Sivut kuvina
PDF
ePub

royalty being found inconvenient for the purposes of public juftice, and for the revenue, (it affording a commodious afylum for debtors, outlaws, and fmugglers) authority was given to the treafury by ftatute 12 Geo. I. c. 28. to purchase the intereft of the then proprietors for the ufe of the crown: which purchase was at length compleated in the year 1765, and confirmed by statutes 5 Geo. III. c. 26 and 39. whereby the whole island and all it's dependencies, fo granted as aforefaid, (except the landed property of the Atholl family, their manerial rights and emoluments, and the patronage of the bifhoprick and other ecclefiaftical bencfices) are unalienably vefted in the crown, and subjected to the regulations of the British excife and customs.

THE iflands of Jersey, Guernsey, Sark, Alderney, and their appendages, were parcels of the duchy of Normandy, and were united to the crown of England by the first princes of the Norman line. They are governed by their own laws, which are for the most part the ducal customs of Normandy, being collected in an antient book of very great authority, entituled, le grand couftumier. The king's writ or procefs from the courts of Weftininster, is there of no force; but his commiffion is. They are not bound by common acts of our parliaments, unless particularly named. All caufes are originally determined by their own officers, the bailiffs and jurats of the iflands; but an appeal lies from them to the king in council, in the last resort,

BESIDES thefe adjacent islands, our more diftant plantations in America, and elsewhere, are also in fome respects subject to the English laws. Plantations, or colonies in diftant countries, are either fuch where the lands are claimed by right of occupancy only, by finding them defart and uncultivated, and peopling them from the mother country; or where, when already cultivated, they have been either gained by conqueft, or ceded to us by treaties. And both these rights are founded upon the law of nature,

or

i The bifhoprick of Man, or Sedor, or of York by fatute 33 Hen. VIII. c. 31. Soda and Man, was formerly within the k + Inft. 186. For face of Canterbury, but annexed to that

[ocr errors][ocr errors]

or at least upon that of nations. But there is a difference between these two species of colonies, with respect to the laws by which they are bound. For it hath been held', that if an uninhabited country be discovered and planted by English fubjects, all the English laws then in being, which are the birthright of every fubject", are immediately there in force. But this must be understood with very many and very great reftrictions. Such colonifts carry with them only fo much of the English law, as is applicable to their own situation and the condition of an infant colony; fuch, for instance, as the general rules of inheritance, and of protection from perfonal injuries. The artificial refinements and distinctions incident to the property of a great and commercial people, the laws of police and revenue, (fuch especially as are enforced by penalties) the mode of maintenance for the eftablished clergy, the jurisdiction of fpiritual courts, and a multitude of other provifions, are neither neceffary nor convenient for them, and therefore are not in force. What fhall be admitted and what rejected, at what times, and under what restrictions, must in case of dispute, be decided in the first instance by their own provincial judicature, fubject to the revifion and control of the king in council; the whole of their conftitution being also liable to be new-modelled and reformed, by the general fuperintending power of the legislature in the mother country. But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change thofe laws; but, till he does actually change them, the antient laws of the country remain, unless fuch as are against the law of God, as in the cafe of an infidel country". Our American plantations are principally of this latter fort, being obtained in the last century either by right of conqueft and driving out the natives (with what natural juftice I fhall not at prefent enquire) or by treaties. And therefore the common law of England, as fuch, has no allowance or authority there; they being no part of the mother country, but diftinct (though dependent) dominions. They are fubject O 2

how

1 Salk. 411. 666. ma P. Wins. 75.

n7 Rep. 17. Calvin's cafe. Show. Parl. C. 31.

however to the control of the parliament; though (like Ireland, Man, and the reft) net bound by any acts of parliament, unless particularly named.

