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PART III.: THE AMERICAN COLONIAL PERIOD - Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 1 
Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1907). Vol. 1.
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THE AMERICAN COLONIAL PERIOD
[Other References on this Period. The following essays also deal with this period:
In Select Essays:
Courts of Chancery in Colonial America, by Solon D. Wilson: Volume II.
Equity through Common Law Forms in Pennsylvania, by Sidney G. Fisher: Volume II.
Private Corporations in the Colonies, by Simeon E. Baldwin: Volume III.
In other Collections and Periodicals:
Colonial Landholding in North Carolina, by J. S. Bassett: Law Quarterly Review, XI, 154.
Judicial Action by the Provincial Legislature of Massachusetts, by M. M. Bigelow: Columbia Law Review, II, 536.
The Adoption of the Common Law by the American Colonies, by R. S. Dale: American Law Register, N. S., XXI, 553.
The History of Equity in the American Colonies and States, by E. B. Gager: in Two Centuries’ Growth of American Law (1901), p. 129.
The History of the Law of Municipal Corporations in the Colonies and the States, by H. W. Rogers: ibid. p. 202.
Courts of Justice in the Province of Massachusetts Bay, by T. L. Phillips: American Law Review, XXXIV, 566.
A Chapter in the Legal History of Massachusetts, by J. B. Thayer: Harvard Law Review, IX, 1.
The History of the Land and Judicial Systems in Pennsylvania, by W. R. Shepherd: Columbia Studies in History, VI, pp. 1, 370.
The History of Chancery in Massachusetts, by E. H. Woodruff: Law Quarterly Review, V, 370.
Roger Ludlow, the Colonial Lawmaker, by J. M. Taylor (1900).
Justice in Colonial Virginia, by O. P. Chitwood (Johns Hopkins University Studies in History and Political Science, ser. XXIII).
The Origin of the System of Recording Deeds in America, by J. H. Beale, Jr.: Green Bag, XIX, 335.]
THE ENGLISH COMMON LAW IN THE EARLY AMERICAN COLONIES1
WHEN American legal history comes to be studied more thoroughly, it will perhaps be found that no country presents, in the short space of three centuries, such a variety of interesting phenomena. An old nation, marked for a sturdy sense of right, sends colonies into a wilderness; they form rude institutions, often suggesting early European experience, to govern their simple social relations. As this society grows more intricate and more highly organized, the legal institutions of the mother country are gradually introduced, until a large portion of the common law is transferred to the actual practice of the colonies. Their law, however, always retained the impress of the earlier originality, when new conditions brought forth new institutions and new legal ideas. The struggles with the mother country caused a wide spread of legal knowledge, and the common law came to be revered as a muniment of personal liberties. Blackstone was outdone by American lawyers in extravagant panegyrics. It is only when the rationalizing tendencies of French democracy become triumphant in America, that the value of the common law is openly and bitterly attacked. Then comes the great reforming and codifying movement of this century, in which New York is the leading state. Unconscious development of custom, reversal to simpler forms, adaptation and modification of a technical system brought from abroad, conscious reform, and, finally, the effort to cast all legal relations into a simple and lucid system,—all these phenomena can be traced in our law, and nowhere can the interaction of popular consciousness of right with legal institutions be more fully and clearly ascertained.
The first question that confronts the investigator concerns the influence upon our system of the English common law, that complex body of principles and rules, contained, at our early colonial period, in the Year Books, Reports, and the standard law treatises of quasi-judicial authority. Statutory law-making had been but sparingly used up to this time in England, and the law of property and personal security, criminal law, and procedure, found their norms in a long series of judicial precedents. The transfer of this system to the colonies, its amalgamation with new forms there originated, its adaptation to novel conditions, constitutes a subject of rare interest.
The accepted legal theory of this transfer is well known. It is clearly stated by Story in Van Ness v. Packard, 2 Peters, 144: “The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birth-right; but they brought with them and adopted only that portion which was applicable to their condition.” This theory is universally adopted by our courts, and it has given them the important power of judging of the applicability of the principles of the common law to American conditions. According to this view, the common law was from the first looked upon by the colonists as a system of positive and subsidiary law, applying where not replaced by colonial enactments or by special custom suited to the new conditions.
While this legal theory has obtained acceptance as a satisfactory explanation of the jurisprudence of to-day, it is not complete enough to afford an adequate synthesis of colonial legal facts for the historian. It contains, of course, the great truth that men cannot all at once cut themselves loose from a system of thought or action under which they have lived; that, though they transfer themselves entirely to new conditions, their notions and institutions must necessarily be circumstanced and colored by their former experience. Thus, of course, the more simple, popular, general parts of the English common law were from the first of great influence on colonial legal relations. This is, however, very far from declaring the common law of England a subsidiary system in actual force from the beginning of colonization. On the contrary, we find from the very first, originality in legal conceptions, departing widely from the most settled theories of the common law, and even a total denial of the subsidiary character of English jurisprudence. The first problem to be determined is therefore this: What was the attitude of the earliest colonists towards the common law as a subsidiary system? To the solution of this question this thesis addresses itself.
The earliest settlers in many of the colonies made bodies of law, which, from every indication, they considered a complete statement of the needful legal regulations. Their civilization being primitive, a brief code concerning crimes, torts, and the simplest contracts, in many ways like the dooms of the Anglo-Saxon kings, would be sufficient. Not only did these codes innovate upon, and depart from, the models of common law, but, in matters not fixed by such codes, there was in the earliest times no reference to that system. They were left to the discretion of the magistrates.
In many cases the colonists expressed an adhesion to the common law, but, when we investigate the actual administration of justice, we find that usually it was of a rude, popular, summary kind, in which the refined distinctions, the artificial developments of the older system have no place. A technical system can, of course, be administered only with the aid of trained lawyers. But these were generally not found in the colonies during the 17th century, and even far down into the 18th we shall find that the legal administration was in the hands of laymen in many of the provinces. Only as the lawyers grow more numerous and receive a better training, do we find a general reception and use of the more refined theories of the common law. It is but natural that, with increased training, the courts and practitioners should turn to the great reservoir of legal experience in their own language for guidance and information; the courts would be more ready to favor the theory of the adoption of the common law, as it increased their importance, virtually giving them legislative power. The foregoing statements are especially true of New England, where the subsidiary force of the common law was plainly denied; where a system of popular law (Volksrecht) grew up; and, where the law of God took the place of a secondary system.
The legal theory of the transfer has its established place in American jurisprudence; but, historically, it should be modified so as to bring out the fact that we had a period of rude, untechnical popular law, followed, as lawyers became numerous and the study of law prominent, by the gradual reception of most of the rules of the English common law. In this way only shall we understand, from the first, the very characteristic and far-reaching departures from older legal ideas which are found in the New World; while, at the same time, its full importance is assigned to the influence of English jurisprudence in moulding our legal thought. The theory of the courts is an incomplete, one-sided statement needing historical modification. When the courts come to analyze the nature of the law actually brought over by the colonists they find it a method of reasoning,1 “a system of legal logic, rather than a code of rules;” or the rule, “live honestly, hurt nobody, and render to every man his due.”2 Such a very indefinite conception of the matter is without value historically; on the basis of this indefinite notion there has been claimed for the courts an almost unlimited power, under the guise of selecting the applicable principles of the common law, to establish virtually new and unprecedented legal rules. On the other hand, a historical study will reveal a most interesting organic growth, and, after the records have been more fully published, no system will offer more of interest to inquiring students than that developed on American soil. The study of the documents reveals great diversities in the early systems of colonial laws. Then with the growth of national feeling there comes also a growth of unification of legal principles, for which the English common law affords the ideal or criterion. And, though during the decade immediately preceding Independence, the English common law was generally praised and apparently most readily received by the larger part of American courts, still the marks of the old popular law remain strong and most of the original features in American jurisprudence can be traced back to the earliest times.
The object of this essay is to present the attitude of the colonists during the 17th century, and in some cases during the 18th, towards the common law of England. The manner of treatment will be by colonies: the purpose is to discuss first the colonies of New England in which the departure from common law ideas is most clearly marked, followed by the Middle and Southern colonies, many of which adhered more closely to the Old World model.
Neither does the scope of this essay include, nor the extent of the hitherto published sources permit, a complete presentation of the varying systems of private law in use in the colonies. Very few of the colonial court records have been published; in some cases, as in Virginia after the Richmond fire of 1865, most of them are unhappily lost forever. A publication of characteristic records of this kind is a desideratum not only for legal history, but for the study of the general economic and social development. However, sufficient material is extant in accessible form to show the general attitude of the colonists and colonial courts towards the common law as a technical system.
The ideas of the Massachusetts colonists on the matter of law appear very clearly from a resolve of the general court1 of the year 1636. The government is there entreated to make a draft of laws “agreeable to the word of God” to be the fundamental laws of the commonwealth. This draft is to be presented to the next general court. In the meantime, the magistrates are to proceed in the courts to determine all causes according to the laws then established (the early laws of the general court), and where there is no law “then as near the law of God as they can.” The council is also empowered to make orders for the general conduct of business which is not yet covered by any law, and herein to apply its best discretion according to the rule of God’s word. There is here absolutely no reference to the common law of England. As a subsidiary law the word of God is appealed to, as interpreted by the best discretion of the magistrates. This led to the administration of a rude equity, according to the idea of justice held by the magistrate, influenced by popular ideas and customs. With a homogeneous population holding the same general views on morals and polity, a true popular system of law could thus be produced, unrefined by juristic reasonings, untrammeled by technical precedents, satisfying, in general, the sense of right in the community. Should, however, alien elements intrude, they would find such a system exceedingly uncongenial and oppressive.
We find that in the early years of the colony the magistrates and persons in authority were intensely reluctant to have any written laws made, because by these their discretion would be restrained. The reason assigned by Winthrop2 for this reluctance was the desire to have laws grow up by custom, so as to have them adapted to the nature and disposition of the people, which could not be sufficiently known to the magistrates properly to legislate for them. A second reason was that the charter provided that the colonists should make no laws repugnant to the laws of England. This they held to refer to positive legislation. The growth of law by custom, though the product might be radically opposed to English principles, they believed no infringement of the charter. Notwithstanding these reasons of the magistrates, the general court insisted upon having a comprehensive body of laws made. The controversy had none of the acrimony of the similar struggle for written laws in Rome before the Twelve Tables; but we can note the same principles at work; the magistracy, in whose discretion the administration of the laws has so far been founded, are reluctant to give up a part of this power, and therefore resist a codification of law. The outcome of this agitation was the passage of the celebrated Body of Liberties,1 in 1641. To evade one of the objections noted by the magistrates, this code was not really enacted as law, but the general court did “with one consent fully authorize and earnestly entreat all that are and shall be in authority to consider them as laws.” The laws had been prepared by Nathaniel Ward, a minister with some legal training. They had been revised by the general court and sent into every town for further consideration. Upon the suggestions thus gathered they were again revised and then established as above mentioned. A more careful process of legislation is perhaps nowhere recorded. The laws may therefore be looked upon as a full expression of the popular sense of what the legal relations in the colony should be.
Ward, in a letter to Governor Winthrop,2 December 22, 1639, questions the advisability of submitting the laws to the different towns for consideration by the freemen thereof, and fears that the spirit of the people might rise too high. They should not be denied their proper and lawful liberties, but he questions “whether it be of God to interest the inferior sort in that which should be reserved ‘inter optimates penes quos est sancire leges.’ ”
Turning now to the Body of Liberties itself, we find the doctrine stated in 1636 again announced, that no man’s life shall be taken away unless by virtue of some express law established by the general court, or, in case of the defect of the law in any particular case, by the word of God.1 The principle is thus stated in the Massachusetts fundamentals:2 “In all criminal offenses where the law hath prescribed no certain penalty, the judges have power to inflict penalties according to the rule of God’s word.”
The provisions of the Body of Liberties also show the theocratic nature of the Puritan colony. It contains, moreover, many provisions originated by the colonists in response to their special needs. The criminal law is founded on the code of Moses, though the breaking of the Sabbath and the striking of parents are not made capital offenses. In the laws of 1658, however, the latter offense, as well as rebellious conduct against parents is made capital.3 The law of inheritance is taken from the Scriptures.
Imprisonment for debt, except when property is concealed, is not in use. Any debt due in bill or specialty may be assigned, and the assignee may sue upon the same. Cases involving an amount not over forty shillings are to be heard by magistrates or a commission of three freemen without a jury. A suit is commenced by summons or attachment. Testimony may be taken in writing by any magistrate or authorized commissioner to be used in criminal or civil cases. If the party cast has any new evidence or matter to plead he can obtain a new trial or bill of review. Free tenure of lands is adopted and all feudal incidents are abolished. Conveyances are to be by deed in writing. The period of prescription for title by possession is fixed at five years. Civil marriage is instituted.
The code of Ward was not the only one prepared for Massachusetts. John Cotton also submitted to the general court a body of laws, founded throughout on the Scriptures, with references thereto.4 This code, though published in England and there reputed to be in force in the colony, was never enacted at all by the general court. The conception of law current among the Puritans is well illustrated by the remark of Cotton that he should not “call them laws because God alone has the power to make law, but conventions between men.” This theory of law as the command of God, the mediæval conception uncolored by the modern views of sovereignty, seems to have been firmly held by the Puritans of New, as of Old England.1 The same view in addition to the reasons cited above may have prompted the general court not to call the Body of Liberties laws, out to pass them in the form of recommendations.
Turning now to the practice of magistrates and courts in the actual conduct of cases we shall find the same principles universally acknowledged. Everywhere, the divine law, interpreted by the best discretion of the magistrates, is looked upon as the binding subsidiary law; while the common law is at most referred to for the sake of illustration.
In 1641, the court had under consideration the case of the rape of a small child. There was a great question as to what kind of sin it was, and the court “sought to know the mind of God by the help of all the elders of the country.” On the authority of Deuteronomy XVII, 12, it was held in another case that presumptuous sins were not capital unless committed in open contempt of authority; and, in connection with this, Winthrop remarks that the “only reason that saved their lives was that the sin was not capital by any express law of God, nor was it made capital by any law of our own.” In the same connection, Winthrop discusses the exaction of a confession from a delinquent in capital cases. It was decided that where one witness and strong presumption point at the offender, the judge might examine him strictly; but if there is only slight suspicion the judge is not to press him for answer.2 After the trial in the Hingham matter3 the Deputy Governor stated in a public speech: “The great questions that have troubled the country are about the authority of the magistrates and the liberty of the people. The covenant between you and us is that we shall judge you and your causes by the rules of God’s law and our own.”
On the trial of Mr. Hubbard1 the court told the prisoner that he was to be tried by the law of God, which the magistrates were to judge by in case of the defect of the express law. Hubbard complained that the law of God admitted of various interpretations, and after being fined and bound to his good behavior he asked to know what good behavior was. The jury in this case found him guilty of uttering diverse speeches “tending to sedition and contempt of said government and contrary to the law of God and the peace and welfare of the country.”2 The form of punishment was largely in the discretion of the magistrates.3 Although the English names of actions were used, the practice was exceedingly lax, and the action on the case was constantly used for the recovery of land; thus disregarding the fundamental distinction between real and personal property and real and personal actions in the English law.4 The distinctions between common law and admiralty procedure were totally disregarded.5
In the Hutchinson Papers6 there is preserved a very interesting account of a case before Symonds, a magistrate. To judge from his letters, Symonds was a careful student and great admirer of the English common law.7 The case under consideration, Giddings vs. Brown, brought up some interesting questions as to the nature of law and the power of the courts. A dwelling had been voted by a town to its minister; the plaintiff had resisted the collection of the tax that had been levied to pay for this dwelling, and his goods were accordingly distrained. Symonds, in giving judgment for the plaintiff, says that “the fundamental law which God and nature has given to the people cannot be infringed. The right of property is such a fundamental right. In this case the goods of one man were given to another without the former’s consent. This resolve of the town being against the fundamental law is therefore void, and the taking was not justifiable.” Symonds refers with respect to the English law and quotes Finch and Dalton. He uses it, however, merely for illustration, and says “let us not despise the rules of the learned in the laws of England who have every experience.” The precedents on which he relies are colonial and their binding force is recognized. The substance of the judgment is that property cannot be taken by public vote for private use. The opinion is interesting as an expression of natural law philosophy, and it is, perhaps, the earliest American instance where the power is claimed for the courts to control legislative action when opposed to fundamental law.1 The case, moreover, shows very clearly in what light the common law was regarded by the New England colonists; not at all binding per se, but in as far as expressive of the law of God to be used for purposes of illustration and guidance.
Popular courts of jurisdiction in petty cases, which had long fallen into disuse in England, were established in most of the colonies. In Massachusetts inferior courts consisting of five judges, one of whom was an assistant, and having jurisdiction in lesser civil and criminal cases, were early established.2 Petty civil cases in the towns were tried by courts of one judge, or commissions of three freemen.3 A system of appeals was instituted, ascending from the town court to the inferior or county court, thence to the assistants, thence to the general court. Appeal to England was not allowed and claims for it were always strenuously resisted.
The pleadings in these courts were very concise and informal, and there was little regard paid to forms of action.4 Up to 1647, the pleadings seem to have been oral. By a law of that date1 it was enacted that the declaration should be drawn up in writing and should be filed with the clerk of the court three days before the term.
Contrary to the English custom, a record of evidence given in the courts seems to have been kept from the earliest times. In 1650, it was enacted2 that on account of the inconvenience of taking verbal testimony in court, the clerk not being able to make a perfect record thereof and prevent all mistakes, the evidence should be presented in writing to the court, either attested before a magistrate or in court upon oath. This provision, thoroughly at variance with the common law, excited the adverse comment of professional lawyers.3
Coming now to the trial by jury, we find that this ancient and popular institution was in early use in Massachusetts, a jury having been empanelled a few months after Winthrop’s arrival.4 The system was, however, by no means unquestionably accepted, and seems to have had a very insecure tenure for a time. In 1642, a commission was appointed to consider whether to retain or dismiss juries in the trial of causes;5 and it appears that juries were for a time abolished, for, in 1652, we find the following resolve “the law about juries is repealed and juries are in force again.”6
The mode of trial exhibits many interesting peculiarities. The province of judge and jury is quite correctly defined in an act of 1642, where the finding of matters of fact by the jury, instructions in law by the court, and the decision of matters of equity by the latter is provided for.7 In 1657, the jury was permitted to present a special verdict.8 But it seems that for a time the magistrates acquired a very considerable power of controlling the jury. Hutchinson says: “The jury sometimes gave their verdict, that there were strong grounds of suspicion, but not sufficient for conviction. Upon such a verdict the court would give sentence for such offenses as the evidence at the trial might have disclosed.” He adds in a note the advice of Lieut. Gov. Stoughton to Governor Hinckly of Plymouth, given in 1681: “The testimony you mention against the prisoner I think is sufficient to convict him; but, in case your jury be not of that mind, if you hold yourself strictly obliged by the laws of England, no other verdict but ‘not guilty’ can be brought in; but, according to our practice in this jurisdiction, we should punish him with some grievous punishment according to the demerit of his crime, though not found capital.”1
In 1672, an attempt was made to limit the power of the magistrates in this respect.2 For the controlling authority of the magistrates there is offered as a substitute the archaic method of attainting the jury for giving a verdict contrary to the weight of evidence; and the law allowing the magistrates to refuse the verdict of the jury is repealed. This is a remarkable instance of the revival of an archaic method which had all but disappeared in England. The jury in such a case was to be tried by a new jury of twenty-four, and the court had no control over the verdict. It seems that many juries were attainted, because in 1684 it was enacted3 on account of the unreasonable trouble caused by numerous attaints, that the cause of attaint shall be given in writing; that if the verdict is confirmed, the person attainting shall be fined 34 pounds; and that the jury may also prosecute him for slander, with other additional penalties. The jury were also at liberty, when they were not clear in their conscience about any case, “in open court to advise with any man they should think fit, to resolve and direct them before they gave their verdict.”4
In the colonial system of Massachusetts we do find traces of the common law; the less technical parts of its terminology are in use, forms of contracts and deeds are modeled on English precedents, although for the latter acknowledgment and recording is essential to validity.1 But the authority of the common law as a subsidiary system is nowhere admitted, its principles are radically departed from, and its rules used only for purposes of illustration.
The magistrates administered a rude system of popular law and equity, on the basis of the Scriptures and their own ideas of right, generally to the satisfaction of the homogeneous Puritan communities; though there are some struggles recorded, such as that for written laws and for the control of the juries. Capt. Bredon writes to the Council of Colonies, speaking of the printed laws of Massachusetts: “What laws are not mentioned in this book are in the magistrates’ breasts to be understood.”2 The elements dissatisfied with this regime generally left for Rhode Island, the Connecticut river settlements, Maine or New Hampshire, where society was less autocratic; but still we find a number of protests recorded against the manner of administering the law by persons remaining in the colony.
The complaint that no one could have justice but members of the church3 is very common on the part of outsiders. In 1646, there was a very important controversy, in which a party of men led by Robert Child demanded the establishment of English law. In their remonstrances4 they say that they cannot discern a settled form of government according to the laws of England; nor do they perceive any laws so established as to give security of life, liberty, or estate. They object to discretionary judgments as opposed to the unbowed rule of law, and petition for the establishment of the wholesome laws of England, which are the result of long experience and are best agreeable to English tempers; that there should be a settled rule of adjudicature from which the magistrates cannot swerve. Those laws of England, they say, are now by some termed foreign, and the colony termed a free state.
In the answer by the general court1 the petitioners are held up to ridicule for their own ignorance of what English laws they really wanted. It is then asserted that the laws of England are binding only on those who live in the English country, for neither do the laws of Parliament nor the King’s writ go any farther. “The laws of the colony,” they say in substance, “are not diametrically opposed to the laws of England, for then they must be contrary to the laws of God, on which the common law, so far as it is law, is also founded. Anything that is otherwise established is not law but an error, as it cannot be according to the intent of the law-makers to establish injustice.” This is the true Puritan idea of law as the command of God; the general court asserts that the common law, so far as it is law, must embody divine justice. For their part the Puritans prefer to go to the original source of law, the Scriptures.
