CH. XVII.] GENERAL REVIEW. 143
GENERAL REVIEW OF THE COLONIES.
§ 159. IN respect to their interior polity, the colonies have
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
1 1 Bl. Comm. 108; Stokes's Hist. Colon. 20, 23, 149, 184, 185;
Cowper's R. 207, 212; Com. Dig. Navigation, G, l; 2 Doug. Summ 163,
note; Id. 251; I Doug. Summ. 207.
2 Stokes's Hist. Colon. 14, 23, 149, 150, 166, 184, 185, 191, 199, 202,
237, 239; 1 Bl. Comm. 108.--Stokes has given, in his History of the
Colonies, ch. 4, p. 149, &c. a copy of one of these Commissions.
is also prefixed to the Provincial Laws of New Hampshire, Edition of 1767.
3 Stokes's Hist. Colon, 155, 237, 240, 241, 242, 251; 1 Pitk. Hist; 71;
1 Chalmers's Annals, 683.
144 HISTORY OF THE COLONIES. [BOOK I.
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.1 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.2
§ 160. Secondly, Proprietary Governments. These (as we have
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.3
Yet still there were these express conditions, that the ends, for which the
grant was made, should be substantially pursued; and that nothing
1 Stokes's Hist. of Colonies, 157, 158, 184, 264.
CH. XVII.] GENERAL REVIEW. 145
2 Doug. Summ. 207.
3 1 Black. Comm. 108; Stokes's Hist. Colon. 19.
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.1 Three
only existed at the period of the American Revolution; viz. the
proprietary governments of Maryland, Pennsylvania, and Delaware.2 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.3
§ 161. Thirdly, Charter Governments. Mr. Justice Blackstone
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.
1 Stokes's Hist. of Colon. 23
146 HISTORY OF THE COLONIES. [BOOK I.
2 Pitk. Hist. 55; Stokes's Hist. of Colon. 19; 2 Doug. Summ. 207.
3 1 Chalmers's Annals, 203, 637.
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.1 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
1 1 Chalmers's Annals. 274, 275, 293, 687; 1 Tuck. Black. Comm. App.
385; 1 Pitk. Hist. 108; 1 Hutch. Hist. No. 13, p. 529; Mass. State
Papers 338, 339, 358, 359; Stokes's Hist. of Colon. 21; 1 Doug. Summ.
CH. XVII.] GENERAL REVIEW. 147
governor, council, and assembly being annually chosen by the freemen of the
colony, and all other officers appointed by their authority.1 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.2
§ 162. The circumstances, in which the colonies were
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.3 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;4 and of
course, from a dif-
1 1 Chalmers's Annals, 274, 293, 294; Stokes's Hist Colon. 21, 22, 23.
148 HISTORY OF THE COLONIES [BOOK I.
2 1 Chalmers's Annals, 295; Stokes's Hist. Colon. 20.
3 Com. Dig. Navigation, G. I; Id. Ley. C.; 2 Wilson's Law Lect 48,
49, 50, 51, 52.
4 1 Chalm. Annals, 677, 678, 687; 1 Tucker's Black.Comm. 384; 1 Vez.
444, 449; 2 Wilson's Law Lect. 49 to 54; Mass. State Papers, (Ed.
375, 390, 391.
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
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.1 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."2
§ 165. It was under the consciousness of the full possession
rights, liberties, and immunities of British subjects, that the colonists
in almost all the early legislation of their respective assemblies insisted
1 1 Chalmers's Annals, 139, 140, 684, 687, 671, 675; 1 Tucker's Black.
Comm. 384, App.; 2 Wilson's Law Lect. 49, 50; l Doug. Summ. 213; 1
Pitk. Hist. 108; Mass. State Papers, 315, 346, 347, 351 to 364, 375,
390; Dummer's Defence, 1 American Tracts, 65, &c.
CH. XVII.] GENERAL REVIEW. 149
2 Stokes's Colon. 27.
declaratory act, acknowledging and confirming them.1 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
§ 166. (2.) In all the colonies local legislatures were
branch of which consisted of representatives of the people freely chosen,
to represent and defend their interests, and possessing a negative upon all
laws.2 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.3 In Massachusetts, Connecticut,
New-Hampshire, and RhodeIsland, the same course was pursued.4 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-
1 1 Pitk. Hist. 88, 89; 3 Hutch. Coll. 201, &c.; 1 Chalmers's Annals,
678; 2 Doug. Summ. 193.
150 HISTORY OF THE COLONIES. [BOOK I.
2 1 Doug. Summ. 213 to 215.
3 Robertson's America, B. 9.
4 1 Tucker's Black. Comm. App. 386.
