chapter 17: general review of the colonies
§ 159. IN respect to their interior polity, the colonies have been very properly divided by Mr. Justice Blackstone into three sorts; viz. Provincial, Proprietary, and Charter Governments. First, Provincial Establishments. The constitutions of these depended on the respective commissions issued by the crown to the governors, and the instructions, which usually accompanied those commissions. 1 These commissions were usually in one form, 2 appointing a governor, as the king's representative or deputy, who was to be governed by the royal instructions, and styling him Captain General and Governor in Chief over the Province, and Chancellor, ViceAdmiral, and Ordinary of the same. The crown also appointed a council, who, besides their legislative authority, were to assist the governor in the discharge of his official duties; and power was given him to suspend them from office, and, in case of vacancies, to appoint others, until the pleasure of the crown should be known. The commissions also contained authority to convene a general assembly of representatives of the freeholders and planters; 3 and under this authority provincial assem-
blies, composed of the governor, the council, and the representatives, were constituted; (the council being a separate branch or upper house, and the governor having a negative upon all their proceedings, and also the right of proroguing and dissolving them;) which assemblies had the power of making local laws and ordinances, not repugnant to the laws of England, but as near as may be agreeable thereto, subject to the ratification and disapproval of the crown. The governors also had power, with advice of council, to establish courts, and to appoint judges and other magistrates, and officers for the province; to pardon offences, and to remit fines and forfeitures; to collate to churches and benefices; to levy military forces for defence; and to execute martial law in time of invasion, war, and rebellion. 4 Appeals lay to the king in council from the decisions of the highest courts of judicature of the province, as indeed they did from all others of the colonies. Under this form of government the provinces of New-Hampshire, New-York, New-Jersey, Virginia, the Carolinas, and Georgia, were governed (as we have seen) for a long period, and some of them from an early period after their settlement. 5
§ 160. Secondly, Proprietary Governments. These (as we have seen) were granted out by the crown to individuals, in the nature of feudatory principalities, with all the inferior royalties, and subordinate powers of legislation, which formerly belonged to the owners of counties palatine. 6 Yet still there were these express conditions, that the ends, for which the grant was made, should be substantially pursued; and that nothing
should be done or attempted, which might derogate from the sovereignty of the mother country. In the proprietary government the governors were appointed by the proprietaries, and legislative assemblies were assembled under their authority; and indeed all the usual prerogatives were exercised, which in provincial governments belonged to the crown. 7 Three only existed at the period of the American Revolution; viz. the proprietary governments of Maryland, Pennsylvania, and Delaware. 8 The former had this peculiarity in its charter, that its laws were not subject to the supervision and control of the crown; whereas in both the latter such a supervision and control were expressly or impliedly provided for. 9
§ 161. Thirdly, Charter Governments. Mr. Justice Blackstone describes them, (1 Comm. 108,) as "in the nature of civil corporations with the power of making by-laws for their own internal regulation, not contrary to the laws of England; and with such rights and authorities as are specially given them in their several charters of incorporation. They have a governor named by the king, (or, in some proprietary colonies, by the proprietor,) who is his representative or deputy. They have courts of justice of their own, from whose decisions an appeal lies to the king and council here in England. Their general assemblies, which are their house of commons, together with their council of state, being their upper house, with the concurrence of the king, or his representative the governor, make laws suited to their own emergencies." This is by no means a just or accurate description of the charter governments.
They could not be justly considered, as mere civil corporations of the realm, empowered to pass by-laws; but rather as great political establishments or colonies, possessing the general powers of government, and rights of sovereignty, dependent, indeed, and subject to the realm of England; but still possessing within their own territorial limits the general powers of legislation and taxation. 10 The only charter governments existing at the period of the American Revolution were those of Massachusetts, Rhode-Island, and Connecticut. The first charter of Massachusetts might be open to the objection, that it provided only for a civil corporation within the realm, and did not justify the assumption of the extensive executive, legislative, and judicial powers, which were afterwards exercised upon the removal of that charter to America. And a similar objection might be urged against the charter of the Plymouth colony. But the charter of William and Mary, in 1691, was obviously upon a broader foundation, and was in the strictest sense a charter for general political government, a constitution for a state, with sovereign powers and prerogatives, and not for a mere municipality. By this last charter the organization of the different departments of the government was, in some respects, similar to that in the provincial governments; the governor was appointed by the crown; the council annually chosen by the General Assembly; and the House of Representatives by the people. But in Connecticut and RhodeIsland the charter governments were organized altogether upon popular and democratical principles; the
governor, council, and assembly being annually chosen by the freemen of the colony, and all other officers appointed by their authority. 11 By the statutes of 7 & 8 William 3, (ch. 22, § 6,) it was indeed required, that all governors appointed in charter and proprietary governments should be approved of by the crown, before entering upon the duties of their office; but this statute was, if at all, ill observed, and seems to have produced no essential change in the colonial policy. 12
§ 162. The circumstances, in which the colonies were generally agreed, notwithstanding the diversities of their organization into provincial, proprietary, and charter governments, were the following.
