Abbildungen der Seite

Feb. 7th, 1774. “ His majesty, taking the and all such statutes as were enacted and in said report into consideration, was pleased, force at the time in which such settlers went with the advice of his privy-council, to ap- forth, and such colonies and plantations were prove thereof; and to order, that the said pe- established, (except as hereafter excepted) to tition of the House of Representatives of the gether with all such alterations and amendprovince of Massachusett's Bay be disinissed ments as the said common law may have rethe board--as groundless, vexatious, and scan-ceived, is from time to time, and at all times dalous;

and calculated only for the seditious the law of those colonies and plantations. purpose of keeping up a spirit of clamour and Rem. So far as they adopt it, by express discontent in the said province.”

laws or by practice. B. F. A former petition against governor Ber 3. Therefore all statutes, touching the righ! nard met with a dismission couched in similar of the succession, and settlement of the crown, terms.

with the statutes of treason relating thereto,

all statutes, regulating or limiting the geThe Constitution of the Colonies*, by Go- neral powers and authority of the crown, and

vernor Pownall; with Remarks, by Dr. the exercise of the jurisdiction thereof; all Franklin.

statutes declaratory of the rights and liberty (PRINCIPLES.]

of the subject, do extend to all British subjects

in the colonies and plantations as of common 1. WHEREVER any Englishmen go forth right, and as if they and every of them were without the realm, and make settlements in born within the realm. partibus exteris, “ These settlements as En

Rem. It is doubted, whether any settlement glish settlements, and these inhabitants as

of the crown by parliament, lakes place in English subjects (carrying with them the the colonies, otherwise than by consent of the laws of the land wherever they form colonies, assemblies there. Had the rebellion in 1745. and receiving his majesty's protection by vir- succeeded so far as to settle the Stuart fatue of his royal charter t” or commissions of mily again on the throne, by act of parliagovernment) " have and enjoy all liberties

ment, I think the colonies would not have and immunities of free and natural subjects, thought themselves bound by such act. They to all intents, constructions, and purposes would still have adhered to the present juwhatsoever

, as if they and every of them were mily as long as they could. B. F. born within the realm ;f" and are bound by

Observation in reply. They are bound 10 the like allegiance as every other subject of the king and his successors, and we knou no the realm.

succession but by act of parliament. T. P. Remarks. The settlers of colonies in Ame

4. All statutes enacted since the establishrica did not carry with them the laws of the ment of colonies and plantations do extend to land, as being bound by them wherever they and operate within the said colonies and plantashould settle. They left the realm to avoid tions, in which statutes the same are specially the inconveniences and hardships they were

named. under, where some of those laws were in

Rem. It is doubted, whether any act of force, particularly ecclesiastical laws, those for payment of tythes, and others. Had it parliament should of right operate in the co

lonies : in fact, several of them have and do been understood, that they were to carry operate. B. F. these laws with them, they had belter had

5. Statutes and customs, which respect only staid at home among their friends, unexpos- the special and local circumstances of the ed to the risks and toils of a new settlement. realm do not extend to and operate within They carried with them, a right to such parts said colonies and plantations, where no such of the laws of the land, as they should judge special and local circumstances are found. advantageous or useful to them: a right to (Thus the ecclesiastical and canon law, and be free from those they thought hurtful; and a right to make such others, as they should * All statutes respecting the general relations between think necessary; not infringing the general the crown and the subject, noi such as respect any par

ticular or peculiar establishment of the realm of Eng rights of Englishmen: and such new laws

As for instance : by the 13th and 14th of Car they were to form, as agreeable as might be II. c. 2 the supreme military power is declared to be 18

general, without limitation, in his majesty, and to have to the laws of England. B. F.

