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SKETCH OF ANTE-REVOLUTIONARY HISTORY. - Jonathan Elliot, The Debates in the Several State Conventions of the Adoption of the Federal Constitution vol. 1 
The debates in the several state conventions on the adoption of the federal Constitution, as recommended by the general convention at Philadelphia, in 1787. Together with the Journal of the federal convention, Luther Martin’s letter, Yates’s minutes, Congressional opinions, Virginia and Kentucky resolutions of ‘98-‘99, and other illustrations of the Constitution … 2d ed., with considerable additions. Collected and rev. from contemporary publications, by Jonathan Elliot. Pub. under the sanction of Congress. (1836), 5 vols.
Part of: The Debates in the Several State Conventions of the Adoption of the Federal Constitution, 5 vols.
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SKETCH OF ANTE-REVOLUTIONARY HISTORY.
[Condensed from Story’s Commentaries.]
The first permanent settlement made in America, under the auspices of England, was under a charter granted to Sir Thomas Gates and his associates, by James I. in the fourth year after his accession to the throne of England, (in 1606.) That charter granted to them the territories in America then commonly called Virginia, lying on the sea-coast between the 34th and the 45th degrees of north latitude, and the islands adjacent within 100 miles, which were not belonging to or possessed by any Christian prince or people. The associates were divided into two companies, one of which was required to settle between the 34th and 41st degrees of north latitude, and the other between the 38th and 45th degrees of north latitude, but not within 100 miles of the prior colony. By degrees, the name of Virginia was confined to the first or south colony. The second assumed the name of the Plymouth Company, from the residence of the original grantees; and New England was founded under their auspices. Each colony had exclusive propriety in all the territory within fifty miles from the first seat of their plantation.
The companies were authorized to engage, as colonists, any of the subjects of England who should be disposed to emigrate. All persons, being English subjects and inhabiting in the colonies, and every of their children born therein, were declared to have and possess all liberties, franchises, and immunities, within any other of the dominions of the crown, to all intents and purposes, as if they had been abiding and born within the realm of England, or any other dominions of the crown. The patentees were to hold the lands, &c., in the colony, of the king, his heirs and successors, as of the manor of East Greenwich in the county of Kent, in free and common soccage only, and not in capite; and were authorized to grant the same to the inhabitants of the colonies in such manner and form, and for such estates, as the council of the colony should direct.
In respect to political government, each colony was to be governed by a local council, appointed and removable at the pleasure of the crown, according to the royal instructions and ordinances from time to time promulgated. These councils were to be under the superior management and direction of another council sitting in England. A power was given to expel all intruders, and to lay a limited duty upon all persons trafficking with the colony; and a prohibition was imposed upon all the colonists against trafficking with foreign countries under the pretence of a trade from the mother country to the colonies.
The settlements in Virginia were earliest in point of date, and were fast advancing under a policy which subdivided the property among the settlers, instead of retaining it in common, and thus gave vigor to private enterprise. As the colony increased, the spirit of its members assumed more and more the tone of independence; and they grew restless and impatient for the privileges enjoyed under the government of their native country. To quiet this uneasiness, Sir George Yeardley, then the governor of the colony, in 1619 called a general assembly, composed of representatives from the various plantations in the colony, and permitted them to assume and exercise the high functions of legislation. Thus was formed and established the first representative legislature that ever sat in America. And this example of a domestic parliament, to regulate all the internal concerns of the country, was never lost sight of, but was ever afterwards cherished, throughout America, as the dearest birthright of freemen. So acceptable was it to the people, and so indispensable to the real prosperity of the colony, that the council in England were compelled, in 1621, to issue an ordinance, which gave it a complete and permanent sanction. In imitation of the constitution of the British Parliament, the legislative power was lodged — partly in the governor, who held the place of the sovereign; partly in a council of state named by the company; and partly in an assembly composed of representatives freely chosen by the people. Each branch of the legislature might decide by a majority of voices, and a negative was reserved to the governor. But no law was to be in force, though approved by all three of the branches of the legislature, until it was ratified by a general court of the company, and returned under its seal to the colony. The ordinance further required the general assembly, as also the council of state, “to imitate and follow the policy of the form of government, laws, customs, and manner of trial and other administration of justice, used in the realm of England, as near as may be.”
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 empire annexed to the crown, and immediately subordinate to its jurisdiction. During the greater part of his reign, Virginia knew no other law than the will of the sovereign or his delegated agents; and statutes were passed, and taxes imposed, without the slightest effort to convene a colonial assembly. It was not until the murmurs and complaints, which such a course of conduct was calculated to produce, had betrayed the inhabitants into acts of open resistance to the governor, and into a firm demand of redress from the crown against his oppressions, that the king was brought to more considerate measures. He did not at once yield to their discontents; but, pressed as he was by severe embarrassments at home, he was content to adopt a policy which would conciliate the colony and remove some of its just complaints. He accordingly soon afterwards appointed Sir William Berkeley governor, with powers and instructions which breathed a far more benign spirit. He was authorized to proclaim that, in all its concerns, civil as well as ecclesiastical, the colony should be governed according to the laws of England. He was directed to issue writs for electing representatives of the people, who, with the governor and council, should form a general assembly clothed with supreme legislative authority; and to establish courts of justice, whose proceedings should be guided by the forms of the parent country. The rights of Englishmen were thus 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 1688 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 jurisprudence; and the legislature, with some appearance of boast, stated, soon after the restoration of Charles II., that they had “endeavored, in all things, as near as the capacity and constitution of this country would admit, to adhere to those excellent and often refined laws of England, to which we profess and acknowledge all due obedience and reverence.” The prevalence of the common law was also expressly provided for in all the charters successively granted, as well as by the royal declaration when the colony was annexed as a dependency to the crown. Indeed, there is no reason to suppose that the common law was not, in its leading features, very acceptable to the colonists; and in its general policy the colony closely followed in the steps of the mother country. 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 seems 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 laws. And “this (says he) is the cause why no small or great vessels are built here; for we are most obedient to all laws, whilst the New England men break through, and men trade to any place that their interest leads them.” This language is sufficiently significant of the restlessness of New England under these restraints upon its commerce. But his answer to the question respecting religious and other instruction in the colony would, in our times, create universal astonishment. — “I thank God (says he) there are no free schools nor 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 government. God keep us from both!” In 1680 a remarkable change was made 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.