§ 163. (1.) They enjoyed the rights and privileges of British born subjects; and the benefit of the common laws of England; and all their laws were required to be not repugnant unto, but, as near as might be, agreeable to the laws and statutes of England. 13 This, as we have seen, was a limitation upon the legislative power contained in an express clause of all the charters; and could not be transcended without a clear breach of their fundamental conditions. A very liberal exposition of this clause seems, however, always to have prevailed, and to have been acquiesced in, if not adopted by the crown. Practically speaking, it seems to have been left to the judicial tribunals in the colonies to ascertain, what part of the common law was applicable to the situation of the colonies; 14 and of course, from a dif-
ference of interpretation, the common laws actually administered, was not in any two of the colonies exactly the same. The general foundation of the local jurisprudence was confessedly composed of the same materials; but in the actual superstructure they were variously combined, and modified, so as to present neither a general symmetry of design, nor an unity of execution.
§ 164. In regard to the legislative power, there was a still greater latitude allowed; for notwithstanding the cautious reference in the charters to the laws of England, the assemblies actually exercised the authority to abrogate every part of the common law, except that, which united the colonies to the parent state by the general ties of allegiance and dependency; and every part of the statute law, except those acts of Parliament, which expressly prescribed rules for the colonies, and necessarily bound them, as integral parts of the empire, in a general system, formed for all, and for the interest of all. 15 To guard this superintending authority with more effect, it was enacted by Parliament in 7 & 8 William 3, ch. 22, "that all laws, by-laws, usages, and customs, which should be in practice in any of the plantations, repugnant to any law made, or to be made in this kingdom relative to the said plantations, shall be utterly void and of none effect." 16
§ 165. It was under the consciousness of the full possession of the rights, liberties, and immunities of British subjects, that the colonists in almost all the early legislation of their respective assemblies insisted upon a
declaratory act, acknowledging and confirming them. 17 And for the most part they thus succeeded in obtaining a real and effective magna charta of their liberties. The trial by jury in all cases, civil and criminal, was as firmly, and as universally established in the colonies, as in the mother country.
§ 166. (2.) In all the colonies local legislatures were established, one branch of which consisted of representatives of the people freely chosen, to represent and defend their interests, and possessing a negative upon all laws. 18 We have seen, that in the original structure of the charters of the early colonies, no provision was made for such a legislative body. But accustomed as the colonists had been to possess the rights and privileges of Englishmen, and valuing as they did, above all others, the right of representation in Parliament, as the only real security for their political and civil liberties, it was easy to foresee, that they would not long endure the exercise of any arbitrary power; and that they would insist upon some share in framing the laws, by which they were to be governed. We find accordingly, that at an early period  a house of burgesses was forced upon the then proprietors of Virginia. 19 In Massachusetts, Connecticut, New-Hampshire, and RhodeIsland, the same course was pursued. 20 And Mr. Hutchinson has correctly observed, that all the colonies before the reign of Charles the Second, (Maryland alone excepted, whose charter contained an express provision on the subject,) settled a model of government for themselves, in which the people had a voice, and represen-
tation in framing the laws and in assenting to burthens to be imposed upon themselves. After the restoration, there was no instance of a colony without a representation of the people, nor any attempt to deprive the colonies of this privilege, except during the brief and arbitrary reign of King James the Second. 21
§ 167. In the proprietary and charter governments, the right of the people to be governed by laws established by a local legislature, in which they were represented, was recognised as a fundamental principle of the compact. But in the provincial governments it was often a matter of debate, whether the people had a right to be represented in the legislature, or whether it was a privilege enjoyed by the favour and during the pleasure of the crown. The former was the doctrine of the colonists; the latter was maintained by the crown and its legal advisers. Struggles took place from time to time on this subject in some of the provincial assemblies; and declarations of rights were there drawn up, and rejected by the crown, as an invasion of its prerogative. 22 The crown also claimed, as within its exclusive competence, the right to decide, what number of representatives should be chosen, and from what places they should come. 23 The provincial assemblies insisted upon an adverse claim. The crown also insisted on the right to continue the legislative assembly for an indefinite period, at its pleasure, without a new election; and to dissolve it in like manner. The latter power was admitted; but the former was most stoutly resisted, as in effect a destruction of the popular right of representation, frequent elections being deemed vital to their political safety;--" a right," (as the declaration of independence emphatically pronounces,) " inestimable to them, and formidable to tyrants only." 24 In the colony of New-York the crown succeeded at last 4 in establishing septennial assemblies, in imitation of the
septennial parliaments of the parent country, which was a measure so offensive to the people, that it constituted one of their grievances propounded at the commencement of the American Revolution. 26
