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• Preface
• Select Essays In Anglo-american Legal History Volume I General Surveys
• A Table of British Regnal Years
• Part I.: Before the Norman Conquest
• 1.: Frederick William Maitland, a Prologue to a History of English Law 1
• 2.: Edward Jenks, the Development of Teutonic Law 1
• 3.: Sir Frederick Pollock, English Law Before the Norman Conquest 1
• Part II.: From the Norman Conquest to the Eighteenth Century
• 4.: Alice Stoppard Green, the Centralization of Norman Justice Under Henry Ii 1
• 5.: Edward Jenks, Edward I, the English Justinian 1
• 6.: Frederick William Maitland, English Law and the Renaissance 1
• 7.: Thomas Edward Scrutton, Roman Law Influence In Chancery, Church Courts, Admiralty, and Law Merchant 1
• 8.: William Stubbs, the History of the Canon Law In England 1
• 9.: William Searle Holdsworth, the Development of the Law Merchant and Its Courts 1
• 10.: James Bryce, a Comparison of the History of Legal Development At Rome and In England 1
• Part III.: The American Colonial Period
• 11.: Paul Samuel Reinsch, the English Common Law In the Early American Colonies 1
• 12.: St. George Leakin Sioussat, the Theory of the Extension of English Statutes to the Plantations 1
• 13.: Charles Mclean Andrews, the Influence of Colonial Conditions As Illustrated In the Connecticut Intestacy Law 1
• Part IV.: Expansion and Reform of the Law In the Nineteenth Century
• 14.: R. Robinson, Anticipations Under the Commonwealth of Changes In the Law 1
• 15.: John Forrest Dillon, Bentham’s Influence In the Reforms of the Nineteenth Century 1
• 16.: Charles Synge Christopher, Baron Bowen, Progress In the Administration of Justice During the Victorian Period 1
• 17.: Joseph Henry Beale, Jr., the Development of Jurisprudence During the Nineteenth Century 1
• 18.: James Bryce, the Extension of Roman and English Law Throughout the World 1
• Part V.: Bench and Bar From Norman Times to the Nineteenth Century
• 19.: John Maxcy Zane, the Five Ages of the Bench and Bar of England 1
• 20.: Van Vechten Veeder, a Century of English Judicature, 1800-1900 1
• 21.: James Kent, an American Law Student of a Hundred Years Ago 1

12.

THE THEORY OF THE EXTENSION OF ENGLISH STATUTES TO THE PLANTATIONS1

By St. George Leakin Sioussat.2

THE rapid expansion, in recent years, of the territory belonging to the United States, and the judicial determination, in the Insular Cases, of the relation of subject peoples to the American Republic have revived a question as old as the Constitution itself. This latest phase, involving possessions disconnected and far removed, makes us readier than before to examine the experience of other colonizing powers, especially of that British Empire from which the thirteen colonies separated themselves by the Revolution. At the present writing, moreover, the modern constitution of that empire is being subjected to fresh scrutiny and review, through the pressure of economic problems whose solution involves to the foundation the relation of Great Britain and her dependencies. But since, in the logic of history, the present has grown out of the past, a study which carries us back to the first building of that imperial system, and to the time when we were part of it, seems to be not unseasonable. Therefore, as our last chapter was local in its point of view, this is to be imperial in its outlook; and, leaving as beyond our proper field all considerations of economic relations, we shall inquire briefly into the theories held, in the seventeenth and eighteenth centuries, by English judges and lawyers, as to the legal status of the colonies, and especially as to the extension to these of Statutes of the British Parliament. Afterwards, for the purpose of comparison, we shall review the experiences of a few other colonies, which involved these theories or principles similar to those contested in Maryland.

We may first direct our attention to a case which was decided early in the seventeenth century, as a result of the union of the English and Scottish monarchies in the person of James I. For details as to the desire of James to secure for his Scotch subjects the rights of citizenship in the richer land of the South, and the general history of the “Post-nati,” we must refer to the historical writings of Gardiner and Hallam, and here direct our attention to a test case, known as Calvin’s Case, made up in connection with the Post-nati decision that citizens of Scotland born after James’ accession were to be accounted as legally naturalized in England. In Calvin’s Case the Judges enunciated certain opinions as to the position of “dependencies” with relation to the central government. A dependency, they held, was a “parcel of the Realm in tenure,” and Parliament might make any statute to bind such dependency, where the latter was definitely named; but without such special naming a statute did not bind.

