196

EXTENT OF COMMON LAW.

of human existence, these relations can be judicially known in any jurisdiction, (i. e., any territory wherein laws are judicially enforced,) only by a previous recognition of law in the ascertained will of some state or national sovereignty, and of certain persons as its subjects, or as persons bound by its provisions. This law must be known both as territorial law-law operating within certain geographical limits, and as personal law-law operating on certain persons throughout the dominion of a certain national sovereignty.'

§ 193. It is for this reason that common law rights, or liberties, of private persons, though necessarily taken to be accordant with natural reason when attributed to persons born in England, were not judicially attributed, in the colonies, as by a personal law, except to those who had acquired those rights as jural rights under the territorial law of England; that is to say, subjects of English birth, and those aliens to whom, by international treaties, the terms of patents and charters for the plantations, and statutes of naturalization, the same personal law had been extended. And, since wherever laws of privilege or of disability have applied as personal laws they have generally an hereditable character, or are the law of a family as well as an individual, the same law of condition would, perhaps, on principles of common law origin, have continued to have a personal extent to their descendants. The claim of the descendants of English colonists to the benefits of the same personal law was,

1 See ante, § 26.

3

Campbell vs. Hall, Cowp. 208. "The law and legislative government of every dominion equally affects all persons and all property within the limits thereof, and is the rule of decision for all questions which arise there. Whoever purchases, lives, or sues there, puts himself under the laws of the place." It is true that "the law and legislative power" has equal authority in respect to all persons and things, but it is not, in its operation, the same rule for all. Lord Mansfield said in continuation of the above," An Englishman in Ireland, Minorca, the Isle of Man, or the Plantations, has no privilege distinct from the natives." This certainly could not have been said of the Indian territories of the empire, where the ancient laws applied to the native races. Compare Sir William Jones' various charges, in Calcutta, in vol. 3, Works, 4to. 'The common law has been called "the greatest inheritance that the king and the subject have." See Bowyer's Univ. Pub. Law, p. 10,-" The common law is our birthright and inheritance,"-Story Commen. § 157,-"Freedom ** the inheritance of the inhabitants and their children, as if they were treading the soil of England."-2 Barn. and Cress., 463. "The laws of England are the birthright of the people thereof."-Stat., 12 & 13 Will. III., c. 2, The Act of Settlement. "According to the encient doctrine of the common law."-1 Bl. Comm. 128, notes Plowden.

ITS NATIONAL AND PERSONAL EXTENT.

197

however, as before shown, independently secured, by positive legislation, in the charters.

When this law of personal rights and liberties acquired also the character or extent of a territorial law in America, its authority as such was, strictly speaking, correspondent with the territorial limits of the separate colonies; being a territorial law for each singly; resting therein on the sovereignty vested in the local government and the Crown, or the Crown and Parliament, legislating for that colony only. Though, since the rights and privileges secured by this law had a like legal recognition in any part of the British empire, it had a certain general territorial extent also throughout all the colonies. But this took place, properly speaking, by reason of its personal character, and by its taking effect as a quasi international private law between those several jurisdictions; as will hereinafter be more particularly shown.

§ 194. In the various recognitions of the liberties of the colonists, which may be found either in patents and charters, or in colonial declarations and protests, it is to be observed that they are claimed or continued as prescriptive and hereditary; as being a consequence of national character, fixed by birth and descent; their foundation being nowhere based on principles assumed a priori, as a law of nature, but on precedent, custom and legislation. Whatever may have been the doctrines of the early colonists as to a foundation of legal rights and obligations in nature or revelation superior to that found in the common law, it cannot be said that they became sufficiently defined, or authoritatively expressed, to be considered in any degree a law of the land. There may probably be found in various instances

*

*

There were indeed two schools among the advocates of the liberties of the colonies; see Chalmers' Pol. Ann., p. 695. Jefferson, writing to Judge Tyler, Corresp. vol. IV., p. 178, (Randolph's ed) said, "I deride, with you, the crdinary doctrine that we brought with us, from England, the common law rights. The truth is, we brought with us the rights of men, of expatriated men." In the same letter he advocates the rejection of all English decisions from the accession of George III., saying that this would give "the advantage of getting us rid of all Lord Mansfield's innovations, or civilizations, of the common law." If American law is based on the lawof-nature theory-is Mansfield or Jefferson the better authority; or will their agreement determine a point?

198

REFERENCE TO NATURAL RIGHTS.

of colonial legislation some vague recognition of rights in individual members of society superior to legislative power, as in the preamble to the laws of Massachusetts Bay Colony, 1672 : "Forasmuch as the free fruition of such liberties, immunities and privileges as humanity, civility and Christianity call for, as due to every man in his place and proportion, without impeachment and infringement hath been and ever will be the tranquillity and stability of churches and commonwealths, and the denial or deprival thereof the disturbance, if not ruin of both, it is therefore ordered by this court," &c. But though such declarations recognize a rule binding on the consciences of the authors and executors of human laws, they can have but little practical effect as a guarantee to the subject or citizen, while the demands of "humanity, civility and Christianity," and the "place and proportion" of every man are left undetermined, or to be ascertained by the actual holders of legislative and executive power; and such declarations might be consistently subscribed by the possessors of the most arbitrary authority.'