§168. For all the purposes of domestic and internal regulation, the colonial legislatures deemed themselves possessed of entire and exclusive authority. One of the earliest forms, in which the spirit of the people exhibited itself on this subject, was the constant denial of all power of taxation, except under laws passed by themselves. The propriety of their resistance of the claim of the Crown to tax them seems not to have been denied by the most strenuous of their opponents. 27 It was the object of the latter to subject them only to the undefined and arbitrary power of taxation by Parliament. The colonists with a firmness and public' spirit, which strike us with surprise and admiration, claimed for themselves, and their posterity, a total exemption from all taxation not imposed by their own representatives. A declaration to this effect will be round in some of the earliest of colonial legislation; in that of Plymouth, of Massachusetts, of Virginia, of Maryland, of Rhode-Island, of New-York, and indeed of most of the other colonies. 28 The general opinion held by them was, that parliament had no authority to tax them, because they were not represented in parliament. 29
§ 169. On the other hand, the statute of 6 Geo. 3, ch. 12, contained an express declaration by parliament, that
"the colonies and plantations in America have been, are, and of right ought to be subordinate unto and dependent upon the imperial crown and parliament of Great Britain," and that the king with the advice and consent of parliament, "had, hath, and of right ought to have full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America in all cases whatsoever." 30
§ 170. It does not appear, that this declaratory act of 6 Geo. 3, met with any general opposition among those statesmen in England, who were most friendly to America. Lord Chatham, in a speech on the 17th of December, 1765, said, "I assert the authority of this country over the colonies to be sovereign and supreme in every circumstance of government and legislation. But, (he added,) taxation is no part of the governing or legislative power--taxes are the voluntary grant of the people alone." 31 Mr. Burke, who may justly be deemed the leader of the colonial advocates, maintain-
ed the supremacy of parliament to the full extent of the declaratory act, and as justly including the power of taxation. 32 But he deemed the power of taxation in
parliament as an instrument of empire, and not as a means of supply; and therefore, that it should be resorted to only in extreme cases for the former pur-
pose. With a view to conciliation, another act was passed at a late period, (in 18 Geo. 3, ch. 12,) which declared, that parliament would not impose any duty
or tax on the colonies, except for the regulation of commerce; and that the net produce of such duty, or tax, should be applied to the use of the colony, in which it
was levied. But it failed of its object. The spirit of resistance had then become stubborn and uncontrollable. The colonists were awake to a full sense of all their rights; and habit had made them firm, and common sufferings had made them acute, as well as indignant in the vindication of their privileges. And thus the struggle was maintained on each side with unabated zeal, until the American Revolution. The Declaration of Independence embodied in a permanent form a denial of such parliamentary authority, treating it as a gross and unconstitutional usurpation.
§ 171. The colonial legislatures, with the restrictions necessarily arising from their dependency on Great Britain, were sovereign within the limits of their respective territories. But there was this difference among them, that in Maryland, Connecticut, and Rhode-Island, the laws were not required to be sent to the king for his approval; whereas, in all the other colonies, the king possessed a power of abrogating them, and they were not final in their authority until they had passed under his review. 33 In respect to the mode of enacting laws, there were some dif-
ferences in the organization of the colonial governments. 34 In Connecticut and Rhode-Island the governor had no negative upon the laws; in Pennsylvania the council had no negative, but was merely advisory to the executive; in Massachusetts, the council was chosen by the legislature, and not by the crown; but the governor had a negative on the choice.
§ 172. (3.) In all the colonies, the lands within their limits were by the very terms of their original grants and charters to be holden of the crown in free and common soccage, and not in capite or by knights service. They were all holden either, as of the manor of East Greenwich in Kent, or of the manor of Hampton Court in Middlesex, or of the castle of Windsor in Berkshire. 35 All the slavish and military part of the ancient feudal tenures were thus effectually prevented from taking root in the American soil; and the colonists escaped from the oppressive burdens, which for a long time affected the parent country, and were not abolished until after the restoration of Charles the Second. 36 Our tenures thus acquired a universal simplicity; and it is believed, that none but freehold tenures in soccage ever were in use among us. No traces are to be found of copy hold, or gavel kind, or burgage tenures. In short, for most purposes, our lands may be deemed to be perfectly allodial, or held of no superior at all; though many of the distinctions of the feudal law have necessarily insinuated themselves into the modes of acquiring, transferring, and transmitting real estates. One of the most remarkable circumstances in our colonial history is the almost
total absence of leasehold estates. The erection of manors with all their attendant privileges, was, indeed, provided for in several of the charters. But it was so little congenial with the feelings, the wants, or the interests of the people, that after their erection they gradually fell into desuetude; and the few remaining in our day are but shadows of the past, the relics of faded grandeur in the last steps of decay, enjoying no privileges, and conferring no power.