On the 11th of November, 1620, 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 Plymouth, 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 freeman, who was a member of the church, being admitted to vote in all public affairs. 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.
The Plymouth colonists acted, at first, altogether under the voluntary 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 Plymouth, 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, him 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 government 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 government 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 inflict capital punishments. 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 from 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 make wills and other lawful alienations of their estate, whether they were condemned, or excommunicated, 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 lay; and all personal actions, where one of the parties lived; and lands and goods were liable to attachment to answer the judgment 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 entailed lands according to the law of England. All the sons were to inherit equally, except the eldest, who was to have a double 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 some magistrate, and recorded in the public records. Among capital offences were enumerated, without any discrimination, idolatry, blasphemy, treasen, murder, witchcraft, bestiality, sodomy, 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 immoral 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 smiting father and mother, among 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 them 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 affairs 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 deputy-governor, and seven 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 assemblies, (which were composed of the governor, deputy, assistants, and freemen present,) freemen were to be admitted free of the company, officers were to be elected, and laws and ordinances for the good and welfare of the colony made; “so as such laws and ordinances be not contrary or repugnant to the laws and statutes of this our realm of England.” At one of those great and general assemblies held in Easter Term, the governor, deputy, and assistants, and other officers, were to be annually chosen by the company present. The company were further authorized to transport any subjects, or strangers willing to become subjects, of the crown, to the colony, and to carry on trade to and from it, without custom or subsidy, for seven years, and were to be free of all taxation of imports or exports to and from the English dominion for the space of twenty-one years, with the exception of a five per cent. duty. The charter further provided, that all subjects of the crown, who should become inhabitants, and their children born there, or on the seas going or returning, should enjoy all liberties and immunities of free and natural subjects, as if they, and every of them, were born within the realm of England. Full legislative authority was also given, subject to the restriction of not being contrary to the laws of England, as also for the imposition of fines and mulcts “according to the course of other corporations in England.” Many other provisions were added, similar in substance to those found in the antecedent colonial charters of the crown.
The General Court, in their address to Parliament in 1646, in answer to the remonstrance of certain malcontents, used the following language: “For our government itself, it is framed according to our charter, and the fundamental and common laws of England, and carried on according to the same, (taking the words of eternal truth and righteousness along with them, as that rule by which all kingdoms and jurisdictions must render account of every act and administration in the last day,) with as bare an allowance for the disproportion between such an ancient, populous, wealthy kingdom, and so poor an infant, thin colony, as common reason can afford.” And they then proceeded to show the truth of their statement, by drawing a parallel, setting down in one column the fundamental and common laws and customs of England, beginning with Magna Charta, and, in a corresponding column, their own fundamental laws and customs. Among other parallels, after stating that the supreme authority in England is in the high court of Parliament, they stated, “The highest authority here is in the General Court, both by our charter and by our own positive laws.”
For three or four years after the removal of the charter, the governor and assistants were chosen, and all the business of the government was transacted, by the freemen assembled at large in a General Court. But the members having increased, so as to make a general assembly inconvenient, an alteration took place, and, in 1634, the towns sent representatives to the General Court. They drew up a general declaration, that the General Court alone had power to make and establish laws, and to elect officers; to raise moneys and taxes, and to sell lands; and that, therefore, every town might choose persons, as representatives, not exceeding two, who should have the full power and voices of all the freemen, except in the choice of officers and magistrates, wherein every freeman was to give his own vote. The system thus proposed was immediately established by common consent, although it is nowhere provided for in the charter. And thus was formed the second house of representatives (the first being in Virginia) in any of the colonies. At first, the whole of the magistrates (or assistants) and the representatives sat together, and as one body, in enacting all laws and orders. But at length, in 1644, they separated into two distinct and independent bodies, each of which possessed a negative upon the acts of the other. This course of proceeding continued until the final dissolution of the charter.