In connection with this matter the general court also made a declaration which was evidently intended for the general public and the home government.2 They there assert that the government is framed according to the charter and the fundamental and common laws of England. They add in brackets, “taking the words of eternal righteousness and truth with them as the rule by which all kingdoms and jurisdictions must render account.” Then they make a comparison between the fundamental and common laws of England and the laws of the colony, taking Magna Charta as the chief embodiment of English common law; and they state that, as the positive laws of England are constantly being varied to answer different conditions, they should consider it right to change and vary their legislation according to circumstances. They confess an insufficient knowledge of the laws of England, and say, “If we had able lawyers amongst us we might have been more exact.” Their comparison of the laws shows the rudimentary character of their knowledge. Finding some discretion allowed English judges in criminal cases they take this as a precedent for the Massachusetts method of inflicting penalties according to the rule of God’s word. They conclude by instancing the extraordinary jurisdictions in England, the chancery, the court of requests, the admiralty and ecclesiastical courts, and say that experience shows that Englishmen may live comfortably and securely under some other laws than the common and statutory laws of England.
The methods of Massachusetts colonial justice are described by Letchford in his book, Plaine Dealing. He was a lawyer who had been employed in doing minor editorial work on the Body of Liberties. Owing to the prejudice against lawyers, general in the colonies but especially strong here, he was not permitted to practise his profession, and therefore was perhaps an unreasonably severe critic of the system under which he suffered. As his views are, however, corroborated by the statements of other witnesses, their truth so far as the proceedings of the courts are concerned may perhaps be accepted. He says among other things1 that the governor in charging the grand jury uses the heads of the ten commandments. That in jury trials matters of law and fact are not distinguished.2 The records of the courts are not kept in due form of law, in most cases the verdict only being entered. Hence the disposition to slight all former laws and precedents, “but go hammer out new upon the pretense that the word of God is sufficient to rule us.” He advises his brethren to “despise not learning nor the learned lawyers of either gown.”
In his narrative to the council3 Edward Randolph states that “the laws and ordinances of Massachusetts are no longer observed than they stand in their convenience; and in all cases, regarding more the quality and affections of the persons to their government than the nature of their offense.” He states that it was regarded as a breach of the privilege of the colony to urge the observation of the laws of England, and notes some of the provisions repugnant to the common law, such as obtaining prescriptive title to land by possession for five years, and the use of the word of God as a rule in criminal cases. In another report in 1678 he states that the laws of England are neither in the whole nor in any part of them valid or pleadable in the colonial courts until received by the General Assembly.1
The colony always resisted claims of a right of appeal to England; this was one of the most important points of controversy between the colonial court and the home government after 1660. In that year the colonists instructed Captain John Leveritt as their agent in England to resist any claims or assertions of appellate jurisdiction, because that would render government and authority in the colony ineffectual and bring the court into contempt with all sorts of people.
In 1667, the Privy Council made specific objection to the laws of Massachusetts repugnant to the laws of England. The Attorney General submitted a catalogue of such laws.2 In answer to these objections the general court made several amendments in 1681;3 the law concerning rebellious sons, concerning Quakers, and the law against keeping Christmas were left out; but no alteration was made in the law of marriage and Sunday legislation. In connection with this controversy the general court again asserted the independence of the colony from English laws.4 They speak of the laws of England as bounded within four seas and not reaching to America. The American subjects not being represented in Parliament should not be impeded in their trade by Parliament. Before this time legal proceedings had been carried on in the name of the colony. One of the results of the controversy was that the general court yielded in this respect, and process was hereafter issued in the name of the king.
After the charter had been annulled, there followed a strong and continued effort to introduce the common law. By the commission of Sir Edmund Andros, in 1688 the governor and council were appointed a court of record to try civil and criminal cases, their proceedings and judgment to be consonant and agreeable to the laws and statutes of England.1 The arbitrary government of Andros, however, did perhaps more to introduce a knowledge of the common law, than this provision, because against his despotic rule the colonists now began to assert rights protected by the English law, such as the right of Habeas Corpus. Thus when we hereafter find expressions of admiration for or adherence to the common law, such as are very common in the succeeding century and especially at the beginning of the Revolutionary War, they refer rather to the general principles of personal liberty than to the vast body of rules regulating the rights of contract and property and the ordinary proceedings in court.
By the charter of 1692, the appointment of judges and justices of the peace was given to the governor and the council. Their tenure was practically during good behavior;2 but though the direct popular nature of the courts was thus destroyed, it was a considerable time before trained jurists came to control the administration of law in Massachusetts.
Chief Justice Attwood visited Boston in 1700, and in his report to the Lords of Trade3 he states that he had “publicly exposed the argument of one of the Boston clergy, that they were not bound in conscience to obey the laws of England.” He complains of various insults offered him while sitting as judge in the admiralty court. He attended the session of the Superior court at Boston, and there observed that their “methods were abhorrent from the laws of England and all other nations.” He especially notes the ease with which new trials are obtained and the fact that evidence is offered in writing, which is a temptation to perjury, new proofs being admitted at the later trials. This criticism shows that there was no sudden breach in the development of Massachusetts law, and that at the beginning of the 18th century the old popular law was still largely administered in derogation of the more highly developed rules of the common law. It is stated that after the change in the appointment of judges, practice became very captious and sharp. In 1712, the first professional lawyer, Lynde, became Chief Justice, and after this we find that English books and authors are frequently cited.1 Yet Massachusetts jurisprudence exhibited for a long time thereafter the marks of its early informality. Jefferson says in a letter to Attorney General Rodney, September 25, 1810,2 speaking of Lincoln, of Massachusetts, as a possible successor to Cushing as Chief Justice: “He is thought not to be an able common lawyer, but there is not and never was an able one in the New England states. Their system is sui generis in which the common law is little attended to. Lincoln is one of the ablest in their system.” How strongly the old view of law which we have noticed maintained itself in Massachusetts, we see from John Adams’ statement in the Novanglus:3 “How then do we New Englanders derive our laws. I say not from Parliament, not from the common law, but from the law of nature and the compact made with the king in our charter. Our ancestors were entitled to the common law of England when they emigrated; that is to say, to as much of it as they pleased to adopt and no more. They were not bound or obliged to submit to it unless they chose.”
In Massachusetts, during the 17th century we find a continued, conscious, and determined departure from the lines of the common law. It is not accepted as a binding subsidiary system, the law of God there taking its place. Indeed, it colored and influenced the legal notions of the colonists, but they always resisted the assertion of its binding force. The absence of lawyers made the administration of a highly developed system impossible. We have a layman law, a popular, equitable system, which lacks the elements of rigor, of clear cut principles, of unswerving application, but which forms a basis on which a simple community could well adjust its legal relations.
Connecticut and New Haven
In Connecticut and New Haven we find a development similar to that of Massachusetts. The Connecticut code of 1642 was copied from that of Massachusetts.1 The fundamental order of New Haven2 provides for the popular election of the magistrates, and for the punishment of criminals “according to the mind of God revealed in his word.” The general court is also to proceed according to the Scriptures, the rule of all righteous laws and sentences. In the fundamental agreement3 all free men assent that the Scriptures hold forth a perfect rule for the direction and government of all men in all duties. The Scriptural laws of inheritance, dividing allotments, and all things of like nature are adopted, thus very clearly founding the entire system of civil and criminal law on the word of God. This principle is re-enacted in similar language in 1644.4
In Connecticut the trial by jury was put into practice from the first, the use of the grand jury coming in somewhat later.5 It was, however, provided that upon continued failure to agree, a majority of the jury could decide the issue, and in case of equal division, the magistrate had a casting vote.6 In New Haven the institution of jury trial was not at first adopted.7 It is stated that this was so settled upon some reasons urged by Mr. Eaton.
As already indicated, the system of popular courts was adopted in both colonies. In 1699, the practice of commissioning justices for stated periods was tried, but it was continued for only three years.8 The judges of these courts exercised a broad discretion. That Connecticut was independent of the home country in legal matters is noted by Quary in his report to the Lords of Trade in 1707.1 If possible, these colonies departed even further from the common law than Massachusetts in their system of popular courts, absence or radical modification of the jury trial, discretion of the magistrates, and in the case of New Haven, the clear and unequivocal assertion of the binding force of divine law as a common law in all temporal matters, as a guiding rule in civil and criminal jurisdictions.
The settlers of New Hampshire and Vermont were in many cases malcontents who had left the Puritan colonies. They were not so homogeneous a society, and therefore the assertion of the binding force of the common law could be more successfully made. The commission of 1680 orders proceedings in the courts to be consonant to the laws and statutes of England, regard, however, being had to the condition of the colonists.2 The General Assembly, meeting at Portsmouth in March, 1679-80, passed a body of general laws in which they claimed the liberties belonging to free Englishmen. They, however, refused to admit the binding force of any code, imposition, law, or ordinance not made by the General Assembly and approved by the president and council. The code itself is very simple, but in place of biblical references English statutes are cited.3 As a matter of fact it may be questioned whether this apparent submission to English law was more than formal. The general court petitioned against appeals to England in 1680.4 The settlers were so impatient of control that all questions of law and fact were decided by juries. The judges had a term of one year only and none of the influence of the Massachusetts magistrates.1 Under this regime, the administration of the rules of the common law would of course be impossible. The early judges and chief justices were all business men, seamen, or farmers; only in 1726 did a man of liberal education, Judge Jaffray, a graduate of Harvard in 1702, appear on the bench.2 And it was only in 1754 that a lawyer, Theodore Atkinson, also a graduate of Harvard, became chief justice. Samuel Livermore, chief justice in 1782, though trained in the law, refused to be bound by precedents, holding, “that every tub should stand on its own bottom;” he looked upon the adjudications of English tribunals as only illustrations.3 It may be said that no real jurist, no man acknowledging a regular development of the law by precedents and finding an authoritative guidance in the adjudications of the common law judges, held judicial power in New Hampshire during the entire 18th century.
This colony was consciously founded on a democratic basis.4 The charter is made the basis of government, by which legislative action is to be restricted. In order to escape the imputation of anarchy, and to preserve every man safe in his person and estate, the common law is to be taken as a model for legislation in as far as the nature and constitution of the colony will permit. The code itself shows a very archaic conception of law. In its classification it especially reminds us of the Anglo-Saxon dooms in the prominence it accords to crimes and torts. It classifies law under five general heads: (1) murthering fathers and mothers; (2) man slayers; (3) sexual immoralities; (4) menstealers; (5) liars, under which heading are comprised perjury, breach of covenant, slander, and other torts. On the other hand, however, it contains some provisions of an advanced nature. Murder and man-slaughter are distinguished on the principle of malice aforethought. Theft committed by a child or for hunger is declared to be only petty larceny. Promises and contracts, especially for large amounts, are to be drawn up in writing. The conveyance of land must also be made in this form. This provision by many years antedates the celebrated Statute of Frauds of English law. Imprisonment of debtors is forbidden, “none shall lie languishing for no man’s advantage.” Lands are made liable to execution. In general, the statement of the code is concise and clear; English statutes are frequently cited, but in spirit the code is thoroughly original though in parts archaic. That it was considered a sufficient statement of law is shown by the enactment that “In all other matters not forbidden by the code all men may walk as their conscience persuades them.” A modified form of jury trial is instituted by a later enactment.1 The province of judge and jury is there defined. As in Massachusetts, attaint is made the remedy for a false verdict.
Bellomont sent the laws of Rhode Island to the Council in 1699,2 when he gives it as his opinion that the world never saw such a parcel of fustian. He also says: “Their proceedings are very unmethodical, no wise agreeable to the course and practice of the courts of England, and many times very arbitrary and contrary to the laws of the place; as is affirmed by the attorneys at law that have sometimes practiced in their courts.” . . . “They give no directions to the jury nor sum up the evidences to them, pointing out the issue which they are to try.” Later, however, in 1708, Governor Cranston writes to the Lords of Trade: “The laws of England are approved of and pleaded to all intents and purposes, without it be in particular acts for the prudential affairs of the colony.”3
Up to the time of the Revolution, judges were elected annually from the people. The Newport court records show us the extent of the discretion of magistrates. In an action for debt the court, considering the defendant’s poverty, ordered him to work for the plaintiff at carpentry until the debt were extinguished. Meanwhile other creditors were forbidden to sue him. Even after a verdict of not guilty, the court often imposed costs or ordered the accused to leave the colony.1 The attitude of Rhode Island towards lawyers is shown by the fact that by an act of the general assembly in 1729 they were forbidden to be deputies, their presence being found to be of ill consequence.2
THE MIDDLE COLONIES
In this colony the common law received early recognition and an approach was made to complete and intelligent enforcement. The population of New York was exceedingly heterogeneous; the original Dutch settlers, the early English settlers of various character from the different colonies and the mother country. The close knit social relations found in Massachusetts and Connecticut were here absent, and popular law could not therefore be so readily developed. There was a demand for a system of common law by which the relations and interests of these various elements may be regulated. The colony being under royal authority almost from the beginning, its rulers soon accustomed it to the principles of the English common law. Thus when the growing feeling of unity and nationalism called for a unification and harmonizing of American law, New York state, which had most successfully adapted the common law to American conditions, became the leader in juristic development. Its judges, like Kent, became the authoritative expounders of the American form of the common law. But, on the other hand, many of the original American ideas in jurisprudence, such as the reform of the law of real property and the law of pleading, which we find in germ in the early history of the other colonies, were carried to completion and given their lasting form in the state of New York, whose jurists had profited from a longer training in a regular system of jurisprudence.
We must, however, by no means conclude that the common law was administered in New York from the very beginning of English occupation as a complete subsidiary system. The feeling that for a new colony a new body of laws is necessary led to the compilation of what is known as the Duke of York’s laws, which were promulgated at an informal assembly at Hampstead in 1665.1 The first New York legislature met in 1683, and, among other acts, passed bills regulating the judicial proceedings, and for preventing perjuries and frauds.2 Governor Nichols, before courts had been created, took upon himself the decision of controversies and pronounced judgment after a summary hearing.3 In writing to Clarendon, July 30, 1665, he says: “The very name of the Duke’s power has drawn well-affected men hither from other colonies, hearing that the new laws are not contrived so democratically as the rest.”4 At this time laws are confirmed, reviewed, and amended by the general assizes composed of the governor, the general council and the judges upon the bench. A year later, April 7, 1666, Nichols writes to Clarendon5 remitting a copy of the laws collected from the laws of the other colonies with such alterations as would tend to revive the memory of old England; he says that “the very name of Justice of the Peace is held an abomination, so strong a hold has Democracy taken in these parts.” He complains of the refractory disposition of the people, and describes his efforts to introduce English statutes and authority. It is apparent from this correspondence that it was considered necessary to restate the law in a codified form for the use of the colonists; and an informal transfer of the common law in its original “unwritten” character was evidently not considered sufficient or suitable to the circumstances by the men in authority.
Governor Dongan in his report to the Committee on Trade,1 February 22, 1687, gives a list of the courts of justice established at that time: (1) a court of chancery composed of the governor and council, which is the supreme court of appeals; (2) the courts of oyer and terminer held yearly in each county; (3) the court of the mayor and aldermen in New York; (4) the courts of session (justices of the peace); (5) court commissioners for petty cases; (6) a court of adjudicature, a special court established to hear land cases. These courts had none of the popular elements which we have noted in the Puritan colonies. Governor Dongan also states that the laws in force were the laws of the Duke of York and the acts of the general assembly, not mentioning the common law in this connection. In a similar report, Governor Nichols2 states that “all causes are tried by juries, and that there are no laws contrary to the laws of England,” while he ascribes full law-making power to the court of assizes (1669). Governor Andros reports that, “He keeps good correspondence with his neighbors as to civil, legal and judicial proceedings.” Bellomont, in 1699, sending a copy of the printed laws to the council, asks for a careful perusal and criticism of them by some able lawyer in England; which would indicate the absence of trained jurists in the colony at that time.3 In a report on the methods of proceedings in court, William Smith writes to Bellomont in 1700:4 “The rules and methods we are governed by in all trials is the common law of England, and the several statutes declarative thereof according to the manner and methods of the courts at Westminster.” In the earlier days of the colony, confused notions of law and equity seem to have prevailed; and in a number of reported cases tried on Long Island after verdict of the jury there was an appeal to equity, most generally successful. No settled rules were here regarded, but a discretion similar to that of the New England magistrates was exercised.1 In one of these cases the judgment is said to be given according to law and good conscience.2
Immediately upon the occupation by the English, the jury came into use in New York. Jury trials are, however, at first, very informal, more after the manner of a simple arbitration, and verdicts are often given in the alternative.3
In the form of testamentary disposition the Roman Dutch law of the New Netherlands left abiding traces. The method of making wills by oral declaration before a notary, or by a written and sealed instrument deposited with that official, was used long after the first English occupation.4
We find that in these early days the functions of the court were not only judicial but administrative, much like those of the earliest itinerant judges in England. Thus the judges are directed to make inquiries into town training, the bearing of arms, the price of corn, wages, and escheats.5 As another reversion to older practice, we may note the concentration of various functions, judicial, administrative, and legislative, in the hands of the colonial council of the earliest time. A still closer analogy to mediæval English history in this respect we shall find in the case of Pennsylvania.
In the year 1700, a professional English lawyer, Attwood, became chief justice of New York. It was his avowed purpose to introduce the common law and practice of the English courts into the colony. He was, however, too assertative, and favored strong government too much, so that he in some cases perverted the law to his own uses, as when he declared that whatever was treason before 25 Edward III. was still treason at common law;6 or when he held that a grand jury was only an inquest of office and that eleven could indict.7 He complained in a letter to the Lords of Trade8 that “several here cannot well bear with the execution of the laws of England.” His methods soon led to his unpopularity and his final disgrace.
As in other colonies, lawyers were unpopular in the early days of New York. “The general cry of the people both in town and country was, ‘No lawyer in the Assembly!’ ”1 As we have seen, the early governors exercised what was called an equity jurisdiction, but no regular court of equity was established. In 1711, Governor Hunter addressed the Lords of Trade in this matter. He speaks of the necessity of giving equitable relief in many cases, and instances the case of a merchant, who inadvertently confessed judgment for 4,000 pounds, the real debt being 400 pounds, and who then languished in prison. He says that the House declared that the trust of the seal constitutes him the Chancellor, but having already too much business and being ignorant in law matters he asks the Lords of Trade for advice.2 They simply answer3 that he is authorized to establish, with the consent of the council, any court that may be necessary. A court of chancery was accordingly established, but in 1727 the assembly resolved that the creation of this court without its consent was illegal. Its fees were reduced and its jurisdiction languished for a time.4 Colden ascribes these resolves to the vindictive intrigues of the speaker, who had been defeated in a chancery suit.5
The complete doctrine of the binding force of the common law in New York was not declared before 1761. A most thoroughgoing statement is found in Governor Tryon’s report,6 where he declares that “the common law of England is the fundamental law of the province, and it is a received doctrine that all the statutes enacted before the province had a legislature are binding upon the colony;” also that in the court of chancery the English practice is followed. Some years before, in 1762, Chief Justice Pratt, in a memorial to the Lords of Trade, complains of the insufficient influence of the judiciary. He says that “All the colonies being vested with legislative power, their systems of laws are gradually varying from the common law. If the judgments of the supreme courts are only vague and desultory decisions of ignorant judges the mischief is augmented, and a more influential and better paid judiciary is called for.”
The two parts of New Jersey, East and West Jersey, had a different social complexion, and we may therefore look for divergent views on the subject of law. West Jersey was a pure Quaker commonwealth, where the influence of Penn was very strong; while in East Jersey conditions similar to those in New York prevailed. We find, however, in both parts of New Jersey a system of popular courts. In East Jersey1 the court system was established by the legislature in 1675. A monthly court for the trial of small causes was held in each town of the province by two or three persons chosen by the people. County courts were held twice yearly in each county; from these there was an appeal to the court of chancery. Proceedings in these courts were of the utmost simplicity. It was provided that any person might plead for himself and that no money was to be taken for pleading or advice.2 West Jersey had a similar system of courts, comprising justices of the peace, county courts, and a supreme court of appeals; the latter was instituted in 1693 and a final appeal from it to the general assembly was authorized in 1699. The term “court of chancery” is not used in West Jersey. The power of the jury was exaggerated, the three judges having no authority to control the verdict of the twelve men “in whom only the judgment resides.” In case the judges should refuse to pronounce judgment, any one of the twelve by consent of the rest may do so.3 Capital punishment was not fixed by the law. It was enacted4 that “All persons guilty of murder or treason shall be sentenced by the general assembly, as they in the wisdom of the Lord shall judge meet and expedient.” This would indicate a view of law similar to that held by the colonists of Massachusetts and New Haven.
The early laws of East Jersey were founded largely on scriptural authority.1 Thus the law of trespasses and injuries by cattle, of injury by fire, of negligence, and the criminal law, are in agreement with the laws of the Exodus. In 1675 imprisonment for debt was prohibited except in cases of fraud. In 1698 the privileges of the English common law were assured to every one. In Delaware no professionally trained judge held office before the Revolution.2
The colony of Pennsylvania was fitted out with the most complete system of colonial codes. There was (1) the frame of government, which was unchangeable without the consent of the governor and six-sevenths of the freemen in council and assembly, all freemen at that time being members of the assembly; (2) there were the laws agreed upon in England in 1682, which had the same provisions as to alteration; (3) the Great Law or body of laws enacted at Chester in 1682, containing sixty-one chapters and called the written laws to distinguish them from the foregoing two, called printed laws; (4) the act of settlement passed in Philadelphia in 1683; (5) the laws made at an assembly in Philadelphia in 1683, consisting of 80 chapters; (6) the frame of government of 1683; (7) the frame of government of 1696; and, finally, (8) the laws of October, 1701.3 These laws are of great interest to the student of legislation, containing the opinions of enlightened and thoughtful statesmen embodied in enactments and gradually modified by practical experience in colonial affairs. They show clearly how very necessary a complete and full statement and codification of the law that should prevail was held by the founders of Pennsylvania; that they did not rely on an informal transfer of the applicable parts of the common law; but that they, with great painstaking, stated in entirely original form the provisions considered necessary for colonial society.