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.1
1 1 Hutch. Hist. Mass. 94, note; 1 Doug. Summ. 213.--Mr.
Hutchinson's remarks are entitled to something more than this brief notice,
and a quotation is therefore made of the leading passage. "It is
observable, that all the colonies before the reign of King Charles the
Second, Maryland excepted, settled n model of government for themselves.
Virginia had been many years distracted under the government of presidents
and governors, with councils, in whose nomination or removal the people had
no voice, until in the year 1620 a house of burgesses broke out in the
colony; the king nor the grand council at home not having given any powers
or directions for it. The governor and assistants of the Massachusetts at
first intended to rule the people; and, as we have observed, obtained their
consent for it, but this lasted two or three years only; and although there
isno colour for it in the charter, yet a house of deputies appeared
suddenly in 1634, to the surprise of the magistrates. and the
disappointment of their schemes for power. Connecticut soon after followed
the plan of the Massachusetts. New-Haven, although the people had the
highest reverence for their leaders, and for near thirty years in judicial
proceeding submitted to the magistracy, (it must, however, be remembered,
that it was annually elected,) without a jury; yet in mutters of
legislation the people, from the beginning, would have their share by their
representatives.--New-Hampshire combined together under the same form with
Massachusetts.--Lord Say tempted the principal men of the Massachusetts, to
make them and their heirs nobles and absolute governors of a new colony;
but, under this plan, they could find no people to follow them. Barbados
and the leeward islands, began in 1625, struggled under governors, and
councils, and contending proprietors, for about twenty years. Numbers
suffered death by the arbitrary sentences of courts martial, or other acts
of violence, as one side, or the other happened to prevail. At length in
1615 the first assembly was called, and no reason given but this, viz..
That, by the grant to the Earl of Carlisle, the inhabitants were to enjoy
all the liberties, privileges, and franchises of English subjects; and
therefore, as it is also expressly mentioned in the grant, could not
legally be bound, or charged by any act without their own consent. This
grant, in 1627, was made by Charles the First, a prince not the most tender
of the subjects' liberties. After the restoration, there is no instance of
a colony settled without a representative of the people, nor any attempt to
deprive the colonies of this privilege, except in the arbitrary reign of
King James the Second."
CH. XVII.] GENERAL REVIEW. 151
§ 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.1 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.2
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."3 In
the colony of New-York the crown succeeded at last 4 in establishing
septennial assemblies, in imitation of the
1 1 Pitk. Hist. 85,86,87; 1 Chalm. Opin. 189; 2 Doug Summ. 251, &c.
152 HISTORY OF THE COLONIES. [BOOK I.
2 1 Pitk. Hist. 88; 1 Chalm. Opin. 268, 272; 2 Doug. Summ. 37, 38,
39, 40, 41, 73; Chitty Prerog. ch. 3.
3 1 Pitk. Hist. 86, 87.
4 1 Pitk. Hist. 87, 88.
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.1
§168. For all the purposes of domestic and internal
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.2 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.3 The general opinion held by them
was, that parliament had no authority to tax them, because they were not
represented in parliament.4
§ 169. On the other hand, the statute of 6 Geo. 3, ch. 12,
express declaration by parliament, that
1 In Virginia also the assemblies were septennial. The Federalist, No.
CH. XVII.] GENERAL REVIEW. 153
2 Chalm. Annals, 658, 681, 683, 686, 687; Stat. 6 Geo. 3, ch. 12.
3 I Pitkin's Hist. 89, 90, 91; 2 Holmes's Annals, 131, 134,135; 2 Doug.
Sum. 251; I Doug. Sum. 213; 3 Hutch. Coll. 529, 530.
4 1 Pitkin, 89, &c. 97,127, 129; Marsh. Colon. 352, 353; Appx. 469,
470, 472; Chalm. Annals, 658.
"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."1
§ 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."2 Mr. Burke,
who may justly be deemed the leader of the colonial advocates, maintain-
1 6 Geo. 3, ch. 12; Stokes's Colon. 28, 29. See also Marshall on
Colon. ch. 13, p. 353; Vaughan R. 300, 400; 1 Pitkins's Hist. 123.
2 Mr. Burke has sketched with a most masterly hand the true origin of
this resistance to the power of taxation. The passage is so full of his
best eloquence, and portrays with such striking fidelity the character of
the colonists, that, notwithstanding its length, I am tempted to lay it
before the reader in this note.
154 HISTORY OF THE COLONIES. [BOOK I.
"In this character of the Americans, n love of freedom is the
predominating feature, which marks and distinguishes the whole; and as
an ardent is always a jealous affection, your colonies become suspicious,
restive, and untractable, whenever they see the least attempt to wrest from
them by force, or shuffle from them by chicane, what they think the only
advantage worth living for. This fierce spirit of liberty is stronger in
the English colonies probably than in any other people of the earth; and
this from a great variety of powerful causes; which, to understand the true
temper of their minds, and the direction which this spirit takes, it will
not be amiss to lay open somewhat more largely.
