Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/440

 426 ///. THE COLONIAL PERIOD the Governor's attestation? In supporting the latter view, the Governor argued that the judges were the King's judges ; and that the Proprietor had only the right of naming them, and he argued the example of Durham, where by Act of 27 Henry VIII. ch. 24, the power of appointment was taken from the Bishop and vested in the Crown. " In reply," says Shepherd, " the Council stated that the difficulty had arisen in not distinguishing the difference be- tween England and ' new colonies made without the verge of the ancient laws of that Kingdom.' As the King could give power to subjects to transport themselves to the dominion of other princes, where they would not be subject to the laws of England, so he might allow them to go to any foreign country upon any conditions he might choose to prescribe. Furthermore, since the native Indians, who inhabited these newly discovered American lands, were not subject to the laws of England, ' those laws must, by some regular method, be extended to them, for they cannot be supposed of their own nature to accompany the people into these tracts in America ' any more than into any other foreign place. The King, by his charter, had given the proprietor and the people full power to enact laws not repugnant to those of England, but ' without extending any other than such as were judged absolutely necessary for the people's peace and common safety till such time as they should think fit to alter them.' " Continuing, they urged that precedent was upon their side in other colonies as well ; and upon this occasion Keith yielded to their claims.^ Thus we see that public sentiment was on the side against extension. In line with this feehng, the Assembly, in 1718, passed an Act definitely extending several English penal statutes, which greatly altered the milder ideals of William Penn's early legislation. The necessity for this, Shepherd suggests,^ was the advantage taken by many law-breakers of the privilege of affirmation instead of swearing oaths. In the passage just cited, the argument was not technically legal, but in the preamble to this Act the Assembly said : •Ibid., pp. 388-389.
 * Shepherd: Proprietary Government in Pennsylvania, pp. 386-7.