These laws contain many new and far-reaching reforms. Thus, in the laws agreed upon in England in 1682 there are the following provisions concerning procedure in the courts. Persons may appear in their own way and according to their own manner and personally plead their cause; the complaint shall be filed in court fourteen days before trial; a copy of the complaint is to be delivered to the defendant at his dwelling house; the complaint must be attested by the oath of the plaintiff;1 all pleadings and processes and reports in court shall be short and in English and in ordinary and plain character, that they may be understood and justice speedily administered.2 This provision antedates by almost two centuries the celebrated New York code-pleading reform, and this clause very clearly and simply states the object this reform sought to bring about. The period of prescription for the acquisition of title to land is fixed at seven years.3 The lands and goods of felons shall be liable to make satisfaction to the party wronged.4 This is a return to an older idea of law, which at that time did not prevail in the English law; for a felony only the king enforced a forfeiture, the injured party could not obtain any satisfaction. In the laws made at Philadelphia in 1683, there is contained a chapter enumerating the fundamental provisions which are to be changed only by the consent of six-sevenths of the council and assembly; this early attempt to separate the fundamental from the secondary provisions of the law is of great interest to students of American constitutional development. The subjects referred to as fundamental are the following: Liberty of conscience, naturalization, election of representatives, taxes, open courts and freedom of pleading, giving evidence, return of inquest and judgment by inquest (jury), bail and liberty of person, registry, marriage, speedy justice, the use of the English language in laws and proceedings.
The proceedings of the earliest courts were quite informal. We have some accounts of trials, before the coming of Penn, under the Duke’s laws which provided for a jury of six or seven. The major part of this jury could give in a verdict. An informal statement of the matter at issue was made, and though the names of actions were used, there was no sharp discrimination and not even the distinctions between civil and criminal cases were clearly drawn. The administration of justice was rather founded upon the ideas of the magistrates than on any rules of positive law.1 Lord Petersboro, during his visit to Pennsylvania, was astonished at the simplicity and fewness of laws, the absence of lawyers and the informality of judicial proceedings.2
County courts were instituted in the territory later called Pennsylvania in 1673. The procedure was informal, juries of six or seven were in use.3 Under the new regime, the jurisdiction of courts was defined by the laws of 1683, Chap. 70, and in 1684, courts were given jurisdiction in equity as well as in law.4 The same court even reversed in equity its own judgment in law.5 Against this method the assembly complained.6 In a number of the courts, the names of English actions were used, but case was often substituted for ejectment.7 The practice was very much like modern code practice; the complaint was filed fourteen days before trial; ten days before, the defendant had to be summoned, arrested or his goods attached. In court, he might answer in writing; the pleadings were to be in the English language; any defense, legal or equitable, might be interposed.8 Thus from the first legal and equitable relief was administered by the same courts in Pennsylvania. By the laws of 1683, Chap. 71, an informal body of arbitrators, called peace-makers, was instituted. The appellate court was called the provincial court, but the council also had appellate jurisdiction; and in connection with this it had a jurisdiction, like that of the permanent council of the mediæval English kings and of the Star Chamber, to punish maladministration and malfeasance on the part of powerful officials.1 As the English Parliament of the time of Edward III, so the Pennsylvania assembly petitioned against this extraordinary jurisdiction. In 1701, it requested that “no person shall be liable to answer any complaint whatsoever relating to property before the governor or his council or in any other place but the ordinary courts of justice.”2
Pennsylvania at this early period effected the union of equity and law in jurisdiction and in practice, a method that has always characterized the jurisprudence of that state. The voluminous legislation in the case of Pennsylvania may be due to the fact that the charter granted by Charles II, declared that the laws of property and of crimes in the province should be the same as they were in the kingdom of England, until altered by the proprietor. The legislation of Pennsylvania covering virtually the whole field of property law may be called the first complete codification of law made in America.
Penn himself was anxious to secure the services of trained lawyers. In a letter to Logan3 he says that he has granted Roger Mompesson the commission of chief justice and he advises the people to lay hold of such an opportunity as no government in America ever had of procuring the services of an English lawyer. Mompesson, however, did not remain in Pennsylvania long; he went to New York where he became chief justice, being appointed by Cornbury. The first lawyer who became chief justice of Pennsylvania was Guest, in 1701.4
The early law of Pennsylvania is very original and contains the germs of many developments that specially characterize American jurisprudence. There was, in this colony, from the first a desire for settled legal relations, which finds expression in a discussion in the colonial council in 1689. When it was there proposed that in doubtful cases the magistrates might apply the colonial laws or the common law at their discretion, this was held too uncertain, and the sole validity of the laws of Penn was upheld.1 On the question of substituting affirmation for oath, numerous English law precedents were, however, cited by the assembly to the governor.2 The law of manslaughter is left to be determined by the law of England, in 1705.3
By the charter of Maryland, full powers of government were given to the proprietor. He might establish laws, and was not required to submit them for the approval of the Crown. He could establish courts, and process ran in his own name, and he was empowered to grant titles of nobility. He stood in the position of a count palatine.4 In 1635, the first legislative assembly met, passing a body of laws which was rejected by the proprietor. In 1637, the proprietor and the assembly mutually rejected laws proposed by each other. This caused a serious dead-lock, and it seemed impossible to create a code of laws such as had been found necessary in all the other colonies. The colonists, accordingly, in the absence of a code of positive laws claimed that they were governed by the common law of England, so far as applicable to their situation. The proprietor opposed this claim on account of the interference with his rights, and the controversy thus arising was not finally settled until 1732.5
The rule of judicature was first fixed by the laws of 1642, in which it was ordered that civil causes should be tried according to the law and usage of the province, having regard to the former precedents. In defect of such law, usage, or precedent, the case shall be determined according to equity and good conscience “not neglecting (so far as the judge shall be informed thereof and shall find no inconvenience in the application to this province) the rules by which right and justice useth and ought to be determined in England.” The common law of England seems here rather to be looked upon as a system useful for illustration and guidance than a subsidiary law; equity and good conscience was considered to afford proper rules to fill the omissions of the positive law.1
The rules for trial were in many respects unusual. The judge is allowed to administer an oath to either party in a civil cause, and on the refusal of the party to testify may proceed as if the matter asked had been confessed.2 The power of the judge in controlling the jury is very great. If he thinks a verdict unjust he may return the jury or charge another. If he find the jury evidently partial or willful, he may charge another jury, and if their verdict is contrary the first jurors may be fined. Among these provisions we also find one of the earliest exemption laws. Tobacco, necessary clothing, bedding, utensils, and tools are exempt from execution.3
The fettered legislative powers of this colony, the unlimited discretion allowed the governor and his council in administration, by the charter, and the somewhat heterogeneous character of the population, led the colonists later more strenuously to insist upon the observance of the principles of the common law as a subsidiary system. Therefore we find that in 1662 an act was passed declaring that when the laws of the province are silent, justice is to be administered according to the laws and statutes of England; and that “all courts shall judge of the right pleading and the inconsistency of the said laws with the good of the province according to the best of their judgment.”4 This act was in force for only a short time, and the rule of judicature was therefore not long established by express law. It is, however, the first definite recognition in America of the power of the courts to apply the common law of England to colonial conditions, and to reject provisions deemed unsuitable. The rule stated in the act of 1662 was also contained in the commission of judges, and thus the proprietor seems to have sanctioned this adoption of the common law; the later controversy turned more on the question of the adoption of the statute law of England.
In 1674, an attempt was made to determine by law what English criminal statutes were in force in Maryland. The lower house insisted on the adoption of the whole English statute law, saving all laws of the province not repugnant to the laws of England.1 The council argued with the lower house, asking them to consider the dangerous consequences of an adoption of the entire English criminal law. They referred to the volume of the English laws and to the difficulty of ascertaining what statutes are at present in force. On account of this uncertainty the lower house is requested to designate certain statutes which are to be re-enacted and thus be a guide to the judges.
In 1678, we find that it is ordered to purchase Keble’s Abridgment of the English Statutes and Dalton’s Justice for the use of the various county courts.2
The struggle between the proprietor and the people concerning English laws revived in 1722. The people claimed that the lord proprietor had already allowed them the benefit of the common law as their right according to the common opinions of the best lawyers, and that the controversy now was only concerning the applicability of the English statutes.3 Lord Baltimore resisted the introduction of the English statutes “in a lump,” as he expressed it, as doing away with his veto power; while the lower house insisted upon a complete adoption. By the act of 1732 the controversy was settled by the following somewhat equivocal statement that “when the acts and usages of the province are silent the rule of adjudicature is to be according to the laws and statutes and reasonable customs of England, as used and practiced within the province.”1 However, the power of the courts to apply any English law, customary or statutory, which they found suitable to American conditions was no longer disputed.
The opposition to lawyers common in the colonies we also find in Maryland.2 The great influence which the theory of the adoption of the common law gave to the courts was recognized in a resolve in 1684, which stated “that it left too much to discretion and is an open gap to corruption.”3 At this time, however, the lord proprietor insisted that if the English laws were to be used the governor and chief justice must be allowed to decide when they ought to be applied. Only on this basis would he consent to a re-enactment of the judicature act.4 The attitude of the people toward the proprietor is further illustrated by the fact that an appeal to the king in legal proceedings was asked for.5
Although, even in the earlier practice of Maryland, the terms of English law were used, its principles were often entirely neglected, and matters settled according to a rough equity.6 Thus, in a case of homicide, the jury brought in a verdict finding accidental killing and no negligence; the court, however, fined the person who had handled the weapon that caused the accident.7 In another criminal proceeding the accused is arraigned and pleads guilty before the grand jury passes on the indictment and finds it billa vera.8
THE SOUTHERN COLONIES
The prevailing belief that codes of law are necessary for new colonies is evidenced by Crashaw’s sermon preached before the London Company in February, 1609-10. Crashaw said: “Be well advised in making laws, but being made let them be obeyed, and let none stand for scare-crows, for that is the way at last to make all to be condemned.”1
The instruction for the government of the colonies2 fixed general rules for the descent of lands, criminal law, jury trials, and placed civil jurisdiction in the hands of the governor and council. The first code intended for the colonies, printed at London in 1612, and entitled Laws Divine, Moral and Martial,3 was exceedingly severe, and Sir Thomas Smith, the governor, was later much abused for having introduced it into Virginia. On account of the character of the population a strict rule was, however, absolutely necessary. In 1620, an attempt was made by the London company to compile a more adequate and humane code. Sir Edwin Sandys proposed the appointment of several committees for the following purposes: (1) compiling the laws of England suitable for the plantation; (2) collecting the orders and constitutions already in existence; (3) revising the laws passed by the Assembly. These committees were finally to meet and harmonize the entire body of laws which was then to be submitted to the king. Among the commissioners was John Selden.4 These committees, however, did not report and Governor Yeardley asked for authority to make a collection of suitable laws.5
The first legislative assembly of Virginia met in 1619. It passed a number of laws and petitioned the council that they would “not take it in ill part if these laws passed current and be of force until we know their further pleasure out of England, for otherwise this people would in a short time grow too insolent.” There is here so far no claim of the immediate validity of English laws in the colony, and all parties concerned seem to think the formation of a new code adapted to the circumstances of the settlers necessary. In 1631, the oath of commissioner of monthly courts was fixed as follows: “You shall do equal right to poor and to rich after your cunning, wit and power and after the laws and customs of this colony, and as near as may be after the laws of the realm of England.”1 There was not in Virginia, as we have noted in many of the other colonies, a system of courts whose magistrates were elected by the people. The county courts were presided over by eight or ten gentlemen receiving their commission from the governor. Notwithstanding the source of their appointment, these men, not being educated in law, would perhaps not be governed by considerations much different from those obtaining in the popular courts of Massachusetts and Connecticut. The large number of the members of the court gives it the character of a popular tribunal, recalling the Doomsmen of the Anglo-Saxon courts, who declared the custom and fixed the mode of trial. Appeal lay from these courts to the general court, composed of governor and council. Their jurisdiction was developed by custom and the forms of proceedings were quite irregular. They also exercised a general chancery jurisdiction.
By the statutes of 1661-1662, procedure in the courts was regulated. At the time of the Restoration, Virginia seems to have been especially anxious to show herself loyal to England, and these enactments breathe a deep respect for the common law. In the preamble it is stated that the legislature has endeavored in all things to adhere to these “excellent and refined laws of England to which we profess to acknowledge all due obedience and reverence.” As a reason for enacting laws at all they assign the vast volume of the English law from which courts would be unable to collect the necessary principles without the aid of such codification.2 The former laws are repealed and a new code is enacted. As some former laws restrained the trial by jury quite contrary to the laws of England, the law of juries is restated with special carefulness and precision. It is interesting to note in this connection that the colonists express their regret that they are unable to comply with the requirement of the English jury system that the jurors shall come from the immediate neighborhood of the place where the fact was committed; but they state that they desire to approach as near as possible to compliance by enacting that six men of the ablest and nearest of the inhabitants of the county shall be on the jury.1 This reminds us of Sir John Fortescue’s contention that France could not have the jury system, because there no neighborhood could produce twelve intelligent and substantial jurors. In this code the period of prescription for land is limited to five years.2
The system of itinerant judges existed in Virginia for some time, but was abolished in 1662 on account of the great charge to the country.3 The nature of the procedure in the county courts is seen from the provision that the bill or complaint must be filed the day before court, that the answer and judgment as well as evidence in the case is also to be filed, that the judgment is to be endorsed on the complaint if for the plaintiff, on the answer if for the defendant.4
The administration of law in Virginia was in the hands of the country gentlemen who looked down upon the legal profession, and in no state do we find more hostile legislation concerning lawyers than in the Old Dominion. In 1645 an act was passed expelling the mercenary attorneys.5 In November, 1647, it is enacted that none shall plead for recompense. That in case the courts shall perceive that “either party by his weakness shall be like to lose his cause, they themselves may open the cause or may appoint some fit man out of the people to plead the cause, but shall not allow any other attorneys.” In 1656 the hostile acts were repealed, but only a year later there was again proposed in the house “a regulation or total ejection of lawyers,” whereupon the decision was “by the first vote an ejection.”6 A new act was therefore passed7 forbidding any person to plead or give advice in any case for reward. The governor and council rather opposed this enactment, but promised to consent to the proposition “so far as it shall be agreeable to Magna Charta.” A committee was appointed, who upon considering Magna Charta, reported that they did not discover any prohibition contained therein.8 In 1728, in a paper on the state of the colonies in America, Keith gives a very unfavorable account of the administration of law in Virginia. In order to unify and settle the law he favors the appointment of circuit judges from England.1 Governor Gooch, in his answer to Keith’s criticisms, says that the practice of courts is exactly suited to the circumstances of the respective governments and as near as possibly can be conformable to the laws and customs of England, and that the judges are of competent knowledge in the laws, though not all of them profound lawyers.2
In the case of the Carolina colonies the enforcement of a very complete code, the celebrated Fundamental Constitutions, was attempted by the proprietors. These Constitutions were reactionary in the extreme, and attempted to introduce an intricate feudal system into the new colony. The redeeming feature of the act lies in its very liberal provisions concerning religious affairs, giving any body of believers the right to worship according to the dictates of their conscience. It is very doubtful if aside from these provisions concerning religion the Fundamental Constitutions had any permanent influence in molding the jurisprudence of the Carolinas. They were first promulgated in 1668, and were reissued in modified forms repeatedly until their final abandonment in 1698. The purpose of this code was to “establish the interest of the proprietor with equality and without confusion that the erecting of a numerous democracy may be avoided.”3
We have no satisfactory information about the actual administration of justice in the early days of Carolina. The different colonies in the Carolinas had originally, however, very little in common, being settled by various elements. And it is highly probable that each of these colonies developed at first its own customary and popular methods of dealing with legal controversies.4 The Carolinas were among the earliest colonies to adopt the English common law as a rule of adjudicature. This was done in South Carolina by the act of December, 1712.1
Before, in 1692, the assembly in an address to Governor Ludwell had complained because “the Palatine Court assumed to put in force such English laws as they deemed adapted to the province; but the assembly conceived that either such laws were valid of their own force, or could only be made so by an act of assembly.”2 The proprietors assumed that all laws of England applied to the colonies, but in 1712 they receded from their position by approving the act adopting the common law and such statutes of England as had been selected by Chief Justice Trott as applicable to the condition of the colony.3 The act of 1712 puts in force all English statutes declaring the rights and liberties of subjects, as well as the common law, except where it may be found inconsistent with the customs and laws of the province. The law concerning military tenures and ecclesiastical matters is especially excepted. The courts are here, as in Maryland, given the power to apply the principles of the common law. In North Carolina the same object was accomplished by the act of 1715, entitled “An act for the better observing of the queen’s peace,” which declares the colony to be “a member of the crown of England,” and provides that the common law shall be in force in this government “so far as shall be compatible with our way of living and trade.” The practice of issuing writs is specially excepted. Certain enumerated statutes, such as the statute confirming the privileges of the people and security of trade, the statute of limitations, and the statute of frauds, are also adopted by this act.
From the scanty records of the early days of the colonies we can glean that the proceedings were often very informal. The discretion of the magistrates in inflicting punishment was very wide, as is apparent from the cases cited by Hawks in his history.4
A court of chancery was established as early as 1697, in which the English chancery practice was in the main adhered to.1 At a very early date trained lawyers were among the judges in these colonies; in the year 1729 we find that on the question of the effect of a general pardon an English case2 is cited and followed in the adjudication, one of the earliest instances where such a use of English authorities can be ascertained.
In South Carolina, the city of Charleston was for almost a hundred years the seat of the colonial court, the source and center of judicial proceedings. This of course was favorable to an earlier reception of the English common law, as a centralized system of judicial administration always leads to a more highly developed form of juristic conceptions. On the other hand this concentration of jurisdiction had the effect of leaving large tracts of the colony virtually without regular administration of the law, so that in the remoter parts of South Carolina associations of regulators had to be formed to deal out a rough popular justice.3
Anthony Stokes, Chief Justice of Georgia, in his View of the Constitution of the British colonies of North America and the West Indies, London, 1783, gives a very interesting discussion of the state of legal administration in the southern colonies. He states that the colonies where the system of county courts prevailed, where there were a large number of judges in general unacquainted with the law, little decorum was observed in the courts; but the colonies where the judges of the superior court went on circuit had a more impartial administration of justice. A system of circuit courts, however, was not established in the colonies in the 17th century, except for a short time in Virginia. And the lack of a harmonious, unified, and consistent rule of adjudication may be inferred from the one fact of the absence of a unified judiciary. Of course a system of appeal would tend to unify the law, but in these early days an appeal to a central court was by no means an easy matter, and, in the ordinary administration of justice the citizens undoubtedly took their law from the popularly elected magistrates who had no pretensions to a knowledge of technical jurisprudence.
Stokes also discusses the question as to what part of the English common law the colonists had brought along with them.1 His answer illustrates the vagueness and the unhistorical character of the legal theory. He says that the general rules of inheritance and personal injuries were brought along; not, however, the artificial distinctions and refinements of property law, the laws of police and revenue, etc. Now we have seen that the law of personal injuries was usually fixed by the codes which the colonists established at an early date, the rule of inheritance too was in most colonies varied from that of the common law; and certainly an adoption of any system which would leave out property law could be styled an adoption only in a very modified sense of the term.
When we come to consider from a more general point of view the attitude of the early settlers toward the common law, we find that certain views of law pervaded all the colonies; that in other matters the various colonies followed their own bent and were influenced by their special conditions or the special purposes of their polities. A general trait of early colonial law is codification. It seems to have been universally considered necessary to state the essential elements of law for the guidance of the colonists who had taken up their abode in a wilderness without books or facilities for legal study, who therefore in the nature of things could not use a system which, like the common law even of that date, necessitated a vast apparatus of technical treatises, of reports, and of statute books. In all the colonies except Maryland we find an early codification of the essential elements of the law. In Maryland, as we have seen, this was prevented by the controversy between the people and the proprietor, but even there considerable legislation was produced at an early date. Some of the codes, like those of Massachusetts and Pennsylvania, departed in many essentials radically from the principles of the common law, and show that their framers consciously desired to meet the entirely novel conditions of the colonists by new and appropriate legal measures. We may safely say that these codes were in the first decades of the colonies almost the sole source of legal knowledge, of rules for adjudication. As to matters not covered by the law there stated, the good and careful discretion of the popularly elected magistrates or appointed judges was relied upon to furnish a just rule satisfactory to the popular sense of right. In some instances we have noticed the use of elementary English treatises on actions, like Dalton’s Justice, but we have also noticed that while the names of the forms of actions were used, the greatest laxity and informality prevailed in their application and in the general practice of the popular courts.
Some of the colonies declared the English common law subsidiary in cases not governed by colonial legislation, at a comparatively early date. We have noted this in the case of Maryland, Virginia and the Carolinas. But other colonies very early made unequivocal declarations establishing the law contained in Scripture as subsidiary law in their system. This is true of Massachusetts, Connecticut, and New Haven and to a certain extent of New Jersey. In both cases, however, in the earlier days before a trained bench and bar had come into existence, a declaration of the existence of a subsidiary law would but little bind the otherwise unfettered discretion of the popular judges; because undoubtedly these judges (like the Chancellor in Marks vs. Morris, 4 Hening and Mumford, 463) would epitomize the common law in the ancient rule of “honeste vivere” and thus apply their own ideas of justice until called to account by a trained bar, which arose later, during the 18th century.
