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. Observations in reply, They are bound to the king and his successors, and we know no succession but by act of purliament. 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 jurisdic tions, limited the powers of it and regulated the exercise thereof. statutes statutes respecting tythes, the laws respecting courts baröré and copyholds, the game acts, the statutes respecting the poor and settlements, and all other laws and statules, having special reference to special and local circumstances and establishments within the realm, do ngt extend to and operate within these settlements, in partibus exteris, where no such circumstances or esta blishments 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 ties-the king and the colonies. B. F. par [COROLLARIES [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 diștinct intire civil government, of the like powers, pre-eminences and jurisdictions (conformable to the like rights, privi leges, 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 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 nions. 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 itis, 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. ers, 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*," 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 from the jurisdiction to which he * 16th Car. I. c. 10. + The case of the court erected by act of parliament 11 and 12 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 seas, 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 which 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 hes jurisdictinn," and cuses 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 VOL. III. X |