principles of colonization and the situation of colonists, with his usual penetration and sagacity. It was his sentiment, that the American colonies should be guided and governed by the common law of England.

It has been already observed, that there are some great eras, when important and very perceptible alterations take place in the situation of men and things; and that, at such eras, the accommodating spirit of the common law will introduce, into its practice and rules, corresponding and adequate alterations. To the situation of the American colonists, this observation may be applied with singular propriety and force. The situation, in which they found themselves in America, was, in many important particulars, very different from that, in which they had been before their departure from England. The principles of that law, under whose guidance the emigration was made, taught them, that the system, in its particular parts, must undergo changes proportioned to the changes in their situation. This sentiment was understood clearly and in its full extent. By alterations, which, after their emigration, might be made in England, the obligatory principle of the common law dictated, that they should in no manner be affected; because to such alterations they had now no means of giving their consent. Hence the rule, that acts of parliament, made after the settlement of a colony, have, in that colony, no binding operation.

It is highly requisite, that these great truths should be stated, and supported, and illustrated in all their force and extent.

m 3. Ld. Bac. 581.

The emigrants, who in the year 1620 landed near Cape Cod, at a place, which they afterwards called New Plymouth, had the honour of planting the first permanent colony in New England. Before they landed, they entered into a political association, which, on many accounts, deserves to be noticed in the most particular manner. It is in these words. "In the name of God. Amen. We, whose names are hereunder written, the loyal subjects of our dread sovereign lord king James, by the grace of God, of Great Britain, France, and Ireland king, defender of the faith, &c. having undertaken, for the glory of God and advancement of the Christian faith, and honour of our king and country, a voyage, to plant the first colony in the northern parts of Virginia, do by these presents, solemnly and mutually, in the presence of God and of one another, covenant and combine ourselves together into a civil body politick, for our better ordering and preservation, and furtherance of the ends aforesaid; and by virtue hereof, do enact, constitute, and frame such just and equal laws and ordinances, from time to time, as shall be thought most meet for the general good of the colony, unto which we promise all due subjection and obedience. In witness whereof, we have subscribed our names at Cape Cod, 11th November, 1620.""

In this manner was a civil society formed, by an original compact, to which every one consented, and, of consequence, by which every one was bound. During the infancy of the colony, we are told, the legislature consisted of the whole body of the male inhabitants. In the year 1639 they established a house of representatives, composed of deputies from the several towns. These

n Chal. 102.

representatives, in the true spirit of the principles, which we have been delineating, determined to make the laws of England the general rule of their government. "To these laws," says their ancient historian, Hubbard, "they were willing to be subject, though in a foreign land; adding some municipal laws of their own, in such cases, where the common and statute laws of England could not well reach, and afford them help in emergent cases. Under the foregoing compact and the principles of legislation, which have been mentioned, this colony long enjoyed all the blessings of a government, in which prudence and vigour went hand in hand. P

In Virginia we see the same principles adopted and ratified by practice. In the month of March 1662, the assembly of that ancient dominion met: with the most laudable intentions, it reviewed the whole body of the laws of the colony. In this review, their object was, 66 to adhere to the excellent and often refined customs. of England, as nearly as the capacity of the country would admit."¶

In Maryland we behold a repetition of the same scene. In the month of April of the same year, the legislature of this colony, with a spirit congenial to that of the common law, declared, that, in all cases where the usages of the province were silent, justice should be administered according to the customs and statutes of England; so far as the court shall judge them not inconsistent with the condition of the colony.""

The foregoing principles were recognised even under the arbitrary government of James the second. When he passed a commission-the legality of which is not the present subject, to carry on a temporary administra tion in Massachussetts, New Hampshire, Maine, Narraghanset, the commissioners were created a court of record for administering affairs civil and criminal, so that the forms of proceedings and judgments be consonant to the English laws, as near as the circumstances of the colony will admit.s

It has been already remarked, that as the rules of the common law are introduced by experience and custom; so they may be withdrawn by discontinuance and disuse. Numerous instances of the conduct of the colonies settled in America evince the force and extent of this remark. Many parts of the common law as received in England, a kingdom populous, ancient, and cultivated, could receive no useful application in the new settlements, inconsiderable in respect both of numbers and improvement.

This principle is fully recognised by the learned Author of the Commentaries on the laws of England. "It hath been held," says he, "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. The

s Chal. 417.

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."

It has been often a matter of some difficulty to determine what parts of the law of England extended to the colonies, and what parts were so inapplicable to their situation as not to be entitled to reception. On this, as on many other subjects, those who felt had a right to judge. The municipal tribunals in the different colonies decided the question in the controverted instances, which were brought before them; and their decisions and practice were deemed authoritative evidence on the points, to which they related.

The advocates for the legislative power of the British parliament over the American colonies remind us, that the colonists were liable to the duties as well as entitled to the rights of Englishmen; and that, as Englishmen, they owed obedience to their ancient legislature; according, as it is said, to a principle of universal equity; that he who enjoys the benefit shall submit patiently to all its inconveniences."

It is always proper to guard against verbal equivocation; the source of the grossest errours both in opinion and practice. That it is the duty of some Englishmen to pay obedience to the legislature of England, is admit

t 1. Bl. Com. 107.

"Chal. 15. 28.