After the fall of the first colonial charter, in 1684, Massachusetts remained for some years in a very disturbed state, under the arbitrary power of the crown. At length a new charter was, in 1691, granted to the colony by William and Mary; and it henceforth became known as a province, and continued to act under this last charter until after the revolution. The charter comprehended within its territorial limits all the old colony of the Massachusetts Bay, the colony of New Plymouth, the province of Maine, the territory called Acadia, or Nova Scotia, and all the lands lying between Nova Scotia and Maine; and incorporated the whole into one province by the name of the Province of the Massachusetts Bay in New England, to be holden as of the royal manor of East Greenwich, in the county of Kent. It confirmed all prior grants made of lands to all persons, corporations, colleges, towns, villages, and schools. It reserved to the crown the appointment of the governor, and lieutenant-governor, and secretary of the province, and all the officers of the Court of Admiralty. It provided for the appointment, annually, of twenty-eight counsellors, who were to be chosen by the General Court, and nominated the first board. The governor and counsellors were to hold a council for the ordering and directing of the affairs of the province. The governor was invested with the right of nominating, and, with the advice of the council, of appointing all military officers, and all sheriffs, provosts, marshals, and justices of the peace, and other officers of courts of justice. He had also the power of calling the General Court, and of adjourning, proroguing, and dissolving it. He had also a negative upon all laws passed by the General Court. The General Court was to assemble annually on the last Wednesday of May; and was to consist of the governor and council for the time being, and of such representatives, being freeholders, as should be annually elected by the freeholders of each town who possessed a freehold of forty shillings annual value, or other estate to the value of forty pounds. Each town was entitled to two representatives; but the General Court was, from time to time, to decide on the number which each town should send. The General Court was invested with full authority to erect courts, to levy taxes, and make all wholesome laws and ordinances, “so as the same be not repugnant or contrary to the laws of England;” and to settle annually all civil officers, whose appointment was not otherwise provided for. All laws, however, were to be sent to England for approbation or disallowance; and if disallowed, and so signified under the sign manual and signet, within three years, the same thenceforth to cease and become void; otherwise to continue in force according to the terms of their original enactment. The General Court was also invested with authority to grant any lands in the colonies of Massachusetts, New Plymouth, and province of Maine, with certain exceptions. The governor and council were invested with full jurisdiction as to the probate of wills and granting administrations. The governor was also made commander-in-chief of the militia, with the usual martial powers; but was not to exercise martial law without the advice of the council.
In case of his death, removal, or absence, his authority was to devolve on the lieutenant-governor, or, if his office was vacant, then on the council. With a view also to advance the growth of the province by encouraging new settlements, it was expressly provided, that there should be “a liberty of conscience allowed in the worship of God to all Christians, except Papists;” and that all subjects inhabiting in the province, and their children born there, or on the seas going or returning, should have all the liberties and immunities of free and natural subjects, as if they were born within the realm of England. And in all cases an appeal was allowed from the judgments of any courts of the province to the king, in the privy council, in England, where the matter in difference exceeded three hundred pounds sterling. And, finally, there was a reservation of the whole admiralty jurisdiction to the crown; and of a right to all subjects to fish on the coasts.
After the grant of the provincial charter, in 1691, the legislation of the colony took a wider scope, and became more liberal, as well as more exact. At the very first session an act passed, declaring the general rights and liberties of the people, and embracing the principal provisions of Magna Charta on this subject. Among other things, it was declared, that no tax could be levied but by the General Court; that the trial by jury should be secured to all the inhabitants; and that all lands shall be free from escheats and forfeitures, except in cases of high treason. A habeas corpus act was also passed at the same session, but it seems to have been disallowed by the crown. Chalmers asserts that there is no circumstance, in the history of colonial jurisprudence, better established, than the fact that the habeas corpus act was not extended to the plantations until the reign of Queen Anne.
Lands were made liable to the payment of debts. The right of choosing their ministers was, after some struggles, secured in effect to the concurrent vote of the church and congregation in each parish, and the spirit of religious intolerance was in some measure checked, if not entirely subdued. Among the earliest acts of the provincial legislature, which were approved, were an act for the prevention of frauds and perjuries, conformable to that of Charles II.; an act for the observance of the Lord’s day; an act for solemnizing marriages by a minister or a justice of the peace; an act for the support of ministers and schoolmasters; an act for regulating towns and counties; and an act for the settlement and distribution of the estates of persons dying intestate.
In November, 1629, Captain John Mason obtained a grant, from the council of Plymouth, of all that part of the mainland in New England, “lying upon the sea-coast, beginning from the middle part of the Merrimack River, and thence to proceed northwards along the sea-coast to Piscataqua River, and so forwards up within the said river, and to the farthest head thereof; and from thence north-westwards until threescore miles be finished from the first entrance of Piscataqua River; and also from Merrimack through the said river, and to the farthest head thereof, and so forward up into the lands westwards, until threescore miles be finished; and from thence to cross overland to the threescore miles and accounted from Piscataqua River, together with all islands and islets within five leagues’ distance of the premises.” This territory was afterwards called New Hampshire. The land so granted was expressly subjected to the conditions and limitations in the original patent.
A further grant was made to Mason by the council of Plymouth about the time of the surrender of their charter, (22d April, 1635,) “beginning from the middle part of Naumkeag River, (Salem,) and from thence to proceed eastwards along the sea-coast to Cape Ann, and round about the same to Piscataqua Harbor; and then covering much of the land in the prior grant, and giving to the whole the name of New Hampshire.
In the exposition of its own charter, Massachusetts contended that its limits included the whole territory of New Hampshire; and, being at that time comparatively strong and active, she succeeded in establishing her jurisdiction over it, and maintained it with unabated vigilance forty years. The controversy was finally brought before the king in council; and in 1679, it was solemnly adjudged against the claim of Massachusetts. And it being admitted that Mason, under his grant, had no right to exercise any powers of government, a commission was, in the same year, issued by the crown for the government of New Hampshire.
New Hampshire continued down to the period of the revolution to be governed by commission as a royal province, and enjoyed the privilege of enacting her own laws through the instrumentality of a General Assembly, in the manner provided by the first commission.
The laws of New Hampshire, during its provincial state, partook very much the character of those of the neighboring province of Massachusetts.
In April, 1639, Sir Ferdinando Gorges obtained from the crown a confirmatory grant of all the land from Piscataqua to Sagadahock and the Kennebeck River, and from the coast into the northern interior one hundred and twenty miles; and it was styled “The Province of Maine.” Of this province he was made lord palatine, with all the powers, jurisdiction, and royalties, belonging to the bishop of the county palatine of Durham; and the lands were to be holden as of the manor of East Greenwich. The charter contains a reservation of faith and allegiance to the crown, as having the supreme dominion; and the will and pleasure of the crown is signified, that the religion of the Church of England be professed, and its ecclesiastical government established, in the province. It also authorizes the palatine, with the assent of the greater part of the freeholders of the province, to make laws, not repugnant or contrary, but as near as conveniently may be, to the laws of England, for the public good of the province; and to erect courts of judicature for the determination of all civil and criminal causes, with an appeal to the palatine. But all the powers of government, so granted, were to be subordinate to the “power and regement,” of the lords commissioners for foreign plantations for the time being.