"First, the people of the colonies are descendants of Englishmen.
England, Sir, is a nation, which still, I hope, respects, and formerly
adored, her freedom. The colonists emigrated from you, when this part of
ed the supremacy of parliament to the full extent of the declaratory act,
and as justly including the power of taxation.1 But he deemed the power of
your character was most predominant; and they took this bias and direction
the moment they parted from your hands. They are therefore not only
devoted to liberty, but to liberty according to English ideas, and on
English principles. Abstract liberty, like other mere abstractions, is not
to be found. Liberty inheres in some sensible object; and every nation has
formed to itself some favourite point, which by way of eminence becomes the
criterion of their happiness. It happened, you know, Sir, that the great
contests for freedom in this country were from the earliest times chiefly
upon the question of taxing. Most of the contests in the ancient
commonwealths turned primarily on the right of election of magistrates; or
on the balance among the several orders of the state. The question of
money was not with them 80 immediate. But in England it was otherwise. On
this point of taxes the ablest pens, and most eloquent tongues, have been
exercised; the greatest spirits have acted and suffered. In order to give
the fullest satisfaction concerning the importance of this point, it was
not only necessary for those, who in argument defended the excellence of
the English constitution, to insist on this privilege of granting money as
a dry point of fact, and to prove, that the right had been acknowledged in
ancient parchments, and blind usages, to reside in a certain body; called
an house of commons. They went much further; they attempted to prove, and
they succeeded, that in theory it ought to be so, from the particular
nature of a house of commons, as an immediate representative of the people;
whether the old records had delivered this oracle or not. They took
infinite pains to inculcate, as a fundamental principle, that in all
monarchies, the people must in effect themselves mediately or immediately
possess the power of granting their own money, or no shadow of liberty
could subsist.--The colonies draw from you, as with their lifeblood, these
ideas and principles. Their love of liberty, 118 with you, fixed and
attached on this specific point of taxing. Liberty might be safe, or might
be endangered in twenty other particulars,-without their being much pleased
or alarmed. Here they felt its pulse; and as they found that beat, they
thought themselves sick or sound. I do not say whether they were right or
wrong in applying your general arguments to their own case. It is not easy
indeed to make a monopoly of theorems and corollaries. The fact is, that
they did thus apply those general arguments; and your mode of governing
them, whether through
1 Burke's Speech on Taxation of America in 1774; Burke's Speech on
Conciliation with America, 22 March, 1775. See also his Letters to the
Sheriffs of Bristol in 1777.
CH. XVII.] GENERAL REVIEW. 155
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
lenity or indolence, through wisdom or mistake, confirmed them in the
imagination, that they, as well as you, had an interest in these common
"They were further confirmed in this pleasing error by the form of their
provincial legislative assemblies. Their governments are popular in an
high degree; some are merely popular; in all, the popular representative is
the most weighty; and this share of the people in their ordinary government
never fails to inspire them with lofty sentiments, and with a strong
aversion from whatever tends to deprive them of their chief importance.
" If any thing were wanting to this necessary operation of the form of
government, religion would have given it a complete effect. Religion,
always a principle of energy, in this new people, is no war worn out or
impaired; and their mode of professing it is also one main cause of this
free spirit. The people are Protestants; and of that kind, which is the
most adverse to all implicit submission of mind and opinion. This is a
persuasion not only favourable to liberty, but built upon it. I do not
think, Sir, that the reason of this averseness in the dissenting churches
from all that looks like absolute government is so much to be sought in
their religious tenets, as in their history. Every one knows, that the
Roman Catholic religion is at least coeval with most of the governments
where it prevails; that it has generally gone hand in hand with them; and
received great favour and every kind of support from authority. The church
of England too was formed from her cradle under the nursing care of regular
government. But the dissenting interest have sprung up in direct
opposition to all the ordinary powers of the world; and could justify that
opposition only on a strong claim to natural liberty. Their very existence
depended on the powerful and unremitted assertion of that claim. All
protestantism, even the most cold and passive, is a sort of dissent. But
the religion most prevalent in our northern colonies is a refinement on the
principle of resistance; it is the diffidence of dissent; and the
protestantism of the Protestant religion. This religion, under a variety
of denominations, agreeing in nothing but in the communion of the spirit of
liberty is predominant in most of the northern provinces; where the church
of England, notwithstanding its legal rights, is in reality no more than a
sort of private sect, not composing most probably the tenth of the people.
