« ForrigeFortsett »
against the natives, who may always be supposed to be inclined to win their freedom by rebellion-interest and the instinct of selfpreservation equally impel him to sustain the sovereign power. At all events the government is simple. Despotism, and this under any form, is despotism, admits no conflicts of authority or jurisdiction, knows no rights but those it chooses to respect, and recognizes nothing in the subject but his obligation of obedience.
3. The distinction between the two cases is clear. In the former, when a country having no established laws is occupied by colonists, they bring with them in full vigor all the laws of their own country, so far as those laws are applicable to colonial circumstances. In the latter, where a country having legal institutions falls by conquest, all existing laws remain till they are changed or abrogated by the conqueror; and colonists or settlers in the subjagated country are equally with the natives under the supreme will of the subjugating power. Now, in the country occupied by the American colonies there were no laws for the government of civil. ized society, because among the Indian aborigines no civilized society existed. From the foundation, therefore, of the colonies, the laws of England were in force in every one of them, and with those laws the rights as well as duties of the subjects of the English crown.
The colonists of North America never lost sight of this. All the anomalies and inconveniences of an ill-regulated colonial system were powerless to alienate them from the English crown.
It was their pride that they were Englishmen; their ancient bonds and memories were all in England; but above all things else, their rights and liberties were of English growth, and it was as Englishmen they claimed to hold them. Some cause of dissatisfaction they might have and did have with the Government at home; but in this they suffered only with their fellow subjects from the crown during the troubled period of the Stuarts. It was not till later that their fellow subjects joined the crown in the oppression of the colonies by acts of Parliament, and during the period of trial the Americans could only look with sympathy upon the struggle between royalty and commons' rights, glorying in the triumph of the people, or lamenting the fanaticism which sometimes turned their triumph into cause for grief.
With these preliminary observations we may now proceed to give a sketch of the constitutional history of the thirteen colonies. As to their interior polity, the colonies were properly of three sorts :
1. Provincial establishments, in which the governor and council were appointed by the crown. In these the constitutions depended on the respective commissions and instructions issued by the crown to the governors; under the authority of which provincial assemblies, elected by the people, were constituted with the power of making laws and ordinances not repugnant to the laws of England. Such were the governments of VIRGINIA, New HAMPSHIRE, New York, GEORGIA, New JERSEY after 1702, and the CAROLINAS after 1728.
2. Proprietary governments, granted out to individuals, after the manner of feudatory principalities. In these the proprietary was practically governor of the province, the assembly being chosen by the people. Such were the governments of MARYLAND and PennSYLVANIA, and at first of New JERSEY and the CAROLINAS.
3. Charter governments, in which the governor, council, and assembly were chosen by the people. These had the power of local legislation, and such other rights and authorities as were specially given in their charters of incorporation. To this class belonged the governments of the PLYMOUTH COLONY, CONNECTICUT, RHODE ISLAND, and originally of MASSACHUSETTS.
4. In addition to these, a mixed form of government was adopted in MASSACHUSETTS, in which the governor only was appointed by the crown, the council and assembly being both elected by the people.
VIRGINIA.—The first permanent settlement made in America, under the auspices of England, was under a charter to Sir Thomas Gates and his associates, by James I., in 1606, which granted to them the territories in America then commonly called Virginia. The associates were divided into two companies. By degrees, the name of Virginia was confined to the first or south colony. The
second assumed the name of the Plymouth Company, and New England was founded under their auspices.
By the tenor of their charter all persons, being English subjects and inhabiting in the colonies, and their children born therein, were declared to have and possess all liberties, franchises, and immunities, within
any other of the dominions of the crown, to all intents and purposes, as if they had been abiding and born within the realm of England, or any other dominions of the crown. The patentees were to hold the lands, &c., in the colony, of the king, his heirs and successors, as of the manor of East Greenwich in the county of Kent, in free and common soccage only, and not in capite ; and were authorized to grant the same to the inhabitants of the colonies in such manner and form, and for such estates, as the council of the colony should direct.
Each colony was to be governed by a local council, appointed and removable at the pleasure of the crown, according to the royal instructions and ordinances from time to time promulgated. These councils were to be under the superior management and direction of another council sitting in England. A power was given to expel all intruders, and to lay a limited duty upon all persons trafficking with the colony; but a prohibition was imposed upon all the colonists against trafficking with foreign countries under the pretence of a trade from the mother country to the colonies.
