EXTENSION OF THE EMPIRE.

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§ 212. It is not necessary to trace historically the changes by which the North American colonies, originally held by other nations than the English, became incorporated into the British empire, or the laws which prevailed therein, determining the condition of private persons before that period, or the legislative acts of the imperial government, by which the common law and statutes of England became extended over them, in the same manner and degree as over the colonies originally settled by the English. However much the rights of the white inhabitants of those colonies may have differed in their public or political character from the liberties of the English colonists, they were substantially of the same character in their practical exercise in social relations. In all the colonies the same legal distinctions accompanied a difference of race or physical constitution, and upon the acquisition of those colonies by the British crown, the civil or social rights of the free inhabitants were secured to them, under the new sovereignty, on the transfer of their allegiance by international treaties.

declared freemen by the Congress, with the understanding that compensation was to be made to the masters, for loss of service, 3 Hildr. 190. The war stopped the importation of indented servants, and it was not revived to any great extent afterwards. Some Germans were imported about 1789: but Acts of Parliament prevented the indenting of laborers in England for transportation to America: 1 Hildr. 2d series, p. 93; 25 Geo. 3, c. 67, continued by later acts. In Walsh's Appeal, Pref. p. 29, the author speaks of vessels arriving at Philadelphia in 1816, 1817, "laden with redemptioners from the continent of Europe."

'Ch. XV. of Banc. U. S. In the Swedish colony of New Sweden the law rested entirely on the home sovereignty, except the police power. See Governor's commission in Mulford's Hist. of New Jersey, p. 86. O'Callaghan's Hist. of New Netherlands, vol. 1, p. 90: "The director-general and his council were invested with all powers, judicial, legislative and executive, subject, some supposed, to appeal to Holland; but the will of the Company, expressed in their instructions, or declared in their marine or military ordinances, was to be the law in New Netherland, excepting in cases not specially provided for, where the Roman law, the imperial statutes of Charles V., the edicts, resolutions and customs of Fatherland, were to be received as the paramount rule of action." P. 101: "The director and council had supreme, executive, and legislative authority in the colony." See also Moulton's Hist. of New York, vol. I, part 2, p. 369, also B. F. Butler's Discourse on the Constitutional History of the State of N. Y., pp. 14, 15, 20.

CHAPTER VI.

THE ESTABLISHMENT OF MUNICIPAL LAW IN THE COLONIES ;— THE SUBJECT CONTINUED. LOCAL LEGISLATION DETERMINING CONDITIONS OF FREEDOM OR OF BONDAGE.

§ 213. It has been attempted in the three preceding chapters to exhibit the origin and extent of positive' laws in the American colonies; in doing which, it was necessary to regard those laws both as public and as private law; that is, in other words, to consider both the location of the sovereign legislative or juridical power, which was the source and basis of the private law, and its actual effects upon the conditions of private persons within the colonial territory. As the introduction of that law, whether public or private, was dependent upon the external force and imperial authority of the crown and parliament of England, it was in those chapters considered mainly as the law of one nation; irrespectively of those local distinctions which the separate powers of the several colonies, either independently of, or in co-operation with, the imperial authority, might each, in accordance with the public and national law, create within their respective domains. It is the law which thus originated in legislative or juridical power acting in and for the several colonies, as distinct and separate jurisdictions, which, in its effect upon conditions of freedom and its opposites, is the subject of this chapter.

Meaning that law which was both internal and international, and commonly called municipal, but more properly national law, ante, § 53. From the peculiar distribution of legislative power which existed under the British Empire, the term national, if employed here, would be liable to misconstruction.

EXTENT OF THE POWER.

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§ 214. The legislative power of the colonial government was, as has been shown, indirectly limited by the national guarantee of common law liberties to the colonists and their descendants. But they were also expressly restricted by the charter provision that their local legislation should not be repugnant or contrary to the laws of England, or should be agreeable or conformable, as nearly as might be, to the laws of England. The effect of this restriction as a protection to private individuals was not limited in the charters by any personal distinction expressed therein. But it appears, as has already been indicated in the third chapter, that in determining what rules would not be repugnant to, or would be agreeable to, the laws of England, the colonial assemblies or legislatures claimed and exercised with the sanction of the crown, an authority, in reference to matters of internal law, which, in the language of Story, might "abrogate every part of the common law, except that which united the colonies to the parent state by the general ties of allegiance and dependency;" or that, as the colonial tribunals had a several power of interpreting and applying common law in their respective jurisdictions, they practically under the revisory power of the king in council, determined how far the territorial law of England was adapted to the situation of persons and things within the colonial jurisdiction and should control the creation of a local law. The existence of this power was illustrated in the colonial laws of descent of estates and in every department of private law. It appears therefore that the charter restriction above mentioned did not prevent the colonial legislative bodies from establishing, with the sanction of the local judicature, a rule of condition, in reference to persons not protected in the possession of individual and relative rights by the common law of England having personal extent, different from any known to that law and incompatible with the enjoyment of those rights. Besides, as has been

