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trustees for the term of 'twenty-one years to make laws for the province "not repugnant to the laws and statutes of England, subject to the approbation or disallowance of the crown, and after such approbation to be valid. The affairs of the corporation were ordinarily to be managed by the common council. It was further declared that all persons born in the province should enjoy all the privileges and immunities of natural-born subjects in Great Britain. Liberty of conscience was allowed to all inhabitants in the worship of God, and a free exercise of religion to all persons, except Papists. The corporation were also authorized, for the term of twentyone years, to erect courts of judicature for all civil and criminal causes, and to appoint a governor, judges, and other magistrates. The registration of all conveyances of the corporation was also provided for. The governor was to take an oath to observe all the acts of Parliament relating to trade and navigation, and to obey all royal instructions pursuant thereto. The governor of South Carolina was to have the chief command of the militia of the province; and goods were to be imported and exported without touching at any port in South Carolina. At the end of the twentyone years the crown was to establish such form of government in the province, and such method of making laws therefor, as in its pleasure should be deemed meet; and all officers should be then appointed by the crown.
§ 144. Such is the substance of the charter, which was obviously intended for a temporary duration only; and the first measures adopted by the trustees, granting lands in tail male, to be held by a sort of military service, and introducing other restrictions, were not adapted to aid the original design, or foster the growth of the colony. It continued to languish, until at length the trustees, wearied with their own labors, and the complaints of the people, in June, 1751, surrendered the charter to the crown.2 Henceforward it was governed as a royal province, enjoying the same liberties and immunities as other royal provinces; and in process of time it began to flourish, and at the period of the American Revolution it had attained considerable importance among the colonies.3
1 Marshall's Colon. ch. 9, p. 248, 249, 250; 2 Holmes's Annals, 4-45; 2 Hewatt's South Car. 41, 42, 43.
2 2 Holmes's Annals, 45.
8 Stokes's Hist. of Colonies, 115, 119; 2 Hewatt's South Car. 145; 2 Holmes's Annals, 45, 117.
§ 145. In respect to its ante-revolutionary jurisprudence, a few remarks may suffice. The British common and statute law lay at the foundation.1 The same general system prevailed as in the Carolinas, from which it sprung. Intestate estates descended according to the course of the English law. The registration of conveyances was provided for, at once to secure titles and to suppress frauds; and the general interests of religion, the rights of representation, of personal liberty, and of public justice, were protected by ample colonial regulations.
1 Stokes's Hist. of Colon. 119, 136.
GENERAL REVIEW OF THE COLONIES.
§ 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, or such as, being already cultivated and organized, are acquired by conquest or cession under treaties. There is, however, a difference between these two species of colonies in respect to the laws by which 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 inconsistent with their comfort and prosperity. There is, therefore, this necessary limitation implied, that they carry with them all the laws applicable to their situation, and not repugnant to the local and political circumstances in which 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 a present state of things, or are at liberty to apply the laws in future by adoption, as the growth
1 1 Bl. Comm. 107.
2 2 P. Will. 75; 1 Bl. Comm. 107; 2 Salk. 411; Com. Dig. Ley. C.; Rex v. Vaughan, 4 Burr. R. 2500; Chitty on Prerog. ch. 3, p. 29, &c.
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 which 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 impolitic. It is not perhaps easy to settle what parts of the English laws are or are not in force in any such colony, until either by usage or judicial determination 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, the old laws and customs of the country remain in full force, unless so far as they are contrary to our religion, or enact anything 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. 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 authority of parliament. He cannot make any 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 privileges exclusive of other subjects.4
§ 151. Mr. Justice Blackstone, in his Commentaries, insists that the American colonies are principally to be deemed conquered, or ceded countries. His language is, "Our American plantations are principally of this latter sort, [i. e. ceded or conquered countries,] being obtained in the last century either by right of conquest and driving out the natives, (with what natural
1 1 Bl. Comm. 107; 2 Merivale, R. 143, 159.
2 1 Bl. Comm. 107; 1 Tucker's Black. note E, 378, 384, et seq.; 4 Burr. R. 2500; 2 Merivale, R. 143, 157, 158; 2 Wilson's Law Lect. 49 to 54.
8 Blankard v. Galy, 4 Mod. 222; s. c. 2 Salk. 411, 412; 2 Peere Will. 75; 1 Black. Comm. 107; Campbell v. Hall, Cowp. 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. • Campbell v. Hall, Cowp. R. 204, 209; Chitty on Prerog. ch. 3, p. 29, &c.
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.” 1
§ 152. There is great reason to doubt the accuracy of this statement in a legal view. We have already seen that the European nations by whom America was colonized treated the subject in a very different manner.2 They claimed an absolute dominion over the whole territories afterwards occupied by them, not in virtue of any conquest of, or cession by, the Indian natives, but as a right acquired by discovery. Some of them, indeed, obtained a sort of confirmatory grant from the papal authority. But as between themselves they treated the dominion and title of territory as resulting from priority of discovery; and that European power which had first discovered the country and set up marks of possession was deemed to have gained the right, though it had not yet formed a regular colony there.5 We have also seen that the title of the Indians was not treated as a right of propriety and dominion, but as a mere right of occupancy. As infidels, heathen, and savages, they were not allowed to possess the prerogatives belonging to absolute, sovereign, and independent nations. The territory over which they wandered, and which they used for their temporary and fugitive purposes, was, in respect to Christians, deemed as if it were inhabited only by brute animals. There is not a single grant from the British crown, from the earliest of Elizabeth down to the latest of George the 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; for at the time when all the leading grants were re
1 1 Bl. Comm. 107; Chitty on Prerog. ch. 3, p. 29.
2 See ante, p. 4 to 22; 1 Chalm. Annals, 676; 3 Wilson's Works, 234.
8 Vattel, B. 1, ch. 18, § 205, 206, 207, 208, 209.
4 Johnson v. McIntosh, 8 Wheat. R. 543, 576, 595.
5 Penn v. Lord Baltimore, 1 Ves. 444, 451.
6 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.
7 To do but justice to those times, it is proper to state that this pretension did not obtain universal approbation. On the contrary, it was opposed by some of the most enlightened ecclesiastics and philosophers of those days, as unjust and absurd; and especially by two Spanish writers of eminent worth, Soto and Victoria. See Sir James McIntosh's elegant treatise on the Progress of Ethical Philosophy, Philadelphia edit. 1832, pp. 49, 50.