The records that have been examined exhibit everywhere, especially in the popular courts, a great informality in judicial proceedings. The large number of judges in these courts would of itself tend to make the practice informal, to make the trial more like a deliberation of a community by its representatives on the justice or injustice of the case involved. The absence of a jurist class, and especially the universal prejudice against lawyers, proves that a popular and not a technical system was being enforced. The technical knowledge of the lawyer was not in demand, and, like Lechford, the lawyers had to turn their hands to semi-professional or non-professional work, the courts of the colonies at that date having no need of the aid of a trained profession to discover what was the law, as by the custom of the time the law was in so many cases determined by the discretion of the court. It seems just to conclude that usually the administration of law was carried on not according to the technical rules of a developed system of jurisprudence but by a popular tribunal according to the general popular sense of right.
The original elements in the early colonial laws are great in number and import. They foreshadow and anticipate some of the most far-reaching American law reforms. Pleading is simplified, and the intention is in many places expressed that it shall be possible for any man of ordinary intelligence to plead his own cause before the courts. This innovation supports the same conclusions that we have reached from the facts of the institution of popular courts and the absence of trained jurists. Evidence was in many colonies given in writing, or at least taken down by the clerk and made a part of the record in the action; a practice utterly abhorrent to common law ideas, not so to the popular mind to whom the evidence is the most important part of the case. Various modifications of the jury system have been noted, but in general this venerable and highly popular institution was adopted in the colonies in its English form at an early date. The period of prescription was in many of the colonies lowered to five or seven years, a change that was of course eminently consistent with the conditions of an infant colony on a new continent. Executions on land were permitted, and in many cases the fundamental distinction between real and personal property in the English law was obliterated or ignored. The laws of inheritance and of tenure were, as we have seen, very materially modified, very often leading to the adoption of a system totally unlike the common law at that period.
The historian will be interested in the reversion to the more ancient customs of the common law which we have ascertained in a number of cases. Such are the bestowal of judicial functions in law and in equity on the councils, protests against the extraordinary jurisdiction of which recall the history of the jurisdiction of the Great Council and Chancellor in England in the 13th and 14th centuries. We have seen how archaic ideas of the jury were given a new lease of life; Georgia, even after the period of independence, using a system of controlling the jury that was modelled on the old method of attaint. The idea of tort liability for crimes was revived, an idea that has been in the last decades again enforced with new emphasis by our legislatures. But the most important and interesting revival of older institutions is found in the popular courts composed of a comparatively large number of judges, recalling the twelve thanes of early English law, who declared law and custom in a simple, straightforward manner. Men here appear to plead their own causes, unassisted save by the unremunerated help of a friend or by the court itself. The court is not a trained judge, drawing his knowledge from, and supporting his judgment upon the accumulated wisdom of ages of legal development, but a popular committee representative of the people and enforcing the general popular custom and sense of justice.
We have also noted the prevailing views on the nature of law. The analytical theory of Hobbes, making positive law independent of moral considerations and basing it on a sovereign will, was not accepted at that time. The law of God, the law of nature, was looked upon as the true law, and all temporal legislation was considered to be binding only in so far as it was an expression of this natural law. With such a view of the nature of legal obligations, it does not seem strange that the magistrates should look for the true law in their own sense of right and justice, or, in the Puritan colonies, in the word of God.
The views of the common law when expressed are of the most rudimentary and incomplete kind. Ignorance of the system is often most frankly confessed, and when a comparison is instituted between the colonial laws and the common law, Magna Charta is often taken as a complete embodiment and expression of the latter. This is true not only in the Puritan colony of Massachusetts, but also in Virginia where, when it was to be decided whether an act was contrary to the common law, the committee thought it sufficient to examine Magna Charta.
Among the early colonists we therefore find a very clear perception of their destiny to work out a new legal system, to establish rules dictated by their special polity or by the conditions of primitive and simple life in which they found themselves. Respect is often expressed for the common law, the resolution is in some cases even formed of using it as a model, but it is only in a few cases clearly established as the rule of judicature and in still fewer instances followed with precision in the ordinary administration of the law. The colonial codes cover the more essential parts of the law, leaving cases therein not anticipated to be decided by the discretion of the magistrates. The theory of the transfer of the common law as subsidiary law at the beginning of the colonies is therefore, in its unmodified form, not a true statement of colonial legal relations. We cannot understand the history of our law, nor justly value the characteristic development of our jurisprudence, unless we note the actual attitude of the earliest colonists towards the common law, an attitude sometimes of apathy, of lack of understanding, sometimes of resistance or ignorement, sometimes, as in the case of Maryland, of admiration and adherence from the first.
It has been said that the colonists imported the general principles, the general system of reasoning of the common law. This is either self-evident or too indefinite to be of any historical value. It is certainly true that ideas of right and positive law develop side by side mutually influencing and reacting upon each other; and in this sense the English colonists, in their general ideas of justice and right, brought with them the fruits of the “struggle for law” in England. But when the expounders of the theory attempt to descend to particular statements of these general principles, they use colorless phrases that might as well be applied to any other system of civilized jurisprudence as to the common law. And when we apply the theory to the facts, we find that it is not a true and complete statement of the basis of jural relations in the early colonies.
Most of the colonies made their earliest appeals to the common law in its character of a muniment of English liberty, that is, considering more its public than its private law elements. In the 18th century, with a more jealous supervision of colonial development by the mother country, the introduction of law books, and the growth of a trained bench and bar, a more general reception of the private law principles of England is brought about.
To state the final conclusion arrived at: The process which we may call the reception of the English common law by the colonies was not so simple as the legal theory would lead us to assume. While their general legal conceptions were conditioned by, and their terminology derived from, the common law, the early colonists were far from applying it as a technical system, they often ignored it or denied its subsidiary force, and they consciously departed from many of its most essential principles. This is but natural; the common law was a technical system adapted to a settled community; it took the colonies some time to reach the stage of social organization which the common law expressed; then gradually more and more of its technical rules were received.1
THE THEORY OF THE EXTENSION OF ENGLISH STATUTES TO THE PLANTATIONS1
THE rapid expansion, in recent years, of the territory belonging to the United States, and the judicial determination, in the Insular Cases, of the relation of subject peoples to the American Republic have revived a question as old as the Constitution itself. This latest phase, involving possessions disconnected and far removed, makes us readier than before to examine the experience of other colonizing powers, especially of that British Empire from which the thirteen colonies separated themselves by the Revolution. At the present writing, moreover, the modern constitution of that empire is being subjected to fresh scrutiny and review, through the pressure of economic problems whose solution involves to the foundation the relation of Great Britain and her dependencies. But since, in the logic of history, the present has grown out of the past, a study which carries us back to the first building of that imperial system, and to the time when we were part of it, seems to be not unseasonable. Therefore, as our last chapter was local in its point of view, this is to be imperial in its outlook; and, leaving as beyond our proper field all considerations of economic relations, we shall inquire briefly into the theories held, in the seventeenth and eighteenth centuries, by English judges and lawyers, as to the legal status of the colonies, and especially as to the extension to these of Statutes of the British Parliament. Afterwards, for the purpose of comparison, we shall review the experiences of a few other colonies, which involved these theories or principles similar to those contested in Maryland.
We may first direct our attention to a case which was decided early in the seventeenth century, as a result of the union of the English and Scottish monarchies in the person of James I. For details as to the desire of James to secure for his Scotch subjects the rights of citizenship in the richer land of the South, and the general history of the “Post-nati,” we must refer to the historical writings of Gardiner and Hallam, and here direct our attention to a test case, known as Calvin’s Case, made up in connection with the Post-nati decision that citizens of Scotland born after James’ accession were to be accounted as legally naturalized in England. In Calvin’s Case the Judges enunciated certain opinions as to the position of “dependencies” with relation to the central government. A dependency, they held, was a “parcel of the Realm in tenure,” and Parliament might make any statute to bind such dependency, where the latter was definitely named; but without such special naming a statute did not bind.
At the same time the judges went into an extended classification of the dominions dependent on the British Crown. These they divided into
1. Christian countries to which the laws of England have been given by King or by Parliament.
2. Countries which come to the King through inheritance. In neither of these can the King “change” the laws.
3. Conquered countries inhabited by Christians. Here the laws of the conquered remain in effect until the King changes them,—which is entirely within his prerogative.
4. Conquered heathen countries at once lose their rights or laws by the conquest, “for that they be not only against Christianity, but against the law of God and of nature contained in the Decalogue.” As to these, the monarch “by himself and such judges as he shall appoint, shall judge them and their causes according to natural equity . . . until certain laws be established among them.”1
The year in which this decision was rendered (1607) marks the very beginning of successful English settlement in North America; but the principles then formulated were put into practice especially in the colonization of Ireland in this and in the succeeding reign.2 For the ends of this paper, it is to be remembered as the first “leading case” that declared the distinction between conquered and settled dependent territories, and applied a different rule to these classes respectively.
As settlement in the new world progressed, and governments of one form or another were established by royal permission, or instruction, we find all the charters save one granting to the colonists the rights of English citizens, and the claim to these rights maintained by the inhabitants of every colony, whether in possession of a charter or not. As to the interpretation of these rights, and the determination of their extent, discussion and dispute were more or less continuous. Every colony, however, at some time during its constitutional history had to face this question of the relation of the colonial law to the legal system of the mother country. In our ordinary study we naturally emphasize the history of the English colonies on the Atlantic coast—and of only some of those—but occasionally we are led to other regions for our best sources of information.
The next important judicial decision was one that concerned the colony of Jamaica. The whole constitutional development of this island is of the greatest significance in American colonial history, and far too little attention has been paid to it. In this connection, especially, certain similarities and certain differences render very interesting a comparison with Maryland.
The case of Blankard v. Galdy is one to which very frequent reference will be necessary. The matter at issue was a suit on a bond, and involved the extension of an English Act to Jamaica. The counsel for the plaintiff argued that Jamaica was an island beyond the sea conquered from the Indians and the Spaniards in Queen Elizabeth’s time1 [sic], that the inhabitants were bound by their own law, and that as they were not represented in Parliament, so they could not be bound by English statutes unless specially named. Statutes were cited—among them 5 Eliz. ch. 4, as to servants—which would be destructive if enforced there, and others, such as the Act of Usury, which does not apply, “for they allow them more for the loan of money than is permitted by that law.” Several Acts of Parliament which have “taken notice” of Jamaica are cited.
Then is adduced the Earl of Derby’s Case, where the Court held that English statutes did not bind the inhabitants of the Isle of Man, a conquered province, unless they were specially mentioned.
Counsel for the defendant argued contra that the liberties lost were those of the conquered; those that conquer cannot by this conquest lose their laws, which are their birthright, and which they carry with them wherever they go. Calvin’s Case is then cited, with emphasis in its distinctions between heathen and Christian conquered countries. The experience of Ireland is used to point out an analogy between that and the situation of Jamaica.1
The Court held, in part:
“1. In case of an uninhabited country newly found out by English subjects, all laws in force in England are in force there: so it seemed to be agreed.
“2. Jamaica being conquered and not pleaded to be parcel of the Kingdom of England but part of the possessions and revenue of the Crown of England, the laws of England did not take place there, until declared so by the conqueror or his successors. . . .”2
That Jamaica was alleged to be a conquered country caused upon other occasions, some of which we shall notice later, considerable difficulty in determining the legal system of the island. The decision, it seems, is adverse to the extension of English laws, though the judges did not lay stress on the distinction between common and statute law.
A clearer statement appears in the opinion of the Attorney-General, West, rendered in 1720, in which he said:
“The common law of England is the common law of the plantations, and all statutes in affirmance of the common law, passed in England antecedent to the settlement of a colony, are in force in that colony, unless there is some private Act to the contrary; though no statutes, made since those settlements, are thus in force unless the colonists are particularly mentioned. Let an Englishman go where he will, he carries as much of law and liberty with him as the nature of things will bear.”3
Nine years later, in connection with the dispute in Maryland, Sir P. Yorke, then Attorney-General, gave an opinion on the same subject, which affords an interesting comparison with that of West.
“Such general statutes as have been made since the settlement of Maryland, and are not by express words located either to the plantations in general or to this Province in particular are not in force there, unless they have been introduced and declared to be Laws by some Acts of Assembly of the Province, or have been received there by a long uninterrupted usage or practice which may impart a tacit consent of the Lord Proprietary and of the people of the colony that they should have the force of a law there.”1
The modification here evident was without doubt a reflection of the agitation in Maryland to which we shall devote extended discussion hereafter.
Passing over other cases, we come to the doctrine of the pre-revolutionary period as summed up by Blackstone,2 who, upon this subject delivers himself as follows:
“Besides these adjacent islands [Man and the Channel Islands], our most distant plantations in America, and elsewhere, are also in some respects subject to the English laws. Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother country; or where, when already cultivated, they have been either gained by conquest or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of colonies, with respect to the laws by which they are bound. For it hath been held3 that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject4 are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to their own situation and the condition of an infant colony. Such, for instance, as the general rules of inheritance, and of protection from personal injuries. The artificial refinements and distinctions incident to the property of a great and commercial people, the laws of police and revenue (such especially as are enforced by penalties), the mode of maintenance for the established clergy, the jurisdiction of spiritual courts, and a multitude of other provisions, are neither necessary nor convenient for them, and therefore are not in force. What shall be admitted and what rejected, at what time, and under what restrictions, must, in case of dispute, be decided in the first instance by their own provincial judicature subject to the revision and control of the King in council: the whole of their Constitution being also liable to be new—modeled and reformed by the general superintending power of the legislature in the mother country. But in conquered or ceded countries, that have already laws of their own, the King may indeed alter and change these laws, but, till he does actually change them, the ancient laws of the country remain, unless such as are against the laws of God, as in the case of an infidel country.1 Our American plantations are principally of this latter sort, being obtained in the last century either by right of conquest and driving out the natives (with what national justice I shall not at present inquire) or by treaties. And therefore the common law of England, as such, has no allowance or authority there, they being no part of the mother country, but distinct, though dependent dominions. They are subject, however, to the control of the parliament, though (like Ireland, Man and the rest), not bound by any acts of parliament unless particularly named.”
Lastly, the reader is referred to Mansfield’s decision in the case of Campbell v. Hall.2 Here the same general principles were stated more elaborately in six propositions, which need not be quoted at length upon the present occasion, as the time and place of the matter at issue lie too far from the limits described for this paper.
These opinions, judicial decisions, and the authority of Blackstone suffice to illustrate the legal theory with which we have to compare the claims put forth by the Maryland colonists. With the cases and decisions that come later, and with the modern classification of the British colonial system, we are not here concerned.1 It must be remarked, however, first, that the opinions we have quoted show a process of development, and some lack of harmony; second, that while the principles as to extension which Blackstone lays down did, in American courts generally, become the accepted theory of the transfer of English law,2 a different attitude was assumed towards his consideration of the American possessions as conquered territory; and thirdly, that as Reinsch has shown, the legal theory is not universally supported by the actual facts in the legal history of the colonies.3
As we have not undertaken any but the barest statement of this legal theory, so our reference to the experiences of other colonies must be of the briefest. While in every group of colonies incidents turned upon or called in question the same points as the Maryland controversy, and although no complete discussion of this part of the subject exists, we shall on this occasion mention only two or three such happenings which are peculiarly fitted to help us understand the more limited field that we have chosen.
In 1651 the Colony of Virginia surrendered to the Commissioners of the Puritan Government in England. The first article of capitulation declares:
“It is agreed and const’d that the plantation of Virginia, and all the inhabitants thereof, shall be and remain in due obedience and subjection to the Commonwealth of England according to the laws there established, and that this submission and subscription be acknowledged a voluntary act not forced nor constrained by a conquest upon the country, And that they shall have and enjoy such freedomes and priviledges as belong to the free borne people of England, and that the former government by the commissons and instructions be void and null.”1
Here seems to be a conscious recognition of the “conquest” idea so emphasized in the decision just quoted. In Maryland itself, however, we have a still clearer example when, in 1684, in a debate between the Houses of the Assembly over the right of the Speaker to issue warrants for election to vacancies, the Proprietor’s argument, in support of his own prerogative, that “the King had power to dispose of his conquests as he pleased,” roused the ire of the Lower House, which asserted the rights of its members as based on their English origin. This was “their birthright by the words of the Charter.” The word “conquest” had a sinister meaning which they resented, and they hoped that the words were the result, not of the Proprietor’s own will, but of strange if not civil counsel. The Upper House at once explained that it had no idea of likening the freemen of the Province to a conquered people.2 The discussion indicates that in Maryland, before the revolution of 1689, this legal theory was known and its application of this principle to Maryland denied.
The narrower question of the extension of the English statutes had been broached in many other plantations. One or two instances will suffice for illustration. In 1692 the Assembly of South Carolina passed an Act authorizing the judicial officers of the colony to execute the Habeas Corpus Act—an Act passed some years later than the settlement of Carolina. This the Proprietors disallowed, however, declaring that all laws of England applied to the colony, and holding that it was therefore unnecessary to re-enact that famous statute in their Province. “By those gentlemen’s permission that say so, it is expressed in our grants from the Crown that the inhabitants of Carolina shall be of the King’s allegiance, which makes them subject to the laws of England.”
Here we have a proprietary Province, of a constitution analogous in so many respects to Maryland, in controversy over this same matter; but the parties we find taking exactly opposite positions from that which they assumed, respectively, in Maryland. However, the Proprietors here receded from their position, and, in 1712, approved an Act which adopted the English common law and such statutes as were deemed applicable to the Constitution of the Province.1 A somewhat similar law was passed in North Carolina, in 1715.
Of more direct bearing upon the course of events in Maryland is the experience of her northern neighbor, Pennsylvania, where legal controversies similar to that which we have to follow in Maryland were taking place just a few years before 1722. The efficacy of the English statute law, in comparison with that of local legislation, came up in connection with the unwillingness of the Quakers to take an oath, and their claim that an affirmation was equally valid for legal proceedings.2
More closely analogous to the issues developed in Maryland, however, was the evolution of the courts of judicature in Pennsylvania. In the course of a contest between Governor Evans and the Assembly, the former issued an ordinance to establish courts; in which the judges were directed to hear and determine cases “as near as conveniently may be to the laws of England, and according to the laws and usages” of the Province. In equity cases, they were to “observe” as near as may be the practice and proceedings of the High Court of Chancery in England. Against this establishment of courts by ordinance the Assembly remonstrated, but to little purpose, and the quarrel dragged on through subsequent administrations.3 The constitutional points in dispute lie without the scope of our consideration, but the reference to the laws of England concerns us directly.
Furthermore, in 1718, Governor Keith and the Council fell out over the commissions of the judges. Should they run in the name of the Governor merely—as had been the case—or should they not rather run in the name of the King, with the Governor’s attestation? In supporting the latter view, the Governor argued that the judges were the King’s judges; and that the Proprietor had only the right of naming them, and he argued the example of Durham, where by Act of 27 Henry VIII. ch. 24, the power of appointment was taken from the Bishop and vested in the Crown.
“In reply,” says Shepherd, “the Council stated that the difficulty had arisen in not distinguishing the difference between England and ‘new colonies made without the verge of the ancient laws of that Kingdom.’ As the King could give power to subjects to transport themselves to the dominion of other princes, where they would not be subject to the laws of England, so he might allow them to go to any foreign country upon any conditions he might choose to prescribe. Furthermore, since the native Indians, who inhabited these newly discovered American lands, were not subject to the laws of England, ‘those laws must, by some regular method, be extended to them, for they cannot be supposed of their own nature to accompany the people into these tracts in America’ any more than into any other foreign place. The King, by his charter, had given the proprietor and the people full power to enact laws not repugnant to those of England, but ‘without extending any other than such as were judged absolutely necessary for the people’s peace and common safety till such time as they should think fit to alter them.’ ”
Continuing, they urged that precedent was upon their side in other colonies as well; and upon this occasion Keith yielded to their claims.1
Thus we see that public sentiment was on the side against extension. In line with this feeling, the Assembly, in 1718, passed an Act definitely extending several English penal statutes, which greatly altered the milder ideals of William Penn’s early legislation. The necessity for this, Shepherd suggests,2 was the advantage taken by many law-breakers of the privilege of affirmation instead of swearing oaths. In the passage just cited, the argument was not technically legal, but in the preamble to this Act the Assembly said:
“Whereas it is a settled point that as the common law is the birthright of English subjects, so it ought to be their rule in British dominions; but Acts of Parliament have been adjudged not to extend to these plantations, unless they are particularly named in such acts.”1
Here is a clear-cut statement of the “orthodox” theory as to extension, exactly similar in tenor, it will be noticed, to the opinion of West in 1720, given above. Since it is easy to prove that contact between Maryland and Pennsylvania was continuous, and that the politics of the latter exerted a decided influence on those of the former, it is not unreasonable to suppose that this discussion in Pennsylvania, which occurred when discussion on the same point in Maryland was inactive, had something to do with the revival of the quarrel in Maryland in 1722. This hypothesis is helped by the emphasis that we shall find laid by Dulany and his party on the Commissions of the Judges. It is the more remarkable, as the latter argued precisely in opposition to the ideas of the Council in Pennsylvania.
A far more striking analogy appears in the history of Jamaica, to which the case of Blankard v. Galdy has already led us. We found it there claimed and adjudged that Jamaica was a conquered Province; but, as we might suppose, the English inhabitants of the island denied that they represented the conqueror. The military seizure of the island and its cession by Spain did, however, introduce this additional complication into the whole of Jamaica’s constitutional history. Moreover, Jamaica was a Crown colony, and had no charter. The instructions and proclamations of Cromwell and of Charles II. were liberal, however. In the time of the latter, especially after the period of military rule had reached a conclusion, the progress of the colony towards a constitutional development like that of the other American colonies was constant. But in 1678, upon objections by the lords of the Committee for Trade, the royal government rejected some of the Jamaican laws, and went so far as to urge that the laws for the island must be made in England, then sent to Jamaica for passage by the Assembly, after the manner of Irish legislation under Poyning’s Law.
