[108] his commission is. They are not bound by common acts of BESIDES these adjacent islands, our more distant plantations in America and elsewhere, are also in some respects subject to the English laws. Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desart and uncultivated, and peopling them from the mother-country ; or where, when already cultivated, they have been either 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', that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birth-right of every subject ", 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, (such especially as are inforced < (10) The prerogative writs of the court of king's bénch, (which are so called, because they are supposed to issue on the part of the king,) súch as mandamus, prohibition, &c. may issue to every dominion of the crown of England. The distinction is between a foreign dominion, which belongs to a prince succeeding to the throne of England, such as Hanover; and a territory which by conquest or any other mode, is annexed to the crown of England. See R. v. Cowle, 2 Burr. 856. According to this distinction the prerogative writs would not have run into these islands as parcel of the duchy of Normandy. The fact is, I believe, that they were finally ceded to the crown of England under the general words of the sixth and eleventh articles of the peace of Bretigni, 34 E.3. A.D.1360., which gave to the king of England all the French islands which he then held, in full-and absolute sovereignty, Rym. vi. p.178, be by penalties,) the mode of maintenance for the established clergy, the jurisdiction of spiritual courts, and a multitude of other provisions, are neither necessary nor convenient for them, and therefore 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 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 those laws; but, till he does actually change them the antient laws of the country remain, unless such as are against the law of God, as in the case of an infidel country". Our American plantations are principally of this latter [109 ] 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. WITH respect to their interior polity, our colonies are properly of three sorts. 1. Provincial establishments, the constitutions of which depend on the respective commissions issued by the crown to the governors, and the instructions which usually accompany those commissions; under the authority of which, provincial assemblies are constituted, with the power of making local ordinances, not repugnant to the laws of England. 2. Proprietary governments, granted out by the crown to individuals, in the nature of feudatory principalities, with all the inferior regalities, and subordinate powers of legislation, which formerly belonged to the owners of counties palatine: yet still with these express conditions, hat the ends for which the grant was made be substantially 7 Rep. 17. Calvin's case. Show. Parl. C. 31. pursued, and that nothing be attempted which may derogate from the sovereignty of the mother-country. 3. Charter governments, in the nature of civil corporations, with the power of making bye-laws for their own interior regulation, not contrary to the laws of England; and with such rights and authorities as are specially given them in their several charters of incorporation. The form of government in most of them is borrowed from that of England. They have a governor named by the king, (or in some proprietary colonies by the proprietor,) who is his representative or deputy. They have courts of justice of their own, from whose decisions an appeal lies to the king and council here in England. Their general assemblies, which are their house of commons, together with [110] their council of state, being their upper house, with the concurrence of the king, or his representative the governor, make laws suited to their own emergencies. But it is particularly declared by statute 7 & 8 W. III. c. 22 [s. 9.] that all laws, bye-laws, usages, and customs, which shall be in practice in any of the plantations, repugnant to any law made or to be made in this kingdom relative to the said plantation, shall be utterly void and of none effect. And, because several of the colonies had claimed the sole and exclusive right of imposing taxes upon themselves, the statute 6 Geo. III. c. 12. expressly declares, that all his majesty's colonies and plantations in America have been, are, and of right ought to be, subordinate to and dependent upon the imperial crown and parliament of Great Britain; who have full power and authority to make laws and statutes of sufficient validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever. And this authority has been since very forcibly exemplified, and carried into act, by the statute 7 Geo. III. c. 59. for suspending the legislation of New-York; and by several subsequent statutes (9). (9) It is hardly necessary to state that the American colonies, who had united to the number of thirteen states, in their opposition to the mother country, succeeded in establishing their independence, and were recognized as a separate independent state by a treaty of peace, executed on the 3d of September, 1783. This country, however, still retains provinces in North America, and in other parts of the globe, to which the reasoning of the text applies. The territories of the East India Company can hardly be said in principle to stand THESE are the several parts of the dominions of the crown of Great Britain, in which the municipal laws of England are not of force or authority, merely as the municipal laws of England. Most of them have probably copied the spirit of their own law from this original; but then it receives its obligation, and authoritative force, from being the law of the country. As to any foreign dominions which may belong to the per- 111 ] son of the king by hereditary descent, by purchase or other acquisition, as the territory of Hanover, and his majesty's other property in Germany; as these do not in any wise appertain to the crown of these kingdoms, they are entirely unconnected with the laws of England, and do not communicate with this nation in any respect whatsoever. The English legislature had wisely remarked the inconveniences that had formerly resulted from dominions on the continent of Europe; from the Norman territory which William the conqueror brought with him, and held in conjunction with the English throne; and from Anjou, and it's appendages, which fell to Henry the second by hereditary descent. They had seen the nation engaged for near four hundred years together in ruinous wars for defence of these foreign dominions; till, happily for this country, they were lost under the reign of Henry the Sixth. (10) They observed that, from that time, the maritime interests of England were better understood and more closely pursued: that, in consequence of this attention, the nation, as soon as she had rested from her civil wars, began at this period to flourish all at once; and became much more considerable in Europe than when her princes were possessed of a larger territory, and her counsels distracted by stand on a different footing: they are under the sovereignty of the Crown of the United Kingdom, but the possession, revenues, and government of them are granted to the Company until the 10th of April 1831 absolutely, and afterwards until three years' notice be given by parliament, and a certain debt due from the public to the Company be paid. They are granted, however, subject to such limitation and controul as had been provided by the legislature before, or was provided by the 55 Geo. III. c.155., the last statute by which the charter of the Company was renewed. (10) Calais was retained till the 5th year of Queen Mary, when it was lost by the supine inattention of the queen's government, to the great mortification of the nation. foreign interests. This experience and these considerations or We come now to consider the kingdom of England in particular, the direct and immediate subject of those laws, concerning which we are to treat in the ensuing commentaries. And this comprehends not only Wales and Berwick, of which enough has been already said, but also part of the sea. The main or high seas are part of the realm of England, for thereon [112] our courts of admiralty have jurisdiction, as will be shewn hereafter; but they are not subject to the common law P.This main sea begins at the low-water-mark. But between the high-water-mark and the low-water-mark, where the sea ebbs and flows, the common law and the admiralty have divisum imperium, and alternate jurisdiction; one upon the water, when it is full sea: and the other upon land, when it is an ebb 9. THE territory of England is liable to two divisions: the one ecclesiastical, the other civil. 1. THE ecclesiastical division is, primarily, into two provinces, those of Canterbury and York. A province is the circuit of an archbishop's jurisdiction. Each province contains divers dioceses, or sees of suffragan bishops; whereof Canterbury includes twenty one, and York three: besides the bishopric of the isle of Man, which was annexed to the province of York by king Henry VIII. Every diocese is divided into archdeaconries, whereof there are sixty in all; each archdeaconry into rural deaneries, which are the circuit of the archdeacon's and rural dean's jurisdiction, of whom hereafter; and every deanery is divided into parishes". |