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With respert 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 legissation, 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 derogato 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 as 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 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."
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
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, repug.
[*109 nant 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 tho 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 introluced 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 neces sary to the wise and impartial exercise of such a power.-SHARSWOOD.
11 of the American colonies which subsequently became the United States, New Hampshire, New York, New Jersey, Virginia, the Carolinas, and Georgia, were provincial esta. blishments 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 limits the general powers of legislation and taxation.-SHARSWOOD.
13 By 22 Geo XIII. c. 46, his majesty was empowered to conclude a truce or peace with the colonies a 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.
as the unvnicipal laws of England. Most of them have probably copied tho spirit of their own law from this original; but then it receives its obligation, and authoritative force, from being the law of the country.
As to any foreign dominions which may belong to the person of the king by hereditary descent, by purchase, or other acquisition, as the territory of Hanover, and his majesty's other property in Germany; as these do not in any wise appertain to the crown of these kingdoms, they are entirely unconnected with the laws of England, and do not communicate with this nation in any respect whatsoever. The English legislature had wisely remarked the inconveniences that had formerly resulted from dominions on the continent of Europe; from the Norman territory which William the conqueror brought *110]
with bim, and held in conjunction with the *English throne; and from
Anjou, and its appendages, which fell to Henry the Second by hereditary descent. They had seen the nation engaged for near four hundred years together in ruinous wars for defence of these foreign dominions; till, happily for this country, they were lost under the reign of Henry the Sixth. They observed that, from that time, the maritime interests of England were better understood and more closely pursued: that, in consequence of this attention, the nation, as soon as she had rested from her civil wars, began at this period to flourish' all at once; and became much more considerable in Europe than when her princes were possessed of a large territory, and her councils distracted by foreign interests. This experience, and these considerations, gave birth to a conditional clause in the act of settlement, which vested the crown in his present majesty's illustrious house,“ that in case the crown and imperial dignity of this realm shall hereafter come to any person not being a native of this kingdom of England, this nation shall not be obliged to engage in any war for the defence of any dominions or territories which do not belong to the crown of England, without consent of parliament."
We come now to consider the kingdom of England in particular, the direct and immediate subject of those laws, concerning which we are to treat in the ensuing commentaries. And this comprehends not only Wales and Berwick, of which enough has been already said, but also part of the sea. The main or high seas are part of the realm of England, for thereon our courts of admiralty have jurisdiction, as will be shown hereafter; but they are not subject to the common law.(p) This main sea begins at the low-water mark. But between the high-water mark and the low-water mark, where the sea ebbs and flows, the common law and admiralty have divisum imperium, an alternate jurisdiction; one upon the water, when it is full sea; the other upon the land, when it is an ebb.(9)
14 The reason given in the text for the dominion of England over the high seas is clearly insufficient; for the courts of admiralty of all nations have jurisdiction thereon. It is now a well-established and recognised principle of international law that no nation has any exclusive dominion over the high seas, which are the highway of all nations, and are subject not to the jurisdiction of any particular country, but to the public law of the whole civilized world. However, the rightfulness of exclusive dominion over the high seas was maintained by Selden in his Mare clausum, and controverted by Grotius in his Mare liberum; and England has long claimed such a right over the four seas surrounding the British Isles. Every nation has nevertheless exclusive dominion over the sea within a certain distance of her shores,-usually agreed to be as far as a cannon-shot will reach from the land, or a marine league. It has been thought that the United States, owing to her extensive Atlantic coast, has a right to claim all within a line drawn from one headland to another: at least, that she may well claim that the neighbouring ocean within that distance from her shores shall enjoy immunity from the hostilities of other nations. In 1806, the government of the United States thought it would not be unreasonable, considering the extent and shoalness of the coast and the natural indication furnished by the well-defined path of the Gulf Stream, to expect an immunity from belligerent warfare for the space between that limit and the American shore. | Kent's Com. 30. Bowyer's Const. Law, 30.-SHARSWOOD.
*The territory of England is liable to two divisions; the one ecclesiastical, the other civil.
[*111 1. The ecclesiastical division is primarily into two provinces, those of Canter. bury and York. A province is the circuit of an archbishop's jurisdiction. Each province contains divers dioceses, or sees of suffragan bishops; whereof Canter bury includes twenty-one, and York three: besides the bishopric of the isle of Man, which was annexed to the province of York by king Henry VIII Every diocese is divided into archdeaconries, whereof there are sixty in all each archdeaconry into rural deaneries, which are the circuit of the archdeacon's and rural dean's jurisdiction, of whom hereafter : and every deanery is divided into parishes.(r)
A parish is that circuit of ground which is committed to the charge of one parson or vicar, or other minister having cure of souls therein. These districts are computed to be near ten thousand in number.(8) How ancient the division of parishes is, may at present be difficult to ascertain; for it seems to be agreed on all hands, that in the early ages of Christianity in this island, parishes were unknown, or at least signified the same that a diocese does now. There was then no appropriation of ecclesiastical dues to any particular church; but every man was at liberty to contribute his tithes to whatever priest or church he pleased, provided only that he did it to some; or if he made no special appointment or appropriation thereof, they were paid into the hands of the bishop, whose duty it was to distribute them among the clergy, and for other pious pur. poses, according to his own discretion.(t)
Mr. Camden(u) says, England was divided into parishes by Archbishop Honorius about the year 630. Sir Henry Hobart(w) lays it down, that parishes were first erected by the council of Lateran, which was held A.D. 1179. Each widely differing *from the other, and both of them perhaps from the truth; which will probably be found in the medium between the two extremes.
