property and importance are satisfied, and disposed to submit quietly to the taxing power of parliament; and that, if the revenue-acts are continued, and those duties only that are called anti-commercial be repealed, and others perhaps laid in stead; the power ere long will be patiently submitted to, and the agreements not to import be broken, when they are found to produce no change of measures here. From these and similar misinformations, which seem to be credited, I think it likely that no thorough redress of grievances will be afforded to America this session. This may inflame matters still more in that country; farther rash measures there, may create more resentment here, that may produce not merely ill-advised dissolutions of their assemblies, as last year, but attempts to dissolve their constitution;' more troops may be sent over, which will create more uneasiness; to justify the measures of government, your writers will revile the Americans in your newspapers, as they have already begun to do; treating them as miscreants, rogues, dastards, rebels, &c. to alienate the minds of the people here from them, and which will tend farther to diminish their affections to this country. Possibly, too, some of their warm patriots may be distracted enough to expose themselves by some mad action to be sent for hither; and government here be indiscreet enough to hang them, on the act of Henry VIII.* Mutual provocations will thus go on to complete the separation; and instead of that cordial affection that once and so long existed, and that harmony so suitable to the circumstances, and so necessary to the happiness, strength, safety, and welfare of both countries; an implacable malice and mutual hatred, such as we now see subsisting between the Spaniards and Portuguese, the Genoese and Corsicans, from the same original misconduct in the superior governments, will take place: the sameness of nation, the similarity of religion, manners, and language, not in the least preventing in our case, more than it did in theirs. I hope, however, that this may all prove false prophecy, and that you and I may live to see as sincere and perfect a friendship established between our respective countries, as has so many years subsisted between Mr. Strahan, and his truly affectionate old friend, B. FRANKLIN.

This was afterwards attempted by the British legislature, in the case of the Massachusett's Bay province. B. V.

The lords and commons very prudently concurred in an address for this purpose; and the king graciously assured them of his compliance with their wishes. B. V.

STATE OF THE CONSTITUTION OF THE COLONIES, BY GOVERNOR POWNALL;'-WITH REMARKS BY DR. FRANKLIN.

[PRINCIPLES.]

1. Wherever any Englishmen go forth without the realm, and make settlements in partibus exteris, 'These settlements as English settlements, and these inhabitants as English subjects, (carrying with them the laws of the land wherever they form colonies, and receiving his Majesty's protection by virtue of his royal charter" or commissions of government,) have and enjoy all liberties and immunities of free and natural subjects, to all intents, constructions, and purposes whatsoever; as if they and every of them were born within the realm;' and are bound by the like allegiance as every other subject of the realm.

Rem. The settlers of colonies in America did not carry with them the laws of the land, as being bound by them wherever they should settle. They left the realm to avoid the inconveniences and hardships they were under, where some of those laws were in force: particularly ecclesiastical laws, those for payment of tythes, and others. Had it been understood that they were to carry these laws with them, they had better have staid at home among their friends, unexposed to the risk and toils of a new settlement. They carried with them, a right to such parts of the laws of the land, as they should judge advantageous or useful to them: a right to be free from those they thought hurtful; and a right to make such others, as they should think necessary, not infringing the general rights of Englishmen; and such new laws they were to form, as agreeable as might be to the laws of England. B. F.

2. Therefore, the common law of England, and all such statutes as were enacted and in force at the time in which such settlers went forth, and such colonies and plantations were established, (except as hereafter excepted) together with all such alterations and amendments as the said common law may have received; is from time to time, and at all times, the law of those colonies and plantations.

'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.-The large type with the lower notes, mark what belongs to Governor Pownall; and the smaller type, mixed with the larger one, and signed B. F., marks what belongs to Dr. Franklin. B. V.

3 Pratt and York.

• General words in all charters.

Rem. So far as they have adopted it; by express laws or by practice. B. F.

3. Therefore all statutes touching the right of the succession, and settlement of the crown, with the statutes of treason relating thereto;' all statutes regulating or limiting the general powers and authority of the crown, and the exercise of jurisdiction thereof; all statutes declaratory of the rights and liberty of the subject; do extend to all British subjects in the colonies and plantations as of common right, and as if they and every of them were born within the realm. Rem. It is doubted whether any settlement of the crown by parliament takes place in the colonies, otherwise than by the consent of the assemblies there. Had the rebellion in 1745 succeeded so far as to settle the Stuart family again on the throne, by act of parliament, I think the colonies would not have thought themselves bound by such act. They would still have adhered to the present family, as long as they could. B. F.

[Obs. in Reply. They are bound to the King and his successors, and we know no succession but by act of parliament. T. P.]

4. All statutes enacted since the establishment of colonies and plantations, do extend to and operate within the said colonies and plantations, in which statutes the same are specially named.

Rem. It is doubted whether any act of parliament should of right operate in the colonies: in fact, several of them have and do operate. B. F.

5. Statutes and customs which respect only the special and local 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

1

[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 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,

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 entire 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 entire 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 Rights, that the limitation of the 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 headborough,) 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.'

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,' do not lie, as of right and by law they ought not to lie, to the king in council.

'Law in New England, confirmed by the crown, October 22, 1700.

2 16th Car. I. c. 10.