On the other hand, the king is bound in the colonies, as at home, to govern according to established law.(4) It is necessary, therefore, to consider to what laws the colonies are subject. In doing this, it will be necessary to distinguish the colonial possessions from each other, in reference to the manner of their acquisition by the parent state. They are acquired, 1, by conquest; 2, by cession under treaty; or 3, by occupancy, viz. where an uninhabited country is discovered by British subjects, and is upon such discovery adopted or recognized by the crown as part of its possessions.(5) In case of conquest or cession, the conquered or ceded country retains its former laws, till they are changed by competent authority. It has been said that all unchristian or immoral institutions are ipso facto abrogated,(6) and in lieu of the crown has delegated its rights. But there is at present no proprietary, nor any charter government in the British colonies. (4) Campbell v. Hall, Cowp. 204. (5) A country may also come to the crown by hereditary descent, or other lawful title. As to which see Calvin's case, 7 Co. 17 b. But it did not seem worth while to treat this rare mode of acquisition as part of the general classification. (6) The rule is thus broadly stated, (Calvin's case, 7 Reports, 34,) that "if a Christian king should conquer a kingdom of an infidel, and bring it under his subjection, there ipso facto the laws of the infidel are abrogated, for that they be not only against Christianity, but against the laws of God and nature contained in the decalogue." In the case of Blankard y. Galdy, decided in the reign of Will. 3, and reported in 2 Salk. 411, that rule is adopted, with some slight restriction. It is there said, "in the case of an infidel country their laws by conquest do not entirely cease, but only such as are against the laws of God;" and that in all such cases where the laws are rejected or silent, the conquered country shall be governed according to the rule of natural equity." In the report of the same case in 4 Mod. 222, although this point is raised in the argument, it is not mentioned in the judgment. In 2 P.Wms. 75, there is a note of a statement made by the Master of the Rolls as to something that had been determined in the Privy Council upon an appeal from the plantations. In that note the Master of the Rolls represents the council to have de them the rules of natural equity are to be administered cided, that "until such laws given by the conquering prince, the laws and customs of the conquered country shall hold place, unless where these are contrary to our religion, or enact any thing that is malum in se, or are silent; for in all such cases the laws of the conquering country shall prevail." The case of Blankard v. Galdy, as reported in Salkeld, is referred to. But two other reports of that case exist in Holt, 341, and in Comberbach, 228. In the former, nothing is said about the abrogation of laws hostile to Christianity in a conquered country. In the latter, the authority of Calvin's case, on which the reports in Salkeld and Peere Wms. seem solely to found themselves, is thus observed upon::-" And where it is said in Calvin's case that the laws of a conquered heathen country do immediately cease, that may be true of laws for religion, but it seems otherwise of laws touching the government." The doubt here thrown upon the somewhat sweeping terms of the doctrine as stated in Calvin's case, may be justified not only on principles of reason, but even by the practice of the English government. If unchristian or immoral institutions are ipso facto abrogated, then it would have been out of the power of the English to have tolerated them even for a moment. have done so in our East Indian possessions (37 Geo. 3, c. 142, s. 12,) in the cases of the Suttees and the barbarous rites of Jughernaut. The immoral or unchristian nature of such customs affords a reason for abrogating them, Yet they but then such abrogation must be the effect of the declared will of the conqueror, and cannot take place as of course and unavoidably on the instant of the conquest. Lord Mansfield's opinion therefore was (Campbell v. Hall, Cowp. 209,) that the doctrine should stand thus:"that the laws of a conquered country continue in force until they are altered by the conqueror ;" and he added, "the absurd exception as to Pagans mentioned in Calvin's case, shows the universality and an. tiquity of the maxim. For that distinction could not exist before the Christian era, and in all probability arose from the mad enthusiasm of the crusades." Within this limit the rule would now seem to be confined. But there is one distinction that deserves to be considered. This re. lates to laws contrary to the fundamental principles of the British constitution. Such laws would, with regard to the conqueror at least, and, it is apprehended, with regard to the conquered also, cease upon the instant of conquest. Thus if any country in which the inflic. tion of torture was the law, should come into the possession of Great Britain, such law would fall of course. The constitution of Great Britain would put an end to it. (Per Lord Chief Justice De Grey, Trial of Fabrigas v. Mostyn, 60.Stokes, 11.) Allowing for exceptions of this sort, the law would remain as before, and would not be altered but by the declared will of the conqueror. Customs that were merely unchristian, but not contrary to the fundamental constitution of by the King, or by such judges as he shall appoint.