Observations upon [Thomas Pownall,] State of the Constitution of the Colonies [London, 1769?]
MS (copy): American Philosophical Society
In December, 1769, or possibly in the following month,3 Thomas Pownall attempted to formulate general principles of law that applied to the issues in dispute between Britain and her colonies. He composed a short document in two parts; the first set forth six principles, and the second adduced corollaries from them. This document he had printed but not published: twenty copies were struck off, which he circulated to his friends for their comments;4 his presumable purpose was to make sure of his legal arguments before speaking further on the American question in the House of Commons. He presented Franklin with a copy.5 The latter annotated it at considerable length but not, as with most of his marginalia, for his eyes alone; his comments were returned to Pownall, who replied in writing to one of them.
The pamphlet that Franklin annotated has not survived. The earliest extant version of his observations is a manuscript copy of them, in an unidentifiable hand and without Pownall’s text, that is among Franklin’s papers. The comments and text were first published by Benjamin Vaughan in 1779.6 We print them in parallel columns, as Vaughan did not, but necessarily follow his placing of the former in relation to the latter. Where the text is quoted verbatim, it is from a copy of the original pamphlet in the Library Company of Philadelphia. We have paraphrased and abridged those parts of it on which Franklin did not specifically comment, and with two exceptions have omitted Pownall’s footnotes, which may be found in Vaughan. Our aim is to reproduce only enough of Pownall to make Franklin comprehensible.
|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,9 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||“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,7 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;’8 and are bound by the like Allegiance as every other Subject of the Realm.|
|2. So farr as they adopt It; by express Laws or by Practise. 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.|
|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 adhered 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.]1
|“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.|
|4. It is doubted whether any Act of Parliament should of right operate in the Colonies: in fact [however]2 several of them have and do operate.||“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.|
|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:||“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.|
|x||VI. No statute made since the establishment of the colonies, except as described in Articles III and IV above, operates within the colonies.|
|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:||Query: Would such a statute be operative if it abrogated the colonial charters when they were not contrary to law or otherwise forfeited, or if it took away the colonists’ rights and privileges as British subjects?|
7. Right. 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.|
|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, 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.|
|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.|
|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.)5 N.B. these FOREIGN TROOPS were part of the Kings Subjects, Hanoverians, and all in his Service; which the same thing as*****. B:F:||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 Regency3 … 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.”4|
3. Vaughan gives December: Miscellaneous Pieces, p. 537 n. Charles A. W. Pownall gives January: Thomas Pownall, M.P., F.R.S., Governor of Massachusetts Bay … (London, ), p. 224. Neither offers evidence; but BF, who collaborated with Vaughan in his edition, may have provided the date.
4. Franklin to unknown, below, April 12, 1770; see also William S. Johnson to Jonathan Trumbull, Feb. 3, 1770, Mass. Hist. Soc. Collections, 5th ser., IX, 407.
5. Pownall, in giving it to him, remarked that the principles and their application “were intended to remedy the prejudice indigestion indecision and errors then prevailing either in opinions or conduct; he [Pownall] adds, ‘The very attention to the investigation may lead to the discovery of some truths respecting the whole British Empire, then little thought of and scarce even suspected; and which perhaps it would not be prudent at this time to mark and point out.’” Vaughan, Miscellaneous Pieces, p. 547 n. The authority for this remark can only have been BF, but Pownall’s words—as was often the case—obscured his meaning.
6. Ibid., pp. 537–47.
9. BF repeated this argument in 1770 in his marginalia on An Inquiry into the Nature and Causes of the Present Disputes …, printed below at the end of XVII.
7. The pamphlet in the Library Co. of Philadelphia has here a note in BF’s hand: “Query. Did they carry any Laws with them, or only a Power of Making Laws?” This was apparently a first jotting for his later and fuller observation.
8. [Pownall’s note:] General Words in all Charters.
1. Brackets in the original.
2. Brackets in the original; Vaughan omitted this word.
5. The emphases are of course BF’s. He condenses the part of the speech that he quotes, and omits a pertinent point that Speaker Onslow made at the end: the Commons hope “that the sword of these foreigners should not be entrusted a moment out of your hand, to any other person whatsoever.” Cobbett, Parliamentary History, XV, 770.
3. [Pownall’s note:] If the King was to absent himself, for a Time, from the Realm, and did, as usual, leave a Regency in his Place, his Locum Tenens as supreme Civil Magistrate, Could he authorize and commission any Military Commander in Chief to command the Militia, Forts, and Forces, independent of such Regency? Could he do this in Ireland? Could he do this in the Colonies and Plantations, where the Governor is already by Commission, or Charter, or both, under the Great Seal, Military Commander in Chief, as Part of (and inseparably annexed to) the Office of supreme Civil Magistrate, his Majesty’s Locum Tenens within said Jurisdictions? If he could—Then while openly, by Patent, according to Law, he appeared to establish a free British Constitution—he might, by a Fallacy, establish a Military Power and Government.
4. Pownall elaborated upon this point in his speech in the House of Commons on May 8, 1770: he argued that the Secretary of State had had no legal right to order Gage’s occupation of Castle William in Boston harbor, because this constituted an infringement of the military power granted to the Governor in his commission under the great seal. Cavendish’s Debates, II, 5–7.