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formed and established the first representative legislature that ever sat in America. And this example of a domestic parliament, to regulate all the internal concerns of the country, was never lost sight of, but was ever afterwards cherished, throughout America, as the dearest birthright of freemen. So acceptable was it to the people, and so indispensable to the real prosperity of the colony, that the council in England were compelled, in 1621, to issue an ordinance, which gave it a complete and permanent sanction. In imitation of the constitution of the British Parliament, the legislative power was lodged — partly in the governor, who held the place of the sovereign; partly in a council of state named by the company; and partly in an assembly composed of representatives freely chosen by the people. Each branch of the legislature might decide by a majority of voices, and a negative was reserved to the governor. But no law was to be in force, though approved by all three of the branches of the legislature, until it was ratified by a general court of the company, and returned under its seal to the colony. The ordinance further required the general assembly, as also the council of state, "to imitate and follow the policy of the form of government, laws, customs, and manner of trial and other administration of justice, used in the realm of England, as near
Charles I. adopted the notions, and followed out in its full extent the colonial system, of his father. He declared the colony to be a part of the einpire annexed to the crown, and immediately subordinate to its jurisdiction. During the greater part of his reign, Virginia knew no other law an the will of the sovereign or his delegated agents; and statutes were passed, and taxes iinposed, without the slightest effort to convene a colonial assembly. It was not until the murmurs and complaints, which such a course of conduct was calculated to produce, had betrayed the inhabitants into acts of open resistance to the governor, and into a firm demand of redress from the crown against his oppressions, that the king was brought to more considerate measures. He did not at once yield to their discontents; but, pressed as he was by severe embarrassments at horne, he was content to adopt a policy which would conciliate the colony and remove some of its just complaints. He accordingly soon afterwards appointed Sir William Berkeley governor, with powers and instructions which breathed a far more benign spirit. He was authorized to proclaim that, in all its concerns, civil as well as ecclesiastical, the colony should be governed according to the laws of England. He was directed to issue writs for electing representatives of the people, who, with the governor and council, should form a general assembly clothed with supreme legislative authority; and to establish courts of justice, whose proceedings should be guided by the forms of the parent country. The rights of Englishmen were thus in a great measure secured to the colonists; and, under the government of this excellent magistrate, with some short intervals of interruption, the colony flourished with a vigorous growth for almost forty years. The revolution of 1638 found it, if not in the practical possession of liberty, at least with forms of government well calculated silently to cherish its spirit.
The laws of Virginia, during its colonial state, do not exhibit as many marked deviations, in the general structure of its institutions and civil polity, from those of the parent country, as those in the northern colonies.
The common law was recognized as the general basis of its jurispru. dence; and the legislature, with some appearance of boast, stated, soon
after the restoration of Charles II., that they had “endeavored, in all things, as near as the capacity and constitution of this country would admit, to adhere to those excellent and often refined laws of England, to which we profess and acknowledge all due obedience and reverence.” The prevalence of the common law was also expressly provided for in all the charters successively granted, as well as by the royal declaration when the colony was annexed as a dependency to the crown. Indeed, there is no reason to suppose that the common law was not, in its leading features, very acceptable to the colonists; and in its general policy the colony closely followed in the steps of the mother country, Among the earliest acts of the legislature, we find the Church of England established as the only true church; and its doctrines and discipline were strictly enforced. All nonconformists were at first compelled to leave the colony; and a spirit of persecution was exemplified not far behind the rigor of the most zealous of the Puritans. The clergy of the established church were amply provided for by glebes and tithes, and other aids. Non-residence was prohibited, and a due performance of parochial duties peremptorily required. The laws, indeed, respecting the church, made a very prominent figure during the first fifty years of the colonial legislation. The first law allowing toleration to Protestant dissenters was in the year 1699, and merely adopts that of the statute of the 1st of William and Mary. Subject to this, the Church of England seenis to have maintained an exclusive supremacy down to the period of the American Revolution. Marriages, except in special cases, were required to be celebrated in the parish church, and according to the rubric in the common-prayer book. The law of inheritance of the parent country was silently maintained down to the period of the American Revolution; and the distribution of intestate estates was closely fashioned upon the same general model. Devises also were regulated by the law of England; and no colonial statute appears to have been made on that subject until 1748, when one was enacted which contains a few deviations from it, probably arising from local circumstances. One of the most remarkable facts, in the juridical history of the colony, is the steady attachment of the colony to entails. By an act passed in 1705, it was provided, that estates tail should no longer be docked by fines or recoveries, but only by an act of the legislature in each particular case. And though this was afterwards modified, so