Occupancy, or the taking possession of that which previously belonged to no one, is, as Grotius says, the only natural and original mode of acquisition, that is to say, the only mode of acquiring by the natural law, without deriving a title from any other person.

There are two things that can be acquired by occupancy, jurisdiction and the right of property; the former of which is properly exercised over persons, and the latter over things, though from the right of property over land jurisdiction over persons may arise.1

"There are," in the words of Grotius, "two modes of taking possession of a country, namely, as a whole, and in parts. The former is usually effected by the body of a nation, or the sovereign by whom it is ruled, and the latter by the individuals of which the nation is composed; but it is more usual to assign to each his share, than to leave every part for acquisition by occupancy. If, in a country occupied as a whole, any part remains that has not been assigned to any one in particular, it must not, on that account, be considered as vacant, for it belongs to whoever first took possession of the country-I mean, to the people or king. Such is ordinarily the right of property in rivers, lakes, forests, and waste mountains."

The law of England is conformable to these principles. When British subjects take possession of a desert country by public authority (and they cannot, consistently with their allegiance, take possession of a territory by an independent act of jurisdiction), the whole country becomes vested in the crown, and the crown will assign to particular persons portions of the land, reserving, as crown

1 Grotius, D. de la G. et de la P. 1. ii. c. iii. § 4. Pufendorf, D. des G. 1. iv. c. vi. § 14.

2 Grotius, D. de la G. et de la P. 1. ii. c. ii. § 4; L. ii. c. iii.

land, all that which is not so granted out, and reserving also a jurisdiction over the whole territory.1

But subjects of the British crown, so forming a colony or plantation, are entitled to divers privileges over the natives of colonies acquired by conquest and cession. “It hath been held," says Blackstone, "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 subject,3 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 colonysuch, 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 times, 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 modelled and reformed by the general superintending power of the legislature in the mother-country."4

The act 53 Geo. III. c. clv. § 95, is declaratory, and refers to the sovereignty of the crown over the possessions acquired by the East India Company as undoubted. 2 Salkeld, 411, 666.

3 2 P. Wms. 75: and see Burge, Com. v. i. p. xxxi. xxxii. prelim. tr. 4 Blackst.Com. introd. p. 107. Campbell v. Hall,-Howell, St. Tri.

It is to be observed here, that the colonists carry with them a right to be governed by the laws in being at the time of their forming their settlement. Laws subsequently enacted in parliament will not bind them unless they are specially mentioned therein.

In a colony of this nature, as well as in all others, the crown is invested, by its general prerogative, with the right of appointing governors and other officers for the execution of the law, of erecting courts of justice, and of summoning representative assemblies among the inhabitants, for the purposes of taxation and interior legislation.1

But in such colonies the crown alone cannot legislate. All the colonies and plantations, and indeed every part of the empire, are equally subject, whatever may be the form of the provincial government, to the supreme legislative authority of the imperial parliament.2

There is, however, an important limitation of this general authority of parliament.

The exercise of a power of imposing internal taxation upon the British colonies in North America led to the loss of those important provinces which now form the republic of the United States. It was argued by the colonists, with great force, that in the British constitution internal taxation is, and always has been, coextensive with representation; and that it was contrary to the principles v. xx. p. 289. Sir W. Grant, in Attorney-Gen. v. Stuart, applies the same exception even to the case of conquered or ceded territories, into which the English law of property has been generally introduced. 2 Mer. 161. And see Mayor of Lyons v. East Ind. Comp. 1 Moore P. C. Rep. 176.

2 Campbell v. Hall, Cowp. 204. Blackst. Com. introd. p. 103, 107. Clark, Colon. Law, p. 10, 11, and note. And see 3 and 4 Vict. c. XXV. -an act to reunite the provinces of Upper and Lower Canada, and for the government of Upper Canada.

of the constitution, for any country, enjoying the privi leges of the common law, to be taxed by a body in which it was not represented. The authority of the imperial parliament in this respect was, however, asserted by the statute 6 Geo. III. c. 12; but it was formally renounced, before the conclusion of the war, by the celebrated Declaratory Act, 18 Geo. III. c. 12. It recites, that "taxation by the parliament of Great Britain, for the purpose of raising a revenue in his majesty's colonies, provinces,

' Dr. Franklin, in his examination before the House of Commons, stated "that the authority of parliament was allowed to be valid in all laws except such as should lay internal taxes. It never was disputed in laying duties to regulate commerce. I never heard any objection to the right of laying duties to regulate commerce; but a right to lay internal taxes was never supposed to be in parliament, as we are not represented there. . . . . . I think the difference between the two modes of taxing very great. An external tax is a duty laid on commodities imported; that duty is added to the first cost and other charges on the commodity, and, when it is offered for sale, makes a part of the price, &c. But an internal tax is forced from the people without their consent, if not laid by their own representatives," &c. He said, in answer to a question, that the payments to the post-office were not a tax as well as a regulation. "The money paid for the postage of a letter is not of the nature of a tax. It is merely a quantum meruit for service done. No person is compellable to pay the money, if he does not choose to receive the service. A man still, as before the act, sends his letter by a servant, or a special messenger, or a friend, if he thinks it safer and cheaper." In answer to another question, he said that there was a great difference as to the matter in dispute, between an excise and a duty on importation. "The sea is yours; you maintain by your fleets the safety of navigation on it, and keep it clear from pirates. You may, therefore, have a natural and equitable right to some toll or duty on merchandise carried through part of your dominions, towards defraying the expense you are at in ships to maintain the safety of that carriage." There is some inaccuracy, at least of expression, in the latter argument. The reader will find the principle of the correct part of Dr. Franklin's argument on the last point in Grotius, lib. ii. c. iii. § 14; and Vinnius ad Inst. lib. ii. tit. i. § 1.

and plantations in North America, has been found, by experience, to produce great uneasiness and disorders among his majesty's faithful subjects, who may, nevertheless, be disposed to acknowledge the justice of contributing to the common defence of the empire, provided such contribution should be raised under the authority of the general court or general assembly of each respective colony, province, or plantation. And whereas, in order as well to remove the said uneasinesses, and to quiet the minds of his majesty's subjects who may be disposed to return to their allegiance, as to restore the peace and welfare of all his majesty's dominions, it is expedient to declare, that the king and parliament of Great Britain will not impose any duty, tax, or assessment, for the purpose of raising a revenue, in any of the colonies, provinces, and plantations." The act then proceeds to declare, "that from and after the passing of this act, the king and parliament of Great Britain will not impose any duty, tax, or assessment whatever, payable in any of his majesty's colonies, provinces, or plantations in North America or the West Indies, except only such duties as it may be expedient to impose for the regulation of commerce; the net produce of such duties to be always paid and applied to and for the use of the colony, province, or plantation, in which the same shall be respectively levied, in such manner as other duties, collected by the authority of the respective general courts or general assemblies of such colonies, provinces, or plantations, are ordinarily paid and applied."

See the debate in the House of Lords on the Colonial Slavery bill, Aug. 12, 1833, Mirror of Parliament, p. 3694, in which the extent of the power of the mother-country to legislate for the colonies was much discussed. Lord Chancellor Brougham remarked, that the Declaratory Act contains "no abandonment of right," and "no declara