The Complete Works in Philosophy, Politics and Morals of the late Dr. Benjamin Franklin, Vol. 3 [of 3] · Benjamin 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[105]" 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[106];" and are bound by the like allegiance as every other subject of the realm. Remarks. _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 risques 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. Rem. _So far as they adopt 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[107]; all statutes, _regulating_ or limiting the general powers and _authority of the crown_, and the exercise of the 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 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.
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_. Rem. _It is doubted, whether any act of parliament should_ of right _operate in the colonies_: in fact _several of than 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 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.
Ideas discussed in this chapter
Text from Project Gutenberg, public domain in the United States.