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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 section 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. *

“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;'f in like manner as the supreme military power and command (so far as the constitution knows of and will justify its establishment)

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“* In 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."

“4 13th and 14th Car. II. c. 2."

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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, 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 as 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 erector 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

“ * 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 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 jurisdiction? 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."

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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 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 burdened 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.)

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* Governor Pownall accompanied this paper to Dr. Franklin 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.

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N. B. These foreign troops were part of the King's subjects, Hanoverians, and all in his service; which is the same thing as










LONDON, 1769."*

Extract. “SUPREME power and authority must not, cannot, reside equally everywhere throughout an empire.”

Observation. Writers on this subject often confuse themselves with the idea, that all the King's dominions make one state, which they do not, nor ever did since the conquest. Our kings have ever had dominions not subject to the English Parliament. At first the provinces of France, of which Jersey and Guernsey remain, always governed by their own laws, appealing to the King in Council only, and not to our courts or the House of Lords. Scotland was in the same situation before the union. It had the same King, but a separate Parliament, and the Parliament of England had no jurisdiction over it. Ireland the same in truth, though the British Parliament has usurped a dominion over it. The colonies were originally settled in the idea of such extrinsic dominions of the King, and of the King only. Hanover is now such a dominion.

* See above, pp. 206, 211, 215. – EDITOR. VOL. IV.



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