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 the present state of things, or are at liberty to apply them in future by adoption, as the growth 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

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.

far as they are contrary to our religion, or enact any thing, 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.1 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.2

§ 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 later 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 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 Blankard v. Gary, 4 Mod. 222; S. C. 2 Salk. 411, 412; 2 Peero Will. 75; 1 Black. Comm. 107; Campbell v. Hall, Cowp. R. 204, 209, Calvin's cast, 7 Co. 1. 17. b; Com. Dig. Navigation, G. 1, 3; Id. Ley. C. 4 Burr. R. 2500; 2 Merivale R. 143, 157, 158.

2 Campbell v. Hall, Cowp. R. 204, 209; Chitty on Prerog. ch. 3, p. 29, &c.

3 1 Bl. Comm. 107; Chitty on Prerog. ch. 3, p. 29.

2

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. 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. 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." 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

As

1 See ante, p. 4 to 20; 1 Chalm. Annals, 676; 3 Wilson's Works, 324. 2 Vattel, B. 1, ch. 18, § 205, 206, 207, 208, 209.

3 Johnson v. McIntosh, 8 Wheat. R. 543, 576, 595.

4 Penn v. Lord Baltimore, 1 Vez. 444, 451.

5 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.

6 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, p. 49, 50.

Christians, deemed, as if it were inhabited only by brute animals. There is not a single grant from the British crown from the earliest grant 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 respectively made, there had not been any conquest or cession from the natives of the territory comprehended in those grants. Even 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. 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. 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

1 4 Wheaton, 575, 576, 568. 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.

that they did not interfere with the paramount rights of the European discoverers.1

§ 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 objects 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 acccording 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.2

§ 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,

1 4 Wheat. R. 590, 591, 596; 1 Grahame's Hist. of America, 44; 3 Kent's Comm. 311; Worcester v. State of Georgia, 6 Peters's Sup. Ct. Rep. 515.

2 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.