|
Having thus supported the equity of appeals to Tribunals in the Colonies, it is our next step, to support the propriety of appeals from thence to the House of Lords in England. There is a position in law, that whenever a question concerning property arises in America, as the dernier resort, the King in his Council exercises original jurisdiction therein, upon principles of feodal sovereignty. And upon this doctrine it is, that our appeals have not yet reached the House of Lords. To oppose this position, I shall make use of two others; the one ancient, the other very modern. It is laid down as common law, by Sir Edward Coke, that the King cannot personally distribute justice, having delegated his whole judicial power to the judges of his several Courts. Hence it must follow that the King in his person, cannot exercise an original judicial power upon the principles of feodal sovereignty, over the property of a country having the benefit of the common law. The question therefore is, whether or not America is such a country? The nature of the operation of the Common Law in establishments of natural English subjects in America, as it is a point that has been more minutely enquired into within these eight or ten years, than ever it was at any time before, so without doubt, that point of law is better understood at this day, than at any time preceding. Hence, notwithstanding it has been laid down, that the Common Law has no natural operation in the American colonies obtained by conquest or treaties, yet the more modern and better position now established as a settled point is, that English subjects emigrating from England to colonize America, carry with them, inherently in their persons, a title, which is unalienable, and which no time or climate can invalidate, to enjoy the benefits of the common law in America; where, upon their arrival, it is eo instanti of force. And such were the lares our forefathers religiously embarked with themselves, to protect them and their posterity in the wilds of America! Thus undoubtedly possessed of the birthrights of Englishmenrights evidenced by Magna Charta! shall we suffer them to be frittered away, or in any degree to be invalidated by a fiction, and artificial refinement of original judicial power, upon principles of feodal sovereignty? Shall an original sovereignty, long annihilated in the English Crown by common law, now be permitted to revive by a fiction, to destroy original rights, expressly and often ascertained by the forefathers of the Americans, and admitted as often by the Kings of England? To expect this, is to think that the Americans have no reasoning faculties. But supposing the position to be true, that the common law not naturally operating in America, the Crown therefore possessed in appeals, an original jurisdiction, upon the principles of feodal sovereignty. Yet of what importance can this be in support of the jurisdiction, since it must cease when the common law operates, which it has long since done in America; and besides the Crown, in the most express terms, has relinquished such a jurisdiction, if it could have had any such, by the charters granted to the American colonies? In these charters, the Crown has covenanted with the emigrants to America, that they and their descendants there to be born, shall be in all things held, treated, and reputed as the liege faithful people of us, our heirs and successors born within this our kingdom; to have and enjoy all liberties, franchises and privileges of this our Kingdom of England, as our liege people born within the same. Can words be more explicit? Has not the Crown by this covenant relinquished the idea of feodal sovereignty? Otherwise, how are the Americans to be deemed to have and enjoy all the liberties and franchises of England, as in like manner with the liege people born there? And as we know the Crown has no feodal sovereignty over them, and cannot exercise any original jurisdiction over their appeals, so neither can it legally arrogate a right to exercise an original jurisdiction over appeals from America, whose inhabitants the Crown has, by Charters, declared shall be held, and reputed to have and enjoy all the liberties and franchises of England, in like manner as the people of England themselves. At this period, the King's right to an appellate jurisdiction over disputes about American property, seems absolutely annihilated, to all intents and purposes to which arguments can operate. However, I shall continue the subject, in order to settle it by a point of law. It is laid down that the powers which are vested in the Crown by the laws of England, are necessary for the support of society, and do not intrench any farther on our natural liberties, than is expedient for the maintenance of our civil. Nothing can be more equitable than such a principle of law. America joins issue upon it. She pleads that the civil liberties of Great Britain and of America cannot sustain any prejudice by American appeals being carried to the House of Lords, and produces that mode of proceeding from Ireland as evidence of the propriety of the plea. Bracton says, nihil aliud potest Rex, nisi id solum quod de jure potest. How then, by any fiction, can the prerogative withhold appeals from being carried to the House of Lords, when such a measure is not "expedient for the maintenance of our civil liberties?" Or how can the prerogative militate, to the partial violation of an express Statute enacting, that the King and Privy Council shall not "by English bill, petition, articles, libel, or any other arbitrary way whatsoever, examine or draw into question, determine or dispose of the lands, tenements, hereditaments, goods or chattels of any of the subjects of this Kingdom?" Were not our forefathers Englishmen, and are not we, their descendants, subjects of England? Yes, but the Statute does not respect Americans, no mention is made of them. Strange! that it must be construed so very strictly, as not to admit the common import of the words, "any of the subjects," nay, the commonly equitable construction of those words. Can it be imagined that the justice, and equitable policy of that Parliament, meant to subject the Americans of that period, to the judgment of a tribunal they themselves no longer dared to trust? Would not such a sacrifice of the Americans, be the highest violation of justice? The Parliament thought so, and included the Americans under the expression "any of the subjects of this Kingdom," in like manner as Ireland is construed to be included under the general words "within any of the King's dominions." Thus, I may safely lay it down, as a point of law not to be denied, that the Statute of Charles, does incapacitate the King and Privy Council from exercising, over the property of Americans, subjects of the English Crown, any judicial power whatsoever, except in appeals from the Court of Admiralty. And farther, that no Act of Assembly of a dependent colony, an inferior state, can vest in the English Crown, the Imperial state, any power or jurisdiction to be exercised in the Imperial state, or even to appertain to the Crown of England, which the law of the Imperial dominion of England expressly says cannot vest in, or appertain to the Crown to be exercised over "any of the subjects of the Kingdom." I here rest the point relative to the King's appellate jurisdiction over American property. I shall however, continue the subject upon an entire new ground of argument, not with any design, more firmly to establish our claim of exemption from such a jurisdiction, but for the sole purpose of claiming objects, in their nature unlimited, and of the utmost importance to the liberties of America. It is laid down, that the fundamental right of Englishmen is that residuum of natural liberty, which is not required by the laws of society to be sacrificed to public convenience. Hence, I may safely lay it down, that at any time when, the public convenience no longer requiring, the law of society remits a sacrifice of a particular natural liberty; then that natural liberty reverts eo instanti to the residuum, for the benefit and advantage of the common and joint heirs of that residuum, to all intents and purposes, as if it had never at any time been separated from it, to be sacrificed to the public convenience. Thus, there cannot at any time be an increase of liberty to the English subject, but what his ancestor coeval with the Constitution was absolutely possessed of, and then separated from the residuum, to be sacrificed as long as the public convenience should require it, with remainder-over to revert to the residuum vesting in his heirs. The conclusion therefore must be, that whenever an Act of Parliament remits the sacrifice of a natural liberty, and thereby, ipso facto, re-annexes it to the main stock of the residuum, it becomes a part of that residuum as if it had never been separated from it; and the Americans being with the people of England, equal heirs of this residuum, however increased by the remainders-over resulting to it, must at once enter into possession of this natural liberty, now again become a component part of the residuum, without any necessity of their being mentioned in the public Act, signifying that the public convenience no longer requires a sacrifice of that particular natural liberty, or exemption from the jurisdiction of the Crown. Upon these principles, the Americans may justly claim to participate, in every restoration of natural right, liberty, or exemption in any shape, from the royal influence, power and jurisdiction, which the people of England shall at any time receiveby the independence of the Judges, assuring to the public a security against the influence of the Crown, as well as being delivered from the Royal power, by their properties being exempted from the jurisdiction of the King and Privy council. A tribunal, which, as it has been, so, it may again be thought, inclined to pronounce that for law, which may be most agreeable to themselves. And what just reason can there be, that the property of the Americans should be under the jurisdiction of a tribunal, which the people of England themselves dare no longer trust? Why this odiously unjust distinction between people of the same blood and allegiance? But this is not the only harsh partiality of the English domination. Why is it a principle of their law, that from all the dominions of the Crown, except Great Britain and Ireland, an appellate jurisdiction in the last resort, is vested in the King and Privy Council, upon the principles of feodal sovereignty? Upon what principle of law is this exception grounded in favor of Ireland? Let us examine into the nature of her dependence upon the Crown of Great Britain, and let my purpose, to form a comparison between the liberties of Ireland and America, justify my continuing the subject of appeals. The original and true ground of this dependence is by conquest. So far then, the nature of the acquisition of the terra firma of Ireland and America, is in law considered alike; and, therefore, as the King may alter the original laws of the acquired Indian and French territories in America, so he may, in like manner, alter at his will and pleasure, the laws of the acquired territory of Ireland, and by consequence, the Crown cannot but have an appellate jurisdiction, in the last resort, over the Irish, Indians and French, equally conquered, and inhabiting countries equally acquired, by conquest or by treaties and cession. As this must be granted, then, whence comes the exception in favor of Ireland? I cannot see that it has arisen any otherwise, than by a Statute there, confirming, as Sir Edward Coke apprehends, the letters patent of King John, ordaining in right of the dominion by conquest, that Ireland should be governed by the laws of Englandthat is the common law, instead of the Brehon law of Ireland. If thus, the common law of England obtaining in Ireland, emancipated, as it certainly did, the originally conquered inhabitants of the territory from the King's appellate jurisdiction upon principles of feodal sovereignty, the English colonies and settlements in America must, a fortiori, be equally emancipated by the same operation of the Common Law, first established in most of them, by Acts of their Assemblies, and now in all, by the late doctrine, that the law is the inherent natural right of every English settlement in America. And, if notwithstanding the common law operating in America, equally as in Ireland, the King still exercises over the former, an original appellate jurisdiction in the last resort, upon principles of feodal sovereignty, by what law not applicable to the former, is the latter emancipated from that jurisdiction, originally applicable to each? A Statute of George the First annihilated the appellate jurisdiction of their House of Lordsthere was no Statute directing that appeals from Ireland should go to the House of Lords in England, and therefore it is evident they found their way there, by the conveyance and mere operation of the Common Law. America, not having any appellate jurisdiction in the dernier resort within herself, was then, in that respect, in the same situation in which Ireland was reduced by the Act of George the First, and the common law being of force equally in the two colonies, why should not appeals from America as from Ireland, equally find their way to the House of Lords in England, by the same conveyance and mere operation of the same common law? The Irish, Indians, and French were originally aliens, and it seems incomprehensible to me, that the English colonists in America, can, by any fiction of law, so lose their natural rights of inheritance under the English Crown, as to be reduced to the situation of aliens conquered, and therefore bound to admit the law of the conquering monarch. In short, the English colonies in America are taxed against their consent; their criminals have a power, by English law, to fly from their just vengeance; the value of their property is taken from them, and vested in the Crown; and despotism is established in an English Province containing 150,000 French souls, as a precedent and terror to the rest of the continentbecause the English Colonists of America quitted their native country, to better their own fortunes, and to enable Great Britain to form the most lucrative colonies a parent State ever possessedto establish the most powerful Empire the world ever sawand to be at present in her turn the rising power in Europe. A most striking instance of justice and gratitude to Colonists, who, according to the present system of Europe, form the basis of the British grandeur! Colonists! who being justly and tenderly treated, bid fair to render the British Empire more powerful, more glorious, and more durable, than any we find recorded in historic page. But alas! instead of parental tenderness, we experience a step-mother's severityinstead of justice, we receive marks of the most unfeeling ingratitude! Why should not the English Colonists in America, enjoy the same national rights, which the English Colonists in Ireland possess? Are not the rights the same, equally derived from one and the same source? It is with indignation the Americans, blood of the blood of the Imperial people, see themselves, by their own blood, refused the most valuable civil rights, which they have readily granted to the very Irish, an alien race, conquered by their common forefathers. The Irish carry the appeals to the same dernier