§ 146. We have now finished our survey of the origin and political history of the colonies; and here we may pause for a short time for the purpose of some general reflections upon the subject.
§ 147. Plantations or colonies in distant countries are either, such as are acquired by occupying and peopling desert and uncultivated regions by emigrations from the mother country; 1. or such as, being already cultivated and organized, are acquired by conquest or cwession under treaties. There is, however, a difference between these two species of colonies in respect to the laws, by whcih they are governed, at least according to the jurisprudence of the common law. If an uninhabited country is discovered and planted by British subjects, the English laws are said to be immediately in force there; for the law is the birthright of every subject. So that wherever they go, they carry their laws with them; and the new found country is governed by them 2
§ 148. This proposition, however, though laid down in such general terms by very high authority, requires many limitations, and is to be understood with many restrictions. Such colonists do not carry with them the whole body of the English laws, as they then exist; for many of them must, from the nature of the case, be wholly inapplicable to their situation, and
1 1 Bl. Comm. 107.
2 2 P. Will. 75; 1 Bl. Common. 107; 2 sSalk. 411; Com. Dig. Ley. C.;
Rex v Vaughn, 4 Burr. R. 2500; Chitty on Prerog.ch.3, p. 29, & c
CH. XVI.] GENERAL REVIEW. 133
inconsistent with their comfort and prosperity. There is therefore, this necessary limitation implied, that they carrywith them all the laws applicable to their situation, and no repugnant to the local and political circumstances, in shich they are placed.
§ 149. Even as thus stated, the proposition is full of vagueness and perplexity; for it must still remain a question of intrinsic difficulty to say, what laws are, or are not applicable to their situation; and whether they are bound by the present state of things, or are at liberty to apply them in future by adoption, as the growth or interests of the colony may dictate. 1 The English rules of inheritance, and of protection from personal injuries, the rights secured by Magna Charta, and the remedial course in the administration of justice, are examples as clear perhaps as any, whcih can be stated, as presumptively adopted, or applicable. And yet in the infancy of a colony some of these very rights, and privileges, and remedies, and rules, may be in fact inapplicable, or inconvenient, and impositic. 2 It is not perhaps easy to settle, what parts of the English laws are or are not in force in any such colonyh, until either by usuage, or judicial determinatination, they have been recognized as of absolute force.
§ 150. In respect to conquered and ceded countries, which have already laws of their own, a different rule prevails. In such cases the crown has a right to abrogate the former laws, and institute new ones. But until such new laws are promulgated, athe old laws and customs of the country remain in full force, unless so
1 1 Bl. Comm 107; 2 Merivale R. 143, 159
2 1Bl. Comm. 107;l 1 Tucker's Black. note E, 378, 384 et seq.
4 Burr. R. 2500; 2 Merivale R. 143, 157, 158; 2 Wilson' Law Lect. 49 to 54.
134 HISTORY OF THE COLONIES. [BOOK I.
as far as they are contrary to our religionk or enact any thing, that is malum in se; for in all such cases the laws of the conquering or acquiring country shall prevail. This qualification of the rule arises from the presumption, that the crown could never intend to sanction laws contrary to religion or sound morals. 1 But although the king has thus the power to change the laws of ceded and conquered countries, the power is not unlimited. His legislation is subordinate to the aurthority of parliament. He cannot make nay new change contrary to fundamental principles; he cannot exempt an inhabitant from that particular dominion, as for instance from the laws of trade, or from the power of parliament; and he cannot give him priveleges exclusive of other subjects. 2
§ 151. M. Justice Blackstone, in his Commentaries, insists, that the American colonies are principally to be deemed conquered, or ceded countries. His languageis, " Our American Plantations are principally of this later sort, [i.e. ceded or conquered countries,] being obtained in the last centruy either by right of conquest and driveing out the natives, (with what natural justice I shall not at present inquire,) or by treaties. And, therefdore, 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 cominions," 3
1 Blankard v. Galy, 4 Mod. 222; S.C. 2 Salk. 411, 412; 2 peere
Will. 75; 1 Black. Comm. 107; Campbell v. Hall, Cow;. R. 204
209, Calvin's case, 7 Co. 1. 17. b; Com. Dig. Navigation, G. 1, 3; Id.
Ley. C. 4 Burr. R. 2500; 2 Merivale R. 143, 157, 158
2 Campbell v. Hall, Cow;. R. 204, 209; Chitty on Prerog. ch. 3,
p. 29 &c
3 1 Bl. Comm 107; Chitty on Prerog. Ch. 3, p 29.