A controversy between Massachusetts and the palatine, as to jurisdiction over the province, was brought before the privy council at the same time with that of Mason respecting New Hampshire, and the claim of Massachusetts was adjudged void. Before a final adjudication was had, Massachusetts had the prudence and sagacity, in 1677, to purchase the title of Gorges for a trifling sum; and thus, to the great disappointment of the crown, (then in treaty for the same object,) succeeded to it, and held it, and governed it as a provincial dependency until the fall of its own charter; and it afterwards, as we have seen, was incorporated with Massachusetts, in the provincial charter of 1691.
The colony of New Haven had a separate origin, and was settled by emigrants immediately from England, without any title derived from the patentees. They began their settlement in 1638, purchasing their lands of the natives; and entered into a solemn compact of government. By it no person was admitted to any office, or to have any voice at any election, unless he was a member of one of the churches allowed in the dominion. There was an annual election of the governor, the deputy, magistrates, and other officers, by the freemen. The General Court consisted of the governor, deputy, magistrates, and two deputies from each plantation.
Other courts were provided for; and Hutchinson observes, that their laws and proceedings varied in very few circumstances from Massachusetts, except that they had no jury, either in civil or criminal cases. All matters of facts were determined by the court.
Soon after the restoration of Charles II. to the throne, the colony of Connecticut, aware of the doubtful nature of its title to the exercise of sovereignty, solicited, and in April, 1662, obtained, from that monarch, a charter of government and territory. The charter included within its limits the whole colony of New Haven; and as this was done without the consent of the latter, resistance was made to the incorporation, until 1665, when both were indissolubly united, and have ever since remained under one general government.
In 1685, a quo warranto was issued by King James against the colony, for the repeal of the charter. No judgment appears to have been rendered upon it; but the colony offered its submission to the will of the crown; and Sir Edmund Andros, in 1687, went to Hartford, and, in the name of the crown, declared the government dissolved. They did not, however, surrender the charter; but secreted it in an oak, which is still venerated; and immediately after the revolution of 1688, they resumed the exercise of all its powers. The successors of the Stuarts silently suffered them to retain it until the American Revolution, without any struggle or resistance. The charter continued to be maintained as a fundamental law of the state until the year 1818, when a new constitution of government was framed and adopted by the people. The laws of Connecticut were, in many respects, similar to those of Massachusetts.
Roger Williams succeeded in obtaining, from the Earl of Warwick, in 1643, a charter of incorporation of Providence Plantations; and also, in 1644, a charter from the two houses of Parliament (Charles I. being then driven from his capital) for the incorporation of the towns of Providence, Newport, and Portsmouth, for the absolute government of themselves, but according to the laws of England.
Under this charter an assembly was convened in 1647, consisting of the collective freemen of the various plantations. The legislative power was vested in a court of commissioners of six persons, chosen by each of the four towns then in existence. The whole executive power seems to have been vested in a president and four assistants, who were chosen from the freemen, and formed the supreme court for the administration of justice.
They continued to act under their former government until the restoration of Charles II. That event seems to have given great satisfaction to these plantations. They immediately proclaimed the king, and sent an agent to England; and in July, 1663, after some opposition, they succeeded in obtaining a charter from the crown.
That charter incorporated the inhabitants, by the name of “the Governor and Company of the English Colony of Rhode Island and Providence Plantations, in New England, in America,” conferring on them the usual powers of corporations.
Rhode Island enjoys the honor of having been, if not the first, at least one of the earliest, of the colonies, and indeed of modern states, in which the liberty of conscience and freedom of worship were boldly proclaimed among its fundamental laws.
In December, 1686, Sir Edmund Andros, agreeably to his orders, dissolved their government, and assumed the administration of the colony. The revolution of 1688 put an end to his power; and the colony immediately afterwards resumed its charter, and, though not without some interruptions, continued to maintain and exercise its powers down to the period of the American Revolution. It still continues to act under the same charter as a fundamental law, it being the only state in the Union which has not formed a new constitution of government.
One of the most memorable circumstances in the history of New England is the early formation and establishment of a confederation of the colonies for amity, offence and defence, and mutual advice and assistance. The project was agitated as early as 1637; but difficulties having occurred, the articles of union were not finally adopted until 1643. In the month of May of that year, the colonies of Massachusetts, Connecticut, New Haven, and Plymouth, formed a confederacy, by the name of the United Colonies of New England, and entered into a perpetual league of friendship and amity, for offence and defence, and mutual advice and succor. The charges of all wars, offensive and defensive, were to be borne in common, and according to an apportionment provided for in the articles; and in case of invasion of any colony, the others were to furnish a certain proportion of armed men for its assistance. Commissioners appointed by each colony were to meet, and determine all affairs of war and peace, leagues, aids, charges, &c., and to frame and establish agreements and orders for other general interests. This union, so important, and necessary for mutual defence and assistance, during the troubles which then agitated the parent country, was not objected to by King Charles II. on his restoration; and, with some few alterations, it subsisted down to 1686, when all the charters were prostrated by the authority of King James. Rhode Island made application to be admitted into this union, but was refused, upon the ground that the territory was within the limits of Plymouth colony. It does not appear that subsequently the colony became a party to it.
