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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

1

with them."1 Lord Mansfield, however, it should be said, dis sented from this version of the report, though we know not what version of it he would have substituted for it.

It is not however probable, that a new settlement, formed of emigrants from the mother country, should desire to throw off allegiance to her, and so lose her protection. Independence is coveted when the colony has waxed powerful, and her interests are either opposed to those of the old country, or when the internal administration of the colony is unsatisfactory to its inhabitants. Nevertheless, it is well to investigate what is the constitutional right which is vested in the governing powers of the united kingdom to fix a rule over colonies. As to the constitutional right of the sovereign, independently of parliament, to rule despotically possessions acquired by conquest, the language employed in Calvin's case (Coke Rep.) would seem to sanction the doctrine in favour of absolutism. "If a king come to a kingdomi by conquest, he may at his pleasure alter and change the laws of that kingdom; but, until he doth make an alteration, the ancient laws of that kingdom remain." The leading cases of Campbell v. Hall, and Fabrigas v. Mostyn, which will be found minutely reported in all their stages in State Trials (vol. 20), contain the best comment on the above proposition. In the former, Lord Mansfield said, "a maxim of constitutional law with all the judges in Calvin's case, and two such men as Sir Philip Yorke and Sir Clement Wearg, I take it for granted, will acquire some authority even if there were any thing which otherwise made it doubtful; but on the contrary, no book, no saying of a judge, no, not even an opinion of any counsel, public or private, has been cited; no instance is to be found in any period of our history, when it even was questioned." It was not every thing, however, which Lord Mansfield found in Coke which he accepted as law; for, during the argument, the great authority was cited as having laid down, that "if the king make a conquest of a Christian country, their laws remain till he gives them others;

1 Hargrave's argument in Campbell v. Hall, 20 State Trials, p. 295.

but if he make a conquest of an Infidel country, they are presumed to have no laws; he may give them what law he pleases, but guided by natural justice and equity." Lord Mansfield, however, was shocked at this distinction, which he said was wholly groundless, and most deservedly exploded," and exclaimed to the counsel, "Don't quote the distinction, for the honour of Lord Coke."

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Nor was Lord Mansfield right in asserting that no authorities. had been cited; for a very eminent writer on jurisprudence, who has referred to the very point, was actually cited by Mr. Macdonald. "I take it," said this eminent counsel, "to be clear, that the sovereign of the state conquers not for himself personally, but for the state; and, according to this, I have a great authority which I shall beg leave to cite to your lordship. Vatel says, 'It is asked to whom the conquest belongs, the prince or state? The question ought never to have been asked. Whose are the arms; where the expense? If he conquered at his own, yet whose blood is shed?'" Three elaborate arguments were held on this case, and the judgment is in our opinion the least satisfactory part of it. In truth, the rational and constitutional idea of colonies and their relations to the state had not then been arrived at in England.

The weight of Lord Mansfield's authority, however, in the case of Campbell v. Hall, so far as the prerogative right of the Crown to legislate for, and tax, a conquered country, is concerned, must be considered to be in its favour. At the same time, we confess that we attach more value to the principles enunciated, and the arguments urged, by the very remarkable men engaged in the case, especially by those who represented the plaintiff. The learning which this case subsequently produced, particularly that to be found in the second dialogue, entitled "The Canadian Freeholder," has been much and justly praised in a constitutional point of view, and as being "replete with sound and perspicuous reasoning." The decision arrived at by the court was, that an export duty might be levied by the authority of the Crown in the island of Grenada (which was surrendered to General Monck

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