circumstances_ of the realm, do not extend to and operate within
said colonies and plantations, where no such special and local
circumstances are found.--(Thus the _ecclesiastical and canon_ law,
and all _statutes respecting tythes_, the laws respecting _courts
baron and copyholds_, the _game acts_, the statutes _respecting
the poor_ and settlements, and all other laws and statutes,
having special reference to special and local circumstances and
establishments within the realm, do not extend to and operate within
these settlements, in partibus exteris, where no such circumstances
or establishments exist.)
Rem. _These laws have no force in America: not merely because local
circumstances differ, but because they have never been adopted, or
brought over by acts of assembly or by practice in the courts._ B. F.
6. No statutes made _since_ the establishment of said colonies and
plantations (_except_ as above described in articles 3 and 4) do
extend to and operate within said colonies and plantations.
Query.--Would any statute made since the establishment of said
colonies and plantations, which statute imported, to _annul_
and abolish the powers and jurisdictions of their respective
constitutions of government, where the same was not contrary to
the laws, or any otherwise forfeited or abated; or which statute
imported, to take away, or did take away, the rights and privileges
of the settlers, as British subjects: would such statute, as of
right, extend to and operate within said colonies and plantations?
Answer. _No. The parliament has no such power. The charters cannot be
altered but by consent of both parties--the king and the colonies._
B. F.
[COROLLARIES FROM THE FOREGOING PRINCIPLES.]
Upon the matters of fact, right and law, as above stated, it is, that
the British subjects thus settled in partibus exteris without the
realm, so long as they are excluded from an intire union with the
realm as parts of and within the same, have a right to have (as they
have) and to be governed by (as they are) a _distinct intire civil
government_, of the like powers, pre-eminences and jurisdictions
(conformable to the like rights, privileges, immunities, franchises,
and civil liberties) as are to be found and are established in the
British government, respecting the British subject within the realm.
Rem. _Right._ B. F.
Hence also it is, that the _rights of the subject_, as declared
in the petition of right, that the _limitation of prerogative_ by
the act for abolishing the star-chamber and for regulating the
privy-council, &c. that the habeas corpus act, the statute of frauds,
the bill of rights, do of common right extend to and are in force
within said colonies and plantations.
Rem. _Several of these rights are established by special colony laws.
If any are not yet so established, the colonies have right to such
laws: and the covenant having been made in the charters by the king,
for himself and his successors, such laws ought to receive the royal
assent_ as of right. B. F.
Hence it is, that the _freeholders_ within the precincts of these
jurisdictions have (as of right they ought to have) a _share in the
power of making those laws_ which they are to be governed by, by the
right which they have of sending their representatives to act for
them and to consent for them in all matters of legislation, which
representatives, when met in general assembly, have, together with
the crown, a right to perform and do all the like acts respecting
the matters, things and rights within the precincts of their
jurisdiction, as the parliament hath respecting the realm and British
dominions.
Hence also it is, that all the _executive offices_ (from the supreme
civil magistrate, as locum tenens to the king, down to that of
constable and head-borough) must of right be established with all
and the like powers, neither more nor less than as defined by the
constitution and law, as in fact they are established.
Hence it is, that the _judicial offices and courts of justice_,
established within the precincts of said jurisdictions, have, as
they ought of right to have, all those jurisdictions and powers "as
fully and amply to all intents and purposes whatsoever, as the courts
of king's bench, common pleas, and exchequer, within his majesty's
kingdom of England, have, and ought to have, and are empowered to
give judgment and award execution thereupon[108]."
Hence it is, that by the possession enjoyment and exercise of his
majesty's _great seal_, delivered to his majesty's governor, there
is established within the precincts of the respective jurisdictions
all the same and like _powers of chancery_ (except where by charters
specially excluded) as his majesty's chancellor within his majesty's
kingdom of England hath, and of right ought to have, by delivery
of the great seal of England.--And hence it is, that all the like
rights, privileges and powers, follow the use, exercise and
application of the great seal of each colony and plantation within
the precincts of said jurisdiction, as doth, and ought of right to
follow the use, exercise, and application of the great seal.
Hence also it is, that _appeals in real actions_, "whereby the lands,
tenements, and hereditaments of British subjects may be drawn into
question and disposed of[109]," do not lie, as of right and by law
they ought not to lie, to the king in council.