1 Story's Comm. § 163.

2 A distinguished jurist of Virginia has said, "Local circumstances, likewise, gave an early rise to a less justifiable departure from the principles of the common law in some of the colonies, in the establishment of slavery; a measure not to be reconciled either to the principles of the law of nature, nor even to the most arbitrary establish

224

THE POWER RECOGNIZED.

shown in the fourth chapter, although the common law courts in England, at some point of time anterior to the independence of the colonies, decided that no person could by common law be held as a slave in England, yet such doctrine was by no means generally received during the seventeenth and the earlier part of the eighteenth century, and that, in fact, negro slaves were held and sold, as persons bound to involuntary servitude, if not as chattels, in England during that period; and that it seems never to have been supposed during the period in which the colonial statutes establishing such conditions were enacted, that the slavery of Africans or Indians and their descendants in the colonial dependencies of the Empire was repugnant to, or not conformable or agreeable to, the law of England. And if the common law afterwards received from English tribunals a different construction, such a change could have had no effect upon colonial statutes which, at the time of enactment, were sanctioned by the contemporaneous exposition of the laws of England.

As will be more fully shown in the succeeding chapter, the later English cases which unqualifiedly deny the master's claim to service must be taken to mean that such claim could not be maintained because the territorial law attributed liberty to each person within the realm of England, and that they go no farther. However unlawful in England, at any time, there is not a judicial doubt on record that it might be lawful in the English colonies: its lawfulness in America is expressly asserted by Holt and Mansfield in the cases already cited.1

§ 215. It has been shown that the colonial Governments, in the exercise of any of their powers, were also indirectly limited by the national guarantee extending the rights and privi

ments in the English government at that period; absolute slavery, if it ever had existence in England, having been abolished long before. These instances show that the colonists, in judging of the applicability of the laws of the mother country to their own situations and circumstances, did not confine themselves to very strict and narrow limits." 1 Tucker's Blackstone, (1803,) p. 388.

'The English judges and the American jurists were agreed upon this point; they disagreed only in deriving the law from different sources. Holt said-" for the laws of England do not extend to Virginia; being a conquered country, their law is what the king pleases." See ante, p. 183 and note. The colonial governments ascribed the existence of slavery, in their respective territories, to their own juridical action.

LOCAL LAW FOR SLAVERY.

225

leges of Englishmen' to colonists of English or European race, a principal one of which was certainly the right of property, or to its possession and enjoyment. The extent of the rights thus guaranteed, was unquestionably determined by common law.' But this common law could only be one which had a national authority and recognition, or which, in operating as a personal law, was the same in all parts of the Empire.' As has been shown, if the right of the master in respect to the slave had, in the several colonies, a common law character, or was not derived from legislative enactment, it was not therefore, necessarily, also a right protected by common law operating with national extent.* As has been shown in the preceding two chapters, this law during the later part of the colonial period at least, if not during the seventeenth century also, maintained slavery only in the case of heathen Africans and Indians and, when Christianized or baptized, their condition depended upon the local law of that part of the Empire in which they were domiciled.

§ 216. Although the involuntary servitude of Indians and negroes in the several colonies originated under a law not promulgated by legislation, and rested upon prevalent views of universal jurisprudence, or the law of nations, supported by the express or implied authority of the home Government, yet it is evident, from the historical sketch of those views which has herein been given, that, when negroes and Indians became the permanent inhabitants of the colonial jurisdictions, and had become a portion of a Christian population by baptism or conversion, many doubts must have arisen in respect to their legal condition. Being also a condition entirely different from, and in marked contrariety to, any known to the personal law apply

Ante, §§ 137, 138.

'Ante, § 136.

1 Ante, § 130. Ante, § 138. And it may be mentioned here, that the claim of a power in the colonial Governments to prohibit the introduction of heathen negro slaves from abroad, was one of the declared issues of the Revolution. Walsh's Appeal, p. 317, as was declared by Mr. Burke, in his speech on the conciliation with America. and that the Imperial refusal was never justified on the idea of securing to the colonists a common law right, but on avowed motives of national policy and the profits of British merchants. See Petition of H. of Burgesses, Va., April, 1772; 2 Tucker's Bl. App. p. 52; Jefferson's first draft of the declaration of Independence; preamble to Const. of Va., June 26, 1776, post; and ante, § 203, n.