, 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 II.” 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. II. did by advice of his judges, &c. This modus, &c. was, anno 6, H. IV., in the custody of Sir Christopher Preston, which roll H. IV., 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. II., the father of King 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 distinct 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, &a...

Table of contents

• NOVANGLUS
• PREFACE TO THE EDITION OF 1819.
• NOVANGLUS. ADDRESSED TO THE INHABITANTS OF THE COLONY OF MASSACHUSETTS BAY.
• NO. I.
• NO. II.
• NO. III.
• NO. IV.
• NO. V.
• NO. VI.
• NO. VII.
• NO. VIII.
• NO. IX.
• NO. X.
• NO. XI.
• NO. XII.
• WORKS ON GOVERNMENT.
• PREFACE BY THE EDITOR.
• THE PLAN.
• PREFACE.
• THOUGHTS ON GOVERNMENT.
• THE MODEL.
• THE REPORT OF A CONSTITUTION, OR FORM OF GOVERNMENT, FOR THE COMMONWEALTH OF MASSACHUSETTS;
• [CHAPTER I.] Endnote 076: A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH OF MASS
• [CHAPTER II. Endnote 105]: THE FRAME OF GOVERNMENT.
• CHAPTER II. [III.]: Executive Power.
• CHAPTER III. [IV.]: Judiciary Power.
• CHAPTER IV. [V.]: Delegates to Congress, [Commissions, Writs, Indictments, &c.; Confirmation of Laws
• CHAPTER V. [VI.]: The University at Cambridge, and Encouragement of Literature, &c.
• SECTION I.: The University.
• CHAPTER VI. Endnote 189
• [CHAPTER VII. AND LAST.] Endnote 207: [Continuance of Officers, &c.]
• THE DEFENCE.
• PREFACE BY THE EDITOR.
• PREFACE.
• PRELIMINARY OBSERVATIONS.
• CHAPTER I.: OF MODERN DEMOCRATIC REPUBLICS.
• CHAPTER II.: ARISTOCRATIC REPUBLICS.
• CHAPTER III.: MONARCHICAL OR REGAL REPUBLICS.
• CHAPTER IV.: OPINIONS OF PHILOSOPHERS.
• CHAPTER V.: WRITERS ON GOVERNMENT.
• CHAPTER VI.: OPINIONS OF HISTORIANS.
• CHAPTER VII.: ANCIENT DEMOCRATICAL REPUBLICS.
• CHAPTER VIII.: ANCIENT ARISTOCRATICAL REPUBLICS.
• CHAPTER IX.: ANCIENT MONARCHICAL REPUBLICS.
• CHAPTER X.: CONCLUSION.
• Endnotes: