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CHAPTER FOURTEEN PRECEDENTS OF ANALOGY We must give particular attention to a familiar word. It has been mentioned many times for it was used frequently on both sides of the prerevolutionary constitutional debate by participants explaining either the authority of charter or the original understanding. The word is "realm." A great deal of constitutional law evolved around the legal concept "realm." "All the charters of the colonies," an unknown London writer explained in 1775, confer on the colonies "privileges and legislative powers, which plainly bespeak distinct states." At the time of the first settlement, he added, "the lands in America wholly belonged to the executive power, and were never subject to the parliamentary, because they were never annexed to the realm." Today the principle may seem too mechanical, but in the eighteenth century some constitutional commentators thought that it might resolve very large questions of law. If, they reasoned, colonial whig legal principles were correct, and "the colonies, in their first erection, were not strictly within the realm, then [parliamentary] supremacy cannot spread itself over them in the same degree it does over us" in the mother country.l From the perspective of its American context, the "realm" criterion has the appearance of being another dispute about the original under- PRECEDENTS OF ANALOGY 193 standing-at the time of the settlement of North America "no person imagined any part of that Continent to be within the Realm of England, which was circumscribed within certain known and established limits."2 In fact, it was not a new legal doctrine concerned with the recent constitutional past, but ancient doctrine traceable to the distant past, to a constitution before king and Parliament, to the era of kings and councils. It had been formulated for the rule of Wales, Jersey, Guernsey, and other dominions of the Crown, and, if it did not settle questions of legislative jurisdiction, it was a test for determining whether the English commonlaw and administrative writs ran within the limits of those dominions.3 The constitutional separation of the realm from the Crown's other dominions had received significant affirmation in Calvins Case, when Lord Coke ruled on the authority ofParliament over Ireland, and reached back through medieval precedent to define colonies as dominions of the king, distinct from the realm.4 The constitutional ramifications of the "realm" doctrine were never fully developed but had great potential for arbitrary prerogative law as much as for legislative autonomy. John Palmer , chief justice of New York in the reign of James II, indicated the prerogative side of this potential when he contended, "That the Plantations are of the Dominion of the Crown oj England, and without any regard to Magna Charta, may be rul'd and govern'd by such ways and methods as the Person who wears the Crown, for the good and advancement of those Settlements, shall think most proper and convenient."5 Palmer's constitutional theory was extreme, too drastic even for the postRestoration monarchy. Had Palmer's law prevailed, however, not only would parliamentary supremacy·over the colonies never have become an issue three-quarters of a century later, but, consideringJames's ambitions for the royal prerogative, it would have meant the end of constitutionalism in the colonies. In the American Revolution debate, no one spoke for Palmer's constitution . The American "realm" issue was legislative autonomy outside the realm at a time when Parliament, not the Crown, was supreme within the realm. Disagreement was not over whether the realm-nonrealm distinction was valid constitutional law, but whether North America was within or beyond the realm. Of course, there were constitutionalists who thought the question of little consequence, but not John Adams who invested much effort to prove that the colonies were not within the realm of Great Britain. Besides Calvins Case, Adams relied on two rules of current imperial constitutional law to support the doctrine that the colonies were beyond the realm. The first was procedural. Judicial appeals from America were not carried to the House of Lords as were appeals from England and Ireland. "[W]hich shows that the Peers 194 PRECEDENTS OF ANALOGY of the Realm are not the Peers of America," Adams insisted. "But all such Appeals are brought before the King in [Privy] Council, which is a further Evidence that we are not within the Realm."6 The second was a rule of construction: that the colonies were not bound by an act of Parliament unless especially "named" in the statute. "[1]f...

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