always been of right annexed to the office of king of 2. Therefore the common law of England, England, throughout all his majesty's realms and to

minions; yet the enacting clanse, which respects on * This constitution of the colonies was printed at the the peculiar establishment of the militia or Englan close of 1769, with a view to prevent mischief, from the extends to the realm of England only: so that ibe sa misunderstandings then existing between the govern preme military power of the crown in all other his mia ment of Great Britain and the people of America. I jesty's realms and dominions stands, as to this state? was the production of governor Pownall

on the basis of its general power, unlimited. Howeve! lin's remarks from their early date are particularly cu. the several legislatures of his majesty's kingdom ! rious; they were communicated in Ms. to governor Ireland, of his dominions of Virginia, and of the severa Pownall; and from an observation in reply, signed colonies and plantations in America, have, by laus T. P., appear to have been returned.

which the king has given his consent, operating with

in the precincts of their several jurisdictions, limited General words in all charters.

the powers of it, and regultaed the exercise thereaf.


Dr. Frank

Pratt and York.

all statutes respecting tylhes, the laws re-ed by special colony laws. If any are not yet
specting courts baron and copyholds, the so established, the colonies have right to such
game acts, the statutes respecting the poor laws : and the covenant having been made
and settlements, and all other laws and sta- in the charters by the king, for himself and
uites, having special reference to special and his successors, such laws ought to receive
local circumstances and establishments within the royal assent, as of right. B. F.
the realm, do not extend to and operate with Hence it is, that the freeholders within the
in these settlements

, in partibus exteris, precincts of these jurisdictions have (as of where no such circumstances or establish- right they ought to have) a share in the power ments exist.)

of making those laws which they are to be Rem. These laws have no force in Ame- governed by, by the right which they have of rica : not merely because local circumstan- sending their representatives to act for them, ces differ, but because they have never been and to consent for them in all matters of leadopted, or brought over by acts of assembly gislation, which representatives, when met in or by practice in the courts

. B. F. general assembly, have, together with the 6. No statutes made since the establish- crown, a right to perform and do all the like ment of said colonies and plantations (except acts respecting the matters, things, and rights, as above described in articles 3 and 4) do ex- within the precincts of their jurisdiction, as tend to and operate within said colonies and the parliament hath respecting the realm and plantations.

British dominions. Query. Would any statute made since the Hence also it is, that all the executive ofestablishment of said colonies and plantations, fices (from the supreme civil magistrate, as which statute imported, to annul and abolish locum teneus to the king, down to that of ccnthe powers and jurisdictions of their respective stable and head-borough) must of right be esconstitutions of government, where the same tablished with all and the like powers, neither was not contrary to the laws, or any other more nor less than as defined by the constituwise forfeited or abated; or which statute im- tion and law, as in fact they are established. ported, to take away, or did take away, the

Hence it is, that the judicial offices and rights and privileges of the settlers, as British courts of justice, established within the presubjects: would such statute, as of right, ex- cincts of said jurisdictions, have, as they ought tend to and operate within said colonies and of right to have, all those jurisdictions and plantations.

powers as fully and amply to all intents and Answer. No. The parliament has no such purposes whatsoever, as the courts of king's power. The charters cannot be altered but bench, common pleas, and exchequer, within by consent of both partiesthe king and the his majesty's kingdom of England, have, and colonies. B. F.

ought to have, and are empowered to give

judgment and award execution thereupon.' Corollaries from the foregoing principles.

Hence it is, that by the possession, enjoy.

ment, and exercise of his majesty's great seal, Upon the matters of faet, right, and law, as delivered to his majesty's governor, there is above stated, it is, that the British subjects established within the precincts of the respecthus settled in partibus exteris without the tive jurisdictions, all the same and like pourealm, so long as they are excluded from an ers of chancery (except where by charters entire union with the realm, as parts of and specially excluded) as his majesty's chancellor within the same, have a right to have (as they within his majesty's kingdom of England have) and to be governed by (as they are) a hath, and of right ought to have, by delivery distinct entire civil government, of the like of the great seal of England. -And hence it powers, pre-eminences, and jurisdictions (con- is

, that all the like rights, privileges, and powformable to the like rights, privileges, im-ers, follow the use, exercise, and application of munities, franchises, and civil liberties) as are the great seal of each colony and plantation to be found and are established in the British within the precincts of said jurisdiction, as government, respecting the British subject doth, and ought of right to follow the use, exwithin the realm.

ercise, and application of the great seal. Rem. Right. B. F.