§ 173. In fact, partly from the cheapness of land, and partly from an innate love of independence, few agricultural estates in the whole country have at any time been held on lease for a stipulated rent. The tenants and occupiers are almost universally the proprietors of the soil in fee simple. The few estates of a more limited duration are principally those arising from the acts of the law, such as estates in dower, and in curtesy. Strictly speaking, therefore, there has never been in this country a dependent peasantry. The yeomanry are absolute owners of the soil, on which they tread; and their character has from this circumstance been marked by a more jealous watchfulness of their rights, and by a more steady spirit of resistance against every encroachment, than can be found among any other people, whose habits and pursuits are less homogeneous and independent, less influenced by personal choice, and more controlled by political circumstances.
§ 174. (4.) Connected with this state of things, and, indeed, as a natural consequence flowing from it, is the simplicity of the system of conveyances, by which the titles to estates are passed, and the notoriety of the transfers made. From a very early period of their settlement the colonies adopted an
almost uniform mode of conveyance of land, at once simple and practicable and safe. The differences are so slight, that they became almost evanescent. All lands were conveyed by a deed, commonly in the form of a feoffment, or a bargain and sale, or a lease and release, attested by one or more witnesses, acknowledged or proved before some court or magistrate, and then registered in some public registry. When so executed, acknowledged, and recorded, they had full effect to convey the estate without any livery of seisin, or any other act or ceremony whatsoever. This mode of conveyance prevailed, if not in all, in nearly all the colonies from a very early period; and it has now become absolutely universal. It is hardly possible to measure the beneficial influences upon our titles arising from this source, in point of security, facility of transfer, and marketable value.
§ 175. (5.) All the colonies 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 supreme and sovereign lord. 37 In virtue of its general superintendency the crown constantly claimed, and exercised the right of entertaining appeals from the courts of the last resort in the colonies; and these appeals were heard and finally adjudged by the king in council. 38 This right of appeal was secured by express reservation in most of the colonial charters. It was expressly provided for by an early provincial law in New-Hampshire, when the matter in difference exceeded the true value or sum of 300 sterling. So, a like colonial law of Rhode-Island was enacted by its
local legislature in 1719. 39 It was treated by the crown, as an inherent right of the subject, independent of any such reservation. 40 And so in divers cases it was held by the courts of England. The reasons given for the opinion, that writs of error [and appeals] lie to all the dominions belonging to England upon the ultimate Judgments given there, are, (1.) That, otherwise, the law appointed, or permitted to such inferior dominion might be considerably, changed without the assent of the superior dominion; (2.) Judgments might be given to the disadvantage or lessening of the superiority, or to make the superiority of the king only, and not-of the crown of England; and(3.) That the practice has been accordingly. 41
§ 176. Notwithstanding the clearness, with which this appellate jurisdiction was asserted, and upheld by the principles of the common law, the exercise of it was not generally assumed until about 1680; and it was not then conceded, as a matter of right in all the colonies. 42 On the contrary, Massachusetts resisted it under her first charter; (the right of appeal was expressly reserved in that of 1691;) and Rhode-Island and Connecticut at first denied it, as inconsistent with, or rather as not provided for in theirs. 43 Rhode Island soon
afterwards surrendered her opposition. 44 But Connecticut continued it to a later period. 45 In a practical sense, however, the appellate jurisdiction of the king in council was in full and undisturbed exercise throughout the colonies at the time of the American Revolution; and was deemed rather a protection, than a grievance. 46
§ 177. (6.) Though the colonies had a common origin, and owed a common allegiance, and the inhabitants of each were British subjects, they had no direct political connexion with each other. Each was independent of all the others; each, in a limited sense, was sovereign within its own territory. There was neither alliance nor confederacy between them. The assembly of one province could not make laws for another; nor confer privileges, which were to be enjoyed or exercised in another, farther than they could be in any independent foreign state. As colonies, they were also excluded from all connexions with foreign states. They were known only as dependencies; and they followed the fate of the parent country both in peace and war, without having assigned to them, in the intercourse or diplomacy of nations, any distinct or independent existence. 47
They did not possess the power of forming any league or treaty among themselves, which should acquire an obligatory force without the assent of the parent state. And though their mutual wants and necessities often induced them to associate for common purposes of defence, these confederacies were of a casual andtemporary nature, and were allowed as an indulgence, rather than as a right. They made several efforts to procure the establishment of some general superintending government over them all; but their own differences of opinion, as well as the jealousy of the crown, made these efforts abortive. 48 These efforts, however, prepared their minds for the gradual reconciliation of their local interests, and for the gradual development of the principles, upon which a union ought to rest, rather than brought on an immediate sense Or the necessity, or the blessings of such a general government.
