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belonging to England upon the ultimate judgments given there, are, (1.) That, otherwise, the law appointed or permitted to such inferior dominion might be considerably changed without the assent of the superior dominion; (2.) Judgments might be given to the disadvantage or lessening of the superiority, or to make the superiority of the king only, and not of the crown of England; and, (3.) That the practice has been accordingly.1
§ 176. Notwithstanding the clearness with which this appellate jurisdiction was asserted, and upheld by the principles of the common law, the exercise of it was not generally assumed until about 1680; and it was not then conceded as a matter of right in all the colonies.2 On the contrary, Massachusetts resisted it under her first charter (the right of appeal was expressly reserved in that of 1691); and Rhode Island and Connecticut at first denied it, as inconsistent with, or rather as not provided for, in theirs.3 Rhode Island soon after surrendered her opposition. But Connecticut continued it to a later period.5 In a practical sense, however, the appellate jurisdiction of the king in council was in full and undisturbed exercise throughout the colonies at the time of the American Revolution; and was deemed rather a protection than a grievance.6
§ 177. (6.) Though the colonies had a common origin, and owed a common allegiance, and the inhabitants of each were
1 Vaughan's Rep. 290, 402; Show. Parl. Cases, 30, 31, 32, 33; 1 Vez. 444; Stokes's Colon. 26, 222, 231; 2 Ld. Raym. 1447, 1448; 1 Chalm. Annals, 139, 304, 671, 678, 684; Christian v. Corver, 1 P. Will. R. 829; Att. Gen. v. Stewart, 2 Merivale, R. 143, 156; Rex v. Cowle, 2 Burr. 834, 852, 854, 856; Fabrigas v. Mostyn, Cowp. 174; 1 Doug. Summ. 216; 3 Wilson's Works, 230; 2 Chalm. Opin. 177, 222.
2 Chitty on Prerog. ch. 3, p. 28, 29; 1 Chalm. Opin. 222; 1 Pitk. Hist. 121, 123, 124, 125, 126; 1 Chalm. Annals, 139, 140, 678; 5 Mass. Hist. Coll. 139.
3 1 Chalm. Annals, 277, 280, 297, 304, 411, 446, 462; 2 Doug. Summ. 174; Hutch. Coll. 330, 418, 529; 2 Hutch. Hist. 539.
4 2 Doug. Summ. 97; 3 Hutch. Coll. 412, 413.
5 2 Doug. Summ. 194; 1 Pitk. Hist. 123 to 125.
6 I have in my possession a printed case, Thomas Forsley v. Warddel Cunningham, brought before the governor and council of New York from the supreme court of that province, by appeal, in 1764. The great question was, whether an appeal or writ of error lay; and the judges of the supreme court, and the council held, that no appeal lay, for that would be to re-examine facts settled by the verdict of a jury. The lieutenantgovernor dissented. It was agreed on all sides, that an appeal in matter of law (by way of writ of error) lay to the king in council from all judgments in the colonies; but not as to matters of fact in suits at common law. It was also held, that in all the colonies the subjects carry with them the laws of England, and therefore as well those which took place after as those which were in force before Magna Charta.
British subjects, they had no direct political connection with each other. Each was independent of all the others; each, in a limited sense, was sovereign within its own territory. There was neither alliance nor confederacy between them. The assembly of one province could not make laws for another; nor confer privileges, which were to be enjoyed or exercised in another, further than they could be in any independent foreign state. As colonies, they were also excluded from all connections with foreign states. They were known only as dependencies; and they followed the fate of the parent country both in peace and war, without having assigned to them, in the intercourse or diplomacy of nations, any distinct or independent existence.1 They did not possess the power of forming any league or treaty among themselves which should acquire an obligatory force without the assent of the parent state. And though their mutual wants and necessities often induced them to associate for common purposes of defence, these confederacies were of a casual and temporary nature, and were allowed as an indulgence rather than a right. They made several efforts to procure the establishment of some general superintending government over them all; but their own differences of opinion, as well as the jealousy of the crown, made these efforts abortive.2 These efforts, however, prepared their minds for the gradual reconciliation of their local interests, and for the gradual development of the principles upon which a union ought to rest, rather than brought on an immediate sense of the necessity or the blessings of such a general government.