as to allow entails to be destroyed in another manner, where the estate did not exceed £200 sterling in value, yet the general policy continued down to the American Revolution. In this respect, the zeal of the colony to secure entails, and perpetuate inheritances in the same family, outstripped that of the parent country. At a very early period the acknowledgment and registry of deeds and mortgages of real estate were provided for; and the non-registry was deemed a badge of fraud. The trial by jury, although a privilege resulting from their general rights, was guarded by special legislation. There was also an early declaration, that no taxes could be levied by the governor without the consent of the general assembly; and when raised, they were to be applied according to the appointment of the legislature. The burgesses also, during their attendance upon the assembly, were free from arrest. In respect to domestic trade, a general freedom was guarantied to all the inhabitants to buy and sell to the greatest advantage, and all engrossing was prohibited. The culture of tobacco seems to have been a constant object of solicitude; and it was encouraged by a long succession of acts sufficiently evincing the
public feeling, and the vast importance of it to the prosperity of the colony We learn from Sir William Berkeley's answers to the lord commissioners, in 1671, that the population of the colony was at that time about 40,000. that the restrictions of the navigation act, cutting off all trade with foreign countries, were very injurious to them, as they were obedient to the law's. And “this (says he) is the cause why no small or great vessels are built here; for we are inost obedient to all laws, whilst the New England men break through, and men trade to any place that their interest leads them.' This lanzuige is sufficiently significant of the restlessness of New Englana under these restraints upon its commerce. But his answer to the question respecting religious and other instruction in the colony would, in oui times, create universal astonishment. — “I thanķ God (says he) there are no free schools nör printing; and I hope we shall not have these hundred years; for learning has brought disobedience, and heresy, and sects, into the world, and printing has divulged them, and libels against the best governinent. God keep us from both!” In 1630 a remarkable change was m:ide in the colonial jurisprudence, by taking all judicial power from the assembly, and allowing an appeal from the judgments of the General Court to the king in council.
PLYMOUTH COLONIES. On the 11th of November, 1629, those humble but fearless adventurers, the Plymouth colonists, before their landing, drew up and signed an original compact, in which, after acknowledging themselves subjects of the crown of England, they proceed to declare : " Having undertaken, for the glory of God, and the advancement of the Christian faith, and the honor of our king and country, a voyage to plant the first colony in the northern parts of Virginia, we do, by these presents, solemnly and mutually, in the presence of God and of one another, covenant and combine ourselves together into a civil body politic, for our better ordering and preservation, and furtherance of the ends aforesaid. And by virtue hereof do enact, constitute, and frame, such just and equal laws, ordinances, acts, constitutions, and officers, from time to time, as shall be thought most meet and convenient for the general good of the colony; unto which we promise all due submission and obedience." This is the whole of the compact, and it was signed by forty-one persons.
It is, in its very essence, a pure democracy; and, in pursuance of it, the colonists proceeded soon afterwards to organize the colonial government, under the name of the Colony of New Plyinouth, to appoint a governor and other officers, and to enact laws. The governor was chosen annually by the freemen, and had at first one assistant to aid him in the discharge of his trust. Four others were soon afterwards added, and finally the number was increased to seven. The supreme legislative power resided in, and was exercised by, the whole body of the male inhabitants
every free. man, who was a member of the church, being admitted to vote in all public affuirs. The number of settlements having increased, and being at a considerable distance from each other, a house of representatives was established in 1639, the members of which, as well as all other officers, were annually chosen. They adopted the common law of England as the general basis of their jurisprudence,-varying it however, from time to time, by municipal regulations better adapted to their situation, or conforming more exactly to their stern notions of the absolute authority and universal obligation of the Mosaic institutions. VOL. I.
The Plymouth colonists acted, at first, altogether under the roluntary compact and association already mentioned. But they daily felt embarrassments from the want of some general authority, derived directly or indirectly from the crown, which should recognize their settlement and confirm their legislation. After several ineffectual attempts made for this purpose, they at length succeeded in obtaining, in January,1629, a patent from the council established at Plyinouth, in England, under the charter of King James, of 1620. This patent, besides a grant of the territory, upon the terms and tenure of the original patent of 1620, included an authority to the patentee (William Bradford) and his associates “to incorporate, by some usual or fit name and title, hiin or themselves, or the people there inhabiting under him or them, and their successors; from time to time to make orders, ordinances, and constitutions, as well for the better governie ment of their affairs here, and the receiving or admitting any into their society, as also for the better government of his or their people, or his or their people at sea, in going thither or returning from thence; and the same to put or cause to be put in execution, by such officers and ministers as he or they shall authorize and depute; provided, that the said laws and orders be not repugnant to the laws of England, or the frame of gove ernment by the said president and council (of Plymouth Company] hereafter to be established.”
