constitution for the Colony, distributing the powers of government into three great departments, legislative, executive, and judicial; providing for the mode, in which these powers should be vested and exercised; and securing to the inhabitants certain political privileges and rights. The appointment and authority of the Governor, the formation and structure of the Legislature, and the establishment of courts of justice, were specially provided for; and generally the powers appropriate to each were defined. The only Charter Governments existing at the time of the American Revolution, were Massachusetts, Rhode Island, and Connecticut.

§ 13. The Charter Governments differed from the Provincial, principally in this, that they were not immediately under the authority of the Crown, nor bound by any of its acts, which were inconsistent with their charters; whereas the Provincial Governments were entirely subjected to the authority of the Crown. They differed from the Proprietary Governments in this, that the latter were under the control and authority of the Proprietaries, as substitutes of the Crown, in all matters, not secured from such control and authority by the original grants; whereas, in the Charter Governments, the powers were parcelled out among the various departments of government, and permanent boundaries were assigned by the charter to each.

§ 14. Notwithstanding these differences in their original and actual political organization, the Colonies, at the time of the American Revolution, in most respects, enjoyed the same general rights and privileges. In all of them, there existed a Governor, a Council, and a Representative Assembly, composed of delegates chosen by the people, by whom the legislative and executive functions were exercised according to the particular organization of the Colony. In all of them, the legislative power extended to all local subjects, and was subject only to this restriction, that the laws should not be repugnant to, but, as far as conveniently might be, agreeable to, the laws and customs of England. In all of them, express provision was made,

solve them.

The Legislature, thus constituted, had power to make all local laws and ordinances not repugnant to the laws of England, but, as near as might conveniently be, agreeable thereto, subject to the ratification or disapproval of the Crown. The Governor appointed the judges and magistrates, and other officers of the Province, and possessed other general executive powers. Under this form of government, New Hampshire, New York, Virginia, North Carolina, South Carolina, and Georgia, were governed, as provinces, at the commencement of the American Revolution; and some of them had been so governed from an early period of their settlement.

§ 11. Secondly, Proprietary Governments. These were grants by letters patent (or open, written grants under the great seal of the kingdom) from the Crown to one or more persons as Proprietary or Proprietaries, conveying to them not only the rights of the soil, but also the general powers of government within the territory so granted, in the nature of feudatory principalities, or dependent royalties. So that they possessed within their own domains nearly the same authority, which the Crown possessed in the Provincial Governments, subject, however, to the control of the Crown, as the paramount sovereign, to whom they owed allegiance. In the Proprietary Governments, the Governor was appointed by the Proprietary or Proprietaries; the Legislature was organized and convened according to his or their will; and the appointment of officers, and other executive functions and prerogatives, were exercised by him or them, either personally, or by the Governors for the time being. Of these Proprietary governments, three only existed at the time of the American Revolution, viz., Maryland, held by Lord Baltimore, as Proprietary, and Pennsylvania and Delaware, held by William Penn, as Proprietary.

§ 12. Thirdly, Charter Governments. These were great political corporations, created by letters patent, or grants of the Crown, which conferred on the grantees and their associates not only the soil within their territorial limits, but also all the high powers of legislation and gov

constitution for the Colony, distributing the powers of government into three great departments, legislative, executive, and judicial; providing for the mode, in which these powers should be vested and exercised; and securing to the inhabitants certain political privileges and rights. The appointment and authority of the Governor, the formation and structure of the Legislature, and the establishment of courts of justice, were specially provided for; and generally the powers appropriate to each were defined. The only Charter Governments existing at the time of the American Revolution, were Massachusetts, Rhode Island, and Connecticut.

§ 13. The Charter Governments differed from the Provincial, principally in this, that they were not immediately under the authority of the Crown, nor bound by any of its acts, which were inconsistent with their charters; whereas the Provincial Governments were entirely subjected to the authority of the Crown. They differed from the Proprietary Governments in this, that the latter were under the control and authority of the Proprietaries, as substitutes of the Crown, in all matters, not secured from such control and authority by the original grants; whereas, in the Charter Governments, the powers were parcelled out among the various departments of government, and permanent boundaries were assigned by the charter to each.