At the same time the judges went into an extended classification of the dominions dependent on the British Crown. These they divided into

1. Christian countries to which the laws of England have been given by King or by Parliament.

2. Countries which come to the King through inheritance. In neither of these can the King “change” the laws.

3. Conquered countries inhabited by Christians. Here the laws of the conquered remain in effect until the King changes them,—which is entirely within his prerogative.

4. Conquered heathen countries at once lose their rights or laws by the conquest, “for that they be not only against Christianity, but against the law of God and of nature contained in the Decalogue.” As to these, the monarch “by himself and such judges as he shall appoint, shall judge them and their causes according to natural equity . . . until certain laws be established among them.”1

The year in which this decision was rendered (1607) marks the very beginning of successful English settlement in North America; but the principles then formulated were put into practice especially in the colonization of Ireland in this and in the succeeding reign.2 For the ends of this paper, it is to be remembered as the first “leading case” that declared the distinction between conquered and settled dependent territories, and applied a different rule to these classes respectively.

As settlement in the new world progressed, and governments of one form or another were established by royal permission, or instruction, we find all the charters save one granting to the colonists the rights of English citizens, and the claim to these rights maintained by the inhabitants of every colony, whether in possession of a charter or not. As to the interpretation of these rights, and the determination of their extent, discussion and dispute were more or less continuous. Every colony, however, at some time during its constitutional history had to face this question of the relation of the colonial law to the legal system of the mother country. In our ordinary study we naturally emphasize the history of the English colonies on the Atlantic coast—and of only some of those—but occasionally we are led to other regions for our best sources of information.

The next important judicial decision was one that concerned the colony of Jamaica. The whole constitutional development of this island is of the greatest significance in American colonial history, and far too little attention has been paid to it. In this connection, especially, certain similarities and certain differences render very interesting a comparison with Maryland.

The case of Blankard v. Galdy is one to which very frequent reference will be necessary. The matter at issue was a suit on a bond, and involved the extension of an English Act to Jamaica. The counsel for the plaintiff argued that Jamaica was an island beyond the sea conquered from the Indians and the Spaniards in Queen Elizabeth’s time1 [sic], that the inhabitants were bound by their own law, and that as they were not represented in Parliament, so they could not be bound by English statutes unless specially named. Statutes were cited—among them 5 Eliz. ch. 4, as to servants—which would be destructive if enforced there, and others, such as the Act of Usury, which does not apply, “for they allow them more for the loan of money than is permitted by that law.” Several Acts of Parliament which have “taken notice” of Jamaica are cited.

Then is adduced the Earl of Derby’s Case, where the Court held that English statutes did not bind the inhabitants of the Isle of Man, a conquered province, unless they were specially mentioned.

Counsel for the defendant argued contra that the liberties lost were those of the conquered; those that conquer cannot by this conquest lose their laws, which are their birthright, and which they carry with them wherever they go. Calvin’s Case is then cited, with emphasis in its distinctions between heathen and Christian conquered countries. The experience of Ireland is used to point out an analogy between that and the situation of Jamaica.1

The Court held, in part:

“1. In case of an uninhabited country newly found out by English subjects, all laws in force in England are in force there: so it seemed to be agreed.

“2. Jamaica being conquered and not pleaded to be parcel of the Kingdom of England but part of the possessions and revenue of the Crown of England, the laws of England did not take place there, until declared so by the conqueror or his successors. . . .”2

That Jamaica was alleged to be a conquered country caused upon other occasions, some of which we shall notice later, considerable difficulty in determining the legal system of the island. The decision, it seems, is adverse to the extension of English laws, though the judges did not lay stress on the distinction between common and statute law.

A clearer statement appears in the opinion of the Attorney-General, West, rendered in 1720, in which he said:

“The common law of England is the common law of the plantations, and all statutes in affirmance of the common law, passed in England antecedent to the settlement of a colony, are in force in that colony, unless there is some private Act to the contrary; though no statutes, made since those settlements, are thus in force unless the colonists are particularly mentioned. Let an Englishman go where he will, he carries as much of law and liberty with him as the nature of things will bear.”3

Nine years later, in connection with the dispute in Maryland, Sir P. Yorke, then Attorney-General, gave an opinion on the same subject, which affords an interesting comparison with that of West.

