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of British subjects may be drawn into question and disposed of,'' 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* from the jurisdic
'l6th Car. I. c. 10.
1 The case of the court erected by Act of Parliament, 11th and 12th of William HI. 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 14th § 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 Hen. 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, cap. 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 tion to which he is amenable in all his rights, 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?
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 Hen. VIII. which provides remedy for a case which supposes the want of duo leyal jurisdiction, cannot be any way, or by any rule, applied to a case where there is due legal and competent jurisdiction.
1 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
Hence also it is, that in like manner as "the command and disposition of the militia, and of allforces 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 dominions1 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
(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 authorised 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.
'13th and 14th Car. II. c. 2.
the precincts of such jurisdictions, must be insepa•rably annexed to the office of supreme civil magistrate, (his Majesty's Regent, Vicegerent, Lieutenant, or Locum Tenens, in what form soever established ;) so that the King cannot by any' 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
'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 authorise and commission any military commander in chief, to command the militia forts and forces, independent of such regency? 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 j urisdictions 1 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.
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.'
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
1 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.