Hence also it is, that there is _not_ any law now in being,
whereby _the subject_ within said colonies and plantations can be
_removed[110] from the jurisdiction to which he is amenable_ in
all his right, and through which his service and allegiance must
be derived to the crown, and from which no appeal lies in criminal
causes, so as that such subject may become amenable to a jurisdiction
foreign to his natural and legal resiancy; to which he may be thereby
transported, and under which he may be brought to trial and receive
judgment, contrary to the rights and privileges of the subject, as
declared by the spirit and intent and especially by the 16th § of
the habeas corpus act. And if the person of any subject within the
said colonies and plantations _should_ be seized or detained by any
power issuing from any court, without the jurisdiction of the colony
where he then had his legal resiancy, it would become the duty of the
courts of justice _within_ such colony (it is undoubtedly of their
jurisdiction so to do) to issue the writ of _habeas corpus_[111].
Hence also it is, that in like manner as "the _command and
disposition of the militia, and of all forces by sea and land_,
and of all forts and places of strength, is, and by the laws of
England ever was, the undoubted right of his majesty and his royal
predecessors, kings and queens of England, within all his majesty's
realms and dominions[112]," in like manner as the supreme military
power and command (so far as the constitution knows of and will
justify its establishment) is inseparably annexed to, and forms
an essential part of the office of supreme civil magistrate, the
office of king: in like manner, in all _governments under the king_,
where the constituents are British subjects and of full and perfect
right entitled to the British laws and constitution, the supreme
military command within the precincts of such jurisdictions must
be inseparably annexed to the office of supreme civil magistrate,
(his majesty's regent, vice-regent, lieutenant, or locum tenens, in
what form soever established) so that the king cannot, by any[113]
commission of regency, by any commission or charter of government,
separate or withdraw the supreme command of the military from the
office of supreme civil magistrate--either by reserving this command
in his own hands, to be exercised and executed independent of the
civil power; or by granting a distinct commission to any military
commander in chief, so to be exercised and executed; but more
especially not within such jurisdictions where such supreme military
power (so far as the constitution knows and will justify the same)
is _already_ annexed and granted to the office of supreme civil
magistrate.--And hence it is, that the king cannot erect or establish
any law martial or military command, by any commission which may
supersede and not be subject to the supreme civil magistrate,
within the respective precincts of the civil jurisdictions of said
colonies and plantations, otherwise than in such manner as the said
law martial and military commissions are annexed or subject to the
supreme civil jurisdiction within his majesty's realms and dominions
of Great Britain and Ireland; and hence it is, that the establishment
and exercise of such commands and commissions would be illegal[114].
Rem. _The king has the command of all military force in his
dominions: but in every distinct state of his dominions there should
be the consent of the parliament or assembly (the representative
body) to the_ raising and keeping up _such military force. He cannot
even raise troops and quarter them in another, without the consent
of that other. He cannot_ of right _bring troops raised in Ireland
and quarter them in Britain, but with the consent of the parliament
of Britain: nor carry to Ireland and quarter there, soldiers raised
in Britain, without the consent of the Irish parliament, unless in
time of war and cases of extreme exigency.--In 1756, when the Speaker
went up to present the money-bills, he said among other things,
that "England was capable of fighting her own battles and defending
herself; and although ever attached to your majesty's person, ever at
ease under your just government, they cannot forbear taking notice
of some circumstances in the present situation of affairs, which
nothing but the confidence in your justice could hinder from alarming
their most serious apprehensions. Subsidies to foreign princes, when
already burthened with a debt scarce to be borne, cannot but be
severely felt._ An army of foreign troops, a thing unprecedented,
unheard of, unknown, brought into England, _cannot but alarm, &c.
&c._" (_See the Speech._)
_N. B. These_ foreign troops _were part of the king's subjects,
Hanoverians, and all in _his_ service, which the same thing as_**** B.
F.
FOOTNOTES:
[104] This State of the Constitution of the Colonies was printed
at the close of 1769, and communicated to various persons, with a
view to prevent mischief, from the misunderstandings between the
government of Great Britain and the people of America. I have taken
the liberty of ascribing it to governor Pownall, as his name could
have been no secret at the time. Dr. Franklin's remarks (which from
their early date are the more curious) are in manuscript, and from an
observation in reply signed T. P. appear to have been communicated to
governor Pownall. B. V.
[105] Pratt and York.
[106] General words in all charters.
[107] [i. e.] All statutes respecting the general relation between
the crown and the subject, not such as respect any particular or
peculiar establishment of the realm of England. As for instance: by
the 13th and 14th of Car. II. c. 2, the supreme military power is
declared to be in general, without limitation, in his majesty, and to
have always been of right annexed to the office of king of England,
throughout all his majesty's realms and dominions; yet the enacting
clause, which respects only the peculiar establishment of the militia
of England, extends to the realm of England only: so that the supreme
military power of the crown in all other his majesty's realms and
dominions stands, _as to this statute_, on the basis of its general
power, unlimited. However, the several legislatures of his majesty's
kingdom of Ireland, of his dominions of Virginia, and of the several
colonies and plantations in America, have, by laws to which the king
hath given his consent, operating within the precincts of their
several jurisdictions, limited the powers of it and regulated the
exercise thereof.