The colonist left England when this spirit was high; and in the emigrants
was the highest of all: and even that stream of foreigners, which has been
constantly flowing into these colonies, has, for the greatest part, been
composed of dissenters from the establishments of their several
156 HISTORY OF THE COLONIES. [BOOK I.
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
countries, and have brought with them a temper and character far from alien
to that of the people, with whom they mixed.
" Sir, I can perceive by their manner, that some gentlemen object to the
latitude of this description; because in the southern colonies the church
of England forms a large body, and has a regular establishment. It is
certainly true. There is however n circumstance attending these colonies,
which, in my opinion, fully counterbalances this difference, and makes the
spirit of liberty still more high and haughty than in those of the
northward. It is that in Virginia and the Carolinas, they have a vast
multitude of slaves. Where this is the case in any part of the world,
those, who are free, are by far the most proud and jealous of their
freedom. Freedom is to them not only an enjoyment, but a hind of rank and
privilege. Not seeing there, that freedom, as in countries where it is a
common blessing, and as broad and general as the air, may be united with
much abject toil, with great misery, with all the exterior of servitude,
liberty looks, amongst them, like something that is more noble and liberal.
I do not mean, Sir, to commend the superior morality of this sentiment,
which has at least as much pride as virtue in it; but I cannot alter the
nature of man. The fact is so; and these people of the southern colonies
are much more strongly, and with an higher and more stubborn spirit,
attached to liberty, than those to the northward. Such were all the
ancient commonwealths; such were our Gothic ancestors; such in our days
were the Poles; and such will be all masters of slaves, who are not slaves
themselves. In such n people the haughtiness of domination combines with
the spirit of freedom, fortifies it, and renders it invincible.
"Permit me, Sir, to add another circumstance in our colonies, which
contributes no mean part towards the growth and effect of this untractable
spirit. I mean their education. In no country perhaps in the world is the
law so general a study. The profession itself is numerous and powerful;
and in most provinces it takes the lead. The greater number of the
deputies sent to the congress were lawyers. But all who read, and most do
read, endeavour to obtain some smattering, in that science. I have been
told by an eminent bookseller, that in no branch of his business, after
tracts of popular devotion, were so many books as those on the law exported
to the plantations. The colonists have now fallen into the way of printing
them for their own use. I hear that they have sold nearly as many of
Blackstones Commentaries in America, as in England. General Gage marks out
this disposition very particularly in a letter on your table. He states,
that all the people in his government are lawyers, or smatterers in law;
and that in Boston they
CH. XVII.] GENERAL REVIEW. 157
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
have been enabled, by successful chicane, wholly to evade many parts of one
of your capital penal constitutions. The smartness of debate will say,
that this knowledge ought to teach them more clearly the rights of
legislature, their obligations to obedience, and the penalties of
rebellion. All this is mighty well. But my honourable and learned friend*
on the floor, who condescends to mark what I say for animadversion, will
disdain that ground. He has heard, as well as I, that when great honours
and great emoluments do not win over this knowledge to the service of the
state, it is a formidable adversary to government. If the spirit be not
tamed and broken by these happy methods, it is stubborn and litigious.
Abeunt studia in mores. This study renders men acute, inquisitive,
dexterous, prompt in attack, ready in defence, full of resources. In other
countries, the people, more simple and of a less mercurial cast, judge of
an ill principle in government only by an actual grievance; here they
anticipate the evil, and judge of the pressure of the grievance by the
badness of the principle. They augur misgovernment at n distance; and
snuff the approach of tyranny in every tainted breeze.
"The last cause of this disobedient spirit in the colonies is hardly less
powerful than the rest, as it is not merely moral, but laid deep in the
natural constitution of things. Three thousand miles of ocean lie between
you and them. No contrivance can prevent the effect of this distance, in
weakening government. Seas roll, and months pass, between the order and
the execution; and the want of a speedy explanation of a single point, is
enough to defeat a whole system. You have, indeed, winged ministers of
vengeance, who carry your bolts in their pounces to the remotest verge of
the sea. But there a power steps in, that limits the arrogance of raging,
passions and furious elements, and says, ' So far shalt thou go, and no
farther.' Who are you, that should fret and rage, and bite the chains of
nature ? Nothing worse happens to you, than does to all nations, who have
extensive empire; and it happens in all the forms, into which empire can be
thrown. In large bodies the circulation of power most be less vigorous at
the extremities. Nature has said it. The Turk cannot govern Egypt, and
Arabia, and Curdistan, as he governs Thrace; nor has he the same dominion
in Crimen and Algiers, which he has at Brusa and Smyrna. Despotism itself
is obliged to truck and huckster. The Sultnn gets such obedience as he
can. He governs with a loose rein, that he may govern at all; and the
whole of the force and vigour of his authority in his centre, is derived
*The Attorney General.