(7) And the case is the same where the law of the conquered country is silent. The power of changing the laws of a conquered country resides in the King in council, for it is the right of the conqueror to impose law on the conquered. And the cases of cession, and of conquest, are in this respect not distinguishable, unless the right is restricted by compact with the ceding party. In exercising this power, the King is not bound to legislate in conformity with the law of England. He may impose whatever laws he pleases.(8) the British empire, nor to the inalienable rights of her citizens, by whose arms the conquest had been obtained, certainly would not be abrogated by the mere fact of conquest. Some such customs exist at this moment in colonies originally planted by the English. "In the Slave Court at Barbadoes slaves are sometimes sworn upon grave dirt, according to a superstition." (1 Rep. W. I. C. 48.) This custom is certainly not Christian, nor can the forms of swearing peculiar to the Jews, the Hindoos, and the Turks, be said to be so, yet all are admitted not only in the courts of our colonies, but in Westminster-Hall itself, on the principle of the common law, that there is no particular form essential to an oath taken by a witness; that which he considers the most binding shall be adopted. Everett v. Atcheson, Cowp. 389. (7) 2 Salk. 411. Would not this be in effect to give the conquered place the laws of the conquering country, to such extent at least as they could be applicable to its particular circumstances? For, generally speaking, the common law of each country is esteemed by the inhabitants of that country to consist of the rules of natural equity, and the mind of the judge who presided in the tribunals of a conquered country would perhaps have no other standard to judge of those rules, but that with which his acquaintance with the common law of his own country had furnished him. (8) Wytham v. Dutton, 3 Mod. 160; Show. P. C. 24; 2 P. Wms. 75; Campbell v. Hall, Cowp. 204. Lord Mansfield however in the last book says, that this power is subordinate to the authority of parliament, and, therefore, that he cannot make any new change contrary to fundamental principles; he cannot exempt an inhabitant from that particular dominion, as for instance, from the laws of trade, or from the power of parliament, or give him privileges exclusive of his other subjects, and so in many other instances which might be put." Such change may be either partial or general. It may consist of the introduction either of particular institutions, engrafted on the former law of the place, or of an entirely new code superseding it altogether. And it may involve an alteration also of its political constitution or form of government. . When the change is partial only, it is said that the former customs of the country will still be in force as to all matters not otherwise provided for.(9) In giving a new constitution to a conquered or ceded colony, if the Crown provides (as has hitherto usually been the case) that a Representative Assembly shall be summoned among the inhabitants of the colony, with the power of making laws for its interior government, it has been decided that the Crown cannot afterwards exercise with respect to such colony its former right of legislation.(1) It has impliedly renounced that right by the appointment of a legislative power within the colony itself. In the case of a colony acquired by occupancy, which is a plantation in the strict and original sense of the word, the law of England then in being, is immediately and ipso facto in force in the new settlement;(2) (1) Campbell v. Hall, Cowp. 204, (2) Determined by Lords of Privy Council on appeal, see 2 P. Wins. 75; see also 1 Black. Com. 107; Com. Dig. Ley, C.; Show. P. C. 32; 1 Chal. Opin. 195; 2 ib. 202; Stoke's Law of Colonies, 10. In such a place, there being no preceding laws to contest the superiority with them, the laws of the mother country, so far as they could be applicable, would naturally be adopted by the settlers. Mr. Fox gives another reason for this, when Comment in and such a colony is not subject to the legislation of the Crown, for the King cannot pretend in that case to the rights of a conqueror,(3) but the subjects of Great Britain, the discoverers and first inhabitants of the place, carry there with them their own inalienable birthright, the laws of their country.(4) But they carry only so much of these laws as is "applicable to the condition of an infant colony; such, for instance, as the general rules of inheritance, and protection from personal injuries. For 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,(5) are neither necessary nor convenient for he describes such persons as merely cultivators of the soil, who had not the power to establish a form of government independent of the state, which could alone be their protection. (3) So if a country come to the crown by title or descent, it is not subject to legislation by the crown. It retains its old laws till changed by act of parliament. Calvin's case, 7 Co. 17 b. (4) 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 any colony, are in force in that colouy, unless there is some private act to the contrary, though no statutes made since those settlements are there in force, unless the colonies 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." 1 Chal. Op. 195; and 2 ib. 202. "English subjects carry with them your Majesty's laws wherever they form colonies." Per Attorney and Solicitor-General Pratt and Yorke.-"In a place occupied by the king's troops, the subjects of England, would impliedly carry the law of England with them." Per Lord Ellenborough, C.J. in Rex v. The Inhabitants of Brampton, 10 East, 288. (5) Among these may be noticed the bankrupt and poor laws, the mortmain acts, and the game laws. See Attorney-General v. Stuart, 2 Meriv. 143. And it seems all penal statutes, Dawes v. Painter, Freeman, Rep. 75. In this last case it is emphatically said, "bene |