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CCCLXXII: STATE OF THE CONSTITUTION OF THE COLONIES 1 - Benjamin Franklin, The Works of Benjamin Franklin, Vol. V Letters and Misc. Writings 1768-1772 [1904]

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The Works of Benjamin Franklin, including the Private as well as the Official and Scientific Correspondence, together with the Unmutilated and Correct Version of the Autobiography, compiled and edited by John Bigelow (New York: G.P. Putnam’s Sons, 1904). The Federal Edition in 12 volumes. Vol. V (Letters and Misc. Writings 1768-1772).

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CCCLXXII

STATE OF THE CONSTITUTION OF THE COLONIES1

BY GOVERNOR POWNALL

WITH REMARKS BY DR. FRANKLIN

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”2 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,”3 and are bound by the like allegiance as every other subject of the realm.

Remark.—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 tithes, and others. Had it been understood that they were to carry these laws with them, they had better have stayed 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 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.

2. Therefore, the common law of England, and all such statutes as were enacted and in force at the time 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.

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

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.

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 an act. They would still have adhered to the present family, as long as they could.

[Observation 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.

It is doubted whether any act of Parliament should of right operate in the colonies; in fact, several of them have and do operate.

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 tithes; 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.

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.

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 other wise 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?

No. The Parliament has no such power. The charters cannot be altered but by consent of both parties, the King and the colonies.

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 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.

Right.

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.

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.

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.”1

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 applications 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,”1 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 removed2 from the jurisdiction 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 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.1

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 dominions2 ; 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, viceregent, lieutenant, or locum tenens in what form soever established), so that the King cannot, by any1 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 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 jurisdiction 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.1

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.)

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

[1 ]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.

[2 ]Pratt and York.

[3 ]General words in all charters.

[1 ]Law in New England, confirmed by the crown, October 22, 1700.

[1 ]16th Car. I. c. 10.

[2 ]The case of the court erected by act of Parliament, 11th 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 14th section of the said statute, directing that the commissioners, of whom such court subsists, 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 authorizes 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 III. 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.

[1 ]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 repeal, 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.

[2 ]13th and 14th Car. II. c. 2.

[1 ]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.

[1 ]Governor Pownall accompanied this paper to Dr. Franklin with a sort of prophetic remark. After stating that these theorems, and their application to existing bases, 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.