§ 178. But although the colonies were independent of each other in respect to their domestic concerns, they 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; and as a British subject, he was capable of inheriting lands by descent in every other colony. The commercial intercourse of the colonies, too, was regulated by the general laws of the British empire; and could not be restrained, or obstructed by colonial legislation. The remarks of Mr. Chief Justice Jay on this subject are equally just and striking. " All the people of this country were then subjects of the king of Great Britain, and owed allegiance to him; and all
the civil authority then existing, or exercised here, flowed from the head of the British empire. They were, in a strict sense, fellow subjects, and in a variety of respects one people. When the Revolution commenced, the patriots did not assert, that only the same affinity and social connexion subsisted between the people of the colonies, which subsisted between the people of Gaul, Britain, and Spain, while Roman provinces, to wit, only that affinity and social connexion, which result from the mere circumstance of being governed by the same prince." Different ideas prevailed, and gave occasion to the Congress of 1774 and 1775. 51
§ 179. Having considered some of the particulars, in which the political organization, and public rights, and juridical policy of the colonies were nearly similar, it remains to notice a few, in which there were important differences.
(1.) As to the course of descents and distribution of intestate estates. And, here, the policy of different colonies was in a great measure determined by the nature of their original governments and local positions. All the southern colonies, including Virginia, adhered to the course of descents at the common law (as we have had occasion to see) down to the American Revolution. As a natural consequence, real property was in these colonies generally held in large masses by the families of ancient proprietors; the younger branches were in a great measure dependent upon the eldest; and the latter assumed, and supported somewhat of the pre-eminence, which belonged to baronial possessions in the parent country. Virginia was so tenacious of entails, that she would not even endure the barring of them by the common means of fines and recoveries. New-York
and New-Jersey silently adhered to the English rule of descents under the government of the crown, as royal provinces. On the other hand, all New-England, with the exception of Rhode Island, from a very early period of their settlements adopted the rule of dividing the inheritance equally among all the children, and other next of kin, giving a double share to the eldest son. Maryland, after 1715, and Pennsylvania almost from its settlement, in like manner distributed the inheritance among all the children and other next of kin. NewHampshire, although a royal province, steadily clung to the system of Massachusetts, which she had received, when she formed an integral part of the latter. But Rhode-Island retained (as we have already seen) its attachment to the common law rule of descents down almost to the era of the American Revolution. 52
§ 180. In all the colonies, were the rule of partible inheritance prevailed, estates were soon parcelled out into moderate plantations and farms; and the general equality of property introduced habits of industry and economy, the effects of which are still visible in their local customs, institutions, and public policy. The philosophical mind can scarcely fail to trace the intimate connexion, which naturally subsists between the general equality of the apportionment of property among the mass of a nation, and the popular form of its government. The former can scarcely fail, first or last, to introduce the substance of a republic into the actual administration of the government, though its forms do not bear such an external impress. Our revolutionary statesmen were not insensible to this silent but potent influence; and the fact, that at the present time the law of divisible inher-
itances pervades the Union, is a strong proof Or the general sense, not merely of its equity, but of its political importance.
§ 181. A very curious question was at one time1 agitated before the king in council, upon an appeal from Connecticut, how far the statute Or descents and distributions, dividing the estate among all the children, was conformable to the charter Or that colony, which required the laws to be "not contrary to the laws of the realm of England." It was upon that occasion decided, that the law of descents, giving the female, as well as the male heirs, a part of the real estate, was repugnant to the charter, and therefore void. This determination created great alarm, not only in Connecticut, but elsewhere; since it might cut deep into the legislation of the other colonies, and disturb the foundation of many titles. The decree of the council, annulling the law, was upon the urgent application of some of the colonial agents revoked, and the law reinstated with its obligatory force. 54 At a still later period the same question seems to have been presented in a somewhat different shape for the consideration of the law officers of the crown; and it may now be gathered as the rule of construction, that even in a colony, to which the benefit of the laws of England is expressly extended, the law of descents of England is not to be deemed, as necessarily in force there, if it is inapplicable to their situation; or at least, that a change of it is not beyond the general competency of the colonial legislature. 55
§182. (2.) Connected with this, we may notice the strong tendency of the colonies to make lands liable to
