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constitution for the Colony, distributing the powers of government into three great departments, legislative, executive, and judicial ; providing for the mode, in which these powers should be vested and exercised ; and securing to the inhabitants certain political privileges and rights. The appointment and authority of the Governor, the formation and structure of the Legislature, and the es. tablishment of courts of justice, were specially provided for; and generally the powers appropriate to each were defined. The only Charter Governments existing at the
'me of the American Revolution, were Massachusetts, cihode Island, and Connecticut.
§ 13. The Charter Governments differed from the Provincial, principally in this, that they were not immediately under the authority of the Crown, nor bound by any of its acts, which were inconsistent with their charters; whereas the Provincial Governments were entirely subjected to the authority of the Crown. They differed from the Proprietary Governments in this, that the latter were under the control and authority of the Proprietaries, as substitutes of the Crown, in all matters, not secured from such control and authority by the original grants; whereas, in the Charter Governments, the powers were parcelled out among the various departments of government, and permanent boundaries were assigned by the charter to each.
§ 14. Notwithstanding these differences in their original and actual political organization, the Colonies, at the time of the American Revolution, in most respects, enjoyed the same general rights and privileges. In all of them, there existed a Governor, a Council, and a Representative Assembly, composed of delegates chosen by the people, by whom the legislative and executive functions were exercised according to the particular organization of the Colony. In all of them, the legislative power extended to all local subjects, and was subject only to this restriction, that the laws should not be repugnant to, but, as far as conveniently might be, agreeable to, the laws and customs of England. In all of them, express provision was made, that all subjects, and their children, inhabiting in the
Colonies, should be deemed natural-born subjects, and should enjoy all the privileges and immunities thereof. In all of them, the common law of England, as far as it was applicable to their situation, was made the basis of their jurisprudence; and that law was asserted at all times by them to be their birthright and inheritance.
§ 15. It may be asked, how the common law of England came to be the fundamental law of all the Colonies. It may be answered in a few words, that, in all the Proprietary and Charter Governments, there was an express restriction,
that no laws should be made repugnant to those of England, but, as near as they might conveniently be, should be consonant and conformable thereto, and, either expressly or by necessary implication, it was provided, that the law of England, so far as it was applicable to the state of the Colonies, should be in force there. In the Provincial Governments the same provisions were incorporated into all the royal commissions. It may be added, that the common law of England was emphatically the law of a free nation, and secured the public and private rights and liberties of the subjects against the tyranny and oppression of the Crown. Many of these rights and liberties were proclaimed in Magna Charta, (as it is called,) that instrument containing a declara ion of rights by the peers and commons of England, wrung from King John, and his son, Henry III., by the pressure of stern necessity. But Magna Charta would itself have been but a dead letter, if it had not been sustained by the powerful influences of the common law, and the right of trial by jury. Accordingly, our ancestors at all times strenuously maintained, that the common law was their birthright, and (as we shall presently see) in the first revolutionary Continental Congress, in 1774, unanimously resolved, that the respective Colonies are entitled to the common law, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage according to the course of that law.
§ 16. Independently, however, of the special recognitions of the Crown, there is a great conservative principle in the common law of England, which would have
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insured to our ancestors the right to partake of its protection, its remedial justice, and its extensive blessings. It is a well-settled doctrine of that law, that, if an uninhabited country is discovered and planted by British subjects, the laws of England, so far as they are applicable, are there held immediately in force ; for, in all such cases, the subjects, wherever they go, carry those laws with them. This doctrine has been adopted, to save the subjects, in such desert places, from being left in a state of utter insecurity, from the want of all laws to govern them, and from being thus reduced to a mere state of nature. On the contrary, where new countries are obtained by cession or conquest, a different rule exists. The Crown has the sole and exclusive right to abrogate the existing laws, and to prescribe, what new laws shall prevail there ; although, until the pleasure of the Crown is made known, the former laws are deemed to remain in force. Attempts were made to hold the American Colonies to be in this latter predicament, that is, to be territories ceded by or conquered from the Indians. tension was always indignantly repelled ; and it was insisted, that the sole claim of England thereto being founded on the mere title of discovery, the colonists brought thither all the laws of the parent country, which were applicable to their situation.