“Such general statutes as have been made since the settlement of Maryland, and are not by express words located either to the plantations in general or to this Province in particular are not in force there, unless they have been introduced and declared to be Laws by some Acts of Assembly of the Province, or have been received there by a long uninterrupted usage or practice which may impart a tacit consent of the Lord Proprietary and of the people of the colony that they should have the force of a law there.”1

The modification here evident was without doubt a reflection of the agitation in Maryland to which we shall devote extended discussion hereafter.

Passing over other cases, we come to the doctrine of the pre-revolutionary period as summed up by Blackstone,2 who, upon this subject delivers himself as follows:

“Besides these adjacent islands [Man and the Channel Islands], our most distant plantations in America, and elsewhere, are also in some respects subject to the English laws. Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother country; or where, when already cultivated, they have been either gained by conquest or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of colonies, with respect to the laws by which they are bound. For it hath been held3 that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject4 are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to their own situation and the condition of an infant colony. Such, for instance, as the general rules of inheritance, and of protection from personal injuries. The artificial refinements and distinctions incident to the property of a great and commercial people, the laws of police and revenue (such especially as are enforced by penalties), 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 Constitution 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.1 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.2 Here the same general principles 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 limits 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 colonists. With the cases and decisions that come later, and with the modern classification of the British colonial system, we are not here concerned.1 It must be remarked, however, first, that the opinions we have quoted show a process of development, and some lack of harmony; second, that while the principles as to extension which Blackstone lays down did, in American courts generally, become the accepted theory of the transfer of English law,2 a different attitude was assumed towards his consideration of the American possessions as conquered territory; and thirdly, that as Reinsch has shown, the legal theory is not universally supported by the actual facts in the legal history of the colonies.3

As we have not undertaken any but the barest statement of this legal theory, so our reference to the experiences of other colonies must be of the briefest. While in every group of colonies incidents turned upon or called in question the same points as the Maryland controversy, and although no complete discussion of this part of the subject exists, we shall on this occasion mention only two or three such happenings which are peculiarly fitted to help us understand the more limited field that we have chosen.

In 1651 the Colony of Virginia surrendered to the Commissioners of the Puritan Government in England. The first article of capitulation declares:

“It is agreed and const’d that the plantation of Virginia, and all the inhabitants thereof, shall be and remain in due obedience and subjection to the Commonwealth of England according to the laws there established, and that this submission and subscription be acknowledged a voluntary act not forced nor constrained by a conquest upon the country, And that they shall have and enjoy such freedomes and priviledges as belong to the free borne people of England, and that the former government by the commissons and instructions be void and null.”1

Here seems to be a conscious recognition of the “conquest” idea so emphasized in the decision just quoted. In Maryland itself, however, we have a still clearer example when, in 1684, in a debate between the Houses of the Assembly over the right of the Speaker to issue warrants for election to vacancies, the Proprietor’s argument, in support of his own prerogative, that “the King had power to dispose of his conquests as he pleased,” roused the ire of the Lower House, which asserted the rights of its members as based on their English origin. This was “their birthright by the words of the Charter.” The word “conquest” had a sinister meaning which they resented, and they hoped that the words were the result, not of the Proprietor’s own will, but of strange if not civil counsel. The Upper House at once explained that it had no idea of likening the freemen of the Province to a conquered people.2 The discussion indicates that in Maryland, before the revolution of 1689, this legal theory was known and its application of this principle to Maryland denied.

The narrower question of the extension of the English statutes had been broached in many other plantations. One or two instances will suffice for illustration. In 1692 the Assembly of South Carolina passed an Act authorizing the judicial officers of the colony to execute the Habeas Corpus Act—an Act passed some years later than the settlement of Carolina. This the Proprietors disallowed, however, declaring that all laws of England applied to the colony, and holding that it was therefore unnecessary to re-enact that famous statute in their Province. “By those gentlemen’s permission that say so, it is expressed in our grants from the Crown that the inhabitants of Carolina shall be of the King’s allegiance, which makes them subject to the laws of England.”

