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NEW ENGLAND GOVERNMENTS. 121
Hartford and New Haven, were first formed under voluntary compacts.1
The authorities of the colony of Massachusetts Bay, though claiming to act under the charter of government of 1628 to the freemen and associates or corporators of the Company organized in England, which contained provisions guaranteeing common law rights to the colonists and limiting the legislative power of that Company, acted from the outset under a view of their independence of the imperial authority, which differed essentially from the political doctrines entertained in the more southern colonies, whose constitution had been more definitely settled at their foundation. In Massachusetts, the original emigrants and their immediate successors regarded themselves as founding a state on principles of natural ethics and revealed religion, independently of any positive law derived from apre-existing political authority.' In this original charter there was no provision securing to the actual colonists, as inhabitants who might or might not be connected with the corporate body in England, any share in the local government; ' and the elective franchise, or the capacity of being a freeman of the colony, even after the transfer of the corporate government from England to America in 1629, was made by the grantees of the charter, or the so called "freemen" and associates of the Company, to depend on church membership.4 Their civil polity being in a great degree identified with their ecclesiastical constitutions, the scriptures of the Old and New Testaments were for a time regarded as part of their civil law as well as the highest rule of moral duty. * The
1 1 Banc. 392, 402. 1 Chalmers's Annals, 269. 1 Trumbull's Hist., 27. 1 Pitkin's Hist., 42-47.
* Reeves's Hist Law of Shipping, p. 138. Story's Comm., § 67. 1 Banc. 432. I Hatch. Hist. p. 251, 2d ed. It will be remembered that the political institution of all the other New England colonies was, in a certain degree, derived from or based upon the pre-existence of the Massachusetts colony. See post, ch. vi.
> 1 Hild. 180. Story's Comm. § 63.
* Ancient Charters &c., p. 117. 1 Hutch. Hist p. 26, 83., Note. 1 Holmes's Annals, 261. 1 Banc. 360. "The servant, the bondman, might be a member of the church and therefore a freeman of the Company." This is very unlikely; it was probably assumed that the elector should also be a person tui jurii; women and minors, if members ot churches, were not therefore electors.
a 1 Mass. Records, p. 174. 2 Hutchinson's Hist p. 3. "From 1640 to 1660 they approached very near to an independent commonwealth, and during this period completed a system of laws and government, the plan of which they had before laid and begun to execute. In this they departed from their charter, and instead of making the laws of England the groundwork of their code they preferred the laws of Moses."
122 QUESTION OF POWEE.
restriction on the local government by the law of England was from time to time acknowledged by the authorities. As in the declaration of the General Court in 1661, entitled—" Concerning our Liberties;" Art. 6, "The Governor, Deputy Governor, Assistants and Representatives or Deputies have full power, &c. ecclesiastical and civil, without appeal; except laws repugnant to the laws of England." * But, until the remodelling of the colonial government of Massachusetts under the charter of William and Mary, 1691, constituting a provincial government superseding the two governments of Plymouth colony and Massachusetts Bay, the General Court, constituted either of the "freemen" in person, or their elected representatives, in exerting powers which were contested as derogatory to the supremacy of the king and parliament, or contrary to the public law of the Empire, sometimes exerted them in a manner derogatory of com mon law rights in their fellow-subjects—rights existing under the guaranteed private law of the colony.* For a long period after their first settlement the New England colonies seem to have
'1 Hutch. Hist. app. Xiii.
* 1 Hutch. Hist. p. 82, 94, and 2 do. p. 12. Protest of Maverick and Child in 1646. 1 Hutch. Hist. p. 145. Answer of Council for the N. E. colonies to the Privy Council on Morton's petition, 1634. 1 Hutch. Hist. 251,2d. ed. 230, 3d. ed.; his view of the Massachusetts theory of government. 2 Chalmers's Opinions, p. 31. 1 Hild. 183, 193, 218, 247, 253, 255, 270, 279, 318.
Case of the Brownes (1629), see Chalmers's Political Ann. p. 146. Young's Chronicles of Mass. p. 287, note. 1 Grab amp's Hist p. 217.