§ 17. We may thus see, in a clear light, the manner, in which the common law was first introduced into the Colonies, and also be better enabled to understand the true nature and reason of the exceptions to it, which
are to be found in the laws and usages of the different Colɔnies. The general basis was the same in all the Colonies. But the entire system was not introduced into any one Colony, but only, such portions of it, as were adapted to its own wants, and were applicable to its own situation. Hence the common law can hardly be affirmed to have been exactly, in all respects, the same in all the Colonies. Each Colony selected for itself, and judged for itself, what was most consonant to its institutions, and best adapted to its civil and political arrangements ; and, while the main principles were every where the same, there
were endless minute usages and local peculiarities, in which they differed from each other.
§ 18. Thus limited and defined by the colonists themselves, in its actual application, the common law became the guardian of their civil and political rights ; it protected their infant liberties; it watched over their maturer growth ; it expanded with their wants ; it nourished in them that spirit of independence, which checked the first approaches of arbitrary power ; it enabled them to triumph in the midst of dangers and difficulties ; and by the good providence of God, we, their descendants, are now enjoying, under its bold and manly principles, the blessings of a free and enlightened administration of public justice.
§ 19. Having made these preliminary observations, we may now advance to the consideration of the political state of the Colonies at the time of the Revolution ; and trace its origin and causes. The natural inquiries here are ; What, at this period, were their admitted rights and prerogatives ? What were their civil and political relations with the parent country ? To what extent were they dependent upon the parent country? What were the limits of the sovereignty, which either Parliament, or the King, might rightfully exercise over them? These are questions of deep importance ; but they are more easily put, than answered. A full explanation of them is incompatible with the narrow limits prescribed to the present work; but a brief summary of some of the leading views may not be without use.
Origin of the Revolution.
$ 20. The Colonies, at the time of the Revolution, considered themselves, not as parcel of the realm of Great Britain, but as dependencies of the British Crown, and owing allegiance thereto, the King being their su
preme and sovereign lord. In virtue of this supremacy, the King exercised the right of hearing appeals from the decisions of the courts of the last resort in the Colonies ; of deciding controversies between the Colonies as to their respective jurisdictions and boundaries; and of requiring each Colony to conform to the fundamental laws and constitution of its own establishment, and to yield due obedience in all matters belonging to the paramount sovereignty of the Crown.
§ 21. Although the Colonies had a common origin and common right, and owed a common allegiance, and the inhabitants of all of them were British subjects, they ad no direct political connection with each other. Each colony was independent of the others; and there was no confederacy or alliance between them. The legislature of one could not make laws for another, nor confer privileges to be enjoyed in another. They were also excluded from all political connection with foreign nations ; and they followed the fate and fortunes of the parent country in peace and in war. Still the colonists were not wholly alien to each other.
On the contrary, they were fellow subjects, and, for many purposes, one people. Every colonist had a right to inhabit, if he pleased, in any other Colony ; to trade therewith ; and to inherit and hold lands there.
§ 22. The nature and extent of their dependency upon the parent country is not so easily stated; or, rather, it was left in more uncertainty ; the claims on either side not being always well defined, nor clearly acquiesced in. The Colonies claimed exclusive authority to legislate on all subjects of local and internal interest and policy. But they did not deny the right of Parliament to regulate their foreign commerce, and their other external concerns, or to legislate upon the common interests of the whole empire. On the other hand, the Crown claimed a right to ex ercise many of its prerogatives in the Colonies ; and the British Parliament, although it practically interfered little with their internal affairs, yet theoretically maintained the right to legislate over them in all cases whatsoever.
$ 23. As.soon as any systematic effort was made by