This reactionary attempt of the Crown to compel the civilian was opposed and rejected by the Jamaican Assembly. Then ensued a long wrangle, which left it in great doubt what laws were in force and what not. A temporary agreement as to the practical difficulties was reached in 1684. But the claim of the colonists to the English laws—not only to those passed before the settlement, but to some, like the Habeas Corpus Act, passed after it—was denied by the King in Council and by the courts.
The Jamaica Assembly went farther than that of Maryland, in that they entangled with this controversy the question of levying the public money, and refused to pass a law to grant a perpetual revenue until the Crown would fully admit the rights they demanded. This the Crown for a long time refused to do; but at last, in 1728, the Assembly
“Settled a permanent revenue, not burthensome to themselves. . . . In return for this they obtained the royal confirmation of their most favourite and necessary Acts of Assembly, and the following declaration expressed in the 31st clause of this revenue Act:
“And also all such laws and statutes of England as have been at any time esteemed, introduced, used, accepted or received as laws, in this island, shall and are hereby declared to be, and continue, laws of this his majesty’s island of Jamaica forever!
“This clause is justly regarded by the inhabitants as the grand charter of their liberties, since it not only confirmed to them the use of all those good laws which originally planted and supported freedom in England, but likewise of all the other provisions made for securing the liberty and property of the subject in more modern times; when, upon the several overthrows of tyrannic powers in that Kingdom, the subjects’ rights were more solidly fixed on the rational basis of three solemn compacts between the sovereign and people: at the Restoration of Charles II., the Coronation of the prince of Orange, and, lastly, the accession of the House of Hanover.
“The little clause before recited has cost the island, in fifty years, about £50,000, the net income of the revenue being about £10,000 per annum. Yet, considering the unspeakable benefits derived by them in virtue of this compact, they do not think it too dear a purchase.”1
Such was the controversy in Jamaica, thus contemporaneous in part with that conducted by Dulany in Maryland. That the Jamaican affair was studied in Maryland will appear below, where we shall find the Proprietor, in 1724, citing the failure of the Jamaicans in one of their attempts to get their English laws. Five years later, in the Maryland Gazette, a letter from Jamaica announces the probability of an agreement. This Act “has been at home near a year” and “cannot well fail of being cofirmed, being exactly conformable in the substance to the draught sent hither from home.”2
At the time, therefore, when Dulany began his decade of agitation in Maryland, there was, in the first place, a theory or tradition established in the English courts; a tradition not yet distinct, but approaching definiteness. Secondly, there had been frequent occasions in other colonies where the relations to the legal system of the mother country were matters of dispute. Lastly, the uncertainty in Maryland was as old as the colony. With these points in mind, we may perhaps sympathize with “An American,” who in “An Essay on the Government of the English Plantations,” published at the beginning of the eighteenth century, voiced his complaint that
“No one can tell what is law and what is not in the plantations. Some hold that the law of England is chiefly to be respected, and, when that is deficient, the laws of the several colonies are to take place. Others are of the opinion that the laws of the Colonies are to take the first place and that the laws of England are in force only where they are silent. Others there are who contend for the laws of the colonies, in conjunction with those that were in force in England at the first settlement of the colony, and lay down that as the measure of our obedience, alleging that we are not bound to observe any late acts of parliament in England except such only where the reason of the law is the same here that it is in England.”1
THE INFLUENCE OF COLONIAL CONDITIONS AS ILLUSTRATED IN THE CONNECTICUT INTESTACY LAW1
THE colonial era of our history has generally been treated with an insufficient appreciation of its economic forces, and, in consequence, there has been a tendency to minimize the importance of certain periods of that history which show little political activity and are to the world at large dull and uninteresting. Such a period is the first forty years of the eighteenth century, and in the following paper I hope to show why I think that, from the point of view of the English policy toward the colonies and their economic development, this period will in the future stand much higher in the estimate of historians than it does now. The discussion that follows involves a number of points of law, and carries us through a controversy which, although of immediate importance to Connecticut only, was of exceeding interest to all New England, and indirectly touches the general subject of colonial history.3
The starting point of the controversy and its underlying cause was the agrarian system of New England. It is well known to students of the subject that the methods employed in the division of lands by the proprietors of the various towns involved certain principles based on the necessities of a new country. We may believe, if we wish, that these methods were the expression of deep-seated racial traits, but it is more rational to take into account two influences only; first, the agrarian environment in which the settlers had been reared; and, secondly, the conditions and necessities that govern the settlement of a new and uninhabited country. These two considerations will concern us here.
Those who settled the New England colonies were—save in a very few cases—men of the burgher and freeholder class, to whom the detail of the English agricultural life was familiar. They had been inhabitants of towns and villages located on feudal estates and subject to a superior, the King or the lesser lay or ecclesiastical lord; they had in a large number of cases been reared in the midst of the English agricultural system, of which the village community with its long streets, its homesteads, its open fields divided into shots or furlongs and subdivided into what were originally acre and half acre strips, its meadows, pastures, common and waste, was the local unit and that part of the system with which they were in daily contact. To this system that of New England bears a striking resemblance. One cannot compare the old manor maps of the seventeenth and eighteenth centuries with any plan based upon the land records of a New England town without feeling that the similarities are more than coincidences. There is the same village street, the same homestead plots, the same great fields, the same shots and furlongs, and the same subdivision into smaller strips; there are the enclosed meadows held by a few, the pasture and the waste common to all, and there are numbers of trifling manners and customs which show the English origin. It was the local, non-feudal land system which was transplanted with important changes to New England, and formed the basis of the law of real property.
But were we to be satisfied with this statement of the case, we should be guilty of accepting a hasty analogy. There were other reasons why the local agrarian system of England was in its outward form reproduced by the New England settlers. Had it not accommodated itself to their notions of equality and equity, and to the economic needs of a people settling in a new and uninhabited country, it might have been altered and changed beyond recognition. But the local land-system of England was pre-feudal in its origin, and probably grew out of a primitive system of agrarian equality, a fact which the equal strips, the scattered holdings and the common rights serve to attest. The New England settlers were entering an environment similar to that out of which the English village came, and they therefore found it necessary to change the English local system but little in order to apply the methods of allotment demanded by a new country. The colonists took no retrograde step; all changes from the existing system at home were in keeping with the higher ideas of property and equality which the New Englanders brought with them. The principles which governed their action were three: first, that of preventing the engrossing of lands and their accumulation in the hands of a few, the dangers of which in England were familiar to the colonists;1 secondly, that of subserving the law of equity by treating every man fairly, not only in giving him a share in conquered or purchased lands, but also in so allotting that share that he might be subject to all the advantages and drawbacks that bore upon his neighbors;2 and thirdly, that of hastening settlement and the improvement of land.1 Land was therefore divided2 by the towns or by the bodies of proprietors into fields, called “squadrons” in Worcester, “furlongs” in Middletown, “shots” in Milford, and “quarters” in New Haven, and these were subdivided into smaller strips ranging from one acre3 to forty or more in size. Various methods were employed for obtaining equality,4 and every effort was made to hasten cultivation and to increase industry. Removal was discouraged by liability to forfeiture;5 alienation was limited by laws common to nearly every town in New England;6 the burden of taxation and the care of the fences, highways, etc., was distributed as evenly as possible; and every effort was made to increase the amount of land brought under cultivation. All this was characteristic of New England in general and of Connecticut in particular. The life in the latter colony was predominantly agricultural, the industrial and commercial aspects had hardly begun to appear, the government was republican—and for a hundred and fifty years of all the colonial governments it was the one most independent of the mother country1 —the laws made were adapted to the conveniences of the inhabitants rather than to the common and statute law of England, and the policy of the colony at all times was to remain hidden as far as possible from the notice of the home authorities. It is no wonder, therefore, that there should have grown up under the conditions—agrarian and economic—attendant on the settlement of a new, partly uninhabited, partly unconquered territory, laws based not on legal theory but on custom, laws that either were not known to English law1 or were not in accord with it.
Of all these laws none was more important, more an organic part of the life of the colony or fundamental to its welfare, than that which governed the disposal of intestate estates. It is manifest that people influenced by the principles already mentioned in their distribution of land would apply the same principles to the distribution of the realty of an intestate. They certainly would not have undermined the colonial structure by admitting into its construction methods foreign to the general plan. Primogeniture, favorable to the accumulation of estates, but unfavorable to a rapid increase of the inhabitants, a furtherance of agriculture, and a cultivation of the soil, and opposed to the natural law of equity, was not in accord with the principles of the New England settlers. The intestacy law was, therefore, the unavoidable and logical outcome of the principles which underlay the land-system of New England. This becomes the more apparent when we realize that for more than sixty years it existed as a custom in no way binding on the people, and that it did not become a law in Massachusetts until 1692, or in Connecticut until 1699.1 By the English common law the eldest son was the sole heir and was entitled to the whole estate exclusive of all other children; whereas the colonial law2 directed that the real estate of an intestate be distributed in single shares to all the children except the eldest son, to whom, following the ruling of the Mosaic Code, the law assigned a double portion.3 The Connecticut law was not the arbitrary act of the assembly of the colony; it was the sanctioning of a custom which had grown out of the consent of heirs to an intestacy, and which had been proved by experience to be the best adapted to the needs of the colony.4 Governor Talcott gives in brief the reasons for the intestate law in his instructions to Belcher:—“And much of our lands remain unsubdued, and must continue so without the assistance of the younger sons, which in reason can’t be expected if they have no part of the inheritance; for in this poor country, if the landlord lives, the tenant starves: few estates here will let for little more than for maintaining fences and paying taxes. By this custom of dividing inheritances, all were supply’d with land to work upon, the land as well occupy’d as the number of hands would admit of, the people universally imploy’d in husbandry; thereby considerable quantities of provisions are rais’d, and from our stores the trading part of the Massachusetts and Rhode Island are supply’d, the fishermen are subsisted, and the most of the sugars in the West Indies are put up in casks made of our staves. By means of this custom his Maj’ties subjects are here increased, the younger brethren do not depart from us, but others are rather encouraged to settle among us, and it’s manifest that New England does populate faster than the Colonies where the land descends according to the rules of the common law. And such measures as will furnish with the best infantry does most prepare for the defence of a people settled in their enemies country. If this custom be, so ancient and so useful, non est abolenda, sed privare debet communem legem.”1
Such were the conditions out of which the intestate law grew, and such were the reasons for its embodiment, after sixty years of customary use, into law. Economists can find evidence here for the study of land-appropriation in a new country; students of the history of law will be interested in the growth of customary law; but for us the interest is of a different character. The law was clearly contrary to the corresponding law in England. Certain disaffected ones in the colony, opposed to the government,1 and overzealous in finding flaws in colonial law and administration, and ever ready to exhibit such discoveries to the authorities in England, began to question the validity of the custom even before it became a law. This was done by Governor Talcott himself in 1691,2 and by Major Palmes in 1698,3 while in Massachusetts Dudley complained of the law in 1693.4 The question was not destined, however, to become prominent for nearly thirty years, but it early became of importance as part of a larger question, the forfeiture of the charters and the proposal to unite the charter and proprietary colonies to the Crown. The agitation to produce this latter result seems to have grown out of the desire to unite the colonies of Northern America under one military head,5 and was increased by the controversy over the right of appeal to the King in Council and the dissatisfaction arising therefrom. In Massachusetts a law had been passed regarding appeals, but it was annulled, altered, re-enacted, and again annulled.1 New Hampshire refused an appeal in the Allen case in 1701;2 Connecticut an appeal in the Hallam case in 1699;3 but in each of these cases the King in Council granted the petition for an appeal, resting the decision on the plea that it was the inherent right of his Majesty to receive and determine appeals from all his Majesty’s colonies in America.4 Connecticut, on the other hand, based its determination to resist such appeal upon its willingness that the Privy Council should be the interpreter of the colony’s law.5
It was not difficult to find additional charges. Complaints were made that the colony broke the Navigation Acts, harbored pirates, neglected to take the oaths required by law, encouraged manufactures, were negligent in military duties and in the erection of fortifications, encroached on the jurisdiction of the Admiralty, and opposed the authority of its officers, protected escaped soldiers, seamen and servants,6 and failed to comply with certain requirements of the home government—as in the case of the proclamation regarding coin, the instructions to naval officers, the command to aid New York with quotas of men against the French and Indians—etc. Through the influence of Dudley and the pertinacity of Edward Randolph, for it was he who personally led the campaign in the lobby of Parliament,7 a bill was brought forward in 1700-1701 for reuniting to the Crown the governments of several colonies and plantations of America—Massachusetts Bay, New Hampshire, Rhode Island and Providence Plantations, Connecticut, East and West New Jersey, Pennsylvania, Maryland, Carolina and the Bahamas and St. Lucia Islands—on the ground that “the severing of such power and authority from the Crown and placing the same in the hands of subjects hath by experience been found prejudicial and repugnant to the trade of this Kingdom and to the welfare of his Majesty’s other plantations.”1 The bill, however, by reason of “the shortness of time and the multiplicity of other business,”2 failed to pass, but the Board thinking it very likely that it would come up again for consideration, desired from the colonies all possible information that would aid in the matter. From 1701 to 1706 charges continued to be sent in. Quary, Bass, Congreve, Larkin, Dudley, and Cornbury all drafted lists of complaints. The Board in a representation to the Council in 1703 expressed its opinion “that the great mischief can only be remedied by reducing these colonies to an immediate dependence on the Crown.”3 For Connecticut it was a time of anxiety. The influence of the Hallam case, of the controversy over the Narraganset country and the boundary line with New York, of the case of the Mohegan Indians,4 of the petition of the English Quakers against a Connecticut law, was to keep certain aspects of Connecticut’s management steadily before the Board of Trade and to lead to what were often serious misrepresentations to the home authorities. In consequence Connecticut got a bad name. In 1704 the colony narrowly escaped having a governor put over it1 through the authority of the King in Council. But that body evidently preferred that Parliament should take the matter in hand, and in 1706 a bill similar to that of 1701 was introduced. It passed the House of Commons but failed of passage in the House of Lords.2
The long list of charges against the proprietary and charter governments already on the books of the Board was continually supplemented by additional charges from Congreve,3 Dudley, Quary, Gauden and others.1 The failure of the bill of 1706 was a severe blow to its supporters, and the colony for several years experienced a relief from its anxiety. In 1715 the matter came up again because of the complaints regarding banks, naval stores, the trouble with Carolina, etc., and the House of Commons appointed a committee composed of members of the Board of Trade “to inspect into the miscarriage and to prepare a bill to resume the grants of the proprietary governments.”2 Again a list of charges was prepared,3 but, whether another failure was feared4 or a juster policy decided upon, a different plan was tried for Connecticut. The committee of the Privy Council directed the Board of Trade to inquire of the colony—through Jer. Dummer, the agent in London—whether it would be willing to surrender its charter peaceably. Connecticut’s answer is a masterpiece of firmness and politeness and, although in the name of the Governor and Company, was undoubtedly written by Saltonstall.1 He commends the justice and honor of the ministry in thus referring the question to the corporation, a method wise and just, possessing not the least appearance of force and terror. He contrasts it with previous methods unreconcilable with common rights, law and custom, of which the colonies had had full experience. This spirit of fairness he attributes to the existing King and Ministry, who, though unlimited and subject to none, yet observed the limits of wisdom and justice, and were tender of what others should enjoy as well as of their own prerogative; who did not make use of their power to terrify the colony out of its rights and property, but gave it leave to speak for itself. After these quieting words, the Governor and Company regret that they cannot choose that resignation of their rights which the King and Ministry think might be best for them, and conclude this portion of the letter with the following instructions to the agent: “You are therefore hereby directed in plainest terms to acquaint their Lordship that we can’t think it our interest to resign our charter. But on the contrary, as we are assured, that we have never by any act of disobedience to the Crown made any forfeiture of the privileges we hold by it, So we shall endeavor to make it manifest and defend our right whenever it shall be called in question.”
The limits of this paper will not allow a further discussion of the attitude of the home government toward the Colony. It is, however, fundamentally important that we should appreciate the relations which had previously existed, and the one-sided character of the information which the Board of Trade, the Privy Council and even Parliament itself received. The mere titles of the papers containing charges against the proprietary and charter governments cover twenty-one pages of an entry book. Regarding Connecticut there is almost nothing to relieve the unfavorable impression received by the Board, except a letter now and then from the Governor, and the answers to the queries that were occasionally sent to the colony. The references to Connecticut in the Journal are rare, and generally relate to some complaints against her. It is difficult to determine how far the Board believed the statements sent it, but its representations do not show any inclination to lighten the impression which the letters from the colonies give.
This was the position that Connecticut occupied in the sight of the home authorities when John Winthrop, a grandson of one Connecticut Governor and nephew of another, denying the validity of the intestate law, claimed all the real estate of his father who had died in 1717, and, ignoring the right which he had of appeal from the Court of Probate to the Court of Assistants, expressed his determination to appeal to the King in Council. This determination was carried out, and as the result of Winthrop’s efforts the intestacy law was annulled by an Order in Council Feb. 15, 1728, as contrary to the laws of England and not warranted by the charter.1 The case was a private one and the colony was not heard in the matter. There is no doubt that the defendant, Lechmere, was inadequately defended by some one little versed in the colony’s affairs, that his evidence was far from complete, his purse far from full, and that he was especially in want of “a good sword formed of the royal oar.”2 Winthrop, on the other hand, was ably defended by Attorney General Yorke and Solicitor General Talbot. The Committee of the Council did not call in the assistance of the Board of Trade, and there are no documents bearing on this phase of the case among their papers. Winthrop did not rest his case solely upon the question of the validity or invalidity of the law, but he repeated most of the charges, which were already familiar to the Council and its committee, and thereby, as Mr. Parris said, “very much assisted his case.”1 The legal aspects of the trial have attracted but a small amount of attention from historians, for the incidents were neither dramatic nor politically exciting, yet there were involved in the case principles of great moment to the colonists, questions, the solution of which was to affect the future relations between them and the home government.
The effect of the vacating of the law shows at once that the Privy Council acted without a reasonable understanding of the matter at issue. It based its opinion upon the literal interpretation of the charter from its own point of view, and was entirely without an honest appreciation of the equity in the case.2 Two conditions, defensible in themselves, had come into conflict. For the moment the customary law of one country, arising from one set of historical circumstances, was to be enforced in another country, the agrarian and economic life of which had brought into existence a customary law very different. The common law of England and the common law of the colony did not agree. The latter did not represent the defiant will of a body of law-makers, it represented a principle of land-distribution which the experience of the colony had shown to be best adapted to its own prosperity and continued existence. This becomes clearer when we note what would have been the economic effects of voiding the intestate law.
The first result would have been a general unsettling of titles to lands left intestate or alienated after intestate settlement. This was due to the fact that a large majority of the people consisted of farmers and agriculturists, possessing little personal estate.1 Many of these settlements reached back to the beginnings of the colony, and the invalidating of titles would have affected large numbers of descendants who would thus have been liable to ejection at the instance of the eldest heir.2 Such ejectment concerned the younger sons and the female heirs, for whom under such conditions there would be no place in the colony.3 Even if the titles to estates already settled in the Court of Probate should be allowed to stand, yet there were many estates of twenty or thirty years standing that had never been settled, and more of a later date, so that the suffering would only be limited, not ended. Furthermore, litigation would have at once ensued, which would have involved the colony in an economic loss greater than that entailed in a resistance to the decree. The agrarian system of the towns would have given to this litigation a curious complexity. Quarrels were certain to arise within the towns themselves regarding the ownership of the common and undivided lands.4 Would the title rest with the heirs at common law of those who received by grant from the King, that is, the patentees, or with those who as proprietors and contributors to the common fund purchased the lands from the Indians, and received their shares according to the size of their families and the amount of their subscription?5 Judges, too, in settling all these disputes, would have been thoroughly perplexed as to whether they should obey the decree, in which case the foundation of the colony would have been “rip’t up from the bottom and the country undone;”1 or whether they should disregard the decree, and so bring down upon the colony the loss of its charter.
But the injustice would have concerned others besides those holding lands derived from intestate settlements. Creditors who had taken lands in payment of debts—a procedure not in favor with the colony because of the cheapness of lands—would be defrauded, unless the lands, which might have considerably improved in their hands, had been made chargeable for the original loan and the improvements.2 Furthermore, the will and intent of many who had died intestate might have been frustrated, inasmuch as they, trusting in the colonial custom, with which they had been perfectly satisfied, had made no will.3
In addition to these results, so contrary to justice and equity, certain economic consequences would have inevitably followed the carrying out of the Order in Council, consequences detrimental not merely to the colony, but, judging from the standpoint of her clearly avowed colonial policy, to England as well. The voiding of the law meant the abatement of husbandry. The towns of all New England, and of Connecticut in particular, were, at this stage of their development, predominantly agricultural. The results of such abatement would be a desertion of lands, a lessening of population, and a decrease in the supply to the neighboring provinces, which, engaged in trade and fishery, were dependent on Connecticut for provisions.4 It was a clever stroke on the part of the colonial supporters of the law when they showed that its confirmation was adapted to the furthering of England’s policy, and that its vacation was to the injury of that policy. Voiding the law would lead to manufacturing, for the younger sons from sheer necessity, driven from agriculture, would turn to trade and manufacturing, or else would be obliged to leave the country.1 Thus, by this argument, England was placed on the horns of a dilemma as regards the colonies, either beggary or insufficient population on the one side, or the promotion of trade and manufactures on the other. This, as Law surmised, “was a tender plot,” and there is no doubt that as an argument it was frequently repeated in order that it might be “thôt of at home.”2 These economic results are sufficient to show that the law was an organic part of the life of the colony. Indeed, as Talcott said in a later letter to Francis Wilks in London, “we cannot think our law will be looked upon to be contrary to the law of England for the colony could not have been settled without it.”3
The colony immediately made every effort through its agents, Dummer, Belcher, and Wilks, to defend the law if possible. There was reason for hope in such action from the fact that the Massachusetts law of 1692, after which the Connecticut law has been modeled, with one amendment, one addition, and three explanatory acts had been confirmed by the Crown.4 Furthermore, the law was a general one in New England and, if the Order in Council were to be insisted on, it might endanger the titles to a considerable amount of New England real estate; and it would seem incredible that the home government could persist in so crippling the colonies.5 Therefore the colony was justified in believing that, if all the arguments were fairly presented to the Lords of Trade, the good offices of that Board might be obtained.1 This was an important step, for by the report of the committee of the Council the matter had been referred to the Board.2
The strongest argument against the law was that it was contrary to the law of England, and in the discussion which followed the colony exerted all its strength to minimize the force of this argument. The question is an important one in itself, but the value of the discussion lies in the expression of opinion on the part of the English and the colonial authorities regarding the interpretation and strict construction of the phrase “contrary to the law of England.” There were three views held regarding the English law in the colonies, as to how far it was binding there, and to what extent the colonial corporations had been invested by their charters with law-making powers. The first of these opinions was held by all those who were opposed to the colonial prerogatives, such as Palmes, Hallam, Gershom Bulkeley, in his “Will and Doom,” Winthrop the appellant, in his “Complaint” and “Memorial,” Dudley and others. According to this view the colonies were erected as corporations within the kingdom of England; they held by and were subject to the laws of that kingdom, and their legislative power extended to the making of by-laws and ordinances only for their own good government, provided the same were not contrary to the law of England.3 From this point of view all laws passed by the colonial assemblies which were of a higher character than by-laws, and which, even within that limit, touched upon matters already provided for by English common or statute law, were illegal. The colonies were as towns upon the royal demesne.
