FOOTNOTES:

[104] 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.

[105] Pratt and York.

[106] General words in all charters.

[107] [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 the 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.

[108] Law in New England, confirmed by the crown, Oct. 22, 1700.

[109] 16th Car. I. c. 10.

[110] The case of the court erected by act of parliament 11 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 14 § 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 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, 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.

[111] [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 (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.

[112] 13th and 14th Car. II. c. 2.

[113] 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 Ireland? 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 jurisdictions? 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.

[114] 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.

TO MR. DUBOURG.