158 HISTORY OF THE COLONIES. [BOOK I.
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
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.1
In respect to the mode of enacting laws, there were some dif-
from a prudent relaxation in all his borders. Spain, in her provinces, is,
perhaps, not so well obeyed, as you are in yours. She complies too; she
submits; she watches times. This is the immutable condition; the eternal
law, of extensive and detached empire.
"Then, Sir, from these six capital sources; of descent; of form of
government; of religion in the northern provines; of manners in the
southern; of education; of the remoteness of situation from the first mover
of government; from all these causes a fierce spirit of liberty has grown
up. It has grown with the growth of the people in your colonies, and
increased with the increase of their wealth; a spirit, that unhappily
meeting with an exercise of power in England, which, however lawful, is not
reconcilable to any ideas of liberty, much less with theirs, has kindled
this flame, that is ready to consume us." 2 Burke's Works, 38 - 45.
1 Chalmers's Annals, 203, 295; 1 Doug. Summ. 207, 208.
CH. XVII.] GENERAL REVIEW. 159
ferences in the organization of the colonial governments.1 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.2 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.3 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
1 1 Doug. Summ. 215.
160 HISTORY OF THE COLONIES. [BOOK I.
2 1 Grahame's Hist. 43, 44.
3 Stat. 12 Car. 2, ch. 24.
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
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
§ 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
CH. XVII.] GENERAL REVIEW. 161
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.1 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.2 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
1 1 Vez. 444; Vaughan R.300, 400; Shower. Parl. Cases, 30, 31, 32, 33;
Mass. State Papers, 359.
162 HISTORY OF THE COLONIES. [BOOK I.
2 1 Black. Comm. 231, 232; Chitty on Prerog. 29, 31.
local legislature in 1719.1 It was treated by the crown, as an inherent
right of the subject, independent of any such reservation.2 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.3
§ 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.4 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.5 Rhode Island soon
1 New-Hampshire Prov. Laws, edit. 1771, P. 7, Act of 11 Will. 3, ch 4;
Rhode-Island Laws, edit. 1744. P. 78.
CH. XVII.] GENERAL REVIEW. 163
2 1 P. Will. 323; Chitty on Prerog. ch. 3.
3 Vaughan's Rep. 290, 402; Show. Parl. Cases, 30, 31, 32, 33; 1 Vez.
444; Stokes's Colom. 26, 222, 231; 2 Ld. Raym. 1447, 1448; 1 Chalm.
Annals, 139,304, 671, 678, 684; Christian v. Corver, 1 P. Will. R.
Att. Gen. v. Stewart,2 Merivale R 143, 156; Res V. Cowle, 2 Burr.
855, 854, 856; Fabrigas v. Mostym,Cowp. 174; 1 Doug. Summ. 216; 3
Wilson's Works, 230; 2 Chalm. Opin. 177, 222.
4 Chitty on Prerog. ch. 3, P. 28, 29; 1 Chalm. Opin. 222; 1 Pitk.
Hist. 121, 123, 124, 125, 126; 1 Chalm. Annals, 139, 140, 678; 5 Mass.
5 1 Chalm. Annals, 277, 280, 297, 304, 411, 446, 462; 2 Doug. Summ.
174; 3 Hutch. Coll. 330, 418, 529; 2 Hutch Hist. 539.
afterwards surrendered her opposition.1 But Connecticut continued it to a
later period.2 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.3
§ 177. (6.) Though the colonies had a common origin, and owed
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.4
1 2 Doug. Summ. 97; 3 Hutch. Coll. 412, 413.
164 HISTORY OF THE COLONIES. [BOOK I.
2 2 Doug. Summ. 194; 1 Pitk. Hist 123 to 125.
3 I have in my possession a printed case Thomas Forsky v. Waddel
Cunningham, brought before the governor and council of New-York from the
supreme court of that province by appeal in 1764. The great question was,
whether an appeal or writ of error lay; and the judges of the supreme
court, and the council held, that no appeal lay, for that would be to
re-examine facts settled by the verdict of a jury. The lieutenant governor
dissented. It was agreed on all sides, that an appeal in matter of law (by
way of writ of error) lay to the king in council from all judgments in the
colonies; but not as to matters of fact in suits at common law. It was
also held, that in all the colonies the subjects carry with them the laws
of England, end therefore as well those, which took place after, as those,
which were in force before Magna Charta.
4 1 Chalm. Annals, 686, 689, 690.