In Connecticut revised laws of 1821, Title 94, Societies.—" An act relating to religions societies and congregations," a note is appended, giving an interesting summary of the legislation of the colony and State bearing on this topic. It is there remarked: "The object of our ancestors in emigrating to the country, was to enjoy their religion, not only free from persecution, but without interruption from Christians of different sentiments. They were desirous of maintaining a uniformity of doctrine and of worship. The true principles of religious liberty were not then known in any Christian country, and toleration was not the virtue of the age. Accordingly, on their arrival they formed an ecclesiastical constitution," &c. &c The point to be noticed here is not that they had wrong ideas about the rights of conscience and religious worship, (which may or may not be true,) but that they usurped a prerogative of sovereignty over their fellowsubjects. It may be admitted that the enforcement of the true creed and form of worship is the duty of the state, and that the creed and form of worship adopted by the colonists was the true one. Still the question is—had they the legal right, by public law, to exclude from their limits or otherwise punish those of their fellow-subjects who, in England, might have equally differed from them and yet have been unmolested by the law of the land?
For other recent defences of the New England governments, see North Am. Quart. Rev., Oct 1851, Oct 1853, and among the annual addresses before the New England Society in N. Y. the discourse of J. P. Hall, Esq., Deo. 22, 1647.
BILLS OF EIGHTS. 123
acknowledged no basis for the liberties of the individual inhabitant beyond the will of the local power. And, whether they were, severally, at particular periods oligarchical,1 or pure democracies, the government representing the will of the majority of the electors claimed to be the possessor of a sovereign power in matters of private law.
§ 129. From time to time declarations were made by the different colonial governments, with greater or less solemnity, in form nearly approaching Magna Charta and the English bills of rights, in which " the law of the land" was referred as the safeguard of the rights and liberties of the free inhabitants. But these appear to have.been put forth, like their great originals at the time of their promulgation, rather as guarantees against violations of the laws of the land by arbitrary executive power, than as appeals to common law and those charters and bills of rights as of constant effect against the supremacy of the legislature.* They were probably meant for protests against the arbitrary action of the imperial government, whether legislative or executive, rather than pledges against the abuse of that power which was deemed to be vested in the local government. In some instances where the common law of England was recognized by the colonial authority as the foundation of the rights of private persons, the power of sovereignty to alter that law was at the same time implied to be resident in the provincial government; as by the declaration in the Plymouth laws, published 1636, in the first article—" we the associates of the colony of New Plymouth, coming hither as freeborn subjects of the kingdom of England, endowed with all and singular the privileges belonging to such, &c."—and in the fourth article—" that no person in this government shall suffer or be indamaged in respect to life, limb, liberty, good name or estate, under color of law or countenance of authority, but by virtue of some express law of the General Court of this colony, or the good and equitable laws of our nation, suitable for us in matters which are of a civil nature, (as by
! Comp. Washburn's Judicial Hist of Mass. Ch. 1. Lechford's Plain Dealing, written about 1640 (see Mass. Hist ColL 8d series, vol. Hi.) 1 Hutch. Hist p. 94, note. 1 Banc. 431-135. 3 Banc. 15-19. 1 Hild. 233.
* Compare Report of the House of Delegates, Virginia, 1799, on the Alien and Sedition laws, Randolph's Ed. p. 220.
124 COMMON LAW EIGHTS.
the court here hath been accustomed,) wherein we have no particular law of our own," &c. And very similar in effect to this was the act of the legislature of South Carolina in 1712, recognizing the binding force of the common law, as modified by certain specified statutes in amendment of it, "but only when not inconsistent with the particular constitutions, customs and laws of this province."'