§ 195. The condition of those natural persons under the imperial and colonial dominion in America who had not, by national character or descent, a claim to the personal extent of the law of England, must also have been determined by positive law, that is, law derived either by the judicial application of natural reason, or from the positive legislation of those depos

'During the later part of the controversy between the colonists and the imperial government in respect to their political rights, there were indeed many instances in which the rights of the individual colonists were asserted on principles of wider extent. Some of these, which proceeded from public bodies, will be noticed hereafter. Otis, in his rights of the Colonies, p. 43, vol. I., Amer. Tracts, London, 1766, said: "The colonists are by the law of nature freeborn, as indeed all men are, white or black. There is nothing more evident, says Mr. Locke, than that creatures of the same species and rank, promiscuously born to all the advantages of nature and the use of the same faculties, should also be equal one among another, without subordination and subjection," &c. And p. 51:" Every British subject, born on the continent of America, or in any other of the British dominions, is by the law of God and nature, the common law and by Act of Parliament, (exclusive of all charters from the Crown,) entitled to all the natural, essential, inherent and inseparable rights of our fellow-subjects in Great Britain." But Otis's doctrine had not been law in the colonies. Mr. Locke, in his scheme of government for Carolina, expressly sanctions slavery, and in one of his dissertations contemplates it as a natural element in any civil state. See Locke's Works, vol. 2, p. 181. See 2 Kent's Comm. pp. 1, 2, as illustrating a very common want of discrimination in speaking on this point.

ALIEN SUBJECTS, HOW CLASSED.

199

itaries of sovereign' power over the colonies which were recognized by the public law of the empire during the colonial period. And the determination of their condition will be a question of municipal (internal) or of international law, according to the character of the persons whose condition is to be determined.'

Although all the natural persons within the territorial limits of the colonies, to whom, according to the views above set forth, the English law could not apply as a personal law, were, by the supposition, aliens to the territory of England, they were to be distinguished as either,

1. Native inhabitants of the colonial territory, who therefore were not aliens in respect to the imperial and colonial jurisdiction, in the same sense as persons entering the same territory who had been born in a foreign country, that is, one never within the limits of the British empire; or,

2. Those who entered the territory as alien, being alien, by birth, to the colonial territory as well as to the imperial jurisdiction, by the axiomatic principles of international law-the necessary law of nations, hereinbefore described.2

§ 196. The American continent having been occupied before its colonization by savage tribes living without any such established civil polity as is recognized by the public international law of civilized nations, the lands settled by the English were "desert and uncultivated" in respect to any "ancient laws," and therefore, it would seem, " chiefly" of the first of those two classes of colonies which Blackstone has described, where the only system of laws would be that brought by the colonizing people from their original residence; and that this fact did afford a basis for a part of the laws prevailing in the colonies has already been shown in the third chapter.

But though the territory occupied by the native inhabitants. was thus regarded as never having been under foreign legislative dominion, they themselves were, of necessity, treated as having a distinct nationality and political corporeity, apart from the sovereignty over the land. They might be public enemies, and

200

TWO CLASSES OF ALIEN SUBJECTS.

- as such their rights and obligations might be affected by the laws of war, which are classed as international law. By principles of the law of nations then received as applicable in this international law, they might be made captives. And, independently of their individual liability to captivity, the consequences of an acquisition by conquest, mentioned by Blackstone, were applicable to them as nations, or as a class of persons; the law as to them was such as the king pleased. That is to say, there being no territorial law affecting them, the law was such as might be promulgated by positive legislation on the part of the crown or of the local governments allowed or constituted by the crown; or by the judicial application, by tribunals under the royal authority or that of the local governments, of rules of natural reason derived by them according to the judicial criteria before given.' This law, in being applied to persons known as native or domiciled subjects of the imperial or colonial jurisdiction, would be classed as municipal (internal) law, according to the description of that law given in the first chapter.

§ 197. With regard to those persons within the colonial territory who were neither natives of Great Britain nor of the colonial territory, their condition must have been determined by international private law; at least until they had acquired the character of domiciled subjects. This international law, according to the principles set forth in the first and second chapters, would be known either from positive legislation, (proceeding in this case from the sources of private law mentioned in the third chapter,) or by judicial application of natural reason, according to the allowed judicial criteria. After becoming domiciled inhabitants their future condition would be determined by the municipal (internal) law of the jurisdiction, derived either

1 In Shower's Parliamentary Cases, 30, 31; in the case of Dutton . Howell, it was said by counsel arguendo,-" Though a matter may justify a governor for an act done in his government which would not justify him for the same act done in England, yet the governor must show that he hath pursued the rules of law in that place; or in case of no positive laws, the rules of natural justice; for either the common law, or newly instituted laws, or natural equity, must be the rule in those places." So in Salk., p. 411, the sentence before cited, § 123, n. 2, continues,-" And that in such cases, where the laws are rejected, or are silent, the conquered country shall be governed according to the rule of natural equity."