With regard to the other adjacent islands which are subject to the crown of Great Britain, some of them (as the isle of Wight, of Port- [*105 land, of Thanet, &c.) are comprised within some neighbouring county, and are therefore to be looked upon as annexed to the mother island, and part of the kingdom of England. But there are others which require a more particular consideration.

And, first, the isle of Man is a distinct territory from England, and is rot governed by our laws: neither doth any act of parliament extend to it, unless it be particularly named therein; and then an act of parliament is binding there.(e) It was formerly a subordinate feudatory kingdom, subject to the kings of Norway; then to king John and Henry III. of England, afterwards to the kings of Scotland; and then again to the crown of England: and at length we find king Henry IV. claiming the island by right of conquest, and disposing of it to the Earl of Northumberland; upon whose attainder it was granted (by the name of the lordship of Man) to Sir John de Stanley by letters patent 7 Henry IV.(f) In his lineal descendants it continued for eight generations, till the death of Ferdinando Earl of Derby, A.D. 1594: when a controversy arose concerning the inheritance thereof, between his daughters and

(*) 4 Inst. 284. 2 And. 116.

(1) Selden, tit. hon. 1, 3.

respectively as those for counties, cities, and boroughs in England, unless some other provision be afterwards made.

Until an act shall be passed in the parliament of the united kingdom providing in what cases persons holding offices and places of profit under the crown of Ireland shall be incapable of sitting in the House of Commons, not more than twenty such persons shall be capable of sitting; and if more than twenty such persons shall be returned from Ireland, then the seats of those above twenty shall be vacated who have last accepted their offices or places.

That all the lords of parliament on the part of Ireland, spiritual and temporal, sitting in the House of Lords, shall have the same rights and privileges respectively as the peers of Great Britain; and that all the lords spiritual and temporal of Ireland shall have rank and precedency next and immediately after all the persons holding peerages of the like order and degree in Great Britain subsisting at the time of the union; and that all peerages hereafter created of Ireland, or of the united kingdom, of the same degree, shall have precedency according to the dates of their creations; and that all the peers of Ireland, except those who are members of the House of Commons, shall have all the privileges of peers as fully as the peers of Great Britain, the right and privileges of sitting in the House of Lords, and upon the trial of peers, only excepted.

Art. V. That the churches of England and Ireland be united into one protestantepiscopal church, to be called The United Church of England and Ireland; that the doctrine and worship shall be the same; and that the continuance and preservation of the united church as the established church of England and Ireland shall be deemed an essential and fundamental part of the union; and that, in like manner, the church of Scotland shall remain the same as is now established by law and by the acts of union of England and Scotland.

Art. VI. The subjects of Great Britain and Ireland shall be entitled to the same privi· leges with regard to trade and navigation, and also in respect of all treaties with foreign powers,

That all prohibitions and bounties upon the importation of merchandise from one country to the other shall cease.

But that the importation of certain articles therein enumerated shall be subject to such countervailing duties as are specified in the act.

Art. VII. The sinking-funds and the interest of the national debt of each country shall be defrayed by each separately. And, for the space of twenty years after the union, the contribution of Great Britain and Ireland towards the public expenditure in each year shall be in the proportion of fifteen to two, subject to future regulations. Art. VIII. All the laws and courts of each kingdom shall remain the same as they are now established, subject to such alterations by the united parliament as circumstances may require; but that all writs of error and appeals shall be decided by the House of Lords of the united kingdom, except appeals from the court of admiralty in Ireland, which shall be decided by a court of delegates appointed by the court of chancery in Ireland.

The statute then recites an act passed in the parliament of Ireland, by which the rotation of the four spiritual lords for each sessions is fixed; and it also directs the time