§ 130. A power in the common law, operating as a personal law to limit the extent of colonial legislation in matters of private law was, however, in the colonies themselves, constantly asserted by those who believed their native rights infringed under colonial laws, whether the body promulgating those laws existed on the democratic basis, or as the organ of a provincial praetor, or of an individual proprietor. In Massachusetts the aristocratic and theocratic parties were compelled to abandon their view of the foundation of their civil state by the intervention of the royal power and the influx of immigrants entertaining different opinions in matters of religion or of ecclesiastical polity.* And in all the colonies the equality of all free subjects of the empire, in respect to the rights of civil citizenship under the local government, became established. Even in the provinces acquired by conquest, the personal extent of the common law was constantly claimed by the English inhabitants.' The Duke of York's patent or charter of the provinces acquired from Holland, empowered him and his assigns to govern the inhabitants by such ordinances as he and his assigns should establish; but the assembly of East Jersey in 1680, told the governor that it was not on the king's letters patent to the Duke of York, but THE PUBLIC LAW. 125 on "the great charter of England" that they relied as "the only rule, privilege and joint safety of every freeborn Englishman." l
1 2 Hild. 275, and see pott, Ch. vi. Laws of S. C. Knickerbocker's Hist, of New York. B. iv. c. 9. "In fact the Merrylanders and their cousins, the Virginians, were represented to William Kieft as offsets from the same original stock as his bitter enemies the Yano- kies, or Yankee tribes of the East: having both come over to this country for the liberty of conscience, or in other words, to live as they pleased: the Yankees taking to praying and money-making and converting Quakers; and the Southerners to horse-racing and cock-fighting and breeding negroes."
* See the King's letter of June 28, 1662, in Mass. Records, Vol. iv., part 2, pp. 164, 167, and resolutions of the General Court modifying the requisites for the elective franchise, in the same, pp. 117, 562; also in Charters, &c, p. 117, and charter of 1691, in the same, p. 28. Story's Comm. § 71. 1 Banc. 431-435.
■ In 2 Canadian Freeholder, pp. 168, 172, it is argued that New York was not considered by the king as a conquered country, but as a part of the more ancient colony of New England. And see 1 Smith's Hist., N. Y., App., c. 6.
The colonists claimed that the common law, thus having a personal extent, fixed their social and civil rights as much as those of British subjects in England, and that this was a protection against both the colonial and the imperial legislative power when acting separately; in short, that their rights known as common law rights, or the rights of the free subject of British birth, could not be divested except by a national law—national because applying to the British subject in England as well as in the colony, and that in the making of such law their several will was entitled to be represented, as an element of the national will, in virtue of the common law regarded as the public law of the empire, or the law of political constitution.*
During the colonial period in the eighteenth century, the extent of the common law of England in determining the rights of the British-born colonists and their descendants, in America, became generally recognized in matters of private law. The question of its operation in the public law of the empire, or in determining the public rights of the colonists, continued to be the subject of controversy between them and the parent country, terminated only by the revolution. For it was by resting on the common law, as the public law of the nation, that the colonists claimed to be governed by laws in the making of which
1 Learning & Spicer's Col. pp. 681, 682. 2 Hild. p. 60.
* An Historical Discourse of the Uniformity of the Government of England, by Nathaniel Bacon, of Grais' Inne, (1647) p. 55. "Thenext and most considerable degree of all the people is that of the Free men, anciently called Frilingi, or free born, or such as are borne free from all yoke of power, and from all Law of compulsion other than what is made by his voluntary consent; for all freemen have votes in the making and executing of the generall Laws of the Kingdome," &c.
N. Y. Evening Express, Dec. 23, 1843. Hon. Rufus Choate's Oration before the New England Society in New York: speaking of the residence of certain English Puritans in Geneva, Switzerland, 1553-1558, and its influence upon them,—"There, was a state without a king or nobles: there, was a church without a bishop: (tremendous applause,) there, was a people governed by laws of their own making and by rulers of their own choosing." If the Pilgrim fathers found in Geneva the model of their infant state, it would be a curious subject of inquiry, whether Geneva was at that time an oligarchic or a democratic republic, according to the modern definitions (see London Cycl. voc. Geneva). But in whatever the Massachusetts colonists may have found their beau-ideal, the civil liberty of the nation which calls itself the People of the United States is in a great degree attributable to the fact that their state was not "without a king;" and if religious liberty has successfully been maintained in the States that with just pride venerate them as the founders, it might better be said—it was not because there was no bishop, but because bishops were so uiuuy.