customs, and common law. There is no principle which pervades the Union, and has the authority of law, that is not embodied in the Constitution or laws of the Union. The common law could be made a part of our Federal system only by legislative adoption. When, therefore, a common-law right is asserted, we must look to the State in which the controversy originated." See to the same effect, Kendall v. United States, 12 Pet. 524; Lorman v. Clarke, 2 McLean, 568. Therefore the United States cannot exercise a common-law jurisdiction in criminal cases. Congress must first make an act a crime, affix a punishment to it, and declare the court that shall have jurisdiction of the offence, before such court can take cognizance thereof. United States v. Hudson, 7 Cranch, 32; Same v. Lancaster, 2 McLean, 433; Same v. New Bedford Bridge, 1 Wood. & M. 435; Same v. Wilson, 3 Blatch. 435. But the national courts, after jurisdiction is conferred, are to look to the common law, in the absence of statutory provisions, for rules to guide them in the exercise of their functions, in criminal as well as civil cases. Conklin's Treatise, 82.] CHAPTER XVII. GENERAL REVIEW OF THE COLONIES. § 159. In respect to their interior polity, the colonies have been very properly divided by Mr. Justice Blackstone into three sorts; namely, provincial, proprietary, and charter governments. First, provincial establishments. The constitutions of these depended on the respective commissions issued by the crown to the governors, and the instructions which usually accompanied those commissions.1 These commissions were usually in one form,2 appointing a governor, as the king's representative or deputy, who was to be governed by the royal instructions, and styling him captain-general and governor-in-chief over the province, and chancellor, vice-admiral, and ordinary of the same. The crown also appointed a council who, besides their legislative authority, were to assist the governor in the discharge of his official duties; and power was given him to suspend them from office, and in case of vacancies to appoint others, until the pleasure of the crown should be known. The commissions also contained authority to convene a general assembly of representatives of the freeholders and planters; and under this authority provincial assemblies composed of the governor, the council, and the representatives, were constituted (the council being a separate branch or upper house, and the governor having a negative upon all their proceedings, and also the right of proroguing and dissolving them); which assemblies had the power of making local laws and ordinances, not repugnant to the laws of England, but as near as may be agree 3 1 1 Bl. Comm. 108; Stokes's Hist. Colon. 20, 23, 149, 184, 185; Cowper's R. 207, 212; Com. Dig. Navigation, G. 1; 2 Doug. Summ. 163, note; Id. 251; 1 Doug. Summ. 207. 2 Stokes's Hist. Colon. 14, 23, 149, 150, 166, 184, 185, 191, 199, 202, 237, 239; 1 Bl. Comm. 108. Stokes has given, in his History of the Colonies, ch. 4, p. 149, &c., a copy of one of these commissions. A copy is also prefixed to the Provincial Laws of New Hampshire, edition of 1767. See 2 Hewatt's History of South Carolina and Georgia, and Account of the Provincial Governments. • 3 Stokes's Hist. Colon. 155, 237, 240, 241, 242, 251; 1 Pitk. Hist. 71; 1 Chalmers's Annals, 683. See in Parliamentary Debates, Vol. II., for 1785 (old edition), in Appendix, copies of the Charters of the American Colonies. able thereto, subject to the ratification and disapproval of the crown. The governors also had power, with the advice of council, to establish courts, and to appoint judges and other magistrates and officers for the province; to pardon offences, and to remit fines and forfeitures; to collate to churches and benefices; to levy military forces for defence; and to execute martial law in time of invasion, war, and rebellion.1 Appeals lay to the king in council, from the decisions of the highest courts of judicature of the province, as, indeed, they did from all others of the colonies. Under this form of government, the provinces of New Hampshire, New York, New Jersey, Virginia, the Carolinas, and Georgia were governed (as we have seen) for a long period, and some of them from an early period after their settlement.2 § 160. Secondly, proprietary governments. These (as we have seen) were granted out by the crown to individuals, in the nature of feudatory principalities, with all the inferior royalties and subordinate powers of legislation which formerly belonged to the owners of counties palatine. Yet still there were these express conditions, that the ends for which the grant was made should be substantially pursued; and that nothing should be done or attempted which might derogate from the sovereignty of the mother country. In the proprietary government, the governors were appointed by the proprietaries, and legislative assemblies were convened under their authority; and indeed all the usual prerogatives were exercised which in provincial governments belonged to the crown. Three only existed at the period of the American Revolution, namely, the proprietary governments of Maryland, Pennsylvania, and Delaware.5 The former had this peculiarity in its character, that its laws were not subject to the supervision and control of the crown; whereas, in both the latter such a supervision and control were expressly or impliedly provided for.6 § 161. Thirdly, charter governments. Mr. Justice Blackstone describes them as "in the nature of civil corporations, with the power of making by-laws for their own internal regulation, not contrary to the laws of England; and with such rights and 1 Stokes's Hist. of Colonies, 157, 158, 184, 264. 