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William his surviving brother: upon which, and a doubt that was started con cerning the validity of the original patent,(g) the island was seized into the queen's hands, and afterwards various grants were made of it by king James the First; all which being expired or surrendered, it was granted afresh in 7 Jac. I. to William Earl of Derby, and the heirs male of his body, with remainder to his heirs general; which grant was the next year confirmed by act of parliament, with a restraint of the power of alienation by the said earl and his issue male. On the death of James Earl of Derby, A.D. 1735, the male line of Earl William failing, the Duke of Atholl succeeded to the island as heir general by a female branch. In the mean time, though the title of king had been long disused, the Earls of Derby, as Lords of Man, had maintained a sort of royal authority therein; by assenting or *dissenting to laws, and exercising *106] an appellate jurisdiction. Yet, though no English writ, or process from the courts of Westminster, was of any authority in Man, an appeal lay from a decree of the lord of the island to the King of Great Britain in council.(h) But the distinct jurisdiction of this little subordinate royalty being found inconvenient for the purposes of public justice, and for the revenue, (it affording a commodious asylum for debtors, outlaws, and smugglers,) authority was given to the treasury by statute 12 Geo. I. c. 28, to purchase the interest of the then proprietors for the use of the crown: which purchase was 'at length completed in the year 1765, and confirmed by statutes 5 Geo. III. 26 and 39, whereby the whole island and all its dependencies so granted as aforesaid, (except the landed property of the Atholl family, their manorial rights and emoluments, and the patronage of the bishopric(i) and other ecclesiastical benefices,) are unalienably vested in the crown, and subjected to the regulations of the British excise and customs.

The islands of Jersey, Guernsey, Sark, Alderney, and their appendages, were parcel of the duchy of Normandy, and were united to the crown of England by the first princes of the Norman line. They are governed by their own laws, which are for the most part the ducal customs of Normandy, being collected in an ancient book of very great authority, entitled, le grand Coustumier. The king's writ, or process from the courts of Westminster, is there of no force; but his commission is. They are not bound by common Acts of our parliaments, unless particularly named.(k) All causes are originally determined by their own officers, the bailiffs and jurats of the islands; but an appeal lies from them to the king and council, in the last resort.

Besides these adjacent islands, our more distant plantations in America, and elsewhere, are also in some respect subject to the English laws. Plantations or colonies, in distant *countries, are either such where the lands are *107] 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 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 was formerly within the province of Canterbury, but annexed to that of York, by statute 33 Hen. VIII. c. 31. (*) 4 Inst. 286.

Camden, Eliz. A.D. 1594.

1 P. Wms. 329.

(The bishopric of Man, or Sodor, or Sodor and Man,

and mode of electing the twenty-eight temporal peers for life; and it provides that sixtyfour county members shall be elected, two for each county, two for the city of Dublin, two for the city of Cork, one for Trinity College, Dublin, and one for each of thirty-one cities and towns which are there specified, which are the only places in Ireland to be represented in future. One of the two members of each of those places was chosen by lot, unless the other withdrew his name, to sit in the first parliament; but at the next elections one member only will be returned.

An Irish peer is now entitled to every privilege except that of sitting in the House of Lords, unless he chooses to waive it, in order to sit in the House of Commons; and therefore Irish peers, who are not members of the House of Commons, are entitled to the letter missive from the court of chancery, when a bill is filed against them. 8 Ves. Jun. 601.-CHRISTIAN.

been held,() 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,(m) 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 enforced 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 ancient laws of the country remain, unless such as are against the law of God, as in the case of an infidel country.(n) 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."

(1) Salk. 411, 666.
(m) 2 P. Wms. 75.

(n) 7 Rep. 17, Calvin's case. Show. Parl. c. 31.

[*108

A statute passed in England after the establishment of a colony, will not affect it unless it be particularly named; and therefore the requisites of the statute against frauds, in executing wills, &c., have no influence in Barbadoes: (see cases collected 1 Chitty's Com. Law, 638:) so the 5 & 6 Ed. VI. c. 16, as to sale of offices, do not extend to Jamaica. 4 Mod. 222.-CHITTY.

10 See an elaborate and learned argument by lord Mansfield, to prove the king's legislative authority by his prerogative alone over a ceded conquered country. Cowp. 204.CHRISTIAN.

What the king may or may not do, by virtue of his prerogative, with reference to a conquered or ceded country, is very elaborately discussed, (Chalm. Opin. 169.)-CHITTY. "Sir William Blackstone considered the British colonies in North America as ceded or conquered countries, and thence concluded that the common law in general had no allowance or authority there. But this was an error. The claim of England to the soil was made by her in virtue of discovery, not conquest or cession. The aborigines were considered but as mere occupants, not sovereign proprietors; and the argument for the justice of taking possession and driving out the natives was rested upon the ground that a few wandering hordes of savages had no right to the exclusive possession and enjoyment of the vast and fertile regions which were opened for the improvement and progress of civilized man by the discovery of the New World. "On the discovery of this immense continent," said C. J. Marshall, in Johnson vs. McIntosh, 8 Wheaton, 582, "the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the Old World found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the New by bestowing on them civilization and Christianity in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to esta blish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This prinVOL. I.-6

81

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, that the ends for which the grant was made be substantially 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 regulations, 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 their council of state, being their upper house, with the concurrence of the king or his representative the governor,

ciple was, that discovery gave title to the government by whose subjects or by whose authority it was made, against all other European governments, which title might be consummated by possession.