§ 178. But although the colonies were independent of each other in respect to their domestic concerns, they were not wholly alien to each other. On the contrary, they were fellow-subjects, and for many purposes one people. Every colonist had a right to inhabit, if he pleased, in any other colony; and as a British subject, he was capable of inheriting lands by descent in every other colony. The commercial intercourse of the colonies, too, was regulated by the general laws of the British Empire, and could not be restrained or obstructed by colonial legislation. The remarks of Mr. Chief Justice Jay on this subject are equally just and striking. "All the people of this country were then subjects of the king of
1.1 Chalm. Annals, 686, 689, 690.
2 1 Pitk. Hist. 50, 141, 142, 143, 144, 145, 146, 429; 2 Haz. Coll.; 1 Marsh. Colon. ch. 10, p. 284; 3 Hutch. Hist. 21, 22, 23.
Great Britain, and owed allegiance to him; and all the civil authority then existing, or exercised here, flowed from the head of the British Empire. They were, in a strict sense, fellow-subjects, and in a variety of respects one people. When the Revolution commenced, the patriots did not assert that only the same affinity and social connection subsisted between the people of the colonies which subsisted between the people of Gaul, Britain, and Spain, while Roman provinces, to wit, only that affinity and social connection which result from the mere circumstance of being governed by the same prince. Different ideas prevailed, and gave occasion to the Congress of 1774 and 1775.”1
1 Chisholm v. State of Georgia, 2 Dall. 470. [It is plain that the several American States were never fully and in all respects, as regards each other, independent States, as that term is applied in the law of nations. On the contrary, the learned author takes pains to point out that our present government is the successor, with modified powers, of that which formerly possessed authority over them all. Prior to the Revolution, certain powers of government were exercised over all the colonies, either as pertaining to the crown of Great Britain or the Parliament; but the rightful extent of those powers and how far possessed by the Parliament, and how far resting in the crown, were the questions in dispute which led to the Revolution. That the home government possessed authority over the subjects of peace and war, and had the general direction of commercial intercourse with other nations, was often formally conceded by the colonies. And the disputes between them and the home government related principally to other matters which the colonists insisted were within the exclusive control of the local legisla
The tendency among the colonists to establish a more intimate and voluntary union among themselves might form the subject of one of the most interesting chapters in American history. The New England Confederacy of 1643, the temporary Congress of 1690, the plan of Union agreed upon in the Convention of 1754, the Stamp Act Congress of 1765, and finally the Continental Congress of 1774, were all the offspring of a desire among the scattered colonies of Great Britain in America to strengthen and extend the common ties for their mutual safety and protection. To all this the jealousy of the home government constituted a serious impediment, but the difficulty in reaching an arrangement as to the proper measure of authority to be conceded to any proposed confederacy or congress, was an obstacle still more serious. The history of the Convention of 1754 is particularly instructive. See Mr. Everett upon its work, N. A. Rev., Vol. XXXVIII. p. 73, et seq. At last the colonies, by formal declaration, threw off allegiance to the crown; but even then they did not cease to have a common national head, for it was through the revolutionary Congress that independence was declared, and that body had already, by common consent, taken upon itself those powers of external control which before had been conceded to the crown or the Parliament, together with such others as the emergency seemed to call for. Those powers being undefined, the Congress as a national authority could answer a temporary purpose only, but what was done thereafter, in establishing the Articles of Confederation, and then in substituting for these the work of the Convention of 1787, was not for the purpose of creating for the first time a common authority for States before wholly independent of each other, but was done by way of modifying, defining, strengthening, and rendering more efficient
§ 179. Having considered some of the particulars in which the political organization and public rights and juridical policy of the colonies were nearly similar, it remains to notice a few in which there were important differences.
(1.) As to the course of descents and distribution of intestate estates. And here the policy of different colonies was in a great measure determined by the nature of their original governments and local positions. All the Southern colonies, including Virginia, adhered to the course of descents at the common law (as we have had occasion to see) down to the American Revolution. As a natural consequence, real property was in these colonies generally held in large masses by the families of ancient proprietors; the younger branches were in a great measure dependent upon the eldest; and the latter assumed and supported somewhat of the pre-eminence which belonged to baronial possessions in the parent country. Virginia was so tenacious of entails, that she would not even endure the barring of them by the common means of fines and recoveries. New York and New Jersey silently adhered to the English rule of descents under the government of the crown, as royal provinces. On the other hand, all New England, with the exception of Rhode Island, from a very early period of their settlements, adopted the rule of dividing the inheritance equally among all the children, and other next of kin, giