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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; all statutes, regulating or limiting
[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 18th 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 alway 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 ma jesty's kingdom of Ireland, of his dominions of Virginia, and of the several colonies
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 them 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
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.
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 par tjes---the king and the colonies. B. F.
[COROLLARIES FROM THE FOREGOING
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 colomes 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
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 domi
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 *."
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 pow
Law in New England, confirmed by the crown, Oct. 22, 1700.