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4-272 (Text)

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addressee,male author,male,Webb, T.P.,un
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Government English
Imperial Correspondence
Bennett, 1979
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4-272-plain.txt — 5 KB

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It is a principle clearly established that the Common Law is the inheritance of all the subjects of the realm and that upon the voluntary exodus of any body of them for the purpose of colonisation, by occupation or settlement, they carry that law with them, whereby their rights, duties, and obligations are ascertained and determined. The date of occupation or foundation of the colony is all essential in determining what law is so carried and in force.
The settlers from the mother country carry with them such portion of the Common and Statute Law as is applicable to their new situation and they also enjoy the rights and immunities of British subjects.
Whilst intending colonists are migratory or in transitu they are amenable to and within the protection of the law of England; but so soon as they settle or found a colony upon the shore of any uninhabited country, such of the principles of that law as are applicable to their then existing circumstances and condition, e.g., the general rules of inheritance and protection from personal injuries, form the nucleus of their system of jurisprudence; and such part of the Common Law imports with it such of the Statute Law as is in affirmance of it. Such law is carried ex necessitate by the colonists, since there can be no lex loci at the place of settlement by which they might be controlled, no existing laws to contest the superiority, and no power in the occupants to establish laws independently of the mother country. to whom allegiance is still due.  It thereupon becomes local and peculiar to the settlement, and does not retain its character of Imperial law: otherwise, Imperial statutes amending or repealing any portion of it in England. would have the like effect in the colony; but they have not, unless they themselves extend to the colony; and further, colonial Acts may be passed repugnant to it. that is, it may be amended or repealed by local authority. Where there is a lex loci e.g., in conquered or ceded colonies, colonists do not carry with them the laws of England, but accept and are bound by that law already existing there.
The first or original settlers are the only persons who can import so much of the English law; and the date of original settlement marks the period of time at which the law so introduced by them is to be ascertained; those who emigrate subsequently do not carry with them into the colony any law of later date, but they and the descendants of the original settlers are subject to the same laws and the same rights as were originally introduced, except so far as they have been altered by competent legislative authority. All colonists subsequent to them stand in the like position, and those who live amongst them and become members of their community become also partakers of and subject to the same laws.
The general principle touching the introduction of English law into a settled colony is of time-honored authority, and is enunciated in the opinion of Mr. West, counsel to the Board of Trade in the year 1720, but is there too generally and widely stated. He says: - "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 these settlements are there in force unless the colonies are particularly mentioned. Let an Englishman go where he will he carries with him as much of law and liberty as the nature of things will bear."
The same remark applies to the determination of the Lords of the Privy Council, in the year 1722, and to the dictum of Holroyd, J., in Forbes v. Cochrane (2 B. & C. 463). Blackstone states the principle more correctly thus : - "It hath been held 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 English subject, are immediately in force (Salk 411, 666). 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 distinctions and refinements 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 or what rejected, at what times and under what restrictions, must, in case of dispute, be decided in the first instance by their own provincial judicature, subject to the decision and control of the King-in-Council; the whole of their constitution being also liable to be new-modelled and reformed by the general superintending power of the Legislature in the mother country." 
Blackstone in that passage, was setting right an opinion attributed to Lord Holt, that all laws in force in England must apply to an infant colony of that kind. If the learned author had written at a later date he would probably have added that, as the population, wealth, and commerce of the colony increase, many rules and principles of English law, which were unsuitable to its infancy, will be gradually attracted to it; and that the power of remodelling its laws belongs also to the colonial legislature.