The charter of 1629 furnished them, however, with the color of delegated sovereignty, of which they did not fail to avail themselves. They assumed under it the exercise of the most plenary executive, legislative, and judicial powers, with but a momentary scruple as to their right to inAict capital punishinents. They were not disturbed in the free exercise of these powers, either through the ignorance or the connivance of the crown, until after the restoration of Charles II. Their authority under their charter was then questioned ; and several unsuccessful attempts were made to procure a confirmation froin the crown. They continued to cling to it, until, in the general shipwreck of charters, in 1684, theirs was overturned. An arbitrary government was then established over them, in common with the other New England colonies, and they were finally incorporated into a province, with Massachusetts, under the charter granted to the latter by William and Mary, in 1691.
After providing for the manner of choosing their governor and legislature, as above stated, their first attention seems to have been directed to the establishment of “ free liberties of the free-born people of England." It was therefore declared, almost in the language of Magna Charta, that justice should be impartially administered unto all, not sold or denied ; that no person should suffer “ in respect to life, limb, liberty, good name, or estate, but by virtue or equity of some express law of the General Court, or the good and equitable laws of our nation suitable for us, in matters which are of a civil nature, (as by the court here hath been accustomed,) wherein we have no particular law of our own;" and none should suffer without being brought to answer by due course and process of law; that, in criminal and civil cases, there should be a trial by jury at all events upon a final trial on appeal, with the right to challenge for just cause; and, in capital cases, a peremptory right to challenge twenty jurors, as in England; that no party should be cast or condemned, unless upon the testimony of two sufficient witnesses, or other sufficient evidence, or circumstances, unless otherwise specially provided by law; that all persons of the age of twenty-one years, and of sound
memory, should have power to inake wills and other lawful alienations rif
heir estate, whether they were condemned, or excoinmunicated, or other ; except that, in treason, their personal estate should be forfeited ; but their real estate was still to be at their disposal. All processes were directed to be in the king's name. All trials in respect to land were to be in the county where it lıy; and all personal actions, where one of the parties lived; and lands and goods were liable to attachment to answer the judg ment rendered in any action. All lands were to descend according to the free tenure of lands of East Greenwich, in the county of Kent; and all entiiled lands according to the law of England.
All' the sons were to inherit equally, except the eldest, who was to have a duble share. If there were no sons, all the daughters were to inherit alike. Brothers of the whole blood were to inherit; and if none, then sisters of the whole blood. All conveyances of land were to be by deed only, acknowledged before soine nagistrate, and recorded in the public records. Among capital offences were enumerated, without any discrimination, idolatry, blasphemy, treascı, murder, witchcraft, bestiality, so donny, false witness, man-stealing, cursing or smiting father or mother, rape, wilful burning of houses and ships, and piracy; while certain other offences, of a nature quite as inn. moral and injurious to society, received a far more moderate punishment. Undoubtedly, a reverential regard for the Scriptures placed the crimes of idolatry, blasphemy, and false witness, and cursing and siniting father and mother, ainong the capital offences. And, as might well be presumed from the religious sentiments of the people, ample protection was given to the church ; and the maintenance of a public orthodox ministry, and of public schools, was carefully provided for.
Application was made for a charter to King Charles, who, accordingly, in March, 1628, granted to the grantees and their associates the most ample powers of government. The charter confirmed to thein the territory already granted by the council established at Plymouth, to be holden of the crown, as of the royal manor of East Greenwich,“ in free and common soccage, and not in capite, nor by knight's service,” yielding to the crown one fifth part of all ore of gold and silver, &c., with the exception, however, of any part of the territory actually possessed or inhabited by any other Christian prince or state, or of any part of it within the bounds of the southern colony (of Virginia) granted by King James. It also created the associates a body politic by the name of " The Governor and Company of the Massachusetts Bay in New England,” with the usual powers of corporations. It provided, that the government should be administered by a governor, a deputy.governor, and eighteen assistants, from time to time elected out of the freemen of the company, which officers should have the care of the general business and affrirs of lands and plantations, and the government of the people there; and it appointed the first governor, deputy-governor, and assistants, by name. It further provided, that a court or quorum, for the transaction of business, should consist of the governor, or the deputygovernor, and seve: or more assistants, which should assemble as often as once a month for that purpose, and also that four great general assemblies of the company should be held in every year. In these great and general asseinblies, (which were composed of the governor, deputy, assistants, and freemen present,) freemen were to be adınitted free of the company, arti.