Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/465

 13. ANDREWS: COLONIAL CONDITIONS 451 all laws passed by the colonial assemblies which were of a higher character than by-laws, and which, even within that limit, touched upon matters already provided for by Eng- lish common or statute law, were illegal. The colonies were as towns upon the royal demesne. The second view was expressed by the agent of Connec- ticut, Francis Wilks, and was doubtless held by those at home who, with English proclivities, were nevertheless well disposed toward the colonies. According to this view, it fol- lowed that when the colonists came to America they brought with them the common law to which they were entitled as Englishmen, and such part of the statute law as was in force before the settlement of the plantations took place. To this body of law, written and unwritten, binding on the colonies, were to be added all such later Acts of Parliament as ex- pressly mentioned the plantations, and such Acts as had been re-enacted for the colony by her own legislature.^ But no other statutes passed since the settlement could be held as binding. Therefore, according to Wilks, that law was con- trary to the law of England which was contrary to the com- mon and statute law prior to the settlement, or to the statute law made afterwards which expressly mentioned the planta- tions. Both of these views, however, were strictly opposed by the colony. To the statement that the common and statute law existent at the time of the settlement was in force in the colonies, the answer was made that the charter nowhere directed the administration to be according to one law or another, whether civil, common, or statute law ; ^ that by a decision of the Council itself an uninhabited and con- quered country was to be governed by the law of nations and of equity until the conqueror should declare his laws,* and that if such declaration had not been made, then it was evident that the law of equity and of nations governed and not the common or statute law of England.* Therefore, the ^Talcott Papers, I, p. 274. p. 144; II, Appendix, "Instruction to Agent."
 * Ibid., I, pp. 149, 158.
 * Blancard v. Oaldy, Salkeld's Reports, I, p. 411. Talcott Papert, I,
 * T<»lcott Papers, I, p. 148.