BESIDES thefe adjacent iflands, our more diftant plantations in America, and elsewhere, are also in some respect subject to the English laws. Plantations or colonies, in distant 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 at least upon that of nations. But there is a difference between thefe two fpecies of colonies, with refpect to the laws by which they are bound. For it hath been held', 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 reftrictions. Such colonists carry with them only fo much of the English law, as is applicable to their own fituation 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 inforced by penalties) the mode of maintenance for the established clergy, the jurifdiction of spiritual 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 reftrictions, muft, in cafe of difpute, be decided in the first instance by their own provincial judicature, fubject to the revifion and control of the king în council: the whole of their conftitution being alfo liable to be new-modelled and reform¬ ed by the general superintending 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 such as are against the law of God, as in the cafe of an infidel coun

1 Salk. 411. 666.

7

m 2 P. Wms. 75.

try.

try. 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 justice 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 however to the control of the parliament; though (like Ireland, Man, and the rest) not bound by any acts of parliament, unless particularly named.

WITH refpect to their interior polity, our colonies are properly of three sorts. 1. Provincial establishments, the conftitutions of which depend on the refpective commissions iffued by the crown to the governors, and the instructions which ufually accompany those commissions; under the authority of which, provincial affemblies 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 fubordinate powers of legiflation, which formerly belonged to the owners of counties palatine: yet ftill with these express conditions, that the ends for which the grant was made be substantially pursued, and that nothing be attempted which may derogate from the fovereignty of the mother-country. 3. Charter governments, in the nature of civil corporations, with the power of making bye-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 proprictor,) who is his representative or deputy. They have courts of justice of their own, from whofe decifions an appeal lies to the king and council here in England. Their general affemblies which are their house of commons,

7 Rep. 17. Calvin's cafe. Show. Parl. C. 31. [See alfo in the cafe of Campbell v. Hall. C.wp. Rep. 204. a

great and elaborate argument of Lord Mansfield, in delivering the judgment of the court of king's bench.]

together

together with their council of state being their upper house, with the concurrence of the king or his representative the governor, make laws fuited to their own emergencies. But it is particularly declared by statute 7 & 8 W. III. c. 22. that all laws, bye-laws, ufages, and customs, which shall 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. And, because several of the colonies had claimed the fole and exclufive right of impofing taxes upon themselves, the ftatute 6 Geo. III. c. 12. exprefsly declares, that all his majesty's colonies 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 tobind the colonies and people of America, fubjects of the crown of Great Britain, in all cafes whatsoever. And, this authority has been fince very forcibly exemplified, and carried into act, by the ftatute 7 Geo. III. c. 59. for fufpending the le giflation of New-York; and by several subsequent statutes (c).

THESE are the feveral parts of the dominions of the crown of Great Britain, in which the municipal 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.

(c) [However, in the year 1782, by ftatute 22 Geo. III. c. 46. his majetty was impowered to conclude a peace with the colonies of New-Hampshire, Maffachufetts-Bay, Rhode-Ifland, Connecticut, New-York, New-Jersey, Pennfylvania, the Three Lower Counties on Delaware, Maryland, Virginia, North-Carolina, South Carolina, and Georgia in North-America, then in rebellion against their mother-country; and for that purpose, to repeal, or to fufpend, the operation of any acts of parliament fo far as they related to the faid colonies. Accordingly a peace was foon after concluded, and the independence which the abovementioned colonies had before declared was allowed to them; fo that now they are as much independent of, and unconnected with, Great Eritain, as any other foreign nation.]

3

As

As to any foreign dominions which may belong to the perfon of the king by hereditary descent, by purchase, or other acquifition, as the territory of Hanover, and his majesty's other property in Germany; as these do not in any wife appertain to the crown of thefe kingdoms, they are entirely unconnected with the laws of England, and do not communi-. cate with this nation in any respect whatsoever. The Englifh legiflature had wifely remarked the inconveniences 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 defcent. They had feen 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 loft under the reign of Henry the fixth. They obferved that, from that time, the maritime interefts of England were better understood and more closely pursued: that, in confequence of this attention, the nation, as foon 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 diftracted 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 present majefty's illuftrious houfe, "that in cafe the crown and impe"rial dignity of this realm fhall hereafter come to any per"fon not being a native of this kingdom of England, this nation fhall 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."

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 enfuing 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 feas are part of the realm of England, for

Stat. 12 & 13 Will. III. c. 3.

thereon

thereon our courts of admiralty have jurisdiction, as will be shewn hereafter; but they are not subject to the common law. This main fea 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 jurisdiction; one upon the water, when it is full fea; the other upon the land when it is an ebb a.

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

1. THE ecclefiaftical divifion is, primarily, into two pro vinces, thofe of Canterbury and York. A province is the circuit of an archbishop's jurisdiction. Each province contains divers diocefes, or fees of fuffragan bishops; whereof Canterbury includes twenty-one, and York three: befides the bifhoprick of the ifle of Man, which was annexed to the province of York by king Henry VIII. Every diocese is divided into archdeaconries, whereof there are fixty in all; each archdeaconry into rural deaneries, which are the circuit of the archdeacon's and rural dean's jurifdiction, of whom hereafter; and every deanery is divided into parishes'.

A PARISH is that circuit of ground which is committed to the charge of one parfon, or vicar, or other minifter having cure of fouls therein. Thefe diftricts are computed to be near ten thousand in number. How antient the divifion of parifhes is, may at prefent be difficult to afcertain; for it seems to be agreed on all hands, that in the early ages of chriftianity in this ifland, parithes were unknown, or at leaft fignified the fame that a diocefe does now. There was then no appropriation of ecclefiaftical dues to any particular church; but every man was at liberty to contribute his tithes to whatever prieft or church he pleased, provided only that he did it to fome; or, if he made no fpecial appointment or appropriation thereof, they were paid into the hands of the bishop, whofe duty it was to diftribute them among

P Co. Litt. 260. 9 Finch. L. 78.

Co. Litt.. 94.

s Gibfon's Britain.

the