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.1 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
1 1 Pitk. Hist. 50, 141, 142, 143, 144, 145, 146, 429;
CH. XVII.] GENERAL REVIEW. 165
2 Haz. Coll.; 1 Marsh. Colon. ch. 10, p. 284;
3 Hutch. Hist. 21, 22, 23.
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 1775.1
§ 179. Having considered some of the particulars, in which
organization, and public rights, and juridical policy of the colonies were
nearly similar, it remains to notice a few, in which there were important
(1.) As to the course of descents and distribution of intestate
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
1 Chisholm v. State of Georgia, 2 Dall. 470.
166 HISTORY OF THE COLONIES. [BOOK I.
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.1
§ 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-
1 To 1770, Garnder v. Collins ,2 Peters's Sup. Ct. R. 58.
CH. XVII.] GENERAL REVIEW. 167
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.2 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.3
§182. (2.) Connected with this, we may notice the strong
tendency of the
colonies to make lands liable to
1 In 1727.
168 HISTORY OF THE COLONIES. [BOOK I.
2 1 Pitk. Hist. 125,126.
3 Att. Gen. v. Stewart, 2 Meriv. R. 143, 157,158,159.
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.1 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
1 1 Chalm. Annals, 692, 693.
CH. XVII.] GENERAL REVIEW. 169
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.1
§ 183. In respect to the political relations of the colonies
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.2
§ 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
1 Telfair v. Stead, 2 Cranch, 407.
170 HISTORY OF THE COLONIES. [BOOK I.
2 Marshall's Colon. ch, 13, p. 153;
3 Wilson's Works, 236, 237, 238, 244, 242, 243
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
CH. XVII.] GENERAL REVIEW. 171
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
§ 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
172 HISTORY OF THE COLONIES. [BOOK I.
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
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
§187. In regard to the authority of parliament to enact laws,
should be binding upon them, there was quite as much obscurity, and still
spreading over the whole subject.2 The government of Great Britain always
maintained the doctrine, that the parliament had authority to bind the
colonies in all cases whatsoever.3 No acts of parliament, however, were
understood to bind the colonies, unless expressly named therein.4 But in
America, at different times and in different colonies, different opinions
were entertained on the subject.5 In fact, it seemed to be the policy of
the colonies, as much as possible, to withdraw them-
1 The reader will find the subject of the royal prerogative in the
colonies discussed at large in Chitty on the Prerogatives of the
3, p. 25 to 40; in Spokes on the Constitution of the Colonies, passim; in
Chalmers's Annals of the Colonies; and in Chalmers's Opinions, 2 vols.
passim. See also Com. Dig. Prerogative.
CH. XVII.] GENERAL REVIEW. 173
2 1 Pitk. Hist. 164 to 169, 186, 198, 199, 200 to 205; App. 448, No. 9;
Id. 452, 453; 3 Wilson's Works, 238, 239, 240, 241, 242, 243; 2 Wilson's
Works, 54, 55, 58; Mass. State Papers, 338, 339, 344, 352 to 364; 1Pitk.
3 3 Wilson's Works, 205; I Chalm. Annals, 140, 687, 690; Stokes's
4 1 Black. Comm. 107,108; Chitty on Prerog. 33.
5 1 Pitk. Hist. 198, 199, 200 to 205, 206, 209; Marshall's Colon. ch.
13, p. 352; 1 Chitty on Prerog. 29; 1 Chalmers's Opinions, 196 to 225; 1
Pitk. Hist. ch. 6, p. 162 to 212.
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.1
§ 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.2
An extreme reluctance was shown by Massachusetts to any parliamentary
interference as early as 1640;3 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.4 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."5
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
1 Marshall's Colon. ch. 13, p. 353; 1 Pitk. Hist. 89, 90, &c. 98;
Id. 164, 174,179,182 to 212; Mass. State Papers, 359 to 364.
174 HISTORY OF THE COLONIES. [BOOK I.
2 1 Pitk. Hist. 91; 1 Chalm. Annals, 443.
3 2 Winthrop's Jour. 25.
4 1 Chalm. Annals, 277, 280, 407, 440, 443, 448, 452, 460, 462, 639, 668;
3 Hutch. Coll. 496; Mass. State Papers, [1818,] Introduction; Id.
Wilson's Works, 62.
5 1 Chalm. Ann. 407; 1 Hutch. Hist. 322; 2 Wilson's Works, 62, 63.
colonies.1 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."2 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.3
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
§ 189. "In the middle and southern provinces," (we are
informed by a most
respectable historian,5) "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-
1 1 Pitk. Hist. 92, 98,181 to 212, 285, 473, 475; 1 Chalm. Annals, 452,
460; 1 Hutch. Hist. 322; 3 Hutch. Hist. 23, 24; Dummer's Defence, 1
American Tracts, 51; Burke's Speech on Taxation in 1774, and on
Conciliation in 1775.
