trary, 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 clearness and force by Lord Mansfield, in his celebrated judgment in Hall v. Campbell.1 In a still more recent case it was laid down by Lord Ellenborough that the law of England might properly be recognized by subjects of England in a place occupied temporarily by British troops, who would impliedly carry that law with them.2

§ 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, 3 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. There is also in all of them an express restriction that no laws shall be made repugnant to those of England, or that, as near as may be conveniently, they shall be consonant with and conformable thereto; and either expressly or by necessary implication it is provided that the laws of England so far as applicable shall be in force there. 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.4

§ 157. And so has been the uniform doctrine in America ever since the settlement of the colonies. The universal principle 1 Cowp. R, 204, 211, 212.

2 Rex v. Brampton, 10 East, R. 282, 288, 289.

8 That of Pennsylvania, 1 Grahame's Hist. 41, note; 1 Chalm. Annals, 14, 15, 639, 640, 658; 2 Wilson's Law Lect. 48, 49.

♦ Stoke's Colon. 30; Hall v. Campbell, Cowp. R. 204, 212; 1 Tuck. Black. Comm. App. 383, 384; Chitty, Prerog. 32, 33.

(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 (a)

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 favorite in the first moment of rallying to our rights against Great Britain. But it was that of men who felt their rights, 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 Corresp. 178.

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 he 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, pp. 27 to 31.

1 Chalm. Opinions, 202, 220, 295; 1 Chalm. Annals, 677, 681, 682; 1 Tuck. Black. Comm. 385; 1 Kent's Comm. 322; Journal of Congress, 1774, pp. 28, 29; 2 Wilson's Law Lect. 48, 49, 50; 1 Tuck. Black. Comm. App. 380 to 384; Van Ness v. Packard, 2 Peters's Sup. R. 137, 144.

(a) Mr. Jefferson, as will be seen from the quotation above, did not question, but expressly asserted, that the English common law was in force in the colonies; but he speaks of it as having been accepted by the colonists, who might on the other hand have chosen to reject it. Further on in the same letter (to Judge Tyler, Jefferson's Works, VI. 65) he says: "The state of the English law at the date of our emigration constituted the system adopted here." And in his Notes on Virginia he says: laws of England seem to have been adopted by consent of the settlers, which might easily enough have been done whilst they were few and living all together. Of such

"The

adoption, however, we have no other proof than their practice till the year 1661, when they were expressly adopted by an act of the assembly, except so far as 'a difference of condition' rendered them inapplicable." Jefferson's Works, VIII. 374. See also Ibid. IX. 282. When, at the breaking out of the Revolution, the laws were revised by a commission, of which Mr. Jefferson was a member, the common law of England was made the basis of the revision. Jefferson's Works, VIII. 379. The true rule as to the extent to which the common law prevailed in the colonies is thus stated by Mr. Justice Story, in one of his judicial decisions. "The common

§ 158. We thus see in a very clear light the mode in which the common law 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. 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 recognized 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 (a)

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

law of England," he says, "is not to be taken, in all respects, to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their condition." Van Ness v. Packard, 2 Pet. 144. See also Chisholm v. Georgia, 2 Dall. 435; Town of Pawlett v. Clark, 9 Cranch, 292; Wheaton v. Peters, 8 Pet. 541. The acts of Parliament passed after the settlement of the American colonies were not in force therein, unless made so by express words or by adoption. Commonwealth v. Lodge, 2 Gratt. 579; Pemble v. Clifford, 2 McCord, 31. See also Baker v. Mattocks, Quincy, 72; Cathcart v. Robinson, 5 Pet. 280; Swift v. Towsey, 5 Ind. 196. For the different views taken by English and American statesmen upon the subject of this note prior to the Revolution, see Works of Franklin, by Sparks, IV. 271.

(a) "It is clear," says Mr. Justice

McLean, in Wheaton v. Peters, 8 Pet. 658, "that there can be no common law of the United States. The Federal gov ernment is composed of twenty-four sovereign and independent States; each of which may have its local usages, customs, and common law. There is no principle which pervades the Union, and has the authority of law, that is not embodied in the Constitution or laws of the Union. The common law could be made a part of our federal system only by legislative adoption. When, therefore, a commonlaw right is asserted, we must look to the State in which the controversy originated." See to the same effect, Kendall v. United States, 12 Pet. 524; Lorman v. Clarke, 2 McLean, 568. Therefore the United States cannot exercise a common-law jurisdiction in criminal cases. Congress must first make an act a crime, affix a punishment to it, and declare the court that shall have jurisdiction of the offence, before such court can take cognizance thereof. United

periods of 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 ingrafted 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 hitherto done little or nothing), what is the rule of decision, and interpretation, and restriction? Suppose the simplest case of contract with the government of 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 the 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 it. 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, pp. 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, etc. Some other remarks illustrative of it will necessa rily arise in discussing the subject of impeachments.

States v. Hudson, 7 Cranch, 32; United States v. Lancaster, 2 McLean, 433; United States v. New Bedford Bridge, 1 Wood. & M. 435; United States v. Wilson, 3 Blatch. 435. But the national courts, after jurisdiction is conferred, are to look to

the common law, in the absence of statutory provisions, for rules to guide them in the exercise of their functions, in criminal as well as civil cases. Conklin's Treatise,

82.

CHAPTER XVII.

GENERAL REVIEW OF THE COLONIES.

§ 159. IN respect to their interior polity, the colonies have been very properly divided by Mr. Justice Blackstone into three. sorts; namely, provincial, proprietary, and charter governments. First, provincial establishments. The constitutions of these depended on the respective commissions issued by the crown to the governors, and the instructions which usually accompanied those commissions. These commissions were usually in one form,2 appointing a governor as the king's representative or deputy, who was to be governed by the royal instructions, and styling him captain-general and governor-in-chief over the Province, and chancellor, vice-admiral, and ordinary of the same. The crown also appointed a council who, besides their legislative authority, were to assist the governor in the discharge of his official duties; and power was given him to suspend them from office, and in case of vacancies to appoint others, until the pleasure of the crown should be known. The commissions also contained authority to convene a general assembly of representatives of the freeholders and planters; and under this authority provincial assemblies composed of the governor, the council, and the representatives, were constituted (the council being a separate branch or upper house, and the governor having a negative upon all their proceedings, and also the right of proroguing and dissolving them); which assemblies had the power of making local laws and ordinances, not repugnant to the laws of England, but as

1 Bl. Comm. 108; Stoke's Hist. Colon. 20, 23, 149, 184, 185; Cowper's R. 207, 212; Com. Dig. Navigation, G. 1; 2 Doug. Summ. 163, note; Id. 251; 1 Doug. Sumin.

207.

2 Stokes's Hist. Colon. 14, 23, 149, 150, 166, 184, 185, 191, 199, 202, 237, 239; 1 Bl. Comm. 108. Stokes has given, in his History of the Colonies, ch. 4, p. 149, &c., copy of one of these commissions. A copy is also prefixed to the Provincial Laws of See 2 Hewatt's History of South Carolina and

New Hampshire, edition of 1767.

Georgia, and Account of the Provincial Governments.

Stokes's Hist. Colon. 155, 237, 240, 241, 242, 251; 1 Pitk. Hist. 71; 1 Chalmers's Annals, 683. See in Parliamentary Debates, Vol. II., for 1781 (old edition), in Appendix, copies of the Charters of the American Colonies.