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spectively made, there had not been any conquest or cession from the natives of the territory comprehended in those grants. in respect to the territory of New York and New Jersey, which alone afford any pretence for a claim by conquest, they were conquered from the Dutch, and not from the natives, and were ceded to England by the treaty of Breda in 1667. But England claimed this very territory, not by right of this conquest, but by the prior right of discovery.1 The original grant was made to the Duke of York in 1664, founded upon this right, and the subsequent confirmation of his title did not depart from the original foundation.
§ 153. The Indians could in no just sense be deemed a conquered people, who had been stripped of their territorial possessions by superior force. They were considered as a people not having any regular laws, or any organized government, but as mere wandering tribes.2 They were never reduced into actual obedience, as dependent communities; and no scheme of general legislation over them was ever attempted. For many purposes they were treated as independent communities, at liberty to govern themselves, so always that they did not interfere with the paramount rights of the European discoverers.3
§ 154. For the most part at the time of the first grants of the colonial charters, there was not any possession or occupation of the territory by any British emigrants. The main object of these charters, as stated in the preliminary recitals, was to invite emigrations, to people the country, to found colonies, and to Christianize the natives. Even in case of a conquered country, where there are no laws at all existing, or none which are adapted to a civilized community, or where the laws are silent, or are rejected and none substituted, the territory must be governed according to the rules of natural equity and right. And Englishmen removing thither must be deemed to carry with them those rights and privileges which belong to them in their native country.4
1 4 Wheaton, 575, 576, 588. See also 1 Tuck. Black. Appx. 332; 1 Chalm. Annals, 676.
2 Vattel, B. 1, ch. 18, § 208, 209; 3 Kent's Comm. 312, 313.
3 4 Wheat. R. 590, 591, 596; 1 Grahame's Hist. of America, 44; 2 Kent's Comm. 311; Worcester v. State of Georgia, 6 Peters's Sup. Ct. Rep. 515. [Mackey v. Coxe, 18 How. 104; Wheat. Int. Law, pt. 1, ch. 2, § 14.]
4 2 Salk. 411, 412. See also Hall v. Campbell, Cowp. R. 204, 211, 212; 1 Chalm. Ann. 14, 15, 678, 679, 689, 690; 1 Chalm. Opinions, 194; 2 Chalm. Opinions, 202; Chitty on Prerog. ch. 2; 2 Wilson's Law Lect. 48, 49.
§ 155. The very ground, therefore, assumed by England, as the foundation of its title to America, and the invitations to its own subjects to people it, carry along with them a necessary implication that the plantations, subsequently formed, were to be deemed a part of the ancient dominions; and the subjects inhabiting them to belong to a common country, and to retain their former rights and privileges. The government, in its public policy and arrangements, as well as in its charters, proclaimed that the colonies were established with a view to extend and enlarge the boundaries of the empire. The colonies, when so formed, became a part of the state equally with its ancient possessions.1 It is not, therefore, without strong reason, that it has been said that "the colonists, continuing as much subjects in the new establishment, where they had freely placed themselves [with the consent of the crown], as they had been in the old, carried with them their birthright, the laws of their country, because the customs of a free people are a part of their liberty;" and that "the jurisprudence of England became that of the colonies, so far as it was applicable to the situation at which they had newly arrived, because they were Englishmen residing within a distant territory of the empire."2 And it may be added, that as there were no other laws to govern them, the territory was necessarily treated as a deserted and unoccupied country, annexed by discovery to the old empire, and composing a part of it. Moreover, even if it were possible to consider the case as a case of conquest from the Indians, it would not follow, if the natives did not remain there, but deserted it and left it a vacant territory, that the rule as to conquests would continue to apply to it. On the contrary, 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. In a still more recent case it
1 Vattel, B. 1, eh. 18, § 209; 1 Chalm. Annals, 676, 677, 678, 679; 8 Wheat. R. 595; Grotius, B. 2, ch. 9, § 10.
2 1 Chalm. Ann. 677; Id. 14, 15, 658; 2 Wilson's Law Lect. 48, 49; 3 Wilson's Law Lect. 234, 235.
3 Roberdeau v. Rous, 1 Atk. R. 543, 544; Vaughan, R. 300, 400; Show. Parl. Cas.
31; 8 Wheat. R. 595; 1 Tuck. Black. Comm. App. 382, 383; Dummer's Defence, 1 American Tracts, 18.
Cowp. R. 204, 211, 212.
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.1
§ 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,2 there is, as has been already seen, an express declaration that all subjects and their children inhabiting therein shall be deemed naturalborn 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.3
§ 157. And so has been the uniform doctrine in America ever since the settlement of the colonies. The universal principle (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.4
1 Rex v. Brampton, 10 East, R. 282, 288, 289.
2 That of Pennsylvania, 1 Grahame's Hist. 41, note; 1 Chalm. Annals, 14, 15, 639, 640, 658; 2 Wilson's Law Lect. 48, 49.
3 Stokes's Colon. 30; Hall v. Campbell, Cowp. R. 204, 212; 1 Tuck. Black. Comm. App. 383, 384; Chitty, Prerog. 32, 33.
* 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.
§ 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
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 be 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, p. 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, p. 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.
[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: "The 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 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 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 Grat. 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.]
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
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 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, p. 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, &c. Some other remarks illustrative of it will necessarily arise in discussing the subject of impeachments.
["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 government is composed of twenty-four sovereign and independent States; each of which may have its local usages,