the payment of debts. In some of them, indeed, the English rule prevailed of making lands liable only to an extent upon an elegit. But in by far the greatest number, lands were liable to be set off upon appraisement, or sold for the payment of debts. And lands were also assets, in cases of a deficiency of personal property, to be applied in the course of administration to discharge the debts of the party deceased. This was a natural result of the condition of the people in a new country, who possessed little monied capital; whose wants were numerous; and whose desire of credit was correspondently great. The true policy in such a state of things was to make land, in some degree, a substitute for money, by giving it all the facilities of transfer, and all the prompt applicability of personal property. It will be found, that the growth of the respective colonies was in no small degree affected by this circumstance. Complaints were made, and perhaps justly, that undue priorities in payment of debts were given to the inhabitants of the colony over all other creditors; and that occasional obstructions were thrown in the way of collecting debts. 56 But the evil was not general in its operation; and the policy, wherever it was pursued, retarded the growth, and stinted the means of the settlements. For the purpose, however, of giving greater security to creditors, as well as for a more easy recovery of debts due in the plantations and colonies in America, the statute of 5 George 2, ch. 7, [1732,] among other things declared, that all houses, lands, negroes, and other hereditaments and real estates in the plantations should be liable to, and chargeable with the debts of the proprietor, and be assets for the satisfaction
thereof, in like manner as real estates are by the law of England liable, to the satisfaction of debts due by bond or other specialty, and shall be subject to like remedies in courts of law and equity, for seizing, extending, selling, and disposing of the same, towards satisfaction of such debts, in like manner as personal estates in any of such plantations are seized, extended, sold, or disposed of, for satisfaction of debts. This act does not seem to have been resisted on the part of any of the colonies, to whom it peculiarly applied. 57
§ 183. In respect to the political relations of the colonies with the parent country, it is not easy to state the exact limits of the dependency, which was admitted, and the extent of sovereignty, which might be lawfully exercised over them, either by the crown, or by parliament. In regard to the crown, all of the colonies admitted, that they owed allegiance to the crown, as their sovereign liege lord, though the nature of the powers, which he might exercise, as sovereign, were still undefined. 58
§ 184. In the silence of express declarations we may resort to the doctrines maintained by the crownwriters, as furnishing, if not an exact, at least a comprehensive view of the claims of the royal prerogative over the colonial establishments. They considered it not necessary to maintain, that all the royal prerogatives, exercisable in England, were of course exercisable in the colonies; but only such fundamental rights and principles, as constituted the basis of the throne and its authority, and without which the king would cease to be sovereign in all his dominions. Hence the attributes
of sovereignty, perfection, perpetuity, and irresponsibility, which were inherent in the political capacity of the king, belonged to him in all the territories subject to the crown, whatever was the nature of their laws, and government in other respects. Every where he was the head of the church, and the fountain of justice; every where he was entitled to a share in the legislation, (except where he had expressly renounced it;) every where he was generalissimo of all forces, and entitled to make peace or war. But minor prerogatives might be yielded, where they were inconsistent with the laws or usages of the place, or were inapplicable to the condition of the people. In every question, that respected the royal prerogatives in the colonies, where they were not of a strictly fundamental nature, the first thing to be considered was, whether the charter of the particular colony contained any express provision on the subject. If it did, that was the guide. If it was silent, then the royal prerogatives were in the colony precisely the same, as in the parent country; for in such cases the common law of England was the common law of the colonies for such purposes. Hence, if the colonial charter contained no peculiar grant to the contrary, the king might erect courts of justice and exchequer therein; and the colonial judicatories, in point of law, were deemed to emanate from the crown, under the modifications made by the colonial assemblies under their charters. The king also might extend the privilege of sending representatives to new towns in the colonial assemblies. He might control, and enter a nolle prosequi in criminal prosecutions, and pardon crimes, and release forfeitures. He might present to vacant benefices; and he was entitled to royal monies, treasuretrove, escheats, and forfeitures. No colonial assemblies
had a right to enact laws, except with the assent of the; crown by charter, or commission, or otherwise; and if they exceeded the authority prescribed by the crown, their acts were void. The king might alter the constitution and form of the government of the colony, where there was no charter, or other confirmatory act by the colonial assembly with the assent of the crown; and it rested merely on the instructions and commissions given, from time to time, by the crown to its governors. The king had power also to vest in the royal governors in the colonies, from time to time, such of his prerogatives, as he should please; such as the power to prorogue, adjourn, and dissolve the colonial assemblies; to confirm acts and laws; to pardon offences; to act as captain general of the public forces; to appoint public officers; to act as chancellor and supreme ordinary; to sit in the highest court of appeals and errors; to exercise the duties of vice-admiral, and to grant commissions to privateers. These last, and some other of the prerogatives of the king, were commonly exercised by the royal governors without objection.
§ 185. The colonial assemblies were not considered as standing on the same footing, as parliament, in respect lo rights, powers, and privileges; but as deriving all their energies from the crown, and limited by the respective charters, or other confirmatory acts of the crown, in all their proceedings. The king might, in respect to a colonial assembly, assent to an act of assembly, before it met, or ratify it, or dissent from it, after the session was closed. He might accept a surrender of a colonial charter, subject to the rights of third persons previously acquired; and give the colony a new charter or otherwise institute therein anew form of government. And it has been even contended, that the
king might, in cases of extraordinary necessity or emergency, take away a charter, where the defence or protection of the inhabitants required it, leaving them in possession of their civil rights.