Hence also it is, that appeals in real acHence also it is, that the rights of the sub- tions," whereby the lands, tenements, and ject, as declared in the petition of right, that hereditaments of British subjects may be the limitation of prerogative by the act for drawn into question and disposed of,"t do not abolishing the star-chamber, and for regulat- lie, as of right and by law they ought not to ing the privy-council, &c. that the habeas lie, to the king in council. corpus act, the statute of frauds, the bill of Hence also it is, that there is not any law rights, do of common right extend to and now in being, whereby the subject within are in force within said colonies and plantations

* Law in New England, confirmed by the crowa, 00Rem. Several of these rights are establish

† 16th Car. I. c. 10.

tober 22, 1700.

[ocr errors]

said colonies and plantations can be removed* Hence also it is, that in like manner as from the jurisdiction to which he is amena “ the command and disposition of the militia, ble in all his right, and through which his and of all forces by sea and land, and of all service and allegiance must be derived to the forts and places of strength, is, and by the crown, and from which no appeal lies in laws of England ever was, the undoubted criminal causes, so as that such subject may right of his majesty and his royal predecesbecome amenable to a jurisdiction foreign to sors, kings and queens of England, within all his natural and legal resiancy; to which he his majesty's realms and dominions,"* in like may be thereby transported, and under which manner as the supreme military power and he may be brought to trial and receive judg- command (so far as the constitution knows of ment, contrary to the rights and privileges of and will justify its establishment) is insepathe subject, as declared by the spirit and in- rably annexed to, and forms an essential part tent and especially by sec. 16 of the habeas of the office of supreme civil magistrate, the corpus act. And if the person of any sub- office of king: in like manner, in all goject within the said colonies and plantations vernments under the king, where the conshould be seized or detained by any power is-stituents are British subjects, and of full and suing from any court, without the jurisdiction perfect right entitled to the British laws and of the colony where he then had his legal constitution, the supreme military command resiancy, it would become the duty of the within the precincts of such jurisdictions must courts of justice within such colony (it is un- be inseparably annexed to the office of supreme doubtedly of their jurisdiction so to do) to issue civil magistrate, (his majesty's regent vicethe writ of habeas corpus.t

gerent, lieutenant, or locum tenens, in what

forms soever established) so that the king can* The case of the court crected by act of parlia. not, by anyt commission of regency, by any ment lith and 12th of William III. c. 7. (since the commission or charter of government, secies, felonies, and robberies committed in or upon the parate or withdraw the supreme command of sea, or in any haven, river, creek, or place where the the military from the office of supreme civil tion: nor doth sec. 14 of the said statute, directing magistrate—either by reserving this comthat the commissioners, of whom such court consists, mand in his own hands, to be exercised and may issue their warrant for apprehending such pirates, executed independent of the civil power; or into England, any way militate with the doctrine by granting a distinct commission to any milihere laid down : nor can it be applied as the case of a | tary commander in chief, so to be exercise: jurisdiction actually eristing, which supercedes the ju and executed; but more especially not within and as what authorises the taking the accused of such such jurisdictions where such supreme milisuch so taken to England for trial. It cannot be applied and will justify the same) is already annexed piracies, &c. from those jurisdictions, and the sending tary power (so far as the constitution knows act of parliament (passed in the 35th of Henry VIII. and granted to the office of supreme civil order to the sending persons accused of committing magistrate.—And hence it is, that the king crimes in the plantations to England for trial: because cannot erect or establish any law martial or this act of the 11th and 12th of William, c. ?, respects military command, by any commission which risdiction," and cases to which the jurisdiction of those may supersede and not be subject to the suprovincial courts do not eztend. In the case of trcasons preme civil magistrate, within the respective committed within the jurisdiction the colonies and plun: precincts of the civil jurisdictions of said colotations, there are courts competent to try such crimes and to give judgment thereupon, where the trials of nies and plantations, otherwise than in such such are regulated by laws to which the king hath manner as the said law martial and military and wherein the king hath given power and instruction commissions are annexed or subject to the suto his governor as to execution or respite of judgment. preme civil jurisdiction within his majesty's The said act of Henry VIII. which provides remedy for realms and dominions of Great Britain and a case which supposes the want of due legal jurisdic. tion, cannot be any way, or by any rule, applied to a Ireland; and hence it is, that the establishcase where there is due legal and competent jurisdic. tion. B. F.