The settlements in Virginia were earliest in point of date, and were fast advancing under a policy which subdivided the property among the settlers, instead of retaining it in common, and thus give vigor to private enterprise. As the colony increased, the spirit of its members assumed more and more the tone of independence; and they grew restless and impatient for the privileges enjoyed under the government of their native country. To quiet this uneasiness, Sir George Yeardley, then the governor of the colony, in 1619 called a general assembly, composed of representatives from the various plantations in the colony, and permitted them to assume and exercise the high functions of legislation. Thus was formed and established the first representative legislature that ever sat in America. And this example of a domestic parliament, to regulate all the internal concerns of the country, was never lost sight of, but was ever afterwards cherished, throughout America, as the dearest birthright of freemen. So acceptable was it to the people, and so indispensable to the real prosperity of the colony, that the council in England were compelled, in 1621, to issue an ordinance, which gave it a complete and permanent sanction. In imitation of the constitution of the British Parliament, the legislative power was lodged-partly in the governor, who held the place of the sovereign ; partly in a council of state named by the company; and partly in an assembly composed of representatives freely chosen by the people. Each branch of the legislature might decide by a majority of voices, and a negative was reserved to the governor. But no law was to be in force, though approved by all · three of the branches of the legislature, until it was ratified by a general court of the company, and returned under its seal to the colony. The ordinance further required the general assembly, as also the council of state, “ to imitate and follow the policy of the form of government, laws, customs, and manner of trial and other administrations of justice, used in the realm of England, as near as may be."
Charles I. chose to regard and govern his American possessions as conquered territories. He declared the colony to be a part of the empire annexed to the crown, and immediately subordinate to its jurisdiction. During the greater part of his reign, Virginia knew no other law than the will of the sovereign or his delegated agents; and statutes were passed, and taxes imposed, without the slightest effort to convene a colonial assembly. It was not until the murmurs and complaints, which such a course of conduct was calculated to produce, had betrayed the inhabitants into acts of open resistance to the governor, and into a firm demand of redress from the crown against his oppressions, that the king was brought to more considerate measures. He did not at once yield to their discontents; but pressed as he was by severe embarrassments at home, he was content to adopt a policy which would conciliate the colony, and remove some of its just complaints. He accordingly, soon afterwards, appointed Sir William Berkeley governor, with powers and instructions which breathed a far more benign spirit. He was authorized to proclaim that, in all its concerns, civil as
well as ecclesiastical, the colony should be governed according to the laws of England. He was directed to issue writs for electing representatives of the people, who, with the governor and council, should form a general assembly clothed with supreme legislative authority; and to establish courts of justice, whose proceedings should be guided by the forms of the parent country. The rights of Englishmen were thus secured to the colonists.
The laws of Virginia, during its colonial state, do not exhibit as many marked deviations, in the general structure of its institutions and civil polity, from those of the parent country, as those in the northern colonies. The common law was recognized as the general basis of its jurisprudence ; and the legislature, with some appearance of boast, stated, soon after the restoration of Charles II., that they had “ endeavored, in all things, as near as the capacity and constitution of this country would admit, to adhere to those excellent and often refined laws of England, to which we profess and acknowledge all due obedience and reverence." The prevalence of the common law was also expressly provided for in all the charters successively granted, as well as by the royal declaration when the colony was annexed as a dependency to the crown. Indeed, there is no reason to suppose that the common law was not, in its leading features, very acceptable to the colonists; and in its general policy the colony closely followed in the steps of the mother country. The trial by jury, although a privilege resulting from their general rights, was guarded by special legislation. There was also an early declaration that no taxes could be levied by the governor without the consent of the general assembly; and when raised, they were to be applied according to the appointment of the legislature. The burgesses also, during their attendance upon the assembly, were free from arrest. In respect to domestic trade, a general freedom was guaranteed to all the inhabitants to buy and sell to the greatest advantage, and all engrossing was prohibited. The culture of tobacco seems to have been a constant object of solicitude; and it was encouraged by a long succession of acts sufficiently evincing the public feeling, and the vast importance of it to the prosperity of the colony. We learn from Sir William Berkeley's answers to the lord commissioners, in 1671, that the population