Here we have a proprietary Province, of a constitution analogous in so many respects to Maryland, in controversy over this same matter; but the parties we find taking exactly opposite positions from that which they assumed, respectively, in Maryland. However, the Proprietors here receded from their position, and, in 1712, approved an Act which adopted the English common law and such statutes as were deemed applicable to the Constitution of the Province.1 A somewhat similar law was passed in North Carolina, in 1715.

Of more direct bearing upon the course of events in Maryland is the experience of her northern neighbor, Pennsylvania, where legal controversies similar to that which we have to follow in Maryland were taking place just a few years before 1722. The efficacy of the English statute law, in comparison with that of local legislation, came up in connection with the unwillingness of the Quakers to take an oath, and their claim that an affirmation was equally valid for legal proceedings.2

More closely analogous to the issues developed in Maryland, however, was the evolution of the courts of judicature in Pennsylvania. In the course of a contest between Governor Evans and the Assembly, the former issued an ordinance to establish courts; in which the judges were directed to hear and determine cases “as near as conveniently may be to the laws of England, and according to the laws and usages” of the Province. In equity cases, they were to “observe” as near as may be the practice and proceedings of the High Court of Chancery in England. Against this establishment of courts by ordinance the Assembly remonstrated, but to little purpose, and the quarrel dragged on through subsequent administrations.3 The constitutional points in dispute lie without the scope of our consideration, but the reference to the laws of England concerns us directly.

Furthermore, in 1718, Governor Keith and the Council fell out over the commissions of the judges. Should they run in the name of the Governor merely—as had been the case—or should they not rather run in the name of the King, with 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 between 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.1

Thus we see that public sentiment was on the side against extension. In line with this feeling, 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,2 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:

“Whereas it is a settled point that as the common law is the birthright of English subjects, so it ought to be their rule in British dominions; but Acts of Parliament have been adjudged not to extend to these plantations, unless they are particularly named in such acts.”1

Here is a clear-cut statement of the “orthodox” theory as to extension, exactly similar in tenor, it will be noticed, to the opinion of West in 1720, given above. Since it is easy to prove that contact between Maryland and Pennsylvania was continuous, and that the politics of the latter exerted a decided influence on those of the former, it is not unreasonable to suppose that this discussion in Pennsylvania, which occurred when discussion on the same point in Maryland was inactive, had something to do with the revival of the quarrel in Maryland in 1722. This hypothesis is helped by the emphasis that we shall find laid by Dulany and his party on the Commissions of the Judges. It is the more remarkable, as the latter argued precisely in opposition to the ideas of the Council in Pennsylvania.

A far more striking analogy appears in the history of Jamaica, to which the case of Blankard v. Galdy has already led us. We found it there claimed and adjudged that Jamaica was a conquered Province; but, as we might suppose, the English inhabitants of the island denied that they represented the conqueror. The military seizure of the island and its cession by Spain did, however, introduce this additional complication into the whole of Jamaica’s constitutional history. Moreover, Jamaica was a Crown colony, and had no charter. The instructions and proclamations of Cromwell and of Charles II. were liberal, however. In the time of the latter, especially after the period of military rule had reached a conclusion, the progress of the colony towards a constitutional development like that of the other American colonies was constant. But in 1678, upon objections by the lords of the Committee for Trade, the royal government rejected some of the Jamaican laws, and went so far as to urge that the laws for the island must be made in England, then sent to Jamaica for passage by the Assembly, after the manner of Irish legislation under Poyning’s Law.

This reactionary attempt of the Crown to compel the civilian was opposed and rejected by the Jamaican Assembly. Then ensued a long wrangle, which left it in great doubt what laws were in force and what not. A temporary agreement as to the practical difficulties was reached in 1684. But the claim of the colonists to the English laws—not only to those passed before the settlement, but to some, like the Habeas Corpus Act, passed after it—was denied by the King in Council and by the courts.

The Jamaica Assembly went farther than that of Maryland, in that they entangled with this controversy the question of levying the public money, and refused to pass a law to grant a perpetual revenue until the Crown would fully admit the rights they demanded. This the Crown for a long time refused to do; but at last, in 1728, the Assembly

“Settled a permanent revenue, not burthensome to themselves. . . . In return for this they obtained the royal confirmation of their most favourite and necessary Acts of Assembly, and the following declaration expressed in the 31st clause of this revenue Act:

“And also all such laws and statutes of England as have been at any time esteemed, introduced, used, accepted or received as laws, in this island, shall and are hereby declared to be, and continue, laws of this his majesty’s island of Jamaica forever!