corpus act ;-would be, to disfranchise the subject in | The-referring to an old act made for the trial of America of those rights and liberties which by statute treasons committed out of the realm, by such persons and common law he is now entitled to. B. F. as had no legal resiancy but within the realm, and * 13th and 14th Car. II. c. 2. who were of the realm, applying the purview of that | If the king was to absent himself for a time from statute, which was made to bring subjects of the realm the realm, and did as usual leave a regency in his who had committed treason out of the realm (where place, his locum tenens, as supreme civil magistrate, there was no criminal jurisdiction to which they could could be authorize and commission any military com be amenable), to trial within the realm, under that cri inander in chief to command the militia, forts, and minal jurisdiction to which alone by their legal resi: forces, independent of such regency? Could he do this in ancy and allegiance they were amenable; and apply: Ireland ? Could he do this in the colonies and planta. ing this to the case of subjects whose legal resiancy" I tions, where the governor is already, by commission is without the realm, and who are by that "resiancy", or charter, or both, under the great seal, military com. and their allegiance amenable to a jurisdiction au. mander in chief, as part of (and inseparably annexed thorized and empowered to try and give judgment upon to) the office of supreme civil magistrate, his majesty's all capital offences whatsoever without appeal; thus locum tenens within said jurisdiction ? If he could, then. applying this statute so as to take up a proceeding, for while openly, by patent according to law, he appeared where there is no legal process either by common or to establish a free British constitution, he might by a statute law as now established, but in defiance of fallacy establish a military power and government. which there is a legal process established by the habeas B. F.

ment and exercise of such commands and that having parliaments of our own, and not commissions would be illegal.*

having representatives in that of Great BriRem. The king has the command of all tain, our parliaments are the only judges of military force in his dominions : but in what we can and what we ought to contrievery distinct state of his dominions there bute in this case ; and that the English parshould be the consent of the parliament or liament has no right to take our money withassembly (the representative body) to the out our consent. In fact, the British empire raising and keeping up such military force. is not a single state; it comprehends many; He cannot

even raise troops and quarter and though the parliament of Great Britain them in another, without the consent of that has arrogated to itself the power of taxing other. He cannot of right bring troops the colonies, it has no more right to do so, raised in Ireland and quarter them in Bri- than it has to tax Hanover. We have the tain, but with the consent of the parliament same king, but not the same legislatures. of Britain: nor carry to Ireland, and quar “ The dispute between the two countries ter there, soldiers raised in Britain, without has already cost England many millions sterthe consent of the Irish parliament, unless in ling, which it has lost in its commerce, and time of war and cases of extreme exigency. America has in this respect been a propor-In 1756, when the speaker went up to pre- tionable gainer. This commerce consisted sent the money-bills, he said among other principally of superfluities; objects of luxury things, that England was capable of and fashion, which we can well do without; fighting her own battles and defending her. and the resolution we have formed, of imself; and although ever attached to your porting no more till our grievances are remajesty's person, ever at ease under your dressed, has enabled many of our infant manujust government, they cannot forbear taking factures to take root; and it will not be easy notice of some circumstances in the present to make our people abandon them in future, situation of affairs, which nothing but the even should a connexion more cordial than confidence in your justice could hinder from ever succeed the present troubles. I have inalarming their most serious apprehensions. deed no doubt, that the parliament of England Subsidies to foreign princes when already will finally abandon its present pretensions, burdened with a debt scarce to be borne, can- and leave us to the peaceable enjoyment of not but be severely felt. An army of foreign our rights and privileges. B. FRANKLIN.” troops, a thing unprecedented, unheard of, unknown, brought into England, cannot but alarm, fc. (See the Speech.)