"The exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which by others, all assented.

"Those relations which were to exist between the discoverer and the natives were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them.

"In the establishment of these relations, the rights of the original inhabitants were in no instance entirely disregarded, but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty as independent nations were necessarily diminished, and their power to dispose of the soil at their own will to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it."

It follows, then, that the true principle a regards the British colonies in this country, which subsequently became the United States, is that which the learned commentator has recognised to be the rule of new settlements:-" 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, 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 espe cially as are enforced 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."

This expresses accurately and fully the well-settled and repeatedly recognised doctrine of the American courts upon the subject of the extension of the English common law and statutes to this country. Our ancestors brought with them only such parts of the laws of England as were adapted to their new condition, and, we may add as quite important, such only as were conformable to their principles. The original settlers of this country belonged to a stock of men whose history exhibited in a remarkable manner the ascendency of moral and religious principles, and who were deeply imbued with notions of the right of men to live under governments of their own choice. All the great safeguards of political liberty which were consecrated in England about that period or subsequently, by the Bill of Rights and Act of Settlement, were received and held by

[*109

make laws suited to their own emergencies.12 But it is particularly declared by statute 7 and 8 W. III. c. 22, 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 plantations, shall be utterly void and of none effect. And, because several of the colonies had claimed a 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.13

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

them as fundamental to all free government. Not only so, but their ideas on religious freedom, on the administration of criminal law, and on the process and pleading in courts, were simple, just, and humane. There never was an order of provincial nobility, nor, with one or two unimportant exceptions, an established clergy, in any of the colonies. Thus, not only in regard to the common law, but as to the statutes in force at the time of their settlement, some parts were adopted, some entirely rejected, and some adopted with important modifications. Some British statutes passed subsequent to that date were in some cases silently adopted, without express legislation: the lawyers of the old colonies, having either been educated in England, or deriving their ideas from English books, adopted and introduced into general practice and understanding such improvements as they found to be convenient.

Equally false is the doctrine asserted that these colonies were subject to the control of the parliament. The colonies were never represented in that body; and although the charters were derived from the crown, and all admitted a common allegiance to the same sovereign, it did not therefore follow that they were subject to the legislative authority of the English people. The great principle successfully maintained by the American Revolution was that taxation and representation are inseparable. And although in the early part of the struggle the Americans were ready to concede the power, provided it was used merely for the purpose of regulation, and not for revenue, before the struggle closed all such distinctions were repudiated. It was clearly seen and argued that no such power over the fortunes and industry of the people of the colonies could with safety be trusted to a legislature at so great a distance, in which they had no voice, which could feel no sympathy for them, and was without that accurate and intimate acquaintance with their character, pursuits, and resources, which is necessary to the wise and impartial exercise of such a power.-SHARSWOOD.

12 Of the American colonies which subsequently became the United States, New Hampshire, New York, New Jersey, Virginia, the Carolinas, and Georgia, were provincial establishments at the period of the Revolution; Maryland, Pennsylvania, and Delaware were proprietary governments; and Massachusetts, Rhode Island, and Connecticut were charter governments.

Mr. Justice Story remarks (1 Com. on the Const., 145) that Blackstone's description of charter governments is by no means just or accurate. They could not be justly considered as mere civil corporations of the realm, empowered to pass by-laws; but rather as great political establishments or colonies, possessing the general powers of government and rights of sovereignty, dependent indeed and subject to the realm of England, but still possessing within their own territorial linfits the general powers of legislation and taxation.-SHARSWOOD.

13 By 22 Geo. III. c. 46, his majesty was empowered to conclude a truce or peace with the colonies or plantations in America; and, by his letters patent, to suspend or repeal any acts of parliament which related to those colonies. And by the first article of the definitive treaty of peace and friendship between his Britannic majesty and the United States of America, signed at Paris, the 3d day of September, 1783, his Britannic majesty acknowledges the United States of America to be free, sovereign, and independent States. (Ann. Regist. 1783: State Papers.) And 23 Geo. III. c. 39 gives his majesty certain powers for the better carrying on trade and commerce between England and the United States.-CHRISTIAN.