[*112 For Mr. Selden has clearly shown(x) that the clergy lived in common without any division of parishes, long after the time mentioned by Camden. pears from the Saxon laws, that parishes were in being long before the date of that council of Lateran, to which they are ascribed by Hobart.
We find the distinction of parishes, nay, even of mother-churches, so early as in the laws of king Edgar, about the year 970. Before that time the consecration of tithes was in general arbitrary; that is, every man paid his own (as was before observed) to. what church or parish he pleased. But this being liable to be attended with either fraud, or at least caprice, in the persons paying; and with either jealousies or mean compliances in such as were competitors for receiving them; it was now ordered by the law of king Edgar,(y) that “dentur omnes decimæ primariæ ecclesiæ ad quam parochia pertinet." However, if any thane, or great lord, had a church, within his own demesnes, distinct from the mother-church, in the nature of a private chapel; then, provided such church had a cemetery or consecrated place of burial belonging to it, he might allot onethird of his tithes for the maintenance of the officiating minister; but if it had no cemetery, the thane must himself have maintained his chaplain by some other means; for in such case all his tithes were ordained to be paid to the primaria ecclesiæ or mother-church.(2)
This proves that the kingdom was then generally divided into parishes; which division happened probably not all at once, but by degrees. For it seems pretty clear and certain that the boundaries of parishes were originally ascertained by those of a manor or manors : since it very seldom happens that a manor extends itself over more parishes than one, though there are often many manors in one parish. *The-lords, as Christianity spread itself, began to build churches
their own demesnes or wastes, to accommodate their tenants in upon
[*113 one or two adjoining lordships; an 1, in order to have divine service regularly
And it ap
Co. Litt. 94.
In his Britannia. (*) Hob. 200.
(1) Of tithes, c. 9.
(3) Ibid. c. 2. See also the laws of King Canute, c. 11, about the year 1030.
performed therein, obliged all their tenants to appropriate their tithes to the maintenance of the one officiating minister, instead of leaving them at liberty to distribute them among the clergy of the diocese in general; and this tract of land, the tithes whereof were so appropriated, formed a distinct parish. Which will well enough account for the frequent intermixture of parishes one with another. For, if a lord had a parcel of land detached from the main of his estate, but not sufficient to form a parish of itself, it was natural for him to endow his newly erected church with the tithes of those disjointed lands; especially if no church was then built in any lordship adjoining to those outlying parcels.
Thus parishes were gradually formed, and parish churches endowed with the tithes that arose within the circuit assigned. But some lands, either because they were in the hands of irreligious and careless owners, or were situate in forests and desert places, or for other now unsearchable reasons, were never united to any parish, and therefore continue to this day extra-parochial; and their tithes are now by immemorial custom payable to the king instead of the bishop, in trust and confidence that he will distribute them for the general good of the church :(a) yet extra-parochial wastes and marsh-lands, when improved and drained, are by the statute 17 Geo. II. c. 37, to be assessed to all parochial rates in the parish next adjoining. And thus much for the ecclesias. tical division of this kingdom.
2. The civil division of the territory of England is into counties, of those counties into hundreds, of those hundreds into tithings or towns. Which divi. sion, as it now stands, seems to owe its original to king Alfred, who, to pre*114)
vent *the rapines and disorders which formerly prevailed in the realm,
instituted tithings, so called from the Saxon, because ten' freeholders, with their families, composed one. These all dwelt together, and were sureties or free pledges to the king for the good behaviour of each other; and, if any offence was committed in their district, they were bound to have the offender forthcoming (0) And therefore anciently no man was suffered to abide in England above forty days, unless he were enrolled in some tithing or decennary.(c) One of the principal inhabitants of the tithing is annually appointed to preside cver the rest, being called the tithing-man, the headborough, (words which speak their own etymology,) and in some countries the borsholder, or borough’s-ealder, being supposed the discreetest man in the borough, town, or tithing (d)
Tithings, towns, or vills, are of the same signification in law; and are said to have had, each of them, originally a church and celebration of divine service, sacraments, and burials :(e) though that seems to be rather an ecclesiastical, than a civil, distinction. The word town or vill is indeed, by the alteration of times and language, now become a generical term, comprehending under it the several species of cities, boroughs, and common towns. A city is a town incorporated, which is or hath been the see of a bishop; and though the
(a) 2 Inst. 647. 2 Rep. 44. Cro. Eliz. 512.
(b) Flet. 1, 47. This the laws of king Edward the Confessor, c. 20, very justly entitled, “summa et maxima securitas, per quam omnes statu firmissimo sustinentur ;- quæ hoc modo fiebat, quod sub decennali fidejussione debebant esse universi, dc."
(c) Mirr. c. 1, 23.
15 Modern researches into the more remote periods of antiquity have led to the discovery, that the learned commentator was incorrect in ascribing the institution of these civil divisions of the kingdom to Alfred. In the reign of Ina, king of the West Saxons, towards the end of the seventh century, the tithing and shire are both mentioned. And no doubt they were brought from the continent by some of the first Saxon settlers in this island; for the tithing, hundred, and shire, are noticed in the capitularies of the Franks, before the year 630, whence it is reasonably inferred, they were known in France at least two centuries before the reign of Alfred. It may therefore be concluded, that, among the people of this country, they were part of those general customs which Alfred collected, arranged, and improved into an uniform system of jurisprudence. See Whitaker's History of Manchester ; Montesquieu, Esprit des Lois, tom. 2, p. 376; Stuart's Diss. on the English Constitution, 254; and Henry's History of Great Britain.-CHITTY.