The Complete Works in Philosophy, Politics and Morals of the late Dr. Benjamin Franklin, Vol. 3 [of 3] · Benjamin Franklin
[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 intire 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 intire 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 right, that the _limitation of 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 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[108]."
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[109]," 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 _removed[110] from the jurisdiction to which he is amenable_ in all his right, 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 § 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_[111].
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[112]," 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, vice-regent, lieutenant, or locum tenens, in what form soever established) so that the king cannot, by any[113] 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 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 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[114].
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 burthened 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 the same thing as_**** B. F.
Ideas discussed in this chapter
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