The second view was expressed by the agent of Connecticut, Francis Wilks, and was doubtless held by those at home who, with English proclivities, were nevertheless well disposed toward the colonies. According to this view, it followed that when the colonists came to America they brought with them the common law to which they were entitled as Englishmen, and such part of the statute law as was in force before the settlement of the plantations took place. To this body of law, written and unwritten, binding on the colonies, were to be added all such later Acts of Parliament as expressly mentioned the plantations, and such Acts as had been re-enacted for the colony by her own legislature.1 But no other statutes passed since the settlement could be held as binding. Therefore, according to Wilks, that law was contrary to the law of England which was contrary to the common and statute law prior to the settlement, or to the statute law made afterwards which expressly mentioned the plantations.
Both of these views, however, were strictly opposed by the colony. To the statement that the common and statute law existent at the time of the settlement was in force in the colonies, the answer was made that the charter nowhere directed the administration to be according to one law or another, whether civil, common, or statute law;2 that by a decision of the Council itself an uninhabited and conquered country was to be governed by the law of nations and of equity until the conqueror should declare his laws,3 and that if such declaration had not been made, then it was evident that the law of equity and of nations governed and not the common or statute law of England.4 Therefore, the colony argued, English common law could be binding beyond the sea only in case it had been accepted by the colonist’s own choice.1 From the nature of the laws passed, it is evident that the colonial government never considered the common law to be in force within its jurisdiction, and in this belief it said it had never been corrected or otherwise instructed from the throne. In this connection Governor Talcott pertinently asks, “And why should we be directed to make laws not contrary to the laws of England if they were our laws, for what propriety can there be in making that a directory to us in making a law which was our law before we made it.”2 As this was the case, it is evident that something more was implied in the charter than the making of by-laws. In that document was proposed an object, the religious, civil, and peaceable government of the colony, which could not have been attained by the passing of by-laws. The charter implied a power to enact in the colony that which was law in England and also any good and wholesome law which was not contrary to it; and such limitations could not be to by-laws only.3 Furthermore, the colony insisted that the analogy to a municipal corporation in England was not sound, inasmuch as it was the privilege of Englishmen to be governed by laws made with their own consent.4 The colonies were not represented as were the English towns in Parliament; therefore the only laws made with the consent of the colonies were those of their own legislatures, and those were more than by-laws. The opinion of the colony, therefore, was that the phrase, “contrary to the law of England,” referred only to laws contrary to those Acts of Parliament which were in express terms designed to extend to the plantations.5 That this had been the practice as well as the theory in Connecticut is evident from Congreve’s letter to the Board of Trade, in which he says, “They allow of none of the laws of England either common or statute to be pleaded in their courts.”1
According to the opinion held by Winthrop and Wilks the intestate law was clearly contrary to the law of England. Even Lieutenant Governor Law of the colony seems to have inclined to this view, for he came to the conclusion that the colony in acting in the past, contrary to the view expressed by Wilks, had been mistaken.2 But Gov. Talcott was led into no such concession; he stood firmly on the ground already taken, and adroitly persisted in maintaining the complete validity of the intestate law. He probably realized that under the circumstances concession was more dangerous than resistance, and that to accept Wilks’s theory would be to strike a blow at the absolute integrity of the charter. “We would,” he writes, “with the greatest prostration request your Majesty, that when we find any rules of law needful for the welfare of your Majesty’s subjects here, which is not contrary to and agrees well with some one of the Tryangles of the law of England, as it then is, or heretofore had been, when England might have been under the like circumstances in that particular, which we are when we make the law, that it might not be determined to be contrary to the law of England.”1
The opinions of the English lawyers of this period, so far as I am able to discover them, are neither definite nor complete. In a report to the Board of Trade, Attorney General Yorke and Solicitor General Talbot upheld the colony’s position regarding by-laws. They affirmed that the assembly of the colony had the right by their charter to make laws which affected property, on condition that such laws were not contrary to the law of England; but, although it seems probable that they intended “law of England” to cover the whole law, they did not make it clear what they meant by this term.2 Yet these same lawyers in a later judgment declared that in one particular case, the barring of an heir to entailed lands lying in the plantation by a process of fine and recovery in England, the common law did not extend to the plantations, unless it had been enacted in the plantation where the entailed lands lay.3 The Board itself supported the colony against adverse criticism4 when it stated that according to the charter the laws were not repealable by the Crown, but were valid without royal confirmation unless repugnant to the law of England.5 The most definite expression of opinion, however, was adverse to the view which the colony took. Mr. West, in a judgment rendered regarding admiralty jurisdiction in the plantations, took the ground that wherever an Englishman went there he carried as much of law and liberty with him as the nature of things allowed; that, in consequence of this, the common law of England was the common law of the colonies, and that all statutes in affirmance of the common law passed in England antecedent to the settlement of any colony were binding upon that colony. He also held, as did Wilks, that no statutes made since the settlements were in force unless the colonies were particularly mentioned.1 His view, which I do not doubt was very generally held by English lawyers outside of the colony, was simply a legal opinion, and was probably based on little real knowledge of the subject to which it referred. We are, therefore, fortunate in having another and different view of the matter of greater practical value. In 1773 the legal advisor of the Board, Francis Fane, returned to the Board his comments upon the first installment of the laws of Connecticut and he completed his examination of the entire 387 laws in 1741. In this report opinion came face to face with facts, and the lawyer realized the anomaly of attempting to force English law upon a people whose conditions of life were in so many particulars different from those at home. In his comment upon the intestate law Fane notices that it was different from the law of England, but it is evident that this aspect of the case troubles him little. He is chiefly concerned with matters of rule, form, and procedure, and it is in these particulars that his real objection to the law lies. He recommends the repeal of the Act,2 but would substitute another law “either as it is now done in England or by such other methods as may best fit the province where this law is to take effect.” In this statement there was for the colony a world of meaning. Furthermore, in his criticism of the later amendments and additions to the law he says nothing about their being contrary to the law of England; his recommendations for repeal are based upon the ground of uncertainty or upon some other defect of the law which would naturally attract a lawyer. An analysis of his comments upon the remaining 384 laws1 gives us approximately the same result. The laws recommended for repeal were too strict, severe or unreasonable, incomplete or not severe enough, inexact, giving too much power to certain bodies, etc. In only one instance is a law declared contrary to the law of England, and then it is the legal principle implied in a part of the law that a man can be convicted on a general presentment which is declared repugnant. It is true that in a number of cases he recommends the repeal of a law which is different from the law of England, but it is not on the ground of its difference that the recommendation is made; it is because the law is unsatisfactory from a legal standpoint and would not be a good law in any civilized community. In nine cases, however, he considers the colony’s convenience, and recommends the acceptance of the law, even though it would not have been proper for England or was not so good as the corresponding law in England. In these instances he recognizes the principle that the colony was generally the best judge of its own law, and practically concedes two of the points for which the colony contended, the principle of equity and that of custom. Fane’s comments are uniformly fair and reasonable, and contain not a trace of animus toward the colonies.2
The circumstances and discussions thus far outlined are necessary to an understanding of the influences that acted upon the Board when it came to draw up its representation to the committee of the Council upon the petition of Belcher and Dummer.1 In this petition the colony begged the King to confirm by an order in Council to the inhabitants of the province the lands already distributed under the intestate law, to quiet them therein, and to enable them to divide the lands of intestates in the same manner in the future.2 The colony had already discussed at considerable length the wording of the petition, debating whether it would be best to ask for a confirmation by an Order in Council, or to apply for leave to bring forward a bill in Parliament. Belcher strongly advocated the latter method.3 Talcott in a forcible communication presented his fears of Parliament in case the matter were brought to its attention, and he had good reason to fear if we are to judge from later events. He was a prophet in his apprehension that it might lead Parliament to inquire whether the government had not accustomed itself to take the same liberty of making other laws contrary to the law of England; and, further, that it might lead Parliament to the opinion that the charter had not made them a government or province but only a corporation. Yet, on the other hand, it was equally true that neither the petition of Belcher nor the introduction of a bill in Parliament was needed, if that body had desired to end the privileges of Connecticut in 1730 as it practically did those of Massachusetts in 1774.1
It is not quite clear to which conclusion the agents arrived, though in the petition upon which the Board based its representation, confirmation was asked for by an Order in Council.2 This request at once raised an exceedingly important question expressive of the political change which had come over England since the Revolution of 1688. Could the King by virtue of his prerogative and without the assistance of Parliament grant the wish of the colony? To this Attorney Francis Fane answered, at the request of the Board, as follows: “I cannot pretend to say whether the King by virtue of his prerogative can do what is desired by the petitioners. But I must submit it to your Lordship’s consideration supposing the King had a power by his prerogative of gratifying the request, whether under the circumstances of this case it would not be more for his Majesty’s service to take the assistance of Parliament, as that method will be the least liable to objection as well as the most certain and effectual means of gratifying the request of the petitioners.”3 That this was the opinion widely held among English lawyers is evident from Belcher’s letters, in which he mentions Lord Chancellor King and the counsel which he had secured as inclined to this view.4
With this opinion of its legal advisor before it, the Board summoned to its presence the agents of the colony and Winthrop and listened to the arguments on both sides.1 It then finished the draught of its own representation. Many influences underlay the wording of that report, influences which it has been the purpose of this paper to disclose. The report was the resultant of at least three forces: first, the desire to gratify the colony in confirming the lands already settled under the intestate law, for Dummer had ably presented the inconveniences which would follow the upholding of the decree of the Council; secondly, the determination to syncopate the privileges of Connecticut on the ground that she had been too independent of the Crown, and had too long a list of charges against her to escape some limitation of her powers; and thirdly, the conviction, in view of the changing constitutional relations of King and Parliament, that the only safe method whereby such end could be accomplished was to apply to the King for leave to bring in a bill for that purpose.2 A few extracts from the report will exemplify this. After recommending compliance with the request of the colony, the Board adds, “And we think this may be done by his Majesty’s royal license to pass an Act for that purpose with a saving therein for the interest of John Winthrop, Esq. But we can by no means propose that the course of succession to lands of inheritance should for the future be established upon a different footing from that of Great Britain. In return for so great a favor from the Crown we apprehend the people of Connecticut ought to submit to the acceptance of an explanatory charter whereby that colony may for the future become at least as dependent upon the Crown and their Native Country as the people of Massachusetts Bay now are whose charter was formerly the same with theirs. And we think ourselves the rather bound in duty to offer this to his Majesty’s consideration because the people of Connecticut have hitherto affected so entire an independence of Great Britain that they have not for many years transmitted any of their laws for his Majesty’s consideration nor any account of their public transactions. Their governors whom they have a right to choose by their charter ought always to be approved by the King, but no presentation is ever made by them for that purpose. And they, thô required by bond to observe the laws of Trade and Navigation, never comply therewith, so that we have reason to believe that they do carry on illegal commerce with impunity, and in general we seldom or never hear from them except when they stand in need of the countenance, the protection or the assistance of the Crown.”1
With this report the case of Winthrop vs. Lechmere, growing as it did, out of the land system of the New England colonies, has brought us step by step dangerously near to the principles and theories which underlay restriction on the one side and revolution on the other. How far this particular case and the discussions which grew out of it aided in the shaping of those principles, we need not attempt to discover. As part of the larger question of the uniting of the colonies and the annulling of the charters, its influence was direct and definite. After 1700 the fact of parliamentary supremacy was proven each time an effort was made to limit the independence of the proprietary and charter colonies and to bind them more firmly to the Crown; and at the same time the continuance of such efforts for thirty years increased the familiarity of Parliament with the task of controlling the colonies. In this the English authorities were not showing themselves either arbitrary or despotic. The Board of Trade, the Crown lawyers, even the Privy Council acted according to their convictions, which, though honest, were based undoubtedly upon insufficient and ex parte information. Connecticut’s policy of reticence was in part responsible for this; she had made it possible for her enemies to fill the minds of the home authorities with suspicion, and there was just enough truth at the bottom of the charges for them to be extremely effective. Other colonies as well were on the black list of the Board. Among intelligent Englishmen both in and out of Parliament there was a strong feeling that some of the colonies were not acting consistently with the interests of England, and needed the strong hand of Parliament to curb them, even to the taking away of their treasured privileges.1
But the blow was not to fall yet. Parliament was perhaps not yet prepared to intervene in the management of colonial affairs, however general the opinion seemed to be that it had a right, in view of the events of 1688, to assume this function of the royal prerogative. Although for thirty years ample opportunities for so doing had been given, yet the rights and privileges of the charter colonies remained unimpaired. Perhaps the colonies had given insufficient provocation; if so, time would soon render the provocation greater, not because of any defiant act of the colonies but because of the inevitable tendency of their economic development. The intestacy law is but a straw showing the direction of the wind; it has a legal stamp upon it but it is in origin and effect an economic measure.
The representation of 1730, followed soon after by that of 1733, resulted in a vehement body of resolutions of the House of Lords, but no further effect was seen. One session of Parliament passed and still another, but, as no steps were taken pursuant to the resolutions, the colony began to breathe more freely. That it would have resisted the acceptance of an explanatory charter is evident; it is fortunate that it was never called upon to put the matter to the test. While the fate of Connecticut was thus hanging in the balance, another case, that of Phillips vs. Savage, was carried by appeal from the Superior Court of Massachusetts to the King in Council.1 Here a decision in favor of the intestacy law gave new courage to Connecticut, and in another private suit, that of Clark vs. Tousey, the matter was again brought before the King in Council. The appeal was dismissed, however, by the Privy Council in 1745 not through any decision as to the right or wrong of the case, but because of the fact that Clark had not prosecuted the appeal within a year and a day as required by the Council. Connecticut accepted the dismissal as a decision in her favor, although it was in fact nothing of the kind. It ended the matter only because no one dared to make another appeal and the question never came up again.2
With this dismissal the colony returned, to all outward appearance, to the position that it had occupied seventeen years before. But this was not true in fact. Seventeen years of experience with England’s policy, years of argument and controversy, had enlarged the mind and toughened the sinews of Connecticut’s leaders, and had formed a body of tradition, made up of higher reverence for the charter and higher regard for its integrity, to be handed down to the succeeding generation. It was not the influence of any theory of the fundamental rights of man, or of any inherent hostility to England that underlay the attempt of Connecticut to keep her charter and to preserve her privileges; it was the determination to maintain at any cost the integrity of the colony and the welfare, happiness, and prosperity of its people. In the issue which arose in 1730, as well as in that which arose in 1765, it will be found that economic causes and conditions drove the colonists into opposition to England quite as much as did theories of political independence or of so-called self-evident rights of man.
We have now followed step by step this important question from its starting point in the land system of New England to its final issue in the prerogatives of Crown and Parliament. The land system, representing the pre-feudal idea rather than the feudal, was reproduced in America with some important changes. Out of this sprang the law of intestacy, differing in principle from that of England which rested upon feudal law. This difference between the common law of the two countries was taken advantage of by certain disaffected ones of Connecticut who sought to benefit themselves by appealing to England against the colonial law. This matter, at first private, touching the lands and interests of but a few persons, became of wider importance by the vacation of the law by the King in Council. By this the agrarian harmony of Connecticut, and possibly of New England, was threatened. This roused the colony, and the issue became a part of the larger question of the relations of the proprietary and charter colonies to the Crown. This made the matter of importance not merely to Connecticut and New England, but to the other colonies of this class as well. But the influence of the Winthrop case did not stop here; it passed even higher, and raised the question of fundamental importance to all the colonies as to the constitutional relations of Crown and Parliament. The settlement of this question foreshadowed the action which Parliament was to take forty years after.
[1 ]This essay was first published in 1899, at Madison, in the Bulletin of the University of Wisconsin, Vol. II.
[2 ]Professor of Political Science in the University of Wisconsin since 1901. A. B., LL. D., and Ph. D., University of Wisconsin; Associate Editor of the American Political Science Review; Delegate of the United States to the Third International Conference of American Republics at Rio de Janeiro, 1906.
[1 ]Morgan vs. King, 30 Barbour, 13.
[2 ]Marks vs. Morris, 4 Hening and Mumford, 463.
[1 ]Massachusetts Colonial Records, I, 174.
[2 ]John Winthrop’s History of New England, 322.
[1 ]Winthrop’s Journal, Ed. 1790, p. 237.
[2 ]Massachusetts Historical Collections, Series IV, vol. VII, 26.
[1 ]Body of Liberties, p. 1.
[2 ]Hutchinson, State Papers, 205.
[3 ]Book of General Lawes and Liberties, 1660, p. 8 and following.
[4 ]Hutchinson Papers, vol. I, 160.
[1 ]Figgis, Divine Right of Kings, p. 223.
[2 ]Winthrop’s History of New England, II, 56, 250.
[3 ]Ibid., II, 221, 228.
[1 ]Winthrop’s History of New England, II, 255.
[2 ]Massachusetts Historical Society Collections, II, vol. IV, 110.
[3 ]Lewis, History of Lynn, pp. 73, 81.
[4 ]Washburn, Judicial History of Massachusetts, p. 61.
[5 ]Case of Lady Latour vs. Bailey, Winthrop’s History of New England, II, 192.
[6 ]Hutchinson Papers, Vol. II, p. 1.
[7 ]Letters of Symonds to Gov. Winthrop, Massachusetts Historical Society Collections, IV, vol. VII, pp. 124, 138.
[1 ]Cf. Coke’s opinion in Bonham’s Case, 8 Rep., 118a.
[2 ]Massachusetts Colonial Records, I, 169.
[3 ]Ibid., 239.
[4 ]Washburn, Judicial History, 48.
[1 ]Massachusetts Colonial Records, II. 219.
[2 ]Ibid., II, 211.
[3 ]Documents Relative to the Colonial History of New York, IV, 929.
[4 ]Massachusetts Colonial Records, I, 77-78.
[5 ]Massachusetts Colonial Records, II, 28.
[6 ]Ibid., IV, 107.
[7 ]Ibid., II, 21.
[8 ]Ibid., III, 425.
[1 ]Massachusetts Historical Society Collections, Series II, Vol. I, p. XXII.
[2 ]Massachusetts Colonial Records, IV, part 2, p. 508.
[3 ]Massachusetts Colonial Records, V, 449.
[4 ]Colonial Laws of Massachusetts Bay, Ed. 1660, pp. 47, 48.
[1 ]Massachusetts Colonial Records, I, 116; and Suffolk County Deeds.
[2 ]Documents Relative to the Colonial History of New York, III, 39.
[3 ]Massachusetts Historical Society Collections, Series IV, vol. VII, p. 370.
[4 ]Hutchinson Papers, Prince Society, I, 189.
[1 ]Winthrop, History of New England, II, star p. 284.
[2 ]Hutchinson Papers, 1, 197.
[1 ]Plaine Dealing, Trumbull’s edition, p. 26.
[2 ]Ibid., p. 27.
[3 ]Hutchinson Papers, II, p. 210.
[1 ]Edward Randolph, Prince Society Publications, II, 311.
[2 ]Palfrey, quoting from Phillip’s collection of manuscripts, History of New England, III, 309.
[3 ]Massachusetts Colonial Records, V, 321.
[4 ]Ibid., V, 198, 200.
[1 ]Documents Relative to Colonial History of New York, III, 539.
[2 ]Washburn, Judicial History, p. 138.
[3 ]Documents Relative to Colonial History of New York, IV, 929.
[1 ]Arguments of Valentine, in Matson vs. Thomas, 1720, citing Coke and Hobart.
[2 ]Jefferson’s Complete Works, V, 546.
[3 ]1774, John Adams, Works, IV, 122.
[1 ]Connecticut Records, I, 77.
[2 ]New Haven Records, I, 73.
[3 ]New Haven Records, I, 1.
[4 ]Ibid., I, 130.
[5 ]Connecticut Records, I, 9, 91.
[6 ]Ibid., 84.
[7 ]Massachusetts Historical Society Collections, series II, vol. VI, 320.
[8 ]Ibid., series VI, vol. III, 44.
[1 ]Documents Relative to Colonial History of New York, V, 31.
[2 ]Poore, Constitutions, Charters and Documents, p. 1276.
[3 ]Belknap’s New Hampshire, p. 454; New Hampshire Documents and Records, I, 382.
[4 ]Cited in Belknap’s New Hampshire, p. 457.
[1 ]Danl. Chipman, Vermont Reports, pp. 11, 19, 21.
