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116 PERSONAL LAWS COLONIZATION.
the first and second of the three maxims, stated in the previous chapter, which enter into the foundation of international and municipal law, that, so far as laws are territorial in their extent, persons passing from one territory to another change at the same time the municipal (national) law to which they are subject. But laws also have a distinct personal extent when sustained, as applying to certain persons, by some sovereign power having jurisdiction over them. This personal quality of laws is manifested in colonization; where the laws which prevail in the territory colonized depend upon the extension given by the sovereign of the colonist to the laws binding on him in his original domicil. In order that the personality of laws may be thus manifested in colonization, or that laws may thus accompany colonists beyond the limits of their former domicil, it is evident that the sovereign national power, from which that law proceeds, must also be sovereign over the territory to which the person is transferred. Herein the maintenance of personal laws in colonization is part of the municipal (internal) law of some one state, and differs from that recognition of the law of a foreign domain, as a law personal to an alien immigrant, which may be made in international law. And here it is evident that the exposition of laws in their personal and territorial extent implies a knowledge of such terms as sovereignty, domain, native subject, alien subject, &c, which are explained by those axioms or definitions which make the necessary law of nations, and are presupposed in international and municipal law."
§ 125. From the earliest instances of the political annexation of foreign territories to the dominion of the British crown, there has been much dispute in English jurisprudence respecting the personal extent of the laws of England in reference to such territories.* The occupation of countries in the Western Continent Blackstone's Doctkine. 117
1 Ante §§ 48, 49.
* A. D. 1607—Calvin's case, (case of the Post-nati in Scotland,) 7 Co. R 17; Le case de Tanistrv (under Brehon law of Ireland) Davis's R. 28; 1666—Vaughan R. pp. 290, 402, (relating to Ireland and Wales); 1684—Wytham v. Dntton, 8 Mod. 160; reversed in 1694—Dntton v. Howell &c, Shower's Pari, cases, 24; 1694—Blankard v. Galdy, 4 Mod. R. 215, and Salk. 411; 1705—Smitli n. Brown & Cooper, Salk. 666, Holt R. 495. Smith v. Gonld, Salt 667, and 2 Lord Rayin. 1274; 1769—Rex r. Vanghan, 4 Burr. 2500; 1774— Mostvn v. Fabrigas, 1 Cowp. 161 and Campbell r. Hall, 1 Cowp. 204; 1802— Collett v. Keith, 2 East, 260; 1817—Atty. Gen. v. Stewart, 2 Mer. 159; 1824—Forbes v. Cochrnne, 2 Barn. & Cress. 463; 1836—Bcanmout v. Barret, 1 Moore's cases before P. C. 75.
before unoccupied by civilized societies, presented an unprecedented question of jurisdiction. The leading authorities on this point are thus summed up by Blackstone (Comm. Introd. p. 107) in a passage often cited:' "Plantations or colonies in distant countries are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated and peopling them from the mother country, or where, when already cultivated, they have been gained by conquest or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of colonies with respect to the laws by which they are bound. For it hath been held, (2 Salk. 411, 666,) that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject, (2 P. Wins. 75,) are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to their own situation and the condition of an infant colony; such for instance as the general rules of inheritance and of protection from personal injuries. The artificial refinements and distinctions incident to the property of a great and commercial people, the laws of police and revenue, the mode of maintenance for an established clergy, the jurisdiction of spiritual courts, and a multitude of other provisions, are neither necessary nor convenient for them, and therefore they are not in force. What shall be admitted and what rejected, at what times and under what restrictions, must in case of dispute be decided in the first instance by their own provincial judicature, subject to the revision and control of the king in council: the whole of their constitution being also liable to be new-modelled and reformed by the general superintending power of the
Similar questions must have arisen within England itself upon the Norman conquest, and before that event, upon the union of the Anglo-Saxon monarchies under Egbert, A D. 827. The local customs of England, such as gavel-kind, were nothing else than the remaining common law of certain districts formerly constituting independent sovereignties.
1 See Atty. Gen. t. Stewart, 2 Merivale, 159. Story Comm. § 151.
118 THEORY OF THE COLONISTS.
legislature in the mother country. But in conquered or ceded countries that have already laws of their own, the king may indeed alter and change the laws; but, till he does actually change them, the ancient laws of the country remain, unless such as are against the laws of God, as in the case of an infidel country, (7 Rep. 17. Calvin's case. Duttonw. Howell, Shower's Pari, cases, 31.) Our American plantations are principally of this latter sort, being obtained in the last century, either by right of conquest and driving out the natives (with what natural justice I shall not at present inquire) or by treaties. And therefore the common law of England, as such, has no allowance or authority there; they being no part of the mother country, but distinct, though dependent, dominions. They are subject, however, to the control of the parliament, though (like Ireland, Man and the rest) not bound by any Acts of parliament unless particularly named." § 126. The theory generally maintained by the crown lawyers, anteriorly to the American Revolution, seems to have been, that the common law, in being the law of the rights of Englishmen, was so, only so far as it was the territorial law of Great Britain; that it determined the rights of British subjects only while in England, and that when in any colony, or other particular district forming part of the Empire, their rights would be determined entirely by a law having a like territorial extent in and for that colony or district: a law which could originate solely in the will of the king, or of the king and parliament, legislating for that colony or district, as a several territorial domain.1 This theory, and the inferences which those advocates of the royal prerogative who admitted Blackstone's alternatives, based upon his assumption that the American colonies were "principally of the latter sort," were not only constantly controverted by the colonists themselves, but by many English publicists of the time.' And it must now be taken as a
1 Chitty on Prerogatives, c. iii. Chalmers's Hist, of Revolt of Am. CoL vol. 1. p. 302. 1 Salk. 666. American Tracts, voL L; Dummer's Defence of the N. E. Charters, p. 49,—" And to complete the oppression, when they upon their trial claimed the privileges of Englishmen, they were scoffingly told, these things would not follow them to the ends of the earth: unnatural insult, &c."