The province of Maryland was included originally in the patent of the Southern or Virginia Company; and, upon the dissolution of that company, it reverted to the crown. King Charles I., on the 20th June, 1632, granted it by patent to Cecilius Calvert, Lord Baltimore, the son of George Calvert, Lord Baltimore, to whom the patent was intended to be made; but he died before it was executed. By the charter, the king erected it into a province, and gave it the name of Maryland, in honor of his queen, Henrietta Maria, the daughter of Henry IV. of France, to be held of the crown of England, he; yearly, forever, rendering two Indian arrows. The territory was bounded by a right line, drawn from Watkins’s Point, on Chesapeake Bay, to the ocean, on the east; thence to that part of the estuary of Delaware, on the north, which lieth under the 40th degree, where New England is terminated; thence, in a right line, by the degree aforesaid, to the meridian of the fountain of Potomac; thence, following its course by the farther bank, to its confluence with the Chesapeake, and thence to Watkins’s Point.
The first emigration made under the auspices of Lord Baltimore was in 1632, and consisted of about 200 gentlemen of considerable fortune and rank, and their adherents, being chiefly Roman Catholics. “He laid the foundation of this province (says Chalmers) upon the broad basis of security to property and of freedom of religion, granting, in absolute fee, fifty acres of land to every emigrant; establishing Christianity agreeably to the old common law, of which it is a part, without allowing preeminence to any particular sect. The wisdom of his choice soon converted a dreary wilderness into a prosperous colony.”
The first legislative assembly of Maryland, held by the freemen at large, was in 1634 — 1635; but little of their proceedings is known. No acts appear to have been adopted until 1638 — 1639, when provision was made, in consequence of an increase of the colonists, for a representative assembly, called the House of Assembly, chosen by the freemen; and the laws passed by the Assembly, and approved by the proprietary, or his lieutenant, were to be of full force.
At the same session, an act, which may be considered as in some sort a Magna Charta, was passed, declaring, among other things, that “Holy Church, within this province, shall have all her rights and liberties; that the inhabitants shall have all their rights and liberties according to the great charter of England;” and that the goods of debtors, if not sufficient to pay their debts, shall be sold and distributed pro rata, saving debts to the proprietary. In 1649, an act was passed punishing blasphemy, or denying the Holy Trinity, with death, and confiscation of goods and lands.
Under the protectorate of Cromwell, Roman Catholics were expressly denied any protection in the province; and all others, “who profess faith in God by Jesus Christ, though differing in judgment from the doctrine, worship, or discipline, publicly held forth,” were not to be restrained from the exercise of their religion. In 1696, the Church of England was established in the province: and in 1702, the liturgy, and rites, and ceremonies, of the Church of England, were required to be pursued in all the churches — with such toleration for dissenters, however, as was provided for in the act of William and Mary. And the introduction of the test and abjuration acts, in 1716, excluded all Roman Catholics from office.
It appears to have been a policy, adopted at no great distance of time after the settlement of the colony, to provide for the public registration of conveyances of real estates. In the silence of the statute book until 1715, it is presumed that the system of descents of intestates was that of the parent country. In that year an act passed which made the estate partible among all the children; and the system thus introduced has, in its substance, never since been departed from. Maryland too, like the other colonies was early alive to the importance of possessing the sole power of internal taxation; and accordingly, in 1650, it was declared that no taxes should be levied without the consent of the General Assembly.
Upon the revolution of 1688, the government of Maryland was seized into the hands of the crown, and was not again restored to the proprietary until 1716. From that period no interruption occurred until the American Revolution.
Charles II., soon after his restoration, instigated as much by personal antipathy as by a regard for the interest of the crown, determined to maintain his right, and in March, 1664, granted a patent to his brother, the Duke of York and Albany, by which he conveyed to him the region extending from the western bank of the Connecticut to the eastern shore of the Delaware, together with Long Island, and conferred on him the powers of government, civil and military.
A part of this tract was afterwards conveyed by the duke, by deed of lease and release, in June of the same year, to Lord Berkeley and Sir George Carteret. By this latter grant they were entitled to all the tract adjacent to New England, lying westward of Long Island, and bounded on the east by the main sea, and partly by Hudson’s River, and upon the west by Delaware Bay or River, and extending southward to the main ocean as far as Cape May at the mouth of Delaware Bay, and to the northward as far as the northernmost branch of Delaware Bay or River, which is 41 degrees 40 minutes latitude; which tract was to be called by the name of Nova Cæsarea, or New Jersey. So that the territory then claimed by the Dutch as the New Netherlands was divided into the colonies of New York and New Jersey. In September, 1664, the Dutch colony was surprised by a British armament, which arrived on the coast, and was compelled to surrender to its authority.
No general assembly was called for several years; and the people having become clamorous for the privileges enjoyed by other colonists, the governor was, in 1682, authorized to call an assembly, which was empowered to make laws for the general regulation of the state, which, however, were of no force without the ratification of the proprietary. Upon the revolution of 1688, the people of New York immediately took side in favor of the Prince of Orange. From this era they were deemed entitled to all the privileges of British subjects, inhabiting a dependent province of the state.
As soon as the first royal governor arrived, in 1691, an assembly was called, which passed a number of important acts. Among others was an act virtually declaring their right of representation, and their right to enjoy the liberties and privileges of Englishmen by Magna Charta. It enacted, that the supreme legislative power should forever reside in a governor and council appointed by the crown, and the people by their representatives (chosen in the manner pointed out in the act) convened in General Assembly; that in all criminal cases, there should be a trial by a jury; that estates of femes covert should be conveyed only by deed upon privy examination; that wills in writing, attested by three or more credible witnesses, should be sufficient to pass lands; that there should be no fines upon alienations, or escheats and forfeitures of lands, except in cases of treason; that no person should hold any office, unless upon his appointment he would take the oaths of supremacy, and the test prescribed by the act of Parliament; that no tax or talliage should be levied but by the consent of the General Assembly.