“This clause is justly regarded by the inhabitants as the grand charter of their liberties, since it not only confirmed to them the use of all those good laws which originally planted and supported freedom in England, but likewise of all the other provisions made for securing the liberty and property of the subject in more modern times; when, upon the several overthrows of tyrannic powers in that Kingdom, the subjects’ rights were more solidly fixed on the rational basis of three solemn compacts between the sovereign and people: at the Restoration of Charles II., the Coronation of the prince of Orange, and, lastly, the accession of the House of Hanover.

“The little clause before recited has cost the island, in fifty years, about £50,000, the net income of the revenue being about £10,000 per annum. Yet, considering the unspeakable benefits derived by them in virtue of this compact, they do not think it too dear a purchase.”1

Such was the controversy in Jamaica, thus contemporaneous in part with that conducted by Dulany in Maryland. That the Jamaican affair was studied in Maryland will appear below, where we shall find the Proprietor, in 1724, citing the failure of the Jamaicans in one of their attempts to get their English laws. Five years later, in the Maryland Gazette, a letter from Jamaica announces the probability of an agreement. This Act “has been at home near a year” and “cannot well fail of being cofirmed, being exactly conformable in the substance to the draught sent hither from home.”2

At the time, therefore, when Dulany began his decade of agitation in Maryland, there was, in the first place, a theory or tradition established in the English courts; a tradition not yet distinct, but approaching definiteness. Secondly, there had been frequent occasions in other colonies where the relations to the legal system of the mother country were matters of dispute. Lastly, the uncertainty in Maryland was as old as the colony. With these points in mind, we may perhaps sympathize with “An American,” who in “An Essay on the Government of the English Plantations,” published at the beginning of the eighteenth century, voiced his complaint that

“No one can tell what is law and what is not in the plantations. Some hold that the law of England is chiefly to be respected, and, when that is deficient, the laws of the several colonies are to take place. Others are of the opinion that the laws of the Colonies are to take the first place and that the laws of England are in force only where they are silent. Others there are who contend for the laws of the colonies, in conjunction with those that were in force in England at the first settlement of the colony, and lay down that as the measure of our obedience, alleging that we are not bound to observe any late acts of parliament in England except such only where the reason of the law is the same here that it is in England.”1

[1 ]These passages are extracted from an essay on “The English Statutes in Maryland,” Johns Hopkins University Studies in History and Political Science, 1903, volume XXI., being c. II., pp. 17-30.

[2 ]Professor of History and Economics in the University of the South, since 1904. A. B. Johns Hopkins University 1896, Ph. D. 1899; Instructor in History in Smith College, 1899-1904.

Other Publications: Highway Regulation in Maryland, 1899; Baltimore (Historic Towns of the Southern States), 1900; Economics and Politics in Maryland 1730-1750 (Johns Hopkins Studies), 1903; Virginia and the English Commercial System (American Historical Association, vol. I.), 1905.

[1 ]7 Rep. We have followed the analysis in Snow: The Administration of Dependencies. The case was almost always cited whenever the question came up. Of especial interest is Lord Mansfield’s brief consideration of it in the Grenada Judgment (Campbell v. Hall), 1774. His remarks were published in pamphlet form as Lord Mansfield’s Speech on Giving the Judgment of the Court of King’s Bench . . . in the Case of Campbell v. Hall . . . London, 1775; A New Edition, Corrected. He calls attention to the “absurd exception, as to pagans . . . (which) shows the universality and antiquity of the maxim.” The earlier history of these principles, before Calvin’s Case, lies beyond our discussion. It may be noted, however, that they belong to International Law.

[2 ]The frequency of reference to the analogy of Ireland’s law is noteworthy. See the matter upon the constitutional development in Ireland, in Hallam. The Constitutional History of England, ch. xviii. Compare, also, I. Blackstone’s Comm. 103-4; Lord Mansfield’s decision in Campbell v. Hall, quoted above; a pamphlet entitled The Privileges of the Island of Jamaica Vindicated, London, 1766 (rep.) A recent discussion of this whole matter is found in Snow, A, The Administration of Dependencies, chaps. 1-4.