2 1 Doug. Summ. 207. 4 Stokes's Hist. of Colon. 22. Doug. Summ. 207. 7 1 Bl. Comm. 108. authorities as are specially given them in their several charters of incorporation. They have a governor named by the king, (or, in some proprietary colonies, by the proprietor,) who is his representative or deputy. They have courts of justice of their own, from whose decisions an appeal lies to the king and council here in England. Their general assemblies, which are their house of commons, together with their council of state, being their upper house, with the concurrence of the king, or his representative the governor, make laws suited to their own emergencies." This is by no means a just or accurate description of the charter governments. They could not properly be considered as mere civil corporations of the realm, empowered to pass by-laws; but rather as great political establishments or colonies, possessing the general powers of government and rights of sovereignty, dependent, indeed, and subject to the realm of England, but still possessing within their own territorial limits the general powers of legislation and taxation. The only charter governments existing at the period of the American Revolution were those of Massachusetts, Rhode Island, and Connecticut. The first charter of Massachusetts might be open to the objection that it provided only for a civil corporation within the realm, and did not justify the assumption of the extensive executive, legislative, and judicial powers, which were afterwards exercised upon the removal of that charter to America. And a similar objection might be urged against the charter of the Plymouth colony. But the charter of William and Mary, in 1691, was obviously upon a broader foundation, and was in the strictest sense a charter for general political government, a constitution for a state, with sovereign powers and prerogatives, and not for a mere municipality. By this last charter the organization of the different departments of the government was, in some respects, similar to that in the provincial governments; the governor was appointed by the crown; the council annually chosen by the general assembly; and the house of representatives by the people. But in Connecticut and Rhode Island, the charter governments were organized altogether upon popular and democratical principles; the governor, council, and assembly being annually chosen by the freemen of the colony, and all other officers ap 1 Chalmers's Annals, 274, 275, 293, 687; 1 Tuck. Black. Comm. App. 385; 1 Pitk. Hist. 108; 1 Hutch. Hist. No. 13, p. 529; Mass. State Papers, 338, 339, 358, 359; Stokes's Hist. of Colon. 21; 1 Doug. Summ. 207. pointed by their authority. By the statutes of 7 & 8 William 3, (ch. 22, § 6,) it was indeed required that all governors appointed in charter and proprietary governments should be approved of by the crown, before entering upon the duties of their office; but this statute was, if at all, ill observed, and seems to have produced no essential change in the colonial policy.2 § 162. The circumstances in which the colonies were generally agreed, notwithstanding the diversities of their organization into provincial, proprietary, and charter governments, were the following: § 163. (1.) They enjoyed the rights and privileges of Britishborn subjects, and the benefit of the common laws of England; and all their laws were required to be not repugnant unto, but as near as might be, agreeable to, the laws and statutes of England.3 This, as we have seen, was a limitation upon the legislative power contained in an express clause of all the charters, and could not be transcended without a clear breach of their fundamental conditions. A very liberal exposition of this clause seems, however, always to have prevailed, and to have been acquiesced in, if not adopted, by the crown. Practically speaking, it seems to have been left to the judicial tribunals in the colonies to ascertain what part of the common law was applicable to the situation of the colonies; and of course, from a difference of interpretation, the common law, as actually administered, was not in any two of the colonies exactly the same. The general foundation of the local jurisprudence was confessedly composed of the same materials; but in the actual superstructure they were variously combined and modified, so as to present neither a general symmetry of design nor a unity of execution. 4 § 164. In regard to the legislative power, there was a still greater latitude allowed; for notwithstanding the cautious reference in the charters to the laws of England, the assemblies actually exercised the authority to abrogate every part of the common law, except that which united the colonies to the parent state by the general ties of allegiance and dependency; and every part of the statute law, except those acts of Parliament which 1 1 Chalmers's Annals, 274, 293, 294; Stokes's Hist. Colon. 21, 22, 23. 2 1 Chalmers's Annals, 295; Stokes's Hist. Colon. 20. * Com. Dig. Navigation, G. 1; Id. Ley. C.; 2 Wilson's Law Lect. 48, 49, 50, 51, 52. 4 1 Chalm. Annals, 677, 678, 687; 1 Tucker's Black. Comm. 384; 1 Vez. 444, 449; 2 Wilson's Law Lect. 49 to 54; Mass. State Papers (ed. 1818, 375, 390, 391). |