§ 14. Notwithstanding these differences in their original and actual political organization, the Colonies, at the time of the American Revolution, in most respects, enjoyed the same general rights and privileges. In all of them, there existed a Governor, a Council, and a Representative Assembly, composed of delegates chosen by the people, by whom the legislative and executive functions were exercised according to the particular organization of the Colony. In all of them, the legislative power extended to all local subjects, and was subject only to this restriction, that the laws should not be repugnant to, but, as far as conveniently might be, agreeable to, the laws and customs of England. In all of them, express provision was made,

Colonies, should be deemed natural-born subjects, and should enjoy all the privileges and immunities thereof. In all of them, the common law of England, as far as it was applicable to their situation, was made the basis of their jurisprudence; and that law was asserted at all times by them to be their birthright and inheritance.

§ 15. It may be asked, how the common law of England came to be the fundamental law of all the Colonies. It may be answered in a few words, that, in all the Proprietary and Charter Governments, there was an express restriction, that no laws should be made repugnant to those of England, but, as near as they might conveniently be, should be consonant and conformable thereto, and, either expressly or by necessary implication, it was provided, that the law of England, so far as it was applicable to the state of the Colonies, should be in force there. In the Provincial Governments the same provisions were incorporated into all the royal commissions. It may be added, that the common law of England was emphatically the law of a free nation, and secured the public and private rights and liberties of the subjects against the tyranny and oppression of the Crown. Many of these rights and liberties were proclaimed in Magna Charta, (as it is called,) that instrument containing a declaration of rights by the peers and commons of England, wrung from King John, and his son, Henry III., by the pressure of stern necessity. But Magna Charta would itself have been but a dead letter, if it had not been sustained by the powerful influences of the common law, and the right of trial by jury. Accordingly, our ancestors at all times strenuously maintained, that the common law was their birthright, and (as we shall presently see) in the first revolutionary Continental Congress, in 1774, unanimously resolved, that the respective Colonies are entitled to the common law, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage according to the course of that law.

§ 16. Independently, however, of the special recognitions of the Crown, there is a great conservative prin

insured to our ancestors the right to partake of its protection, its remedial justice, and its extensive blessings. It is a well-settled doctrine of that law, that, if an uninhabited country is discovered and planted by British subjects, the laws of England, so far as they are applicable, are there held immediately in force; for, in all such cases, the subjects, wherever they go, carry those laws with them. This doctrine has been adopted, to save the subjects, in such desert places, from being left in a state of utter insecurity, from the want of all laws to govern them, and from being thus reduced to a mere state of nature. On the contrary, where new countries are obtained by cession or conquest, a different rule exists. The Crown has the sole and exclusive right to abrogate the existing laws, and to prescribe, what new laws shall prevail there; although, until the pleasure of the Crown is made known, the former laws are deemed to remain in force. Attempts were made to hold the American Colonies to be in this latter predicament, that is, to be territories ceded by or conquered from the Indians. But the pretension was always indignantly repelled; and it was insisted, that the sole claim of England thereto being founded on the mere title of discovery, the colonists brought thither all the laws of the parent country, which were applicable to their situation.

§ 17. We may thus see, in a clear light, the manner, in which the common law was first introduced into the Colonies, and also be better enabled to understand the true nature and reason of the exceptions to it, which are to be found in the laws and usages of the different Colonies. The general basis was the same in all the Colonies. But the entire system was not introduced into any one Colony, but only such portions of it, as were adapted to its own wants, and were applicable to its own situation. Hence the common law can hardly be affirmed to have been exactly, in all respects, the same in all the Colonies. Each Colony selected for itself, and judged for itself, what was most consonant to its institutions, and best adapted to its civil and political arrangements; and, while