§186. Such are some of the royal prerogatives, which were supposed to exist by the crown writers in the colonial establishments, when not restrained by any positive charter or bill of rights. Of these, many were undisputed; but others were resisted with pertinacity and effect in the colonial assemblies. 59
§187. In regard to the authority of parliament to enact laws, which should be binding upon them, there was quite as much obscurity, and still more jealousy spreading over the whole subject. 60 The government of Great Britain always maintained the doctrine, that the parliament had authority to bind the colonies in all cases whatsoever. 61 No acts of parliament, however, were understood to bind the colonies, unless expressly named therein. 62 But in America, at different times and in different colonies, different opinions were entertained on the subject. 63 In fact, it seemed to be the policy of the colonies, as much as possible, to withdraw them-
selves from any acknowledgment of such authority, except so far as their necessities, from time to time, compelled them to acquiesce in the parliamentary measures expressly extending to them. We have already seen, that they resisted the imposition of taxes upon them, without the consent of their local legislatures, from a very early period. 64
§ 188. But it was by no means an uncommon opinion in some of the colonies, especially in the proprietary and charter governments, that no act of parliament whatsoever could bind them without their own consent. 65 An extreme reluctance was shown by Massachusetts to any parliamentary interference as early as 1640; 66 and the famous navigation acts of 1651 and 1660 were perpetually evaded, even when their authority was no longer denied, throughout the whole of New-England. 67 Massachusetts, in 1679, in an address to the crown, declared, that she "apprehended them to be an invasion of the rights, liberties, and properties of the subjects of his majesty in the colony, they not being represented in parliament; and, according to the usual sayings of the learned in the law, the laws of England were bounded within the four seas, and did not reach America." 68 However, Massachusetts, as well as the other NewEngland colonies, finally acquiesced in the authority of parliament to regulate trade and commerce; but denied it in regard to taxation and internal regulation of the
colonies. 69 As late as 1757, the general court of Massachusetts admitted the constitutional authority of parliament in the following words: -- "The authority of all acts of parliament, which concern the colonies, and extend to them, is ever acknowledged in all the courts of law, and made the rule of all judicial proceedings in the province. There is not a member of the general court, and we know no inhabitant within the bounds of the government, that ever questioned this authority." 70 And in another address in 1761, they declared, that "every act we make, repugnant to an act of parliament extending to the plantations, is ipso facto null and void. 71 And at a later period, in 1768, in a circular address to the other colonies, they admitted, "that his majesty's high court of Parliament is the supreme legislative power over the whole empire;" contending, however, that as British subjects they could not be taxed without their own consent. 72
§ 189. "In the middle and southern provinces," (we are informed by a most respectable historian, 73 ) "no question respecting the supremacy of parliament in matters of general legislation existed. The authority of such acts of internal regulation, as were made for Amer-
ica, as well as those for the regulation of commerce, even by the imposition of duties, provided these duties were imposed for the purpose of regulation, had been at all times admitted. But these colonies, however they might acknowledge the supremacy of parliament in other respects, denied the right of that body to tax them internally." If there were any exceptions to the general accuracy of this statement, they seem to have been too few and fugitive to impair the general result. 74 In the charter of Pennsylvania, an express reservation was made of the power of taxation by an act of parliament, though this was argued not to be a sufficient foundation for the exercise of it. 75
§190. Perhaps the best general summary of the rights and liberties asserted by all the colonies is contained in the celebrated declaration drawn up by the Congress of the Nine Colonies, assembled at NewYork, in October, 1765. 76 That declaration asserted, that the colonists " owe the same allegiance to the crown of Great Britain, that is owing from his subjects born within the realm, and all due subordination to that august body, the parliament of Great Britain." That the colonists " are entitled to all the inherent rights and liberties of his [the king's] natural born subjects within the kingdom of Great Britain." "That it is inseparably essential to the freedom of a people, and the undoubted right of Englishmen, that no taxes be imposed on them, but with their own consent, given personally, or by their representatives." That the people of the " colo-
nies are not, and from their local circumstances cannot be represented in the house of commons of Great Britain. That the only representatives of these colonies are persons chosen therein by themselves; and that no taxes ever have been, or can be, constitutionally imposed upon them, but by their respective legislatures. That all supplies of the crown being free gifts from the people, it is unreasonable and inconsistent with the principles and spirit of the British constitution for the people of Great Britain to grant to his majesty the property of the colonies. And that the trial by jury is the inherent and invaluable right of every British subject in these colonies." 77
§191. We here observe, that the superintending authority of parliament is admitted in general terms; and that absolute independence of it is not even suggested, although in subsequent clauses certain grievances by the stamp act, and by certain acts levying duties and restraining trade in the colonies, are disapproved of in very strong language. 78 In the report of the committee of the same body on the subject of colonial rights, drawn up with great ability, it was stated, " it is acknowledged, that the parliament, collectively considered, as consisting of king, lords, and commons, are the supreme legislature of the whole empire; and as such, have an undoubted jurisdiction over the whole colonies, so far as is consistent with our essential rights, of which also they are and must be the final judges; and even the applications and petitions to the king and parliament to implore relief in our present difficulties, will be an ample recognition of our subjection to, and dependence upon
the legislature." 79 And they contended, that " there is a vast difference between the exercise of parliamentary jurisdiction in general acts for the amendment of the common law, or even in general regulations of trade and commerce through the empire, and the actual exercise of that jurisdiction in levying external and internal duties and taxes on the colonists, while they neither are, nor can be represented in parliament." 80 And in the petition of the same body to the house of commons, there is the following declaration: "We most sincerely recognise our allegiance to the crown, and acknowledge all due subordination to the parliament of Great Britain, and shall always retain the most grateful sense of their assistance and protection." 81 But it is added, there is "a material distinction in reason and sound policy between the necessary exercise of parliamentary jurisdiction in general acts for the amendment of the common law, and the regulation of trade and commerce, through the whole empire; and the exercise of that jurisdiction by imposing taxes on the colonies; " 82 thus admitting the former to be rightful, while denying the latter. 83
§ 192. But after the passage of the stamp act, in 1765, many of the colonies began to examine this subject with more care and to entertain every different opinions, as to parliamentary authority. The doctrines maintained in debate in parliament, as well as the alarming extent, to which a practical application of those doctrines might lead, in drying up the resources, and pros-
trating the strength and prosperity of the colonies, drove them to a more close and narrow survey of the foundation of parliamentary supremacy. Doubts were soon infused into their minds; and from doubts they passed by an easy transition to a denial, first of the power of taxation, and next of all authority whatever to bind them by its laws. 84 One of the most distinguished of our writers2 during the contest admits, that he entered upon the inquiry "with a view and expectation of being able to trace some constitutional line between those cases, in which we ought, and those, in which we ought not to acknowledge the power of parliament over us. In the prosecution of his inquiries he became fully convinced, that such a line does not exist; and that there can be no medium between acknowledging and denying that power in all cases."
