ANALYSIS OF CIVIL GOVERNMENT. PART I. CHAPTER I. EARLY SETTLEMENT OF AMERICA. §1. THE NORTH-AMERICAN COLONIES, over which the British Government maintained supremacy for more than a hundred years, were known as New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. Ever since the Declaration of Independence, they have been called States. § 2. They were settled chiefly by British subjects, except New York and Delaware; the former by emigrants from Holland, and the latter from Holland and Switzerland. § 3. The British claim to jurisdiction over these Colonies was founded on what Christian nations recognized as the right of discovery. Great Britain denied from the beginning the right of the Dutch to make settlements in America. That denial was based on the fact that John Cabot and his son Sebastian, British subjects, under commission from Henry the Seventh, sailed along the eastern coast of North America in 1497. The Cabots, however, made no attempt at settlement or conquest. § 4. At the time of its settlement, Delaware was an appendage to the government of New York; but it was afterwards separated from that Colony, and came under the jurisdiction of Pennsylvania. New York was early wrested from the Dutch by conquest, and brought under British authority. § 5. The only title which the nations of Europe had to any part of the American continent was founded on what they called the right of discovery. It is difficult to comprehend the justice of this pretense, when it is known that the country was already occupied by a race of men who had been in undisputed possession for untold ages. As between themselves, it might not be unjust or improper that the European nations should make discovery the foundation of title; but, as against the natives of the soil, discovery could not furnish the shadow of a claim. § 6. The right of discovery set up by the Europeans, substantially ignores the sacred rights of the original inhabitants of this country. Nativity must furnish a more valid title than discovery; and there is not a people on earth that would require any argument to convince them of this where their own rights were involved. Demonstrations of power are not always demonstrations of right. § 7. The Indians have always been treated as merely lawful occupants, having at most only a qualified right to the soil. The powerful nations of Europe, and our own government, have recognized them only as tenants-at-will, subject to removal at the pleasure of superior power. § 8. The learned Judge Story remarks in regard to the wrongs perpetrated on the red man, "They have not been permitted, indeed, to alienate their possessory right to the soil, except to the nations to whom they were thus bound by a qualified dependence: but, in other respects, they have been left to the free exercise of internal sovereignty in regard to the members of their own tribe, and in regard to the intercourse with other tribes; and their title to the soil, by way of occupancy, has been generally respected, until it has been extinguished by purchase, or by conquest, under the authority of the nation upon which they were dependent. $9. "A large portion of the territory in the United States to which the Indian title is now extinguished has been acquired by purchase; and a still larger portion by the irresistible power of arms, over a brave, hardy, but declining race, whose destiny seems to be to perish as fast as the white man advances upon his footsteps." CHAPTER II. ORIGIN OF LAND-TITLES IN THE UNITED STATES. § 1. WHEN our fathers conquered their independence, the States and United States succeeded to whatever title Great Britain previously had to the territory. § 2. The lapse of time, and general acquiescence, as well as the judicial and legislative authorities, have so established this source as the foundation of land-titles, that its validity can not now be successfully called in question. Whether just or unjust, it will probably remain for ever undisturbed. § 3. But these remarks are applicable to those lands only which were obtained through the revolutionary struggle with Great Britain, resulting in the achievement of our independence. Extensive additions have been made to the domain of this country by treaties with other powers; and, of course, the origin of land-titles is traceable within any such territory to the treaties through which the titles have been acquired. DATES OF THE SETTLEMENTS OF THE NORTH-AMERICAN COLONIES. These dates refer only to permanent settlements made under dis tinct organizations. 1 Originally called the Colony of Plymouth; but afterwards united with Massachusetts proper, which was settled in 1628. CHAPTER III. COMMON LAW IN THE COLONIES. § 1. WHEN territory is found uninhabited at the origin of new settlements therein, it is usual to adopt the laws of the nation from which the settlers have migrated, so far as they may be found applicable to the new condition of things. Although this country was occupied by a wild, uncultivated, and savage population, without law or government in any civilized sense, the colonists chose to consider themselves as settling an uninhabited territory. As a large proportion of the new settlers of these Colonies were from England, they would naturally lean to the jurisprudence of that country. § 2. It must be remembered, also, that the Colonics were nearly all settled under the patronage and favor of Great Britain. Those that were not, soon came under the jurisdiction of the British Crown. § 3. These are the principal circumstances that led to the adoption of the English common law among the North-American Colonies, and which constitutes to a great extent, at the present time, the system of jurisprudence in this country. CHAPTER IV. COLONIAL GOVERNMENTS. THE Colonial Governments may properly be divided into three classes: 1. PROVINCIAL, 2. PROPRIETARY, and 3. CHARTER. 1. Provincial Governments. § 1. The Provincial Governments were wholly under the control of the sovereign of Great Britain. They emanated from his authority, and had no fixed constitution of government. The king issued his commissions to the royal governors from time to time, accompanied with specific instructions which were to be obeyed. § 2. The governors were, under these governments, regarded as the representatives or deputies of the king. The king also appointed a council, having limited legislative authority, who were to assist the governor in the discharge of his official duties. Both governor and council held their offices during the royal pleasure. § 3. The governor had authority to convene a general assembly of the representatives of the freeholders and planters of the Province. The governor, council, and representatives constituted the Provincial Assembly. § 4. Provincial Assembly, constituted of, 1st. THE REPRESENTATIVÉS, — Lower House; 3d. THE GOVERNOR, having a veto on all the proceedings of the two houses, with power also to prorogue and dissolve them. These constituted the local law-making power, subject to the approval or disapproval of the Crown. § 5. The governor appointed the judges and magistrates. Under this form of government were included the Colonies of New Hampshire, New York, Virginia, North Carolina, South Carolina, Georgia. 2. Proprietary Governments. § 6. The meaning of the word proprietary is owner, or proprie tor. The proprietor, or proprietary, derived not only the title to the soil, but also the general powers of government, from the king. The powers of government extended over the whole territory so granted, which became a kind of dependent royalty. § 7. Under these governments, the governors were appointed by the proprietary or proprietaries. The legislature was convened and organized according to the will of the proprietary. He also had the appointment of officers of every grade. |