CH. XVI.] GENERAL REVIEW. 135
§ 152. There is great reason to doubt the accuracy of this statement in a legal view. We ahve already seen, that the European nations, by whom America was colonized, treated the subject in a very different manner. 1 They claimed an absolute dominion over the whole territories afterwards occupied by them, not in virtue of any conquest of, or cession by trrhe Indian natives; but as a right acquired by discovery. 2 Som of them, indeed, obtained a sort of confirmatory gran from the papal authority. --But as between themselves they treated the dominion and title of territory as resulting from priority of discovery; 3 and they European power, which had first discovered the country, and set up mark of possession, was deemed to have gained the right, thourgh it had not yet foremed a regular colony there. 4 We have also seen, that the title of the Indians was not treated as a right of propriety and dominion; but as a mere of right of occupancy. 5 As infidels, heathen, and savages, they awere no allowed to possess the prerogatives belonging to absolute, sovereign and independent nations. 6 The territory, over which they wandered, and which they used for their temporary and fugitive purposes, was, in respect to
1 See ante, p. 4 to 20; 1 Chalm. Annals, 676; 3 Wilson's Works, 234
2 Vattel, B. 1, ch. 18, § 205, 206, 207, 208, 209.
3 Johnson v. McIntosh, 8 Wheat. R. 543, 576, 595.
4 Penn v. Lord Baltimore, 1 Vez. 444, 451
5 3 Kent's Comm. 308 to 313; 1 Chalm. Annals, 676, 677; 4 Jefferson's
Corresp 478; Worcester v. Georgia, 6 Peters's R. 515
6 To do but justice to those times, it is proper to state, that this pretension
diid not obtain universal approbation. On the contrary, it was
opposed by some of the most enlightened ecclesiastics and philosophers
of thos days, as unjust and absurd; and especially by two Spanish
writer of eminent worth, Soto and Victoria. Se Sir James McIntosh's
elegant treatise on the Progress of Ethical Philosophyl Philadelphia
edit. 1832, p. 49, 50.
136 HISTORY OF THE COLONIES. [BOOK I.
Christians, deemed, as if it were inhabiteed only by burute animals. There is not a single grant from the British crown from the earliest grant of Elizabith down to the altest of George othe Second, that affects to look to any title, except that founded on discovery. Conquest or cession is not once alluded to. And it is impossible, that it should have been any conquest or cession from the natives of the territory comprehended in those grants. Even in respect to the territory of New - York and New-Jersey, which alone afford any pretence for a claim by conquest, they were conquered fro the Dutch, and not from the natives; and were ceded to England by the treaty of Breda in 1667. But England claimed this very territroy, not by right of this conquest, but by the prior right of discovery. 1 The original grant was made to the Duke of York in 1664, founded upon this right, and the subsequent confiramtion of his title did not depart from the original foundation.
§ 153. The Indians could in no just sense be deemed a conquered people, who had been stripped of their territorial possessions by superior force. They were considered as a people, no having any regualr laws, or any organized government; but as mere wandering tribes. 2 They were never reduced into actual obediaence, as dependent communities; and no scheme of gener legislation voer them was ever attempted. For may purposed they were treated as independent communities, at liberty to govern themselves; so always
that they did not interfere with the paramount rights of the European
§ 154. For the most part at the time of the first grants of
charters, there was not any possession or occupation of the territory by
any British emigrants. The main objects of these charters, as stated in
the preliminary recitals, was to invite emigrations, to people the country,
to found colonies, and to christianize the natives. Even in case of a
conquered country, where there are no laws at all existing; or none, which
are adapted to a civilized community; or where the laws are silent, or are
rejected and none substituted; the territory must be governed according to
the rules of natural equity and right. And Englishmen removing thither
must be deemed to carry with them those rights and privileges, which belong
to them in their native country.2
§ 155. The very ground, therefore, assumed by England, as the
of its title to America, and the invitations to its own subjects to people
it, carry along with them a necessary implication, that the plantations,
subsequently formed, were to be deemed a part of the ancient dominions; and
the subjects inhabiting them to belong to a common country, and to retain
their former rights and privileges. The government in its public policy
and arrangements, as well as in its charters, proclaimed, that the colonies
were established with a view to extend and enlarge the boundaries of the
empire. The colonies,
1 4 Wheat. R. 590, 591, 596; 1 Grahame's Hist. of America, 44; 3 Kent's
Comm. 311; Worcester v. State of Georgia, 6 Peters's Sup. Ct.