§ 193. If other colonies did not immediately arrive at the same conclusion, it was easy to foresee, that the struggle would ultimately be maintained upon the general ground; and that a common interest and a common desire of security, if not of independence, would gradually bring all the colonies to feel the absolute necessity of adhering to it, as their truest and safest defence. 86 In 1773, Massachusetts found no difficulty in contending in the broadest terms for an unlimited independence of parliament, and in a bold and decided tone denied all its power of legislation over them. A distinction was taken between subjection to parliament, and allegi-
ance to the crown. The latter was admitted; but the former was resolutely opposed. 87 It is remarkable, that the Declaration of Independence, which sets forth our grievances in such warm and glowing colors, does not once mention parliament, or allude to our connexion with it; but treats the acts of oppression therein referred to, as acts of the king, in combination " with others " for the overthrow of our liberties. 88
§ 194. The colonies generally did not, however, at this period concur in these doctrines of Massachusetts, and some difficulties arose among them in the discussions on this subject. Even in the declaration of rights 3 drawn up by the continental congress in 1774, and presented to the world, as their deliberate opinion of colonial privileges, while it was asserted, that they were entitled to a free and exclusive power of legislation in their provincial legislatures, in all cases of taxation and internal policy, they admitted from the necessity of the case, and a regard to the mutual interests of both countries, that parliament might pass laws bona fide for the regulation of external commerce, though not to raise a revenue, for the purpose of securing the commercial advantages of the whole empire to the mother country, and the commercial benefits of its respective members. 90 An utter denial of all parliamentary author-
ity was not generally maintained until after independence was in the full contemplation of most of the colonies.
§ 195. The principal grounds, on which parliament asserted the right to make laws to bind the colonies in all cases whatsoever, were, that the colonies were originally established under charters from the crown; that the territories were dependencies of the realm, and
the crown could not by its grants exempt them from the supreme legislative power of parliament, which extended wherever the sovereignty of the crown extended; that the colonists in their new settlements owed the same subjection and allegiance to the supreme power, as if they resided in England, and that the crown had no authority to enter into any compact to impair it; that the legislative power over the colonies is supreme and sovereign; that the supreme power must be entire and complete in taxation, as well as in legislation; that there is no difference between a grant of duties on merchandise, and a grant of taxes and subsidies; that there is no difference between external and internal taxes, and though different in name, they are in effect the same; that taxation is a part of the sovereign power, and that it may be rightfully exercised over those, who are not represented. 91
§ 196. The-grounds, on which the colonies resisted the right of taxation by parliament, were, (as we have seen,) that they were not represented in parliament; that they were entitled to all the privileges and immunities of British subjects; that the latter could not be taxed but by their own representatives; that representation and taxation were inseparably connected; that the principles of taxation were essentially distinct from those of legislation; that there is a wide difference between the power of internal and external taxation; that the colonies had always enjoyed the sole right of imposing taxes upon themselves; and that it was essential to their freedom. 92
§ 197. The stamp act was repealed; but within a few years afterwards duties of another sort were laid, the object of which was to raise a revenue from importations into the colonies. These of course became as offensive to the colonies as the prior attempt at internal taxation; and were resisted upon the same grounds of unconstitutionality. 93 It soon became obvious, that the great struggle in respect to colonial and parliamentary rights could scarcely be decided otherwise, than by an appeal to arms. Great Britain was resolutely bent upon enforcing her claims by an open exercise of military power; and on the other hand, America scarcely saw any other choice left to her, but unconditional submission, or bold and unmeasured resistance.