WITH respect to their interior polity, our colonics are properly of three forts. 1. Provincial eftablishments, the conititutions of which depend on the refpective commiflions issued by the crown to the governors, and the infìructions which ufually accompany thofe commiflions; under the authority of which, provincial aflemblies are conflituted, 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 fubordinate powers of legiflation, which formerly belonged to the owners of counties palatine: yet fill with thefe exprefs conditions, that the ends for which the grant was made be fubftantially purfued, and that nothing be attemptcd which may derogate from the fovereignty of the mother country. 3. Charter governments, in the nature of civil corporations, with the power of making by-laws for their own interior regulation, not contrary to the laws of England; and with fuch rights and authorities as are specially given them in their feveral charters of incorporation. The form of government in moft of them is borrowed from that of England. They have a governor named by the king, (or in fome proprietary colonies by the proprietor) who is his reprefentative or deputy. They have courts of justice of their own, from whofe decifions an appeal lies to the king in council here in England. Their general affemblies which are their houfe of commons, together with their council of itate being their upper houfe, with the concurrence of the king or his reprefentative the governor, make laws fuited to their own emergencies. But it is particularly declared by ftatute 7 & 8 W. III. c. 22. that all laws, by-laws, ufages, and cuftoms, which fhall be in practice in any of the plantations, repugnant to any law, made or to be made in this kingdom relative to the faid plantations, fhall be utterly void and of none effect.

[ocr errors]

effect.

And, because several of the colonics had claimed the fole and exclufive right of impofing taxes upon themselves, the sta tute 6 Geo. III. c. 12. exprefsly declares, that all his majesty's colonics and plantations in America have been, are, and of right ought to be, fubordinate to and dependent upon the imperial crown and parliament of Great Britain; who have full power and authority to make laws and ftatutes of fufficient validity to bind the colonies and people of America, fubjects of the crown of Great Britain, in all cafes whatfoever. And the province of New-York having refused to comply with the directions of an act of parliament, for fupplying the king's troops with neceffaries, the fubordinate legislative authority of the council and affembly of the province was fufpended by statute 7 Ge.... All. c. 59% till the directions of the act were compled with.

THESE are the icveral parts of the dominions of the crown of Great Britain, in which the Tunicipal laws of England are not of force or authority, merely as the municipal laws of England. Most of them have probably copied the fpirit of their own law from this original; but then it receives it's obligation, and authoritative force, from being the law of the country.

As to any foreign dominions which may belong to the perfon of the king by hereditary defcent, by purchase, or other acquifition, as the territory of Hanover, and his majefty's other property in Germany; as thefe do not in any wife 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 refpect whatfoever. The English legislature had wifely remarked the inconveniencies that had formerly refulted from dominions on the continent of Europe; from the Norman territory which William the conqueror brought with him, and held in conjunction with the English throne; and from Anjou, and it's appendages, which fell to Henry the fecond by hereditary def cent. They had feen the nation engaged for near four hundred years together in ruinous wars for defence of thefe foreign domi

nions;

nions; till, happily for this country, they were loft under the reign of Henry the fixth. They observed that, from that time, the maritime interests of England were better understood and more clofely pursued: that, in confequence of this attention, the nation, as soon as she had refted from her civil wars, began at this period to flourish all at once; and became much more confiderable in Europe, than when her princes were poffeffed of a larger territory, and her councils distracted by foreign interefts. This experience and these confiderations gave birth to a conditional clause in the act of fettlement, which vefted the crown in his prefent majesty's illuftrious house, "that in cafe the crown and "imperial dignity of this realm fhall hereafter come to any per"fon 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 confent of parliament."

66

WE come now to confider the kingdom of England in particular, the direct and immediate fubject of thofe 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 faid, but also part of the fea. The main or high feas are part of the realm of England, for thereon our courts of admiralty have jurisdiction, as will be fhewn hereafter; but they are not fubject to the common law. This main sea begins at the low-water-mark. But between the high-water-mark, and the low-water-mark, where the fea ebbs and flows, the common law and the admiralty have divifum imperium, an alternate juris diction; one upon the water, when it is full fea; the other upon the land, when it is an ebb.

THE territory of England is liable to two divifions; the one ecclefiaftical, the other civil.

o Stat. 12 & 13. Will. III. c. 3. P Co. Litt. 160.

q Finch. L. 78.

I. THE

« EdellinenJatka »