2 2 Salk. 411, 412; See also Nall v. Campbell, Cowp. R. 204, 211, 212;
1 Chalm. Ann. 14,15, 678, 679, 689, 690; 1 Chalm. Opinions, 194; 2
Chalm. Opinions, 202; Chitty on Prerog. ch. 2; 2 Wilson's Law
138 HISTORY OF THE COLONIES. [BOOK I.
when so formed, became a part of the state equally with its ancient
possessions.1 It is not, therefore, without strong reason, that it has
been said, that " the colonists, continuing as much subjects in the new
establishment, where they had freely placed themselves, [with the consent
of the crown,] as they had been in the old, carried with them their
birthright, the laws of their country; because the customs of a free people
are a part of their liberty; " and that " the jurisprudence of England
became that of the colonies, so far as it was applicable to the situation,
at which they had newly arrived, because they were Englishmen residing
within a distant territory of the empire."2 And it may be added, that as
there were no other laws there to govern them, the territory was
necessarily treated, as a deserted and unoccupied country, annexed by
discovery to the old empire, and composing a part of it.3 Moreover, even
if it were possible to consider the case, as a case of conquest from the
Indians, it would not follow, if the natives did not remain there, but
deserted it, and left it a vacant territory, that the rule as to conquests
would continue to apply to it. On the contrary, as soon as the crown
should choose to found an English colony in such vacant territory, the
general principle of settlements in desert countries would govern it. It
would cease to be a conquest, and become a colony; and as such be affected
by the British laws. This doctrine is laid down with great
1 Vattel, B.1, ch.18, § 209;1 Chalm. Annals, 676, 677, 678, 679; 8 Wheat
R. 595; Grotius, B. 2, ch. 9, § 10.
2 1 Chalm Ann 677; Id. 14,1,658; 2 Wilson's Law Lect 48, 49; 3 Wilson's
Law Lect. 234, 235.
3 Robertson's v. Row, 1 Atk. R. 543, 544; Vaughan R. 300, 400; Show.
Parl. Cas. 31; 8 Wheat. R. 595; 1 Turk. Black. Comm. App.
Dummer's Defence, 1 American Tracts, 18.
CH. XVI.] GENERAL REVIEW. 139
clearness and force by, Lord Mansfield, in his celebrated judgment in Hall
v. Campbell, (Cowp. R. 204, 211, 212.) In a still more recent case it
was laid down by Lord Ellenborough, that the law of England might properly
be recognised by subjects of England in a place occupied temporarily by
British troops, who would impliedly carry that law with them.1
§ 156. The doctrine of Mr. Justice Blackstone, therefore,
may well admit
of serious doubt upon general principles. But it is manifestly erroneous,
so far as it is applied to the colonies and plantations composing our
Union. In the charters, under which all these colonies were settled, with
a single exception,2 there is, as has been already seen, an express
declaration, that all subjects and their children inhabiting therein shall
be deemed natural-born subjects, and shall enjoy all the privileges and
immunities thereof; and that the laws of England, so far as they are
applicable, shall be in force there; and no laws shall be made, which are
repugnant to, but as near as may be conveniently, shall conform to the laws
of England. Now this declaration, even if the crown previously possessed a
right to establish what laws it pleased over the territory, as a conquest
from the natives, being a fundamental rule of the original settlement of
the colonies, and before the emigrations thither, was conclusive, and could
not afterwards be abrogated by the crown. It was an irrevocable annexation
of the colonies to the mother country, as dependencies governed by the same
laws, and entitled to the same rights.3
1 Rex v. Brampton, 10 East R. 22, 288, 289.
2 That of Pennsylvania, 1 Grahame's Hist. 41, note; 1 Chalm. Annals,
14,15, 639, 640,658; 2 Wilson's Law Lect. 48, 49.
3 Stokes's Colon. 30; Hall v. Campbell, Cowp. R. 204. 212; 1 Turk.
Black. Comm. App. 383, 384; Chitty Prerog. 32, 33.