[2 ]C. H. Bell, Bench and Bar of New Hampshire, 13.
[3 ]Bell, Bench and Bar, p. 37.
[4 ]Code of Civil and Criminal Law of 1647; cited in full in Arnold’s History of Rhode Island, I, 205, et seq.; Rhode Island Colonial Records, 1, 156.
[1 ]Rhode Island Colonial Records, I, 198.
[2 ]Documents Relative to Colonial History of New York, IV, 600.
[3 ]Durfee, Gleanings from the Judicial History of Rhode Island, p. 78.
[1 ]Durfee, Gleanings from the Judicial History of Rhode Island, p. 127-137.
[2 ]Arnold’s History of Rhode Island, II, 98.
[1 ]Documents Relative to Colonial History of New York, III, 260, 416; IV, 1154.
[2 ]Ibid., III, 355.
[3 ]Smith’s History of New York, 55.
[4 ]New York Historical Society Collections, 1869, 75.
[5 ]Ibid., p. 118, 119.
[1 ]Documentary History of New York, I, 147.
[2 ]Documentary History of New York, I, 87.
[3 ]Documents Relative to Colonial History of New York, IV, 520.
[4 ]Ibid., VIII, 28.
[1 ]Documents Relative to Colonial History of New York, XIV, 570, 589, 600, 629.
[2 ]Underhill vs. Hempstead, Ibid., 589.
[3 ]Fernow, Records of New Amsterdam, V. 267ff.
[4 ]Fernow, Calendar of Wills, p. IV. For other traces of the Dutch law, see Judge Daly’s prefatory note in 1 E. D. Smith (N. Y.).
[5 ]Documents Relative to Colonial History of New York, XIV, 637.
[6 ]Ibid., IV, 974.
[7 ]Ibid., 1010.
[8 ]Ibid., 923.
[1 ]Gov. Colden to Hillsboro; Documents Relative to Colonial History of New York, VIII, 61.
[2 ]Documents Relative to Colonial History of New York, V, 208.
[3 ]Ibid., 252.
[4 ]Smith’s History of New York, 270.
[5 ]New York Historical Society Collections, XVIII, 211.
[6 ]1774; Documentary History of New York, I, 752.
[1 ]Grants and Concessions, p. 96.
[2 ]Ibid., p. 128.
[3 ]Ibid., p. 396.
[4 ]Grants and Concessions, p. 404.
[1 ]Whitehead, East Jersey under the Proprietors, p. 239.
[2 ]Grubb, Judiciary of Delaware, p. 9.
[3 ]See the collection called The Duke of York’s Laws and Pennsylvania Colonial Laws, which will be cited simply as The Duke of York’s Laws.
[1 ]The Duke of York’s Laws, Laws of 1682, Chap. 6.
[2 ]Ibid., Chap. 7.
[3 ]Ibid., Chap. 16.
[4 ]Ibid., Chap. 24.
[1 ]See Pennsylvania Archives, vol. VII, pp. 725-730; The Duke’s Laws, 462; Memoirs of the Historical Society of Pennsylvania, vol. VII; Dr. Geo. Smith’s History of Delaware County.
[2 ]I Spencer’s Anecdotes, 155, quoted in Pennsylvania Bar Association Reports, I, 229.
[3 ]Duke’s Laws, 414.
[4 ]Ibid., 167.
[5 ]Hastings vs. Yarrall, Records Chester County Court, 1686.
[6 ]Votes of the Assembly, I, 76.
[7 ]Sussex County Records, 1682, quoted in Pennsylvania Bar Association Reports, I, 362.
[8 ]Laws of 1683, Chap. 66; Laws of 1684, Chap. 167.
[1 ]Pennsylvania Colonial Records, I, 20, 79, 95, 96.
[2 ]Ibid., II, 37.
[3 ]Quoted in Field’s Courts of New Jersey, 58.
[4 ]Penn and Logan Correspondence, I, 19, 48.
[1 ]Pennsylvania Colonial Records, I, 291.
[2 ]Ibid., II, 627.
[3 ]Ibid., 210.
[4 ]Brown, Civil Liberty in Maryland, Maryland Historical Society Papers, 1850.
[5 ]McMahon’s History of Maryland, Chap. III.
[1 ]Archives of Maryland, Proceedings of General Assembly, 147.
[2 ]Ibid., p. 150. This practice is perhaps taken from the canon law.
[3 ]Ibid., p. 152.
[4 ]Maryland Archives, Proceedings of Assembly, p. 436.
[1 ]Maryland Archives, Assembly Proceedings, 1666-1676, p. 374.
[2 ]Maryland Archives, Proceedings of Assembly, 1678-83, p. 70.
[3 ]See citations in McMahon’s History of Maryland, Ch. III.
[1 ]McMahon’s History of Maryland, p. 127.
[2 ]Proceedings of Assembly, II, 168.
[3 ]Maryland Archives, Proceedings of Assembly, 1684-1692, p. 71.
[4 ]Maryland Archives, Lower House Journal, 1676-1702, q. 107.
[5 ]Maryland Archives, Proceedings of Council, II, 140.
[6 ]Maryland Archives, Provincial Court.
[7 ]This recalls the early principle that the possessor or even the owner of the weapon by which the injury was caused is responsible.
[8 ]Ibid., p. 183.
[1 ]Brown, Genesis of the United States, p. 371.
[2 ]Ibid., pp. 368-71.
[3 ]Ibid., p. 528.
[4 ]Proceedings of the Virginia Company of London. Virginia Historical Collections, vol. VII, p. 55.
[5 ]Ibid., p. 55.
[1 ]Hening, Statutes at Large, vol. I, p. 169.
[2 ]Hening, Statutes at Large, vol. II, 43.
[1 ]Hening, Statutes at Large, vol. II, 63.
[2 ]Ibid., 97.
[3 ]Ibid., II, 179.
[4 ]Hening, II, 71.
[5 ]Hening, I, 482.
[6 ]Hening, I, 495.
[7 ]Ibid., p. 482.
[8 ]Neill’s Virginia Carolorum, p. 264.
[1 ]Byrd Manuscripts, 1728, p. 222.
[2 ]Ibid., p. 237.
[3 ]Fox Bourne, John Locke, p. 38; and Hawks, History of North Carolina, p. 182.
[4 ]Chalmers’ Political Annals, p. 521.
[1 ]See Robt. Mills, Statistics of South Carolina, p. 196.
[2 ]Rivers, Historical Sketch of South Carolina, p. 433.
[3 ]Statutes of South Carolina, II, 401.
[4 ]Hawks, History of North Carolina, II, 122, 218.
[1 ]Hawks, History of North Carolina, II, 134.
[2 ]2 Croke, 148.
[3 ]Ramsay’s History of South Carolina, p. 120.
[1 ]Stokes, View of the Constitution of the British Colonies, pp. 9, 10.
[1 ]For a short bibliography by the author of this Essay, of treatises, essays, and other sources, relating to Colonial Law, see Volume II of these Essays, Topic I, “Sources and Materials.”—Eds.
[1 ]These passages are extracted from an essay on “The English Statutes in Maryland,” Johns Hopkins University Studies in History and Political Science, 1903, volume XXI., being c. II., pp. 17-30.
[2 ]Professor of History and Economics in the University of the South, since 1904. A. B. Johns Hopkins University 1896, Ph. D. 1899; Instructor in History in Smith College, 1899-1904.
[1 ]7 Rep. We have followed the analysis in Snow: The Administration of Dependencies. The case was almost always cited whenever the question came up. Of especial interest is Lord Mansfield’s brief consideration of it in the Grenada Judgment (Campbell v. Hall), 1774. His remarks were published in pamphlet form as Lord Mansfield’s Speech on Giving the Judgment of the Court of King’s Bench . . . in the Case of Campbell v. Hall . . . London, 1775; A New Edition, Corrected. He calls attention to the “absurd exception, as to pagans . . . (which) shows the universality and antiquity of the maxim.” The earlier history of these principles, before Calvin’s Case, lies beyond our discussion. It may be noted, however, that they belong to International Law.
[2 ]The frequency of reference to the analogy of Ireland’s law is noteworthy. See the matter upon the constitutional development in Ireland, in Hallam. The Constitutional History of England, ch. xviii. Compare, also, I. Blackstone’s Comm. 103-4; Lord Mansfield’s decision in Campbell v. Hall, quoted above; a pamphlet entitled The Privileges of the Island of Jamaica Vindicated, London, 1766 (rep.) A recent discussion of this whole matter is found in Snow, A, The Administration of Dependencies, chaps. 1-4.
[1 ]The Conquest did not take place, of course, until Cromwell’s time, in 1655. An attack was made in Elizabeth’s reign, in 1596, under Shirley, but this was not followed up. See Preface to The Importance of Jamaica to Great Britain Considered: London, 1741? This tract deals rather lightly with Constitutional History.
[1 ]See below.
[2 ]4 Modern 215 ff. Salkeld 411.
[3 ]Chalmers’ Opinions, Vol. I., pp. 194-195.
[1 ]Chalmers’ Opinions, Vol. I., p. 206. Also in Calvert Papers (MS.) No. 52, p. 14. Chalmers dates this March 9, 1729. The Jamaican controversy referred to below had been settled in the meantime; while the controversy in Maryland had reached its height.
[2 ]Blackstone’s Commentaries (3rd ed. Cooley) Introduction, sec. 4, p. 107.
[3 ]Refers to Salkeld 411, 666.
[4 ]Refers to 2 Peere Williams 75.
[1 ]Refers to Calvin’s Case, 7 Rep. 17. Shower’s Parliamentary Cases 31 (Dutton v. Howell).
[2 ]Cowper, 204. See also the pamphlet mentioned above, p. 18, n. 1.
[1 ]For a general discussion of the later development of the theory see Burge, W.: Commentaries on Colonial and Foreign Laws Generally, and in their conflict with each other and with the Law of England, London, 1838. Here will be found the story of the proclamations of 1763—the Grenada judgment, etc. For Canada and the Quebec Case, see also Coffin: The Province of Quebec and the early American Revolution. See also Egerton, H. E.: A Short History of English Colonial Policy ch. iv.
[2 ]Van Ness v. Packard, 2 Pet. 137.
[3 ]Reinsch: English Common Law in the Early American Colonies, passim [reprinted in this Collection as Essay No. 11].
[1 ]Hening: Statutes at Large I., p. 363-4. Cited in part in Snow: The Administration of Dependencies, p. 115, and as a whole in Hart: American History Told by Contemporaries I., pp. 235-6.
[2 ]Sparks, Causes of the Maryland Rev. of 1689, p. 82 Md. Arch. III. Ass. Pro. pp. 124-125.
[1 ]McCrady, E.: The History of South Carolina under the Proprietary Government pp. 247-8, 517 ff. Reinsch: English Common Law, pp. 49-50.
[2 ]Shepherd, W. R.: History of Proprietary Government in Pennsylvania, Columbia University Studies in History, Economics and Public Law, Vol. VI., pp. 351-369.
[3 ]Shepherd: Proprietary Government in Pennsylvania, pp. 386 ff.
[1 ]Shepherd: Proprietary Government in Pennsylvania, pp. 386-7.
[2 ]Ibid., pp. 388-389.
[1 ]Shepherd: Proprietary Government in Pennsylvania, p. 390.
[1 ]Long, Edward: The History of Jamaica, London, 1774, Vol. I., pp. 219-20. The account of Jamaica as a whole is based on the Appendix to the Tenth Chapter of Long’s very valuable work; on a pamphlet entitled The Privileges of the Island of Jamaica Vindicated—reprinted in London, 1766, with an appendix; and on the opinion of Yorke and Wearg, the Attorney and the Solicitor-General, as to the legal constitution of Jamaica in 1722-25, Chalmers’ Opinions (Colonial, Edition of 1814, Vol. I., pp. 204-224). See also Lord Mansfield’s decision in Campbell v. Hall.
[2 ]Maryland Gazette, June 10-17, 1729. The Jamaican letter is dated March 5.
[1 ]Quoted in Lincoln: The Revolutionary Movement in Pennsylvania, pp. 117-118. Compare also the section on the Civil Jurisdiction in a Short Discourse on The Present State of the Colonies in America. This pamphlet is No. 6 in A Collection of Papers and Other Tracts, by Sir William Keith, London, 1779 (2nd ed.). This pamphlet, No. 6, was presented to the King in 1728, and thus is contemporary with the struggles in Maryland and in Jamaica.
[1 ]These passages are extracted from an essay on “The Connecticut Intestacy Law,” Yale Review, 1894, volume III., pp. 261-294.
[2 ]Professor of History at Bryn Mawr College, since 1889, and at Johns Hopkins University. A. B. Trinity College (Connecticut) 1884, A. M., 1890; Ph. D. Johns Hopkins 1889; L. H. D. Trinity 1905.
[3 ]My attention was originally directed to this subject by the publication of the first volume of the Talcott Papers by the Connecticut Historical Society and the remarks of Judge Mellen Chamberlain upon them as printed in the Proceedings of the Massachusetts Historical Society, March, 1893. The second volume of the Talcott Papers is now in press, but I am indebted to the editor, Miss Mary K. Talcott, a descendant of the old Connecticut governor, for advance sheets as far as completed.
[1 ]“Whereas much experience shows that sundry inconveniences do arise to the burdening, disturbing or depopulating of smaller plantations, were either sundry lotts or accommodations are engrossed into one hand or possessed or held by unsuitable or unfit persons,” etc. Guilford Mss. Book of the More Fixed Orders. “Where as there hath been a great abuse in several towns and plantations in this colony in buying and purchasing Home-lotts and laying of them together by means whereof great depopulation may follow,” etc. Laws of the Colony of Connecticut (ed. 1715), p. 51.
[2 ]I have discussed this question briefly in an article entitled “Die Stadt in Neu-England,” in the Zeitschrift für Social-und Wirthschafts-geschichte, vol. ii. pp. 103-131, 224-240, especially p. 232, note 58. To the instances there quoted I will add two others, as the question is an important one.
[1 ]“It was inhabitants and not land that was wanting.” Talcott Papers I, p. 145, Cf. Conn. Col. Rec. II, pp. 185, 187. Palfrey estimates the value of land in 1713 at 6 farthings an acre. History of New England, IV, p. 364.
[2 ]There was greater regularity and uniformity than in England. One system was new, the other old. But by curving the allotted strips, by running the shots and fields a little more irregularly, by throwing in a few gores and headlands, we should have what would be in its main features the same system.
[3 ]“It is agreed by vote that the remainder of the Dreadful Swamp . . . shall be laid out into acre lotts.” Milford Town Records, I, p. 62.
[4 ]The “Purchase Right” which each proprietor had in the town was determined not only by the amount of money subscribed to the purchase of the lands but also by the number of heads in each family. I have discussed the “Purchase Right” at some length in “Die Stadt in Neu-England,” and have endeavored to show that its scattered character was due to the desire to obtain equality. This principle permeated the system as the following will show: “Ordered that in this division every one shall have his division in two places, half in the nearest field and the other half in the furthest.” Milford Town Records, I, p. 10. “The field was divided into two parts lengthwise and the order of holders in one tier would be reversed in the other thus making the distribution more equal.” River Towns of Connecticut, pp. 44-45, J. H. U. Studies, VII.
[5 ]Rules to this effect are to be found in every book of Town Records. Milford Town Records, I, p. 13. River Towns, p. 50.
[6 ]“Ordered that no man shall sell his house but first he must propound his person and chapman to the town and within twenty days after his propounding it the town to answer his desire to take it off or let him take his chapman always provided the Inhabitants may buy and sell within themselves notwithstanding this order.” Milford Town Records, I, p. 11. I have quoted this law from the Milford Records, because it contains some new points supplemental to the many others printed before and has itself never been printed. A similar law passed by the Colony of Connecticut came to the notice of the legal advisor of the Board of Trade who commented on it thus: “This Act would be very extraordinary in England but whether it may not be proper in a country where they are encompassed with enemies is humbly submitted to your Lordship’s consideration.” The limited range of this law, which grew, as did the intestate law, out of the necessities of the settlement, and the brief period during which it was enforced, prevented it from assuming so important a place in the relations between England and the colonies.
[1 ]The colonies most exempt from English interference and control were of course Maryland, Pennsylvania, Connecticut, Rhode Island, and Massachusetts. Massachusetts, however, had a royal governor and was obliged to deliver her laws for the approval of the Council within three years after they had been passed, though if they were not repealed within that time they could not be repealed at all. Pennsylvania had a five years limit. But the laws of Connecticut and Rhode Island were not repealable by the Crown; these colonies never lost their charters as did Massachusetts, never came into direct dependence upon the Crown as did Maryland for a short time, and were almost outside the knowledge of the Privy Council and the Board of Trade. There is, however, one difference in the attitude of these colonies toward English law which is interesting. Rhode Island, by referring herself to the law of England in cases where she had none of her own, made some of the laws of England to be her own laws. Connecticut, on the other hand, in case of doubt referred to “some plain and clear rule of the Word of God.” In 1665 the Deputy Governor and the Assistants desired the advice of the General Court concerning incest, whether the law of the colony “that orders in defect of a law we should have recourse to the Word of God for our law” were binding or not. The Court decided that the colony should act according to the Word of God. Conn. Col. Rec., II, p. 184. Robert Quary commented on this statement in the Book of Laws as follows: “The people are of a very turbulent, factious and uneasy temper. I cannot give their character better than by telling your Lordships that they have made a body of laws for their government which are printed; the first of which is that no law of England shall be in force in their government till made so by act of their own. Having told your Lordships this, I think there is no further room to admire at any extravagancy acted in the government.” Quary to the Board of Trade, B. T. Papers, Plantations General, Entry Book; D, fol. 201, Cf. Milford Town Records, I, 1; Talcott Papers I, 143, II. Appendix. “Instructions to Agent.” Gershom Bulkeley in his “Will and Doom” complains that “by this Law all the Law of England (Common or Statute or other) is exploded at once.” (From MSS. copy of the transcript sent over by Lord Cornbury in the possession of the Conn. Hist. Society. The transcript is in B. T. Papers, Proprieties, N. 20.) I know of but two Connecticut Acts directly taken from the English Statute law before 1750. First, “Act about Bastards” from 21 Car. c. 27 and second, “Act for Ease of those who soberly Dissent” from 1 Wm. and M. c. 18 commonly called the Toleration Act. Five others, however, are probably based on English Statute law. 1. “Act concerning the Dowry of Widows.” 2. “Act concerning forms of Writs.” 3. “Act concerning Deputies Salary.” 4. “Act for Regulating Juries and Wiltnesses.” 5. “Act relating to Sureties upon Mean Process in Civil Action.” In 1750 the Colony printed all Acts passed by Parliament which were considered to be binding on the colony. There are ten Acts in all, and none of these had been reënacted by the colony. Conn. Col. Rec. viii. p. 352.
[1 ]Two laws certainly were not known to English law. 1. “Act for the punishment of Lying.” 2. “An Act for the preventing of Oppression.”
[1 ]Conn. Col. Rec. IV, p. 307. “I have observed,” writes Lieut. Governor Law, “the law to be of no ancienter date than 1699 and our old law book, dated in 1672, prescribes no rule excepting the righteousness and equity lodged in the breast of the County Court.” Law to Talcott, Talcott Papers, I, p. 119. Also I, pp. 122-123, 144, 392-394. II, pp. 225, 244-245. The October Orders of 1639 contain the earliest form of the law, as follows: “But when any prson dyeth intestate the sayd orderers of the affayres of the Towns shall cause an Inventory to be taken and then the Public Court may graunt the administracon of the goodes and chattels to the next of kin, joyntly or severally, and divide the estate to wiefe (if any be) children or kindred as in equity they shall meet.” Conn. Col. Rec., I, p. 38. This was repeated verbatim in the Code of 1650. In the Revision of 1673 to which Law refers there are slight changes in phraseology but none in meaning.
[2 ]“The said Court of Probate shall and hereby are fully empowered to order and make a just distribution of the surplusage or remaining goods and estate of any such intestate, as well real as personal in manner following: That is to say one-third part of the personal estate to the Wife of the Intestate (if any be) forever, besides her dower or thirds in the housing and lands during life, where such wife shall not be otherwise endowed before marriage; and all the residue of the real and personal estate by equal portions to and among the children and such as shall legally represent them (if any of them be dead) other than such children who shall have any estate by settlement of the Intestate in his lifetime, equal to the other’s share; children advanced by settlement or portions not equal to the other shares; to have so much of the surplusage as shall make the estate of all to be equal; except the eldest then surviving (where there is no issue of the first born or any other eldest son) who shall have two shares or a double portion of the whole, and where there are no sons the daughters shall inherit as co-partners.”
[3 ]Deut. xxi. 17.
[4 ]Another clause of the Act makes this clear. “Unless where all the parties interested in any estate being equally capable to act, shall mutually agree of a division among themselves and present the same in writing under their hands and seals, in which case such agreement shall be accepted and allowed for a settlement of such estate and be accounted valid in law.” Winthrop said the same in his Memorial to the committee of the Privy Council. “The Memorialist begs leave further to observe to your Lordships that the pretended custom of distributing intestate real estates amongst all the children was no otherwise introduced than by the consent of parties when lands in those parts were of little or no value.” Talcott Papers, I, p. 394.
[1 ]Talcott Papers, I. pp. 145-146, Cf. 188-189.
[1 ]Major Palmes refused to pay his dues because he considered the government restored after the revolution of 1688 “no government.” Col. Rec. IV, pp. 325-326.
[2 ]It is not unlikely that there were other early unrecorded protests against the custom, though probably not many, if there were any, before 1688. Gershom Bulkeley speaks as follows in his “Will and Doom,” “if a Man dye Intestate they will and do . . . . distribute his lands among sons and daughters, &c., as if they were pots and kettles. . . . So that their law will not allow an heir or Inheritance at the Common Law which is another repugnancy to the Law of England.” It is an interesting fact that Governor Talcott himself, who afterwards so loyally defended the intestate law, should have petitioned the legislature in 1691 when but twenty-two years old against the equal division of his father’s estate, and should have claimed possession of the real estate by right of primogeniture. Talcott Papers, I, p. xix.