Perhaps New York was more close in the adoption of the policy and legislation of the parent country, before the revolution, than any other colony.
New Jersey, as we have already seen, was a part of the territory granted to the Duke of York, and was by him granted, in June, 1664, to Lord Berkeley and Sir George Carteret, with all the rights, royalties, and powers of government which he himself possessed. The proprietors, for the better settlement of the territory, agreed, in February, 1664—1665, upon a constitution or concession of government.
This constitution continued until the province was divided, in 1676, between the proprietors. By that division East New Jersey was assigned to Carteret; and West New Jersey to William Penn and others, who had purchased of Lord Berkeley. Carteret then explained and confirmed the former concessions for the territory thus exclusively belonging to himself. The proprietors also of West Jersey drew up another set of concessions for the settlers within that territory. They contain very ample privileges to the people.
Whether these concessions became the general law of the province seems involved in some obscurity. There were many difficulties and contests for jurisdiction between the governors of the Duke of York and the proprietors of the Jerseys; and these were not settled until after the duke, in 1680, finally surrendered all right to both by letters patent granted to the respective proprietors. In 1681, the governor of the proprietors of West Jersey, with the consent of the General Assembly, made a frame of government, embracing some of the fundamentals in the former concessions. There was to be a governor and council, and a General Assembly of representatives of the people. The General Assembly had the power to make laws, to levy taxes, and to appoint officers. Liberty of conscience was allowed, and no persons rendered incapable of office in respect of their faith and worship. West Jersey continued to be governed in this manner until the surrender of the proprietary government, in 1702.
Carteret died in 1679, and, being sole proprietor of East Jersey, by his will he ordered it to be sold for payment of his debts; and it was accordingly sold to William Penn and eleven others, who were called the Twelve Proprietors. They afterwards took twelve more into the proprietaryship; and to the twenty-four thus formed, the Duke of York, in March, 1682, made his third and last grant of East Jersey. Very serious dissensions soon arose between the two provinces themselves, as well as between them and New York, which banished moderation from their councils, and threatened the most serious calamities. A quo warranto was ordered by the crown, in 1686, to be issued against both provinces. East Jersey immediately offered to be annexed to West Jersey, and to submit to a governor appointed by the crown. Soon afterwards the crown ordered the Jerseys to be annexed to New England, and the proprietors of East Jersey made a formal surrender of its patent, praying only for a new grant, securing their right of soil. Before this request could be granted, the revolution of 1688 took place, and they passed under the allegiance of a new sovereign.
From this period, both of these provinces were in a state of great confusion and distraction; and remained so, until the proprietors of both made a formal surrender of all their powers of government, but not of their lands, to Queen Anne, in April, 1702. The queen immediately reunited both provinces into one province, and by commission appointed a governor over them.
Pennsylvania was originally settled by different detachments of planters under various authorities, Dutch, Swedes, and others, which at different times occupied portions of land on South or Delaware River. The ascendency was finally obtained over these settlements by the governors of New York, acting under the charter of 1664, to the Duke of York.
It continued in a feeble state until the celebrated William Penn, in March, 1681, obtained a patent from Charles II. by which he became the proprietary of an ample territory, which, in honor of his father, was called Pennsylvania. The boundaries described in the charter were on the east by Delaware River, from twelve miles distant northwards of New Castle town, to the 43d degree of north latitude, if the said river doth extend so far northward; but if not, then by said river so far as it doth extend; and from the head of the river, the eastern bounds are to be determined by a meridian line to be drawn from the head of said river unto the said 43d degree of north latitude. The said lands to extend westward five degrees in longitude, to be computed from the said eastern bounds; and the said lands to be bounded on the north by the beginning of the 43d degree of north latitude; and on the south by a circle drawn at twelve miles’ distance from New Castle, northward and westward, to the beginning of the 40th degree of northern latitude; and then by a straight line westward to the limits of the longitude above mentioned. The charter constituted Penn the true and absolute proprietary of the territory thus described.
It authorized the proprietary, and his heirs and successors, to make all laws for raising money and other purposes, with the assent of the freemen of the country, or their deputies assembled for the purpose. But “the same laws were to be consonant to reason, and not repugnant or contrary, but, as near as conveniently may be, agreeable to law, and statutes and rights, of this our kingdom of England.” The laws for the descent and enjoyment of lands, and succession to goods, and of felonies, were to be according to the course in England, until altered by the Assembly. All laws were to be sent to England within five years after the making of them, and, if disapproved of by the crown within six months, to become null and void. It also authorized the proprietary to appoint judges and other officers; to pardon and reprieve criminals; to establish courts of justice, with a right of appeal to the crown from all judgments; to create cities and other corporations; to erect ports, and manors, and courts baron in such manors. Liberty was allowed to subjects to transport themselves and their goods to the province; and to import the products of the province into England; and to export them from thence within one year, the inhabitants observing the acts of navigation, and all other laws in this behalf made. It was further stipulated that the crown should levy no tax, custom, or imposition, upon the inhabitants, of their goods, unless by the consent of the proprietary or Assembly, “or by act of Parliament in England.”
Among other things truly honorable to the memory of this great man, Penn, is the tender regard and solicitude which, on all occasions, he manifested for the rights of the Indians, and the duties of the settlers towards them.