CH. XVII.] GENERAL REVIEW. 175
2 3 Hutch. Hist. 66; Mass. State Papers,337.
3 3 Hutch. Hist. 92; App. 463; Marshall's Colon.
No. 5, p. 472.
4 Marshall's Colon. ch. 13, p. 371; App. No. 5, p. 472, 473; 1
Pitk. Hist. 186; App. 448, 450, 453, 458.--This was the ground asserted
in Mr. J. Otis's celebrated pamphlet on the Rights of the Colonies. 1
American Tracts, [1766,] 48, 52, 54, 56, 59, 66, 73, 99; and also in
Dulany's Considerations on Taxing the Colonies, 1 Amer. Tracts, 14, 18,
36, 52. See also 1 Jefferson's Corresp. 6, 7,12.
5 Marshall's Colon. ch. 13, p. 354. See also 1 Pitk. Hist. 162, 212,
255, 275, 276; 1 Jefferson's Corresp. 6, 7, 104; Id. 117.
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.1 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.2
§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, 1765.3 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 "
1 1 Pitk. Hist. 92, 96, 98, 162 to 212; App. No. 4, 448, 450, 453.
176 HISTORY OF THE COLONIES. [BOOK I.
2 1 Chalmers's Annals, 638, 658; 2 Amer. Tracts, Rights of Parlia. Vend.
25. 26; 3 Amer. Tracts, App. 51; Id. Franklin's Exam.46
3 The nine states were Massachusetts, Rhode-Island, Connecticut, New-York,
New-Jersey, Pennsylvania, Delaware, Maryland, and South Carolina.
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
§191. We here observe, that the superintending authority of
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.2 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
1 Marsh. Hist. Colonies, ch. 13, p. 360, 470, 471; 1 Pitk. Hist.
178, 179,180, 446.
CH. XVII.] GENERAL REVIEW. 177
2 Marsh. Hist. Colon. p. 471, note 4.
the legislature."1 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."2 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."3 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; "4 thus
admitting the former to be rightful, while denying the latter.5
§ 192. But after the passage of the stamp act, in 1765, many
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-
1 Pitk. Hist. 448, 450.
178 HISTORY OF THE COLONIES. [BOOK I.
2 1 Pitk. Hist. 453,454.
3 4 Amer. Museum, 89.
4 4 Amer. Museum, 89, 90.
5 The celebrated Declaration of the Rights of the colonies by Congress in
1774 (hereafter cited) contains a summary not essentially different. 1
Journ. of Congress, 27 to 31.
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.1 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.3 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-
1 1 Jefferson's Corresp. 6, 7,12,104 to 116.
CH. XVII.] GENERAL REVIEW. 179
2 3 Wilson's Works, 203; Mass. State Papers, 339, 340.
3 3 Wilson's Works, 221, 222, 226, 227, 229, 237, 238; 2 Wilson's Works,
54, 55, 58 to 63; 1 Pitk. Hist. 242, 243, 246, 248, 249, 250; Mass.
State Papers, 331, 333, 337, 339, 342 to 364;
4 Debrett's Parl. Debates,
251, &c. note; Marsh. Hist. Colon. ch. 14, p. 412, 483 1 Jefferson's
Corresp. 6, 7,12,100,104 to 116.
ance to the crown. The latter was admitted; but the former was resolutely
opposed.1 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.2
§ 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.4 An utter denial of all parliamentary author-
1 Mass. State Papers, edit. 1818, p. 342 to 365, 383 to 396;1
Pitk.Hist. 250, 251, 453, 454.
180 HISTORY OF THE COLONIES. [BOOK I.
2 1 Jefferson's Corresp. 6, 7,12,100 to 116.
3 1 Pitk. Hist. 285, 286, 340, 344; Journ. of Congress, 1774, p. 28, 29;
Marsh. Colon. ch. 14, p. 412, 483.
4 As this document is very important, and not easily found, the material
clauses will be here extracted. After reciting many acts of
Declaration proceeds as follows:
" The good people of the several colonies of New-Hampshire, Massachusetts
Bay, Rhode-Island and Providence Plantations Connecticut, New-York,
New-Jersey, Pennsylvania, Newcastle, Kent, and Sussex on
ity was not generally maintained until after independence was in the full
contemplation of most of the colonies.