resort, and there, on equal terms, litigate their disputes with their conquerors. But the Americans, like a vanquished people, are obliged, in the dernier resort, to appeal to the King in Council; and as King John gave the Irish law, in right of dominion by conquest, so the Americans, although of the blood of the conquerors, are under the hard necessity of receiving that for law, which their own natural monarch shall be pleased to pronounce! Sorely as Ireland is pressed, how preferable is her political situation to that of America! Ireland a country conquered, and fattened by the slaughtering sword of England, and now, in a considerable proportion peopled with English colonists, gives aids to the Crown only at her own pleasurefor the Imperial people do not Tax her, because her representatives "are not summoned to the English Parliament;" and again, "Ireland hath a Parliament of its own, and our Statutes do not bind them," "because they do not send Knights to our Parliament." Constitutional as this doctrine is, it will not avail the English Colonists, by whom I may say America is peopled. O Americans! you are taxed, although your "Knights are not summoned," and the English Statutes, are construed to bind, although you "do not send Knights" to the British Parliament; like a conquered people, you hold your property, but by the law of the monarch, pronounced by the advice of the minister! Americans, now, no longer expect spontaneous justice, from the British Dominion, and it is with indignation, that even without any political reason of State, they see themselves postponed in favor, and in important religious and civil rights, to the people of Ireland, whom our fathers conquered. Rights! worthy of being recovered, at the expense of slaughtered hecatombs of heroes. The Americans are but upon a footing with the most trifling appendages of the British Crown, and formerly appendages of Normandy, herself but a Dutchy in France! Know yourselves, O Americans! You are but upon the same establishment, you enjoy but the same civil rights with the people of Guernsey, Jersey, Sark and Alderney. People like yourselves subject to the taxation, and Legislation of the British Parliament, and to the royal award in disputes of property! I here beg leave to make two observations, which I hope will be admitted with candor. That my frequent repetition of particular words, was ventured upon solely with a view to enforce, and put in the most striking light, arguments, which, without such repetitions, might not have appeared so pointed, and that every disagreeable word respecting the Irish nation, was hazarded only with the same intention. While Hannibal thundered at the gates of Rome, such was the fortitude of the Romans, a people destined to be populum latè regem, that in the forum was sold and bought, even the very ground on which Hannibal was encamped. The Romans opposed him with a vigor, the more formidable, by being temperate. The event was suitable to the conduct. Let us imitate such an example. Let us not give up our rights, because a military government is formed, upon principles of the most baneful policy to the liberties of America, to extend along almost our whole western frontieran appearance infinitely more formidable to the sea coast colonies than the late chain of forts in that quarter commanded under French commissionsa government accustomed to despotism from its first existencea people who have always hated, and by their spiritual rulers, will ever be taught to hate us, as heretics and enemies of the Grand Monarch, and by their political rulers, to hate us as enemies to despotism. Let us not despair, because armies are, as I may say, encamped upon our rights. No! we will still consider them our property, as the Romans did their soil, which Hannibal covered with his Numidians, and which he held planted with his hostile ensigns. The eyes and attention of Americanay of Europeare fixed upon the American Congress. O Deputies! I doubt not but that you will act worthy of such an expectation. Calmly deliberate upon, then respectfully and boldly declare the Grievances and Rights of America. Be wisely cautious what you determine, but let your determinations be, as fixed as fate. And by a firm demand of our liberties, shew a genuine descent from our patriotic forefathers at Running-medein consequence of whose conduct our gracious Sovereign now possesses the Imperial Crown of Great Britain, his subjects derive the continuance of their liberties, and I, an American, have a title to write my name FREEMAN Charles Town, South Carolina, August 10, 1774. NOTE.After writing this pamphlet, William Henry Drayton was superseded as a King's Judge, and was suspended as one of his Privy Counsellors for South Carolina. The proceedings relative to the matter are here given. After this he took an active part in the Revolution of North America against Great Britain. (From Documentary History of the American Revolution, by Gibbes, Volume 1, pp. 11-39) Doc ID: Gibbes, v. 1, p. 011e Date: 8/10/1774 |
Last modified: 7/8/03/CLN.
URL: http://www.southcarolinahistoricalsociety.org/displays/RevWar/archives-online/Gibbes__v__1__p__011e.html