[108] Law in New England, confirmed by the crown, Oct. 22, 1700.
[109] 16th Car. I. c. 10.
[110] The case of the court erected by act of parliament 11 and
12th of William III. c. 7, (since the enacting of the habeas corpus
act) for the trial of piracies, felonies and robberies committed in
or upon the sea, or in any haven, river, creek or place _where the
admiral has jurisdiction_, does no way affect this position: nor doth
the 14 § of the said statute, directing that the commissioners, of
whom such court consists, may issue their warrant for apprehending
such pirates, &c. in order to their being tried in the colonies,
or _sent into England_, any way militate with the doctrine here
laid down: nor can it be applied as _the case of a jurisdiction
actually existing_, which supersedes the jurisdictions of the courts
in the colonies and plantations, and as what authorises the taking
the accused of such piracies &c. _from those jurisdictions_, and
the sending such _so taken_ to England for trial.--It cannot be
applied as a case similar and in point to the application of an act
of parliament (passed in the 35th of Henry VIII. concerning the
_trial of treasons_) lately recommended in order to the sending
persons accused of committing crimes in the plantations to England
for trial: because this act of the 11th and 12th of William, c.
7, respects _crimes_ committed in places, "_where the admiral has
jurisdiction_," and _cases_ to which the jurisdiction of those
provincial courts _do not extend_. In the _case of treasons committed
within the jurisdiction of the colonies and plantations_, there are
courts competent to try such crimes and to give judgment thereupon,
where the trials of such are regulated by laws to which the king
hath given his consent: from which there lies no appeal, and wherein
the king hath given power and instruction to his governor as to
execution or respite of judgment. The said act of Henry VIII, which
provides remedy for a case which supposes _the want_ of due legal
jurisdiction, cannot be any way, or by any rule, applied to a case
where there _is_ due legal and competent jurisdiction.
[111] [The] referring to an old act made for the trial of treasons
committed out of the realm, by such persons as had no legal resiancy
but within the realm, and who were of the realm, applying the purview
of that statute, which was made to bring subjects of the realm who
had committed treason out of the realm (where there was _no criminal
jurisdiction to which they could be amenable_) to trial within the
realm, under that criminal jurisdiction to which alone by their
legal resiancy and allegiance they were amenable; applying this to
the case of subjects whose _legal_ resiancy is _without_ the realm,
and who are by that resiancy and their allegiance amenable to a
jurisdiction authorized and empowered to try and give judgment upon
all capital offences whatsoever without appeal; thus applying this
statute so as to take up a proceeding, for which there is no legal
process either by common or statute law as now established, but in
defiance of which there is a legal process established by the habeas
corpus act;----would be, to disfranchise the subject in America of
those rights and liberties which by statute and common law he is now
entitled to.
[112] 13th and 14th Car. II. c. 2.
[113] If the king was to absent himself for a time from the realm,
and did as usual leave a regency in his place, (his locum tenens
as supreme civil magistrate) could he authorize and commission any
military commander in chief to command the militia forts and forces,
_independent of such regency_? Could he do this in Ireland? Could
he do this in the colonies and plantations, where the governor is
already, by commission or charter or both under the great seal,
military commander in chief, as part of (and inseparably annexed
to) the office of supreme civil magistrate, his majesty's locum
tenens within said jurisdictions? If he could, then, while openly,
by patent according to law, he appeared to establish a free British
constitution, he might by a fallacy establish a military power and
government.
[114] Governor P. accompanied this paper to Dr. F. with a sort
of prophetic remark. After stating, that these theorems, and
their application to existing cases, were intended to remedy the
prejudice, indigestion, indecision and errors, then prevailing
either in opinions or conduct; he adds, "the very attention to the
investigation may lead to the discovery of _some truths respecting
the whole British empire_, then little thought of and scarce even
suspected, and which perhaps it would not be _prudent_ at this time
to mark and point out."--The minister however judged the _discussion_
of _dubious_ rights over growing states, a better policy than
possession, discretion and silence; he turned civilian, and lost an
empire. B. V.
TO MR. DUBOURG.
_Concerning the Dissentions between England and America._[115]
_London, October 2, 1770._
I see with pleasure that we think pretty much alike on the subjects
of English America. We of the colonies have never insisted, that we
ought to be exempt from contributing to the common expences necessary
to support the prosperity of the empire. We only assert, that having
parliaments of our own, and not having representatives in that of
Great Britain, our parliaments are the only judges of what we can
and what we ought to contribute in this case; and that the English
parliament has no right to take our money without our consent. In
fact, the British empire is not a single state; it comprehends many;
and though the parliament of Great Britain has arrogated to itself
the power of taxing the colonies, it has no more right to do so,
than it has to tax Hanover. We have the same king, but not the same
legislatures.