Delaware, Maryland, Virginia, North-Carolina, and South-Carolina, justly
alarmed at these arbitrary proceedings of parliament and administration,
have severally elected, constituted, and appointed deputies to meet and sit
in general congress, in the city of Philadelphia, in order to obtain such
establishment, as that their religion, laws, and liberties may not be
subverted: Whereupon the deputies so appointed being now assembled, in a
full and free representation of these colonies, taking into their most
serious consideration the best means of attaining the ends aforesaid, do in
the first place, as Englishmen, their ancestors, in like cases have usually
done, for asserting and vindication their rights and liberties, DECLARE,
"That the inhabitants of the English colonies in North-America, by the
immutable laws of nature, the principles of the English constitution, and
the several charters or compacts, have the following RIGHTS.
"Resolved, N. C. D. 1. That they are entitled to life, liberty, and
property; and they have never ceded to any sovereign power whatever, a
right to dispose of either without their consent.
"Resolved, N. C. D. 2. That our ancestors, who first settled these
colonies, were, at the time of their emigration from the mother country,
entitled to all the rights, liberties, and immunities of free and natural
born subjects, within the realm of England.
"Resolved, N. (,. D. 3. That by such emigration they by no means
forfeited, surrendered, or lost any of those rights, but that they were,
and their descendants now are, entitled to the exercise and enjoyment of
all such of them, as their local and other circumstances enable them to
exercise and enjoy.
"Resolved, 4. That the foundation of English liberty and of all free
government is a right in the people to participate in their legislative
council:and as the English colonists arc not represented, and from their
local and other circumstances cannot properly be represented in the British
parliament, they arc entitled to a free and exclusive power of legislation
in their several provincial legislatures, where their right of
representation can alone be preserved, in all cases of taxation and
internal polity, subject only to the negative of their sovereign, in such
manner, as has been heretofore used and accustomed. But from the necessity
of the case, and a regard to the mutual interests of both countries, we
cheerfully consent to the operation of such acts of the British parliament,
as are bona fide restrained to the regulation of our external commerce, for
the purpose of securing the commercial advantages of the whole empire to
the mother country and the commercial benefits of its respective members;
excluding every idea of taxation, internal or exter-
CH. XVII.] GENERAL REVIEW. 181
§ 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
nat, for raising a revenue on the subjects in America without their con- sent.
" Resolved, N. C. D. 5. That the respective colonies are entitled to
the common law of England, 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.
"Resolved, 6. That they are entitled to the benefit of such of the
English statutes, as existed at the time of their colonization; and which
they have, by experience, respectively found to be applicable to their
several local and other circumstances.
"Resolved, N. C. D. 7. That these, his majesty's colonies, are
likewise entitled to all the immunities and privileges granted and
confirmed to them by royal charters, or secured by their several codes of
"Resolved, N. C. D. 8. That they have a right peaceably to assemble,
consider of their grievances, and petition the king and that all
prosecutions, prohibitory proclamations, and commitments for the same, are
"Resolved, N. C. D. 9. That the keeping a standing army in these
colonies, in times of peace, without the consent of the legislature of that
colony, in which such army is kept, is against law.
"Resolved, N. C. D. 10. It is indispensably necessary to good
government, and rendered essential by the English constitution, that the
constituent branches of the legislature be independent of each other; that,
therefore, the exercise of legislative power in several colonies, by a
council appointed, during pleasure, by the crown, is unconstitutional,
dangerous, and destructive to the freedom of American legislation.
"All, and each of which, the aforesaid deputies in behalf of themselves,
and their constituents, do claim, demand, and insist on, as their
indubitable rights and liberties; which cannot be legally taken from them,
altered, or abridged by any power whatever, without their own consent, by
their representatives in their several provincial legislatures."
The plan of conciliation proposed by the provincial convention of NewYork
in 1775, explicitly admits, "that from the necessity of the case Great
Britain should regulate the trade of the whole empire for the general
benefit of the whole but not for the separate benefit of any particular
part." 1 Pitk. Hist. ch. 9, p. 344.
182 HISTORY OF THE COLONIES. [BOOK I.
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
§ 196. The-grounds, on which the colonies resisted the right
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
1 1 Pitk. Hist. 199, 201, 202, 204, 205, 206, 208, 209, 457; Mass.
State Papers, 338, 339; 1 Chalm. Annals, 15, 28; 2 Wilson's Law Lect. 54
to 63; Chitty on Prerog. ch. 3; 1 Chalm. Opin. 196 to 225.
2 1 Pitk. Hist.190, 200, 201, 208, 209, 211, 219, 285 to 288, 311, 443,
CH. XVII.] GENERAL REVIEW. 183
§ 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.1 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
446, 447, 448, 453, 458, 459, 467; Mass. State Papers, 344, 345, 346 to
351; 4 Debrett's Parl. Debates, 251, note, &c.; 2 Wilson's Law Lect. 54
1 Pitk. Hist. 217,219, &c.