Observations upon [Thomas Pownall,] State of the
Constitution of the Colonies [London, 1769?]
ms (copy): American Philosophical Society
I. Whenever 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…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, and are bound by the like Allegiance as every other Subject
of the Realm.
1. 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 usefull to them: a Right to be Free from
those they thought hurtfull: 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
“II. Therefore the Common Law of England, (except as
hereafter excepted) 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, 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.
2. So farr as they adopt It; by express Laws or by
Practise. B:F
“III. 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 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.
3. 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 Stewart 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 ad- hered to the
present Family, as long as they could. B:F [Obs. in
Reply. They are bound to the King and his Successors, and We know
no Succession but by Act of Parliament. T:P.]
“IV. 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.
4. It is doubted whether any Act of Parliament should of
right operate in the Colonies: in fact [however]
several of them have and do operate.
“V. 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.” Examples are laws relating to
ecclesiastical and manorial courts, copyholds, tithes, the poor,
and particular localities.
5. These Laws have no Force in America; not merely because local
circumstances differs; but because they have never been adopted, or
brought over by Acts of Assembly or by Practice in the
Courts. B:F:
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Query: Would such a statute be operative if it abro- |
6. Answer. No. The Parliament has no such Power. The Charters
cannot be alter’d but by Consent of Both Parties; the King and the
Colonies. B:F:
Assuming that matters of fact, right, and law
have been correctly stated above, it follows that British subjects
outside the realm, as long as they are not included in a union with
it, have a right to civil governments of their own, which exercise
the same power over them as the British government does over
subjects within the realm.
7. Right. B:F:
It follows, secondly, that the rights of the subject as
declared in the Petition of Right, the act abolishing Star Chamber,
the Habeas Corpus Act, the Bill of Rights, etc., extend to the
colonists of common right.
8. 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:
It follows, thirdly, that freeholders in the
colonies share in the power of making the laws by which they are
governed, through sending representatives to an assembly which has,
with the crown, the same jurisdiction in the colony that parliament
has in Britain.
It follows, fourthly, that executive and
judicial officers and courts have the same power and jurisdiction
as their British equivalents, and that no court outside a colony
has legal authority over any citizen of that colony.
It follows, lastly, that the command of all
military forces resides in the King or his vicegerent, “so that the
King cannot by any Commission of Regency… 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, nor 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 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.”
9. 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 Warr
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 Majestys Person, ever at ease under
your just Government; They cannot forbear taking Notice of some
Circumstances in the present Situation of Affaires, 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 Kings Subjects, Hanoverians, and all in his
Service; which the same thing as *****. B:F:
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