N. B. These foreign troops were part of Dr. Franklin's Preface to the English the king's subjects, Hanoverians, and all in

Edition of the Votes and Proceedings his service, which was the same thing as if he

of the Freeholders, and other Inhabitants were to transport troops from England into

of the Town of Boston, in Town-Meetthe American colonies without the consent

ing assembled according to law (publishof their legislature. B. F.

ed by Order of the Town,) &c.*

All accounts of the discontent, so general “ To Mr. Dubourg, concerning the Dissen- dustriously smothered and concealed here, it

in our colonies, have of late years been insions between England and America.t

seeming to suit the views of the American " LONDON, October 2, 1770. ministert to have it understood, that by his " I SEE with pleasure that we think pretty great abilities, all faction was subdued, all much alike on the subjects of English America. We of the colonies have never insisted, J. Wilkie, in St. Paul's Church-yard. 1773."--The pre

*“ Boston printed : London re-printed, and sold by that we ought to be exempt from contributing face only is given, as that alone properly belongs to to the common expenses necessary to support

this work.

This little piece very much irritated the English mithe prosperity of the empire. We only assert, nistry. It was their determination, that the Ameri

cans should receive teas only from Great Britain. * Governor Pownall, accompanied this paper lo Dr. And accordingly the East India company sent out Franklin with a sort of prophetic remark. After large cargoes under their protection. The colonists stating, thal these theorems, and their application to every where refused, either entrance, or else permis. existing cases, were intended to remedy the prejudice. sion of sale, except at Boston, where, the force of go. indigestion, indecision, and errors, then prevailing vernment preventing more moderate measures, certain either in opinions or conduct; he adds, "the very at persons in disguise threw it into the sea. tention to the investigation may lead to the discovery The preamble of the stamp act produced the tea act ; of some truths respecting the whole British empire, then the tea act produced violence; violence, acts of parlia. little thought of and scarce even suspected, and which ment; acts of parliament, a revolt." A little neg perhaps it would not be prudent at this time to mark lect" says poor Richard, may breed great mischief: and point out."-The minister however judged the dis. for want of a nail the shoe was lost; for want of a cussion of dubious rights over growing states, a better shoe the horse was lost; for want of a horse the rider policy than possession, discretion, and silence: he turn was lost; being overtaken and slain by the enemy; all ed civilian, for which he was not qualified, and lost an for want of a little care about a horse shoe nail." empire, which he was not worthy to govern.

| Lord Hillsborough.-This nobleman, before this + Re-translated from a French edition of Dr. Frank time first lord of trade, was introduced in 1768 into the lin's works.

nero-erected office of secretary of state for the colonies.


[ocr errors]

opposition suppressed, and the whole country conciliation; and this disposition to a good quieted. That the true state of affairs there understanding was so prevalent, that possibly may be known, and the true causes of that they might soon have relaxed in the article discontent well understood, the following of tea also. But the systein of commissioners piece (not the production of a private writer, of customs, officers without end, fleets and but the unanimous act of a large American armies for collecting and enforcing those ducity) lately printed in New England, is re- ties, being continued; and these acting with published here. This nation, and the other much indiscretion and rashness (giving great nations of Europe, may thereby learn, with and unnecessary trouble and obstruction to more certainty, the grounds of a dissention, business, commencing unjust and vexatious that possibly may, sooner or later, have con- suits, and harrassing commerce in all its sequences interesting to them all.