[1 ]The Conquest did not take place, of course, until Cromwell’s time, in 1655. An attack was made in Elizabeth’s reign, in 1596, under Shirley, but this was not followed up. See Preface to The Importance of Jamaica to Great Britain Considered: London, 1741? This tract deals rather lightly with Constitutional History.

[1 ]See below.

[2 ]4 Modern 215 ff. Salkeld 411.

[3 ]Chalmers’ Opinions, Vol. I., pp. 194-195.

[1 ]Chalmers’ Opinions, Vol. I., p. 206. Also in Calvert Papers (MS.) No. 52, p. 14. Chalmers dates this March 9, 1729. The Jamaican controversy referred to below had been settled in the meantime; while the controversy in Maryland had reached its height.

[2 ]Blackstone’s Commentaries (3rd ed. Cooley) Introduction, sec. 4, p. 107.

[3 ]Refers to Salkeld 411, 666.

[4 ]Refers to 2 Peere Williams 75.

[1 ]Refers to Calvin’s Case, 7 Rep. 17. Shower’s Parliamentary Cases 31 (Dutton v. Howell).

[2 ]Cowper, 204. See also the pamphlet mentioned above, p. 18, n. 1.

[1 ]For a general discussion of the later development of the theory see Burge, W.: Commentaries on Colonial and Foreign Laws Generally, and in their conflict with each other and with the Law of England, London, 1838. Here will be found the story of the proclamations of 1763—the Grenada judgment, etc. For Canada and the Quebec Case, see also Coffin: The Province of Quebec and the early American Revolution. See also Egerton, H. E.: A Short History of English Colonial Policy ch. iv.

[2 ]Van Ness v. Packard, 2 Pet. 137.

[3 ]Reinsch: English Common Law in the Early American Colonies, passim [reprinted in this Collection as Essay No. 11].

[1 ]Hening: Statutes at Large I., p. 363-4. Cited in part in Snow: The Administration of Dependencies, p. 115, and as a whole in Hart: American History Told by Contemporaries I., pp. 235-6.

[2 ]Sparks, Causes of the Maryland Rev. of 1689, p. 82 Md. Arch. III. Ass. Pro. pp. 124-125.

[1 ]McCrady, E.: The History of South Carolina under the Proprietary Government pp. 247-8, 517 ff. Reinsch: English Common Law, pp. 49-50.

[2 ]Shepherd, W. R.: History of Proprietary Government in Pennsylvania, Columbia University Studies in History, Economics and Public Law, Vol. VI., pp. 351-369.

[3 ]Shepherd: Proprietary Government in Pennsylvania, pp. 386 ff.

[1 ]Shepherd: Proprietary Government in Pennsylvania, pp. 386-7.

[2 ]Ibid., pp. 388-389.

[1 ]Shepherd: Proprietary Government in Pennsylvania, p. 390.

[1 ]Long, Edward: The History of Jamaica, London, 1774, Vol. I., pp. 219-20. The account of Jamaica as a whole is based on the Appendix to the Tenth Chapter of Long’s very valuable work; on a pamphlet entitled The Privileges of the Island of Jamaica Vindicated—reprinted in London, 1766, with an appendix; and on the opinion of Yorke and Wearg, the Attorney and the Solicitor-General, as to the legal constitution of Jamaica in 1722-25, Chalmers’ Opinions (Colonial, Edition of 1814, Vol. I., pp. 204-224). See also Lord Mansfield’s decision in Campbell v. Hall.

[2 ]Maryland Gazette, June 10-17, 1729. The Jamaican letter is dated March 5.

[1 ]Quoted in Lincoln: The Revolutionary Movement in Pennsylvania, pp. 117-118. Compare also the section on the Civil Jurisdiction in a Short Discourse on The Present State of the Colonies in America. This pamphlet is No. 6 in A Collection of Papers and Other Tracts, by Sir William Keith, London, 1779 (2nd ed.). This pamphlet, No. 6, was presented to the King in 1728, and thus is contemporary with the struggles in Maryland and in Jamaica.