Page:Prerogatives of the Crown.djvu/53

 Ch. III.] Prerogative as to the Colonies, SS abridged by grants, &c. made to the inhabitants, is that power over the subjects considered either separately or collectively, which by the common law of England^ abstracted from Acts of Parliament, and grants of liberties, &c. from the Crown to tlie subject, the King could rightfully exei-cise in England (a). Where the colonial charters afford no criterion, or rule of construction, the common law of England, with respect to the royal prerogative, is the common law of the plantations ; and statutes in affirmance of such common law made before the settlement of the colony prima facie bind therein : but clearly Acts of Parliament made in England do not bind the planta- tions, unless expressly named, or the words " and all other the King's dominions," or similar expressions be used {b). On this distinction it has been considered that if the peculiar laws granted by charter to the colonies do not expressly pre- vent it, the King may erect courts of justice and exchequer therein (c). Indeed the jurisdiction of the colonial judica- tories in point of law invariably emanate from the King, under the modifications of the colonial assemblies {d). And the Crown may also extend the privilege of sending representatives to the colonial assemblies to new towns {e) ; may order a nolle pro- sequi to be entered on prosecutions in the plantations (/); is entitled to present to vacant benefices (g), a power which it exercises through the medium of the governor (Ji) ; and to have royal mines, treasure-trove, escheats, (as ultimate lord of the soil) royal fish, &c. therein (/). Nor can any of the colonial assemblies make laws unless empowered by the Crown so to do {Jc) ; and if when empowered they exceed the prescribed limits, their enactments are void (/). There can be no doubt but that the King may alter the constitution of a colony, where such constitution has not been granted by charter, and is not founded on, or fixed by any legal and confirmed act of colo- nial assembly ; but merely by his Majesty's instructions to the governor (m). (c) 1 Chalmers' Coll. of Op. 232, 3. {g) Stokes, ch. 4. the form of the ante. commission. (A) Ibid. 194, 5. 1 Rla. Com. 107, 8. (A) 1 Chalmers' Op. 18, 23. (c) 2 Chalmers' Op. 176. 1 lidd. (i) Ibid. 120, 1. 120,4.126,7. 130. 182, 3. " 134. (rf) 2 Ibid. 242. {k) Ibid. 261. (e) 1 Ibid. 272, 3, &c. 276, 294. (/) Ibid. 28. (/) 2 Ibid. 178. (w) Ibid. 267, &c. D So