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colonial rule has been milder and more beneficent than that of any other modern country. • But what is an English colony? Is it every province peopled with Englishmen, or only those founded and settled by the state 3 In fact, the state has done very little primarily. The most com. mon mode whereby a state or private body of adventurers may acquire new territory, is by their taking possession of what is entirely or partially uninhabited, or occupied in that way in which we find many countries where uncivilized tribes are dwelling. But such pre-occupation cannot upon any received principle be held to oust the right of other emigrants also to enter on, use, and cultivate the soil of the new country which is not actually occupied, nor to prohibit them from multiplying and replenishing the earth, and subduing it.
The title by occupancy, then, made by new emigrants is essential for security and certainty, and for the prevention of dispute between rival claimants; but how is the definition to be given of what land is occupied? Can an individual colonist till ten acres of a huge island, and claim a run of 50,000 square miles, so as to exclude new-comers? Under the shelter of this title, can any civilized government “occupy” a huge continent with a hundred colonists in a remote corner? The dog who colonized the manger might enunciate the principle to the amiable kine, so long as they only lowed and beheld the difficulty presented by the selfish brute, and whilst his teeth were more terrible than their horns. But they would not, under any circumstances, concur in the justice of this colonial policy, nor submit to it if they could resist.
On this subject Mr. Bell waxes very bold, and his view would shock the patriotism of many a cockney, and raise a storm of indignation on many a quarter-sessions bench. For he, a judge of the supreiné court of the colony of the Cape of Good Hope, says that in truth the title by occupancy, as that title has been practically understood in modern times, will not bear examination. Neither France, Great Britain, nor Portugal, paid much
attention to it when set up by Spain, in order to exclude them from South America; and, so soon as it “shall be worth the while of any nation, it will have as little attention paid to it should we set up the title in order to secure our monopoly of Australia ;” and he quotes Vatel, who, in reference to the possession taken by navigators says:-"Communement ce titre a été respecté pourvû qu’une possession réele l'ait suivi de près ; mais c'est une question de savoir si une nation peut s'approprier ainsi par une simple prise de possession des païs, n'occupe pas réelement et s'en réserver de cette manière, beaucoup plus qu'elle n'est capable de peupler et de cultiver. Il n'est pas difficile de décider qu'une pareille prétention serait absolument contraire au droit naturel, et opposée aux vues de la nature qui destinait toute la terre aux besoins des hommes en général, ne donne à chacque peuple le droit de s'approprier un pais que pour les usages qu'il en tire, et non pour empêcher que d'autres n'en profitent.”
What is a reasonable claim to new territory, and what is a mere arbitrary capricious appropriation, without reference to the actual or prospective wants of the settlers, are questions for the most part not raised, owing to the present state of the world's population and national habits. The instances, however, mentioned by Mr. Bell, on which the title of the English government to land has been got up, are very instructive. One is derived from the history of Port Phillip :-Certain of the colonists of Van Dieman's land wished to form a settlement there, where it was actually unoccupied. The chief secretary for the colonies, Lord Aberdeen, refused to allow any settlement to be made there, as the object of the government was to concentrate rather than to disperse the population. Lord Glenelg, following his predecessor's sagacious policy, likewise opposed the Port Phillip settlement, whereupon the colonists, disregarding all ministerial prohibition, established themselves at the particular prohibited point, and made their own title to it. Twenty years after the far-famed
1 To the whole of South America, by virtue of a bull from the Pope of Rome.
wisdom of the Colonial Office had been so signally displayed, and its injunctions so utterly despised, this settlement, now rejoicing in the name of “Victoria," was possessed of a population of about half a million, and its exports were estimated at about fifteen millions ! The colony has been duly recognised, and the private emigrants having made a title to the place in spite of the home authorities, the latter admitted the title then made by the disobedient occupators.
Another instance where title by occupancy has been canvassed, is that of the Orange River sovereignty, which is in itself a melancholy illustration of what cruelty, ignorance, and tyranny exhibited in colonial matters can accomplish, and what treasure Great Britain is wont to throw away, through the power committed by her to “public departments” and local governors. The result, however, is one which cannot be too deeply impressed on the mind of the public. The government abandoned the sovereignty over the territory in question, over which we had been claiming, unjustly and absurdly, a “title by occupation.”