[3 ]Palfrey, IV, p. 491.
[4 ]“For want of which [i.e. the same English laws] there are different laws and forms of administration very disagreeable not (only) in lesser matters but even in the descent of estates at the common law.” Dudley’s “Paper on the Governments of New England, New York, etc.” B. T. Papers, New England, vol. 7. F. 13.
[5 ]The period from 1695 to 1715 was a time of trial for the colonies. They were attacked by the French, were in constant trouble from the Indians, were disturbed by the many irritating reports of royal officers and merchants in the colonies, and were not sufficiently established to resist encroachment and to maintain a position of self-reliance. As a result, they were often in distress, and it is little wonder that many in New England and New York petitioned for a stronger central government. In 1697 Harrison, Ashurst, Sewall of Salem and others petitioned for a union of colonies, the Board of Trade thought that security could be obtained in no other way, the Lords Justices favored the scheme, and, in consequence, although the agents of New Hampshire, New York and Connecticut opposed the plan, New Hampshire, Massachusetts and New York were joined in 1697 under one governor, and with Connecticut and Rhode Island were placed under Bellomont as their military head. The year before an admiralty system had been erected for the colonies by commission under the seal of the Admiralty of England. In the North courts were erected at Boston and New York.
[1 ]Palfrey, IV, pp. 172-174, 200.
[2 ]Ibid, pp. 218-219.
[3 ]Caulkins, History of New London, pp. 222-227.
[4 ]Palfrey, IV, p. 224.
[5 ]In a deposition taken before Governor Cranston of Rhode Island two men, Fitch and Mason, said that they had heard Governor Fitz John Winthrop say, “I (or we) will grant no appeals for England but I (or we) will dispute it with the King, for if we should allow appeals I will not give a farthing for our charter.” B. T. Papers, Proprieties, O. 39.
[6 ]Letter from the Board of Trade to Governor Blakeston of Maryland. B. T. Papers, Maryland, Entry Book, B. ff. 88-90. Winthrop in his complaints probably did little more, if we may judge from what we are told of them in Talcott’s reply, than voice the complaints current among those opposed to the colonial administration. Documents relating to the Colonial History of New York, IV, p. 1079.
[7 ]Randolph’s bill of expenses incurred amounted to £96. 11.6. B. T. Papers, Proprieties, G. 20.
[1 ]The text of the Act is to be found in B. T. Papers, Proprieties, Entry Book, C. ff. 426-430.
[2 ]Board of Trade to Governor Blakeston. B. T. Papers, Maryland, Entry Book, B. ff. 86, 83.
[3 ]B. T. Papers, Plantations General, Entry Book, C. f. 240. Every effort was made to discover charges particularly against Connecticut and Pennsylvania. In 1703 Penn wrote to the Crown, “I observe your bent is extremely strong to bring all proprietary governments under the disposition of the Crown.” B. T. Papers, Proprieties, M. 19.
[4 ]It is interesting to note that the quarrels in the colony which brought it to the attention of the Board were in large part agrarian. This was but natural in a community where husbandry was dominant. Talcott said as late as 1728 “many of the actions here (in Connecticut) are conversant about nothing else” (than the titles of land). Talcott Papers, I, 157. The Hallam appeal rested on the denial of a devise of land to “the ministry” of the colony, on the ground that it was either in violation of the Statute of Mortmain, or, if it could not be so construed, it was a devise to “the ministry” recognized by the laws of England, that is, the ministry of the Episcopal Church. As all towns in Connecticut made grants to “the ministry” or to “the church,” a decision in Hallam’s favor would have made havoc with ecclesiastical land titles in the towns. Caulkins, History of New London, pp. 222-227.
[1 ]The Board of Trade sent a representation based on the charges of Dudley and Cornbury to the Privy Council. The Council sent it to Northey and Harcourt, the Crown lawyers. They replied advising that a governor be placed over both Rhode Island and Connecticut. This opinion was reported to the Board and was communicated to the agents of the colonies. A hearing was appointed at which they were to state why, in point of law, the Crown should not appoint governors over these colonies during the war. The hearing appointed for Nov. 30, 1704, was put off from week to week until Feb. 12, 1705. In the meantime Lord Cornbury sent over Gershom Bulkeley’s “Will and Doom” to strengthen the case against Connecticut. The work was received Jan. 16, 1705. It is probable that at the hearing the agents were able to show the inexpediency, if not illegality of a military governor, for on the day of the hearing the Council, evidently convinced that the matter could be best attended to by Parliament, directed the Board to draw up a list of charges, which was done, the chief source being the letters of Cornbury and Dudley. The order in Council also instructed the Board to transmit the list of charges to the Governor of New York and New England. This was done April 18, 1705, and Cornbury was ordered to send copies to Connecticut and Rhode Island, where public depositions were to be made as to the truth or falsity of the charges. (Documents relating to the Colonial History of New York, IV, p. 1141.) Upon the evidence thus received the Board based its representation of Dec., 1705, in consequence of which an Order in Council was issued directing the Board to lay before her Majesty the misfeances of the charter governments. (B. T. Journal, 18, f. 153.) This report was sent to Mr. Secretary Hedges. He in answer sent back a draught of a bill relating to the uniting of the colonies to the Crown. After some alteration, Feb., 1706 (f. 219), this bill was introduced into Parliament. B. T. Papers, Proprieties, M. 47; Journal, 18, ff. 177-178, 252, 281; 20, ff. 9, 11.
[2 ]Palfrey, IV, 368-369. See previous note.
[3 ]Charles Congreve to the Board of Trade, Dec. 4, 1704. This letter containing a list of complaints against Connecticut was written at the order of the Board. B. T. Papers, Proprieties, M. 49.
[1 ]Quary to Board of Trade, Jan. 10, 1708-9. B. T. Papers, Plantations General, Entry Book, D. ff. 200, 205. The following extract will show the nature of Quary’s misrepresentations. The important fact to be noted is that the Board had faith in Quary. He was in high favor with the members and they listened with gravity to his suggestions and to the information which he gave. B. T. Journal, vol. 15, minutes for June 26, and succeeding dates, 1703, “I attended the Governor Colonel Winthrope, who received me very kindly and desired me not to look too narrowly into the mistakes of that government. I quickly found that there was good reason for that caution for on examining the custom-house I found nothing but confusion and roguery. I was apprised of many dishonest practices acted in that place before I went but did not expect to have found matters so very bad. The person that acts as collector was one Mr. Withred, a pillar of their church, but a great rogue, for there is no villainy that a man in his post could do but was constantly practiced by him. . . . It would tire your Lordship to give you a history of the illegal trade carried on and encouraged in this government from Curacoa, Surinam and other places. . . . This is a very populous country, able to raise 10,000 effective men and yet would never assist their neighbors in defending their frontiers from the public enemy, who hath destroyed whole towns and carried away the inhabitants for want of a regulated government and militia. . . . I have no hope of preventing illegal trade in that government whilst it is in the hands of those people.” B. T. Papers, Plantations General, Entry Book, D. ff. 200-205.
[2 ]B. T. Journal, 25, f. 216, Aug. 11, 1715.
[3 ]B. T. Papers, Proprieties, Entry Book, F. ff. 464-465.
[4 ]This may be inferred from Gauden’s Memorial: “The committee appointed by the Parliament . . . seemed somewhat at a loss how to fix proper causes and reasons for the doing” [of that for which they were appointed].
[1 ]“Letter from the Governor and Company of Connecticut relating to the surrender of their charter to the Crown by G. Saltonstall to Mr. Jer: Dummer, their agent, dated Oct. 28th, 1723, from N. Haven.” B. T. Papers, Proprieties, R. 49.
[1 ]The decree is printed in full in Conn. Col. Rec. VII, Appendix. Mass. Hist. Soc. Collections, 6th ser. vol. V, pp. 496-506. It will be impossible to give here even an outline of the facts of the case. See Talcott Papers, I, pp. 94 note, 187, 241. Mass. Hist. Soc. Proc., March, 1893, pp. 125-127. Conn. Col. Rec., VII, p. 572 ff. That there was considerable justice in Winthrop’s position becomes evident when we know of the contents of Wait Winthrop’s will and of Lechmere’s impecunious condition. Mass. Hist. Soc. Collections, 6th ser. vol. V, pp. 367 (note)-370; also Winthrop’s letter to Cotton Mather, pp. 425-428. The most detailed account of the case is to be found in the same volume, pp. 440-467.
[2 ]Talcott Papers, II, pp. 77-78, 136. Conn. Col. Rec., VII, p. 191 note. State Archives, Miscellanies, II, doc. 313.
[1 ]Talcott Papers, II, p. 77.
[2 ]Govr. Talcott recognized the unfairness of the decision from the standpoint of equity, when he said in a letter to the Board of Trade Nov. 4, 1731, “Your Lordships will be best informed of the reason, necessity and usefulness of our laws by considering the state and circumstances of our country so many ways differing from that of England.” B. T. Papers, Proprieties, S. 36. Talcott Papers, I, p. 250; II, p. 225. It is worthy of notice that Winthrop’s own counsel declared against the judgment of the Council afterwards. Talcott Papers, II, p. 72.
[1 ]Talcott Papers, I, p. 234.
[2 ]Talcott Papers, I, p. 146.
[3 ]Ibid., I, pp. 122, 146.
[4 ]In the Middletown Mss. Proprietary Records there is “An Account of the Interest of the Several Proprietors of the Common and Undivided Lands [computed] according to the Custom of Deviding Intestates in the Colony of Connecticut.” Dec. 28, 1733. A study of the lists herein contained shows graphically the practical working of the intestacy law. In 1673 a list of proprietors had been drawn up, 52 in number, with real estate “rights” in the undivided lands ranging from £224 to £24. In 1733 this list was revised, and it was found that by constant subdivision of “rights” through purchase, bequest and intestacy settlement, the number of proprietors had increased to 328, the number of “rights” to 386 (circa) ranging in value from £103 to 9sh. with by far the greater number valued at less than £5. An examination of such lists proves how impossible it would have been to carry out the Order in Council voiding the law. The Middletown proprietors paid no attention whatever to the king’s decree.
[5 ]Talcott Papers, I, 177. It is not unlikely that considerable trouble might have been caused had this feature of the case been brought to the attention of the authorities at home. It might have been decided in favor of the Patentees if we may judge from the legal opinion of Attorney-General Northey, Aug. 7, 1703, upon an Act of New Hampshire for Confirmation of Town Grants, “it is fit that same be repealed for that it confirms all grants of lands that have heretofore been made unto any person or persons by the inhabitants of the respective towns within that Province or by the selectmen or a committee in each Town without having any regard to or saving of the right of any persons who might be entitled to the same before the making such grants.” B. T. Papers, New England, M. 46.
[1 ]Talcott Papers, I, p. 177.
[2 ]Ibid., I, pp. 122, 146-147.
[3 ]Ibid., I, pp. 144, 189, 234.
[4 ]Ibid., I, p. 147.
[1 ]Talcott Papers, I, pp. 147, 189; II, pp. 245-248.
[2 ]Ibid., I, p. 123.
[3 ]Ibid., II, p. 246.
[4 ]Ibid., II, p. 79, Mass. Hist. Soc. Proc., 1860-62, p. 72-73.
[5 ]Talcott Papers, I, pp. 153-154. pp. 77-85. Governor Talcott says that the law had been sent over with other laws “some thirty years ago,” by Gov’r Winthrop and that as nothing was said about the law then the colony had reason to think itself safe. There is a mistake here somewhere; the law was passed in 1699 and Gov’r Winthrop sent over the Book of Laws as an enclosure in his letter of Oct. 27, 1698. B. T. Papers, Proprieties 2A. It may be that he is referring to the October order as revised in 1673.
[1 ]Talcott Papers, I, pp. 174, 249.
[2 ]Ibid., I, pp. 200-201. B. T. Papers, Proprieties, R. 108.
[3 ]Talcott Papers, I, p. 393. Dudley in his letter to the Board of Trade expresses this view. “On the part of the Crown it would be provided [in case a union of colonies was affected] that the laws of England, common and statute, which have hitherto always been or ought to have been the laws of all those provinces, should be so declared and the government there directed to present to the King not Magna Charta or chapters of capital laws, but such by-laws as the several provinces in their settlements require, which are not provided for by the common and statute law of England.” B. T. Papers, New England, vol. 7, F. 13. For Dudley’s motives see Palfrey IV, pp. 367-368. Bulkeley said in his “Will and Doom,” “We think that the colony of Connecticut is de Jure (we wish we could say de facto) as much subject to the Crown of England as London or Oxford.” Again, “forgetting . . . that their Courts are but inferior Courts and their laws not laws properly so called or parcel of the Laws of England but only By-Laws, i. e. the Local, private and particular orders of a corporation.”
[1 ]Talcott Papers, I, p. 274.
[2 ]Ibid., I, pp. 149, 158.
[3 ]Blancard v. Galdy, Salkeld’s Reports, I, p. 411. Talcott Papers, I, p. 144; II, Appendix, “Instruction to Agent.”
[4 ]Talcott Papers, I, p. 148.
[1 ]“The common law always hath its limits environ’d by the sea.” Talcott Papers, II, Appendix, “Instructions to Agent,” p. 492.
[2 ]Ibid., II, Appendix, “Instructions to Agent.” These instructions were drawn up by John Read and not by Talcott, II. 489 note.
[3 ]Ibid., I, p. 149.
[4 ]Ibid., I, p. 159; II, Appendix, “Instructions to Agent.”
[5 ]Ibid., I, p. 152.
[1 ]B. T. Papers, Proprieties, M. 49. See also Talcott Papers, I, p. 154. Gershom Bulkeley says much the same in his “Will and Doom,” but facts come to us from his pen strangely distorted, while his arguments are full of pedantry and bitterness. “The case is otherwise with us, their Majesties are not yet received to reign in Connecticut, their laws are of no force or effect here.” . . . “The abolition of the Common and Statute laws of England and so of all humane laws, except the forgeries of our own popular and rustical shop . . . A strange fancy that coming over from England to another of the King’s dominions we should so far cease to be his subjects as that the laws of our King and Nation should not reach us.” The most recent legal decision affecting our subject is that of Justice Baldwin in “Campbell’s Appeal from Probate,” 64 Connecticut Reports, 1894. He held that the Connecticut rule of inheritance, differing fundamentally from the rule of England, had been the uniform doctrine of the Connecticut courts (p. 290); and he gave it as his opinion “that the common law rule of the exclusion from inheritance of all tracing their descent through uninheritable blood was never in force in Connecticut” (p. 292). His decision is both historically and judicially sound.
[2 ]Talcott Papers, I, p. 121. It was Jonathan Law who in 1731 drafted the “Act for the Settlement of Intestate Estates,” which was to take the place of the old Act. It excluded females from the inheritance, but admitted the younger sons to inherit with the eldest son, as co-heirs. This did not better matters at all for it was equally contrary to the common law of England with the older Act. State Archives, Civil Offices II, doc. 169. Foreign Correspondence II, doc. 146. See Wilks’s remarks upon this Act. Talcott Papers, I, p. 241.
[1 ]Talcott Papers, I, pp. 149-150.
[2 ]B. T. Papers, Proprieties, R. 130. Aug. 1, 1730.
[3 ]Talcott Papers, I, p. 238. II, Appendix. “Instructions to Agent,” p. 493.
[4 ]Ibid. I, p. 152, Winthrop’s 8th Complaint. II, pp. 75-76, Parris’ Opinion.
[5 ]“Copy of a Representation of the Board of Trade to the House of Lords” Jan. 23, 1733-34. British Museum, 8223 e-15. Mentioned by Wilks, Talcott Papers, I, p. 294. In 1760 the Board took a different view “supporting his Majesty’s right to examine into every provincial law and to give or to withhold his negative upon any good reasons which may be suggested to him by the wisdom of his Privy Council or by his own royal prudence and discretion.” B. T. Papers, Proprieties, Entry Book, I, ff. 299-307; Cf. opinion of House of Lords, 1734, Talcott Papers, I, p. 297.
[1 ]“Mr. West’s Report relating to the Admiralty Jurisdiction practiced in the Plantations.” June 20, 1730. B. T. Papers, Plantations General, L. 10.
[2 ]Fane evidently took it for granted that the Connecticut laws could be repealed by the King in Council. It is not probable that the Board had instructed him on that point.
[1 ]The following is an analysis of the report:
[2 ]“Francis Fane on the Connecticut Laws.” B. T. Papers, Proprieties, V. 19-27.
[1 ]The order of events may be briefly given. The petition was sent to the King in February, 1730; it was referred to the Committee on Appeals Apr. 10, and to the Board of Trade Apr. 15. The Order in Council and the Petition were read before the Board Apr. 21, and the letter of inquiry was sent to the Crown lawyers the next day. The Memorial of Winthrop in reply to the Petition was received and read on the 28th, and was sent to the Crown lawyers two days after. On the 13th of May, the Crown lawyers not having replied, a letter was sent to remind them of the Board’s request. Finally, on Aug. 1, they replied and their report was read Aug. 13, when the preparations for the representation to the Committee of the Council were begun: a draught of the representation was ordered on Nov. 12, and on the 18th a letter with the Petition and the Memorial was sent to Francis Fane. He replied on the 21st and his report was read on the 24th and the work upon the draught was continued. On Dec. 2, the agents, Dummer and Wilks with Winthrop, were summoned before the Board, and appeared and presented their case on Friday, the 4th. On the 8th the draught of the representation was agreed upon, and on the 31st it was signed. B. T. Papers, Proprieties, Entry Book, H, ff. 10-11, 23, 39. Journal, 40. ff. 90, 97, 104, 111, 209, 221, 295, 299, 303, 312, 316, 322, 339.
[2 ]B. T. Papers, Proprieties, R. 108. I have used the copy of the petition sent down from the committee to the Board of Trade, instead of the transcript enclosed by Belcher in his letter to Talcott, Feb. 10, 1730, and printed in the Talcott Papers, I, pp. 187-190.
[3 ]Talcott Papers, I, pp. 167-168.
[1 ]Talcott Papers, I, pp. 175-179. The history of the relations between Parliament and the proprietary and charter colonies since 1701 shows the accuracy of Talcott’s judgment. The representation of the Board of Trade upon the petition, the resolution of the House of Lords and the revival of the effort to introduce a bill into Parliament in 1731 to unite Connecticut and Rhode Island (Talcott Papers, I, p. 221) were a speedy fulfilment of Talcott’s fears. There is history here to be written. See Judge Chamberlain’s remarks, op. cit., pp. 131-133.
[2 ]The petition upon which the Board based its representation contains the words “pray your Majesty to be pleased by your Order in Council to confirm,” the petition which Belcher enclosed to Talcott says “pray that you would be pleas’d to give leave that a bill may be brought into this present Parliament of Great Britain to confirm.” It is evident that the latter was the form originally intended to be used (Talcott Papers, I, pp. 184, 191). But probably Talcott’s fears of Parliament, and particularly the pressure of more weighty matters upon Parliament just at that time, induced a change, and the petition was altered and request for a confirmation by Order in Council inserted instead. (Ibid., I, p. 197.)
[3 ]B. T. Papers, Proprieties, R. 132.
[4 ]Talcott Papers, I, pp. 167, 168, 184, 259.
[1 ]The minute in the Board of Trade Journal is as follows: “Mr. Dummer and Mr. Wilks attending, as they had been desired with Mr. Winthrop, their Lordships desired to know from them how the colony of Connecticut would be affected by the annulling the Act for settling intestate estates. And Mr. Dummer acquainted the Board that the colony would be reduced to the utmost confusion if their estates as they now hold them should not be secured to the present possessors, their tenures being liable to be reversed or at least to be disputed in a manner that cannot fail to be expensive and vexatious. Upon the withdrawal of these gentlemen their Lordships agreed to consider the matter further at another opportunity.” B. T. Journal, 40, f. 316. It is a little remarkable that the clerk of the Board makes no mention of Winthrop’s speech, for in Wilks’s report of the interview we are told that he spoke at some length. Talcott Papers, I, pp. 217-218. Perhaps Mr. Winthrop had overreached himself. (Ibid., pp. 166, 171.)
[2 ]Judge Chamberlain says that this recommendation of the Board marks a changing constitutional policy in the direction of parliamentary supremacy over the colonies which finally led to the severance of the empire. Op. cit., pp. 134, 136.
[1 ]B. T. Papers, Proprieties, Entry Book, H. ff. 25-27. Cf. Wilks’s statement in Talcott Papers, I, pp. 217-219, 222.
[1 ]See the representation of 1733 and the resolution of the House of Lords (Talcott Papers, I, p. 297), where strong language is used. Wilks reports a speech made one day in the House of Lords to the same effect (Ibid., I, pp. 294-295). The opinion of intelligent Englishmen can be inferred from an extract from Salmon’s Modern History published in 1739. “The laws [of the charter governments] are liable to be repealed and their constitution entirely altered by the King and Parliament; which, one would think, should render them extremely cautious in making laws that may prove disadvantageous to their mother country . . . for they may very well expect that when this shall be done to any great degree the Parliament will keep a severe hand over them and perhaps deprive them of their most darling privileges. It may be found expedient hereafter also for their own defence and security to appoint a viceroy or at least a Generalissimo in time of war . . . Or at least it may be found necessary to make all the colonies immediately dependent on the Crown, as Virginia, Carolina and New York are: for the charter governments are not to be depended on in such exigencies.” Modern History by Mr. Salmon, III, p. 568 (London, 1739).
[1 ]For the case of Phillips vs. Savage see Mass. Hist. Soc. Proc. 1860-1862, pp. 64-80, 165-171.
[2 ]The proceedings of the Privy Council upon the appeals of Clark and Tousey are to be found in Conn. Col. Rec. IX, pp. 592-593.