The dispute between the two countries has already cost England many
millions sterling, which it has lost in its commerce, and America has
in this respect been a proportionable gainer. This commerce consisted
principally of superfluities; objects of luxury and fashion, which we
can well do without; and the resolution we have formed, of importing
no more till our grievances are redressed, has enabled many of our
infant manufactures to take root; and it will not be easy to make our
people abandon them in future, even should a connection more cordial
than ever succeed the present troubles. I have indeed no doubt,
that the parliament of England will finally abandon its present
pretensions, and leave us to the peaceable enjoyment of our rights
and privileges.
B. FRANKLIN.
FOOTNOTE:
[115] Re-translated from the French edition of Dr. Franklin's works.
_Editor._
_A Prussian Edict, assuming Claims over Britain._
_Dantzick, Sept. 5, 1773._[116]
We have long wondered here at the supineness of the English nation,
under the Prussian impositions upon its trade entering our port. We
did not, till lately, know the claims, ancient and modern, that hang
over that nation, and therefore could not suspect, that it might
submit to those impositions from a sense of duty, or from principles
of equity. The following edict, just made public, may, if serious,
throw some light upon this matter:
"FREDERICK, by the grace of God, king of Prussia &c. &c. &c. to all
present and to come,[117] health. The peace now enjoyed throughout
our dominions, having afforded us leisure to apply ourselves to the
regulation of commerce, the improvement of our finances, and at the
same time the easing our _domestic_ subjects in their taxes: for
these causes, and other good considerations us thereunto moving, we
hereby make known, that, after having deliberated these affairs in
our council, present our dear brothers, and other great officers of
the state, members of the same; we, of our certain knowledge, full
power, and authority royal, have made and issued this present edict,
viz.
"Whereas it is well known to all the world, that the first German
settlements made in the island of Britain, were by colonies of
people, subjects to our renowned ducal ancestors, and drawn from
their dominions, under the conduct of Hengist, Horsa, Hella, Uffa,
Cerdicus, Ida, and others; and that the said colonies have flourished
under the protection of our august house, for ages past, have never
been emancipated therefrom, and yet have hitherto yielded little
profit to the same: and whereas we ourself have in the last war
fought for and defended the said colonies, against the power of
France, and thereby enabled them to make conquests from the said
power in America, for which we have not yet received adequate
compensation: and whereas it is just and expedient that a revenue
should be raised from the said colonies in Britain towards our
indemnification; and that those who are descendants of our ancient
subjects, and thence still owe us due obedience, should contribute to
the replenishing of our royal coffers: (as they must have done, had
their ancestors remained in the territories now to us appertaining)
we do therefore hereby ordain and command, that, from and after
the date of these presents, there shall be levied and paid to our
officers of the _customs_, on all goods, wares, and merchandizes,
and on all grain and other produce of the earth, exported from the
said island of Britain, and on all goods of whatever kind imported
into the same, a duty of four and a half per cent ad valorem, for
the use of us and our successors.--And that the said duty may more
effectually be collected, we do hereby ordain, that all ships or
vessels bound from Great Britain to any other part of the world, or
from any other part of the world to Great Britain, shall in their
respective voyages touch at our port of Koningsberg, there to be
unladen, searched, and charged with the said duties.
"And whereas there hath been from time to time discovered in the
said island of Great Britain, by our colonists there, many mines or
beds of _iron_-stone; and sundry subjects of our ancient dominion,
skilful in converting the said stone into metal, have in time past
transported themselves thither, carrying with them and communicating
that art; and the inhabitants of the said island, presuming that
they had a natural right to make the best use they could of the
natural productions of their country, for their own benefit, have
not only built furnaces for smelting the said stone into iron, but
have erected plating-forges, slitting-mills, and steel-furnaces, for
the more convenient manufacturing of the same, thereby endangering
a diminution of the said manufacture in our ancient dominion; we
do therefore hereby farther ordain, that, from and after the date
hereof, no mill or other engine for slitting or rolling of iron, or
any plating-forge to work with a tilt-hammer, or any furnace for
making steel, shall be erected or continued in the said island of
Great Britain: and the lord lieutenant of every county in the said
island is hereby commanded, on information of any such erection
within his county, to order, and by force to cause the same to be
abated and destroyed, as he shall answer the neglect thereof to us
at his peril. But we are nevertheless graciously pleased to permit
the inhabitants of the said island to transport their iron into
Prussia, there to be manufactured, and to them returned, they paying
our Prussian subjects for the workmanship, with all the costs of
commission, freight, and risk, coming and returning; any thing herein
contained to the contrary notwithstanding.