branches, while that minister kept the people The colonies had, from their first settle in a constant state of irritation by instructions ment, been governed with more ease than which appeared to have no other end than the perhaps can be equalled by any instance in gratifying his private resentment*) occasioned history of dominions so distant. Their affec- a persevering adherence to their resolutions tion and respect for this country, while they in that particular; and the event should be a were treated with kindness, produced an im- lesson to ministers, not to risk, through pique, plicit obedience to the instructions of the the obstructing any one branch of trade; since prince, and even to acts of the British parlia- the course and connexion of general business ment, though the right of binding them by a may be thereby disturbed to a degree, imlegislature, in which they were unrepresent possible to be foreseen or imagined. For it ed, was never clearly understood. That re- appears, that the colonies, finding their humspect and affection produced a partiality in ble petitions to have their duty repealed were favour of every thing that was English; rejected and treated with contempt, and that whence their preference of English modes the produce of the duty was applied to the 2 and manufactures; their submission to re- rewarding, with undeserved salaries and pen-pl straints on the importation of foreign goods, sions, every one of their enemies; the duty itwhich they had but little desire to use; and self became more odious, and their resolutions the monopoly we so long enjoyed of their to starve it more vigorous and obstinate. The commerce, to the great enriching of our mer- Dutch, the Danes, and French, took this opchants and artificers. The mistaken policy portunity, thus offered them by our impruof the stamp act first disturbed this happy dence, and began to smuggle their teas into situation ; but the flame thereby raised was the plantations. At first this was something soon extinguished by its repeal, and the old difficult; but at length, as all business is imharmony restored, with all its concomitant proved by practice, it became easy. A coast advantage to our commerce. The subsequent fifteen hundred miles in length could not in act of another administration, which, not con- all parts be guarded, even by the whole navy tent with an established exclusion of foreign of England; especially where their restraining manufactures, began to make our own mer- authority was by all the inhabitants deemed chandize dearer to the consumers there by unconstitutional, and the smuggling of course. heavy duties, revived it again; and combina- was considered as patriotism. The needy tions were entered into throughout the con- wretches too, who, with small salaries, were tinent, to stop trading with Britain till those trusted to watch the ports day and night, in duties should be repealed. All were accord- all weathers, found it easier and more profitaingly repealed but one-the duty on tea. ble, not only to wink, but to sleep in their This was reserved (professedly so) as a stand- beds; the merchants' pay being more genering claim and exercise of the right, assumed ous than the king's. Other India goods also, by parliament, of laying such duties.* The which, by themselves, would not have made a colonies, on the repeal, retracted their agree- smuggling voyage sufficiently profitable, acment, so far as related to all other goods, ex- companied tea to advantage; and it is feared cept that on which the duty was retained. the cheap French silks, formerly rejected as This was trumpeted here by the minister for not to the taste of the colonies, may have the colonies as a triumph; there it was con- found their way with the wares of India, and sidered only as a decent and equitable mea- now established themselves in the popular sure, showing a willingness to meet the mo use and opinion. ther-country, in every advance towards a re It is supposed, that at least a million of

Americans drink tea twice a day, which, at * Mr. Burke in his speech in 1774, says " this pre. ambulary tax had lost us at once the benefit of the west the first cost here, can scarce be reckoned at and of the east; had thrown open the doors to contra less than half a guinea a head per annum. band; and would be the means of giving the profits of This market, that, in the five years which the colony trade to every nation but ourselves." He adds, “It is indeed a tax of sophistry, a lax of pedan. try, a lax of disputation, a tax of war and rebellion, a * Some of the secretary's circular letters had been tax for any thing but benefit to the imposers, or satis- criticised, and exposed by one or two of the American faction to the subject."

| assemblies.

« ZurückWeiter »