§ 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 cominonlaw 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 necessarily 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. Summ. 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 New Hampshire, edition of 1767. See 2 Hewatt's History of South Carolina and 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 Ap. pendix, copies of the Charters of the American Colonies.

VOL. I.- 8

near as may be agreeable thereto, subject to the ratification and disapproval of the crown. The governors also had power, with the advice of council, to establish courts, and to appoint judges and other magistrates and officers for the Province; to pardon offences, and to remit fines and forfeitures; to collate to churches and benefices; to levy military forces for defence; and to execute martial law in time of invasion, war, and rebellion.1 Appeals lay to the king in council, from the decisions of the highest courts of judicature of the Province, as, indeed, they did from all others of the colonies. Under this form of government, the Provinces of New Hampshire, New York, New Jersey, Virginia, the Carolinas, and Georgia were governed (as we have seen) for a long period, and some of them from an early period after their settlement. 2

§ 160. Secondly, proprietary governments. These, as we have seen, were granted out by the crown to individuals, in the nature of feudatory principalities, with all the inferior royalties and subordinate powers of legislation which formerly belonged to the owners of counties palatine.3 Yet still there were these express conditions, that the ends for which the grant was made should be substantially pursued; and that nothing should be done or attempted which might derogate from the sovereignty of the mother country. In the proprietary government, the governors were appointed by the proprietaries, and legislative assemblies were convened under their authority; and indeed all the usual prerogatives were exercised which in provincial governments belonged to the crown. Three only existed at the period of the American Revolution, namely, the proprietary governments of Maryland, Pennsylvania, and Delaware. The former had this peculiarity in its character, that its laws were not subject to the supervision and control of the crown; whereas, in both the latter such a supervision and control were expressly or impliedly provided for.

§ 161. Thirdly, charter governments. Mr. Justice Blackstone 7 describes them as "in the nature of civil corporations, with the power of making by-laws for their own internal regulation, not 1 Stokes's Hist. of Colonies, 157, 158, 184, 264.

21 Doug. Summ. 207.

8 1 Black. Comm. 108; Stokes's Hist. of Colon. 19.

4 Stokes's Hist. of Colon. 22.

51 Ptk. Hist. 55; Stokes's Hist. of Colon. 19; 2 Doug. Summ. 207.

61 Chalmers's Annals, 203, 637.

71 Bl. Comm. 108.

contrary to the laws of England; and with such rights and authorities as are specially given them in their several charters of incorporation. 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, make laws suited to their own emergencies." This is by no means a just or accurate description of the charter governments. They could not properly be 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 limits the general powers of legislation and taxation. The only charter governments existing at the period of the American Revolution were those of Massachusetts, Rhode Island, and Connecticut. The first charter of Massachusetts might be open to the objection that it provided only for a civil corporation within the realm, and did not justify the assumption of the extensive executive, legislative, and judicial powers, which were afterwards exercised upon the removal of that charter to America. And a similar objection might be urged against the charter of the Plymouth colony. But the charter of William and Mary, in 1691, was obviously upon a broader foundation, and was in the strictest sense a charter for general political government, a constitution for a state, with sovereign powers and prerogatives, and not for a mere municipality. By this last charter the organization of the different departments of the government was, in some respects, similar to that in the provincial governments; the governor was appointed by the crown; the council annually chosen by the general assembly; and the house of representatives by the people. But in Connecticut and Rhode Island, the charter governments were organized altogether upon popular and democratical principles; the governor, council, and

1 1 Chalmers's Annals, 274, 275, 293, 687; 1 Tuck. Black. Comm. App. 385; 1 Pitk. Hist. 108; 1 Hutch. Hist. No. 13, p. 529; Mass. State Papers, 338, 339, 358, 359; Stokes's Hist. of Colon. 21; 1 Doug. Summ. 207.