Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/436

 422 ///. THE COLONIAL PERIOD and revenue (such especially as are enforced by penal- ties), 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. What shall be admitted and what rejected, at what time, and under what restrictions, must, in case of dispute, be decided in the first instance by their own provincial judicature subject to the revision and control of the King in council: the whole of their Consti- tution being also liable to be new — modeled and reformed 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 these laws, but, till he does actually change them, the ancient laws of the country remain, unless such as are against the laws of God, as in the case of an infidel country.^ Our American plantations are principally of this latter sort, being obtained in the last century either by right of conquest and driving out the natives (with what national 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. They are subject, however, to the control of the parliament, though (like Ireland, Man and the rest), not bound by any acts of parliament unless particularly named." Lastly, the reader is referred to Mansfield's decision in the case of Campbell v. Hall. ^ Here the same general prin- ciples were stated more elaborately in six propositions, which need not be quoted at length upon the present occasion, as the time and place of the matter at issue lie too far from the hmits described for this paper. These opinions, judicial decisions, and the authority of Blackstone suffice to illustrate the legal theory with which we have to compare the claims put forth by the Maryland col- onists. With the cases and decisions that come later, and 31 (Button V. Howell).
 * Refers to Calvin's Case, 7 Rep. 17. Shower's Parliamentary Cases
 * Cowper, 204. See also the pamphlet mentioned above, p. 18, n. 1.