* Keeves's Hist, of Law of Shipping, p. 138. 1 Chalmers's Opinions, pp. 23, 195, 220. 2. Chalm. Op., p. 202, 209, 240. Dr. Richard Price's Observations on Civil Lib. &c., pub. 1766.
CHARTERED BIGHTS. 119
settled axiom of American law, that the territory of the colonies was claimed by right of occupancy, or by finding it "desert and uncultivated;" and that the common law of England first obtained in that part of the Empire as a law personal to the English-born colonist.1
Besides the effect of this principle, all the charters, with the single exception of that of Pennsylvania,' declared that the colonists and their children should have all the rights of subjects born in England.'
§ 127. But, it being supposed that the common law of England was thus transplanted with the British colonist to America, and was there operative in determining his rights as a private person, another question, or one which was the same question —regarded as a matter of public law—arose,—upon what political authority would the continuance of that law, as the territorial law of that colony, thereafter depend?
According to the views of the English lawyers, at the time of the settlement of the colonies, the patent gave a title to the soil, but prerogatives of government could only be exercised under a charter from the crown.* With the exception of the first charter of Virginia, of 1606,' the royal charters, in constituting the colonial governments, provided that the local legislation should not be contrary to the laws of England, or that it should be conformable as near as might be to the laws of England; and besides this, the charters, as before noticed, guaranteed to the English colonists and their descendants the rights of subjects born in England.'
1 Story's Comm. §§ 152-7, and the numerous authorities cited there; and for the modern English doctrine, Chitty on Prerogatives, p. 30. Chitty's Commer. Law, voL i_ p. 639. Rex r. Brampton, 18 East's R. 288.
Mr. Jefferson, however, always derided this principle of the personal extent of the common law. See Jefferson's Correspondence, vol. iv., p. 178. Jefferson, being of the a priori or "law of nature" school, could be at no loss for a basis upon which to rest such rules of action as he might approve of.
• Story's Comm. § 122.
* See pott, ch. vi. Story's Comm. B. I. ch. 16, 17. 4 1 Banc. 321. 1 HUd. 175.
'1 Hen. Stat 57. 1 Banc. 122, 136. The code of regulations made by the king, however, required that the local ordinances should conform to the laws of England, and should not touch life or limb. Story's Comm. § 44.
'In reference to the first charter of Virginia, 1606, Bancroft says, vol. i. 121: "To the emigrants it was promised that they and their children should continue to be Englishmen—a concession which secured them rights on returning to England, but offered no barrier against colonial injustice." In this view the guarantee of the rights possessed by every Englishman in England by the law of the land did not operate as a law in the colony. But this is not the view of the effect of such a guarantee which has been taken by most writers on this subject. It is generally considered to have had the same effect as the provision afterwards inserted in the charters, that the local legislation should not be contrary to the laws of England. The local government, under the second Virginia charter and the extraordinary grant of power to the council of the company in England, therein contained (sections 13, 23), seemed to have attributed no effect to the guarantee of rights in the individual colonists. "A code of martial law was at one period the law of Virginia. Servitude for a limited period was the common penalty annexed to trifling offences." 1 Banc. 151, 152.
120 BASIS OF LEGISLATION.
There were some very material differences in the political constitution of these colonial governments in being respectively either chartered, proprietary, or provincial.1 This difference in the investiture of political rights naturally occasioned, in the earlier period of their settlement, important differences between the colonies in respect to the recognition of private liberties, or the foundation of the rights of private individuals under public law.
§ 128. The New England colonial governments were, however, also based on an extraordinary foundation, having, within their several jurisdictions at least, a recognized political existence and validity, in the voluntary compact of those in each who agreed in constituting themselves the original "freemen," and in their individual acknowledgment of the power of the whole body of freemen * to legislate as a political state by the voice of the majority.
The first settlers of Plymouth colony in Massachusetts entered into a compact for government before the landing, by which they combined themselves together into a civil state or body politic, mutually promising " all due submission and obedience" to "such just and equal laws and ordinances, acts, constitutions and officers from time to time as shall be thought most meet and convenient for the general good of the colony;"' and under this voluntary association they afterwards gradually assumed, without any charter from the crown, all powers of government for local purposes.4 The governments of Rhode Island,
1 1 Bla. Comm., p. 108. Chitty: Commer. Law, i. p. 643. Chitty on Prerogatives, p. 30. Curtis's Hist, of the Constitution, i. pp. 4, 5.
'The freemen being, however, only a limited number of the inhabitants, and their acknmrledgment, even if morally and politically justifiable, being in some sort a usurpation, that is, having no original foundation in public lam.
'1 Chalmers s Annals, p. 102. 1 Banc. 309.
4 Story's Comm. §§ 55, 56. 1 Banc. pp. 320-323. 2 Hutch. Hist., App. L