It was a different operation which was carried out in the case of Port Phillip. After the settlers, in defiance of the British government, had settled, and had made the colony valuable, the government asserted its authority over the colony, and the latter chose to accept the authority of the "parent state.” But what if they had refused, and had determined to be self-governed ? Is there any principle, it is asked, which can be considered well founded on reason or authority, to the effect that any government may prevent such of its subjects as choose taking actual possession of an unoccupied country, or that, on such a settlement being established, the parent state has any right to claim sovereignty over it? We indeed think there is authority for such a claim, which the sooner it is overruled the better, because principle and authority are at variance. It is worth while to glance at the latter. Let us, for example, take the judicial dicta, quoted by Mr. Bell, at p. 132, where he attributes to Lord Mansfield two statements. First—“That all colonies have been established by grants from the crown." Second—"That no colony can be settled without
authority from the crown." With regard to these dicta, Mr. Bell observes that it must be taken to mean, that before British subjects, who have settled in any foreign country, can claim for that country the administration of English laws for internal protection, or the assistance of the British army against foreign foes, the authority of the crown must be acknowledged, and the authority of the crown, so far as laying the foundation of individual titles to land extends, must be based on the fiction, that the freehold of the soil vested originally in, and is held of the crown. This is no doubt a very rational gloss to the text the author comments on, but not one, we think, which can be supported by the authority of Lord Mansfield's name. In any other sense, indeed, of Lord Mansfield's statement of the law, the facts of modern colonization would be repugnant thereto. Thus, our modern colonies have been formed by bodies of British subjects going to new and uninhabited countries, and establishing themselves there for the purpose of trade and agriculture, without any previous authority. Newfoundland and Victoria are notable examples of this. When, however, either by invitation of the colonist, or without their concurrence, the Crown steps in to establish its rule, the fiction of the original derivation of title is immediately constructed.
There is also the maxim of law-nemo potest exuere patriam, which, as Sir M. Foster hath said, “comprehendeth the whole doctrine of natural allegiance.” In Macdonald's case like principles are enunciated. Upon these we will again let Mr. Bell himself comment. He argues (p. 138) that the sense of the above maxim is, “that no one can disown the social community in which he was born ; revert to his natural rights as an independent man, and assert his right in defiance of, or in hostility to, that community. However far he may remove from his native country, he remains a subject of its government, bound to recognize its authorities, and to obey its laws. Now, neither the authority nor the laws of a government have force extra territorium even over its own subjects, except in the matter of allegiance, and then only to the effect of restraining the subject from doing any thing extra territorium which may have for its end the
overturning of government.
With this qualification," a natural born subject of any government, regal or republican, so soon as he goes without the territory of that government, assumes. all the rights which a man born upon the earth ere any government had been established would naturally have, so long as he does not go within the territory of any
other government, and so bring himself into the condition of obedience which every individual, whether native or stranger, must pay to the authorities of the country in which he may happen to be for the time. If the natural-born subject of any government, after leaving the territory of that government, can find a country which as yet has been unoccupied by man, he may establish himself as free, for the enjoyment of all its advantages of soil or climate, as Adam was the first morning he found himself in Eden.” Other individuals: may follow him in like manner, and what is true of individuals is equally true of collective bodies. Mr. Bell then points out, that though individuals and bodies may thus occupy a country, a government, as a natural right, cannot thus seize and appropriate. a new country. And he concludes, that “if any of the subjects of a government, emigrating from its territory to a country as yet. unsettled, choose to repudiate the authority of that government over the new country, and set up one for themselves, there seems nothing in principle which can prevent them from so doing?? (p. 145).
Now, we think that the learned author is right in principle; but we again doubt if the ancient authorities support him. The older idea of allegiance limits, in theory as we believe, the liberty of private members of a nation who emigrate. It is the theory of those to whom we refer as authorities, but whose experience of colonization was that of a period very different from the last thirty years.
In 2 Peere Williams, p. 75, it was said “by the Master of the Rolls to have been determined by the Lords of the Privy Council, from the foreign plantations, that if there be a new uninhabited country found out by English subjects, as the law is the birthright of every subject, so wherever they go they carry their laws