A new frame of government was, with the consent of the General Assembly, established in 1683. In 1692, Penn was deprived of the government of Pennsylvania by William and Mary; but it was again restored to him in the succeeding year. A third frame of government was established in 1696. This again was surrendered, and a new, final charter of government was, in October, 1701, with the consent of the General Assembly, established, under which the province continued to be governed down to the period of the American Revolution.
In the legislation of Pennsylvania, early provision was made (in 1683) for the descent and distribution of intestate estate, by which it was to be divided among all the children, the eldest son having a double share; and this provision was never afterwards departed from.
After Penn had become proprietary of Pennsylvania, he purchased of the Duke of York, in 1682, all his right and interest in the territory afterwards called the Three Lower Counties of Delaware, extending from the south boundary of the province, and situated on the western side of the River and Bay of Delaware to Cape Henlopen, beyond or south of Lewistown; and the three counties took the names of New Castle, Kent, and Sussex. At this time they were inhabited principally by Dutch and Swedes, and seem to have constituted an appendage to the government of New York.
In the same year, with the consent of the people, an act of union with the province of Pennsylvania was passed, and an act of settlement of the frame of government in a General Assembly, composed of deputies from the counties of Delaware and Pennsylvania. By this act the three counties were, under the name of the Territories, annexed to the province; and were to be represented in the General Assembly, governed by the same laws, and to enjoy the same privileges, as the inhabitants of Pennsylvania. Difficulties soon afterwards arose between the deputies of the province and those of the territories; and, after various subordinate arrangements, a final separation took place between them, with the consent of the proprietary, in 1703. From that period down to the American Revolution, the territories were governed by a separate legislature of their own, pursuant to the liberty reserved to them by a clause in the original charter or frame of government.
NORTH AND SOUTH CAROLINA.
In March, 1662, (April, 1663,) Charles II. made a grant, to Lord Clarendon and others, of the territory lying on the Atlantic Ocean, and extending from the north end of the island, called Hope Island, in the South Virginian seas, and within 36 degrees of north latitude; and to the west as far as the South Seas; and so respectively as far as the River Mathias, upon the coast of Florida, and within 31 degrees of north latitude; and so west in a direct line to the South Seas; and erected it into a province, by the name of Carolina, to be holden as the manor of East Greenwich, in Kent, in free and common soccage, and not in capite, or by knight service, subject immediately to the crown, as a dependency, forever.
The grantees were created absolute lords proprietaries, saving the faith, allegiance, and supreme dominion of the crown, and invested with as ample rights and jurisdictions as the Bishop of Durham possessed in his palatine diocese. The charter seems to have been copied from that of Maryland, and resembles it in many of its provisions.
It further required that all laws should “be consonant to reason, and, as near as may be conveniently, agreeable to the laws and customs of this our kingdom of England.” And it declared that the inhabitants and their children, born in the province, should be denizens of England, and entitled to all the privileges and immunities of British-born subjects.
In 1665, the proprietaries obtained from Charles II. a second charter with an enlargement of boundaries. It recited the grant of the forme, charter, and declared the limits to extend north and eastward as far as the north end of Currituck River or Inlet, upon a straight westerly line to Wyonoak Creek, which lies within or about 36 degrees 30 minutes of north latitude; and so west in a direct line as far as the South Seas; and south and westward as far as the degree of 29, inclusive, of northern latitude; and so west in a direct line as far as the South Seas.
Several detached settlements were made in Carolina, which were at first placed under distinct temporary governments: one was in Albemarle, another to the south of Cape Fear. Thus various independent and separate colonies were established, each of which had its own Assembly, its own customs, and its own laws—a policy which the proprietaries had afterwards occasion to regret, from its tendency to enfeeble and distract the province.
In the year 1669, the proprietaries, dissatisfied with the systems already established within the province, signed a fundamental constitution for the government thereof, the object of which is declared to be, “that we may establish a government agreeable to the monarchy, of which Carolina is a part, that we may avoid making too numerous a democracy.” This constitution was drawn up by the celebrated John Locke.
It provided that the oldest proprietary should be the palatine, and the next oldest should succeed him. Each of the proprietaries was to hold a high office. The rules of precedency were most exactly established. Two orders of hereditary nobility were instituted, with suitable estates, which were to descend with the dignity. The provincial legislature, dignified with the name of parliament, was to be biennial, and to consist of the proprietaries or their deputies, of the nobility, and of representatives of the freeholders chosen in districts. They were all to meet in one apartment, (like the ancient Scottish Parliament,) and enjoy an equal vote. No business, however, was to be proposed, until it had been debated in the grand council, (which was to consist of the proprietaries and forty-two counsellors,) whose duty it was to prepare bills. No act was of force longer than until the next biennial meeting of the Parliament, unless ratified by the palatine and a quorum of the proprietaries. All the laws were to become void at the end of a century, without any formal repeal. The Church of England (which was declared to be the only true and orthodox religion) was alone to be allowed a public maintenance by Parliament; but every congregation might tax its own members for the support of its own minister. Every man of seventeen years of age was to declare himself of some church or religious profession, and to be recorded as such; otherwise he was not to have any benefit of the laws. And no man was to be permitted to be a freeman of Carolina, or have any estate or habitation, who did not acknowledge a God, and that God is to be publicly worshipped. In other respects there was a guaranty of religious freedom. There was to be a public registry of all deeds and conveyances of lands, and of marriages and births. Every freeman was to have “absolute power and authority over his negro slaves, of what opinion or religion soever.” No civil or criminal cause was to be tried but by a jury of the peers of the party; but the verdict of a majority was binding. With a view to prevent unnecessary litigation, it was (with a simplicity which at this time may excite a smile) provided that “it shall be a base and vile thing to plead for money or reward;” and that, “since multiplicity of comments, as well as of laws, have great inconveniences, and serve only to obscure and perplex, all manner of comments and expositions on any part of these fundamental constitutions, or on any part of the common or statute law of Carolina, are absolutely prohibited.”
