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declared to have and possess all liberties, franchises, and immunities of subjects within any dominions of the Crown of England, to all intents and purposes, as if they were born and abiding within the realm or other dominions of that Crown. The original grantees, or patentees, were to hold the lands and other territorial rights in the Colonies, of the King, his heirs and successors, in the same manner as the manor of East Greenwich, in the county of Kent, in England, was held of him, in free and common socage, and not in capite, (as it was technically called,) that is to say, by a free and certain tenure, as contradistinguished from a military and a servile tenure,-a privilege of inestimable value, as those, who are acquainted with the history of the feudal tenures, well know.* The patentees were also authorized to grant the same lands to the inhabitants of the Colonies in such form and manner, and for such estates, as the Council of the Colony should direct. These provisions were, in substance, incorporated into all the charters subsequently granted by the Crown to the different Colonies, and constituted also the basis, upon which all the subsequent settlements were made.
§ 9. The Colony of Virginia was the earliest in its origin, being settled in 1606. The Colony of Plymouth (which afterwards was united with Massachusetts, in 1692) was settled in 1620 ; the Colony of Massachusetts in 1628 ; the Colony of New Hampshire in 1629 ; the Colony of Maryland in 1632; the Colony of Connecticut in 1635 ; the Colony of Rhode Island in 1636 ; the Colony of New York in 1662 ; the Colonies of North and South Carolina in 1663; the Colony of New Jersey in 1664 ; the Colony of Pennsylvania in 1681 ; the Colony of Delaware in 1682 ; and the Colony of Georgia in 1732. In using these dates, we refer not to any sparse and disconnected settlements in these Colonies, (which had been made at prior periods,) but to the permanent settlements made under distinct and organized governments.
* On this subject, the reader can consult the history of the ancient and modern English tenures in Blackstone's Commentaries, vol. ii. chs. 5 and 6, p. 59 to p. 103.
$ 10. Let us next proceed to the consideration of the political Institutions and forms of Government, which were established in these different Colonies, and existed here at the commencement of the Revolution. The governments originally formed in these different Colonies may be divided into three sorts, viz., Provincial, Proprietary, and Charter, Governments. First, Provincial Governments. These establishments existed under the direct and immediate authority of the King of England, without any fixed constitution of government ; the organization being dependent upon the respective commissions issued from time to time by the Crown to the royal governors, and upon the instructions, which usually accompanied those commissions. The Provincial Governments were, therefore, wholly under the control of the King, and subject to his pleasure. The form of government, however, in the Provinces, was at all times practically the same, the commissions being issued in the same form. The commissions appointed a Governor, who was the King's representative, or deputy ; and a Council, who, besides being a part of the Legislature, were to assist the Governor in the discharge of his official duties ; and both the Governor and the Council held their offices during the pleasure of the Crown. The commissions also contained authority to the Governor to convene a general assembly of the representatives of the freeholders and planters in the Province ; and under this authority, Provincial Assemblies, composed of the Governor, the Council, and the Representatives, were, from time to time, constituted and held. The Representatives composed the lower house, as a distinct branch ; the Council composed the upper house ; and the Governor had a negative upon all their proceedings, and the power to prorogue and dis
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, con- , veying 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'ernment. The charters contained, in fact, a fundamental
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 sor; and generally the powers appropriate to each were defined. The only Charter Governinents 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, that all subjects, and their children, inhabiting in the 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 principle in the common law of England, which would have