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FOR THE USE OF THE
L AW CLASS
UNIVERSITY OF VIRGINIA.
BY HENRY ST. GEORGE TUCKER,
their laws with them, and the new Tourdoountry is governed by them.(a) The proposition however must be considered as limited by their applicability and their consistency with the local and political circumstances in which the colonists are placed; and, moreover, by those changes which, in the lapse of time may be made by that power which exercises the legislative authority over them.
Such seems, indeed, to be the natural course of things, though the notion has been derided by some of our most distinguished men.(6) It could not well have been otherwise. If we imagine a body of emigrants settling in an uninhabited country, we must suppose them to be under the government of some laws. Bodies of men cannot subsist without them. And if they must have some, what so natural as their recognition, even without adoption of that system under which they were vorn, and to wmcu them.de been accustomed? Under such circumstances, the laws of the fatherland, so far as they might be applicable, would be looked to as the rule of civil conduct, commanding what is right and prohibiting what is wrong. This would be the natural course of things, if the bond which united the emigrants to the land of their birth was severed forever. It would have been the case with our forefathers, if, when they left the British shores, they could have fled beyond the reach of the keen eye and powerful arm of the monarch who claimed them as his subjects. But this was not their case. They might have exclaimed in the language of the Psalmist, 'If I take the wings of the morning and dwell in the uttermost parts of the sea, even there shall thy hand lead me and thy right hand shall hold me.'
This indeed was eminently the case with the British subject. Leashed to the footstool of the British crown, no time nor distance could dissolve the tie. The law of allegiance bound him wherever he might go, and “he dragged at each remove a lengthening chain.” It was the principle of the law of that land that neither time nor distance could impair its obligation. Allegiance was a quality or duty, and as is said in the quaint language of a learned ap
(a) 1 Black. Com. 107. (6) 4 Jeff. Corr. 178.
prentice in Plowden, it was held to be ridiculous to attempt to force the predicament of quality into the predicament of ubi. Wherever, therefore, the British power reached, the British emigrant would be governed by its laws; and wherever he felt its restraints, or was sensible of its trammels, he would naturally claim as a set-off to its burdens, a full title to its privileges and protection.(c) Thus it is that in the declaration of rights drawn up by the continental congress of 1774, we find it declared, our ancestors, who first settled these colonies, were, at the time of their emigration from the mother country, entitled to all the rights, liberties and immunities of free and natural born subjects within the realm of England."
But the common law thus brought by the colonists was, it must be observed, very different at the periods of the different settlements. The common law as existing at the settlement of Virginia was very much modified before the settlement of Georgia in the reign of George the second; so that there never has been in the various states the same system of common law in all its ramifications, though its general character throughout the whole was very much the same, except so far as it had been altered by statutes enacted by the legislatures of the respective colonies. For very early after the respective settlements, provincial assemblies were established, composed of the representatives of the freeholders and planters, with whom were associated the governor and council, the last of whom composed an upper house, while the governor was invested with the power of a negative, and of proroguing and dissolving them. Thus constituted they soon acquired a code of their own, and introduced very large and important variations fromet
othinammon law in all its branches; so that at the date of evolution, and still more at the date of the present constitution of the United States, the systems of jurisprudence of the several states were so dissimilar that it would have been impossible, even if had been desired, to have adopted the common law as the general law of the United States as such.
The power of legislation thus exercised by the colonial legislatures, with the restrictions necessarily arising from
(c) See Cond. Rep. 204, 211, 212; 10 East. 282, 288, 289.