After a few years’ experience of its ill arrangements, and its mischievous tendency, the proprietaries, upon the application of the people, (in 1693,) abrogated the constitution, and restored the ancient form of government. Thus perished the labors of Mr. Locke; and thus perished a system, under the administration of which, it has been remarked, the Carolinians had not known one day of real enjoyment, and that introduced evils and disorders which ended only with the dissolution of the proprietary government!
There was, at this period, a space of three hundred miles between the southern and northern settlements of Carolina; and, though the whole province was owned by the same proprietaries, the legislation of the two great settlements had been hitherto conducted by separate and distinct assemblies — sometimes under the same governor, and sometimes under different governors. The legislators continued to remain distinct down to the period when a final surrender of the proprietary charter was made to the crown, in 1729. The respective territories were designated by the name of North Carolina and South Carolina, and the laws of each obtained a like appellation. Cape Fear seems to have been commonly deemed, in the commissions of the governor, the boundary between the two colonies.
At a little later period, (1732,) for the convenience of the inhabitants, the province was divided; and the divisions were distinguished by the names of North Carolina and South Carolina.
The form of government conferred on Carolina, when it became a royal province, was in substance this: It consisted of a governor and council appointed by the crown, and an Assembly chosen by the people; and these three branches constituted the legislature. The governor convened, prorogued, and dissolved the legislature, and had a negative upon the laws, and exercised the executive authority. He possessed also the powers of the court of chancery, of the admiralty, of supreme ordinary, and of appointing magistrates and militia officers. All laws were subject to the royal approbation or dissent, but were in the mean time in full force.
On examining the statutes of South Carolina, a close adherence to the general policy of the English laws is apparent. As early as the year 1712, a large body of the English statutes were, by express legislation, adopted as part of its own code; and all English statutes respecting allegiance, all the test and supremacy acts, and all acts declaring the rights and liberties of the subjects, or securing the same, were also declared to be in force in the province. All and every part of the common law, not altered by these acts, or inconsistent with the constitutions, customs, and laws of the province, was also adopted as part of its jurisprudence.
In respect to North Carolina, there was an early declaration of the legislature, (1715,) conformably to the charter, that the common law was, and should be, in force in the colony. All statute laws for maintaining the royal prerogative and succession to the crown; and all such laws made for the establishment of the church, and laws made for the indulgence to Protestant dissenters; and all laws providing for the privileges of the people, and security of trade; and all laws for the limitation of actions, and for preventing vexatious suits, and for preventing immorality and fraud, and confirming inheritances and titles of land, were declared to be in force in the province. The policy thus avowed was not departed from down to the period of the American Revolution; and the laws of descents, and the registration of conveyances, in both the Carolinas, was a silent result of their common origin and government.
In the same year in which Carolina was divided, (1732,) a project was formed for the settlement of a colony upon the unoccupied territory between the Rivers Savannah and Alatamaha. The object of the projectors was to strengthen the province of Carolina, to provide a maintenance for the suffering poor of the mother country, and to open an asylum for the persecuted Protestants in Europe; and, in common with all the other colonies, to attempt the conversion and civilization of the natives. Upon application, George II. granted a charter to the company, (consisting of Lord Percival and twenty others, among whom was the celebrated Oglethorpe,) and incorporated them by the name of the “Trustees for establishing the Colony of Georgia, in America.” The charter conferred the usual powers of corporations in England, and authorized the trustees to hold any territories, &c., in America, for the better settling of a colony.
The charter further granted to the corporation seven undivided parts of all the territories lying in that part of South Carolina which lies from the northern stream of a river, there called the Savannah, all along the sea-coast, to the southward, unto the southernmost stream of a certain other great river, called the Alatamaha, and westward from the heads of the said rivers respectively in direct lines to the South Seas, to be held as of the manor of Hampton Court, in Middlesex, in free and common soccage, and not in capite. It then erected all the territory into an independent province, by the name of Georgia. It authorized the trustees, for the term of twenty-one years, to make laws for the province, “not repugnant to the laws and statutes of England,” subject to the approbation or disallowance of the crown, and after such approbation to be valid. The affairs of the corporation were ordinarily to be managed by the common council. It was further declared, that all persons born in the province should enjoy all the privileges and immunities of natural-born subjects in Great Britain. Liberty of conscience was allowed to all inhabitants in the worship of God, and a free exercise of religion to all persons except Papists. The corporation were also authorized, for the term of twenty-one years, to erect courts of judicature for all civil and criminal causes, and to appoint a governor, judges, and other magistrates. The registration of all conveyances of the corporation was also provided for. The governor was to take an oath to observe all the acts of Parliament relating to trade and navigation, and to obey all royal instructions pursuant thereto. The governor of South Carolina was to have the chief command of the militia of the province; and goods were to be imported and exported without touching at any port in South Carolina. At the end of the twenty-one years, the crown was to establish such form of government in the province, and such method of making laws therefor, as in its pleasure should be deemed meet, and all officers should be then appointed by the crown.
It continued to languish, until at length the trustees, wearied with their own labors, and the complaints of the people, in June, 1751, surrendered the charter to the crown. Henceforward it was governed as a royal province, enjoying the same liberties and immunities as other royal provinces; and in process of time it began to flourish, and at the period of the American Revolution it had attained considerable importance among the colonies.
In respect to its ante-revolutionary jurisprudence, the same system prevailed as in the Carolinas, from which it sprang. Intestate estates descended according to the course of the English law.