140 HISTORY OF THE COLONIES. [BOOK I.
§ 157. And so has been the uniform doctrine in America ever since the
settlement Of the colonies. The universal principle (and the practice has
conformed to it) has been that the common law is our birthright and
inheritance and that our ancestors brought hither with them Upon their
emigration all of it, which was applicable to their situation. The whole
Structure of our present jurisprudence stands upon the original foundations
of the common law.1
1 Notwithstanding the clearness of this doctrine, both from the language
of the charters, and the whole course of judicial decisions, Mr. Jefferson
has treated it with an extraordinary degree of derision, if not of
contempt. "I deride (says he) with you the ordinary doctrine, that we
brought with us from England the common law rights. This narrow notion was
a favourite in the first moment of rallying to our rights against Great
Britain. But it was that of men, who felt their right, before they had
thought of their explanation. The truth is, that we brought with us the
rights of men, of expatriated men. On our arrival here the question would
at once arise, by what law will we govern ourselves? The resolution seems
to have been, by that system, with which we are familiar; to be altered by
ourselves occasionally, and adapted to our new situation." 4 Jefferson's
How differently did the Congress of 1774 think. They unanimously
resolved, "That the respective colonies are entitled to the common law of
England, and more especially to the great and inestimable privilege of
being tried by their peers of the vicinage according to the course of that
law." They further resolved, " that they were entitled to the benefit of
such of the English statutes, as existed at the time of their colonization,
and which they have by experience respectively found to be applicable to
their several and local circumstances." They also resolved, that their
ancestors at the time of their emigration were " entitled " (not to the
rights of men, of expatriated men, but) " to all the rights, liberties, and
immunities of free and natural born subjects within the realm of England."
Journal of Congress, Declaration of Rights of the Colonies, Oct. 14, 1774,
p. 27 to 31.
1 Chalm. Opinion, 202, 220, 295; 1 Chalm. Annals 677, 681, 682; 1 Tuck.
Black. Comm. 385; 1 Kent's Comm. 322; Journal of Congress, 1774, p. 28,
29; 2 Wilson's Law Lect. 48, 49, 50; I Tuck. Black. Comm. App. 380 to
384; Van Ness v. Packard, 2 Peters's Sup. R. 137,144.
CH. XVI.] GENERAL REVIEW. 141
§158. We thus see in a very clear light the mode, in which the
was first introduced into the colonies; as well as the true reason of the
exceptions to it to be found in our colonial usages and laws.1 It was not
introduced, as of original and universal obligation in its utmost latitude;
but the limitations contained in the bosom of the common law itself, and
indeed constituting a part of the law of nations, were affirmatively
settled and recognised in the respective charters of settlement. Thus
limited and defined, it has become the guardian of our political and civil
rights; it has protected our infant liberties; it has watched over our
maturer growth; it has expanded with our wants; it has nurtured that spirit
of independence, which checked the first approaches of arbitrary power; it
has enabled us to triumph in the midst of difficulties and dangers
threatening our political existence and by the goodness of God, we are now
enjoying, under its bold and manly principles, the blessings of a free,
independent, and united government.2
1 2 Wilson's Law Lect. 48 to 55; 1 Tuck. Black. Comm. App. 380 to
384; 1 Chalm. Opinions, 220.
2 The question, whether the common law is applicable to the United States
in their national character, relations, and government, has been much
discussed at different periods Or the government, principally, however,
with reference to the jurisdiction and punishment of common law offences by
the courts of the United States. It would be a most extraordinary state of
things, that the common law should be the basis of the jurisprudence of the
States originally composing the Union; and yet a government engrafted upon
the existing system should have no jurisprudence at all. If such be the
result, there is no guide, and no rule for the courts of the United States,
or indeed, for any other department of government, in the exercise of any
of the powers confided to them, except so far as Congress has laid, or
shall lay down a rule. In the immense mass of rights and duties, of
contracts and claims, growing out of the Constitution and laws of the
United States, (upon which positive legislation has hither to done little
or nothing,) what is the rule of decision, and interpretation, and
restriction? Suppose the simplest case of contract with the government of
142 HISTORY OF THE COLONIES. [BOOK I.
the United States, how is it to be construed? How is it to be enforced?
What are its obligations? Take an Act of Congress - How is it to be
interpreted? Are rules of the common law to furnish the proper guide, or is
every court and department to give it any interpretation it may please,
according to its own arbitrary will? -- My design is not here to discuss
the subject, (for that would require a volume,) but rather to suggest some
of the difficulties attendant upon the subject. Those readers, who are
desirous of more ample information, are referred to Duponceau on the
Jurisdiction of the Courts of the United States; to 1 Tucker's Black.
Comm. App. Note E, p. 372; to 1 Kent's Comm. Lect. 16, p. 311 to 322;
to the report of the Virginia legislature of 1799-1800; to Rawle on the
Constitution, ch. 30, p. 258; to the North American Review, July, 1825;
and to Mr. Bayard's speech in the Debates on the Judiciary, in 1802, p.
372,&c. Some other remarks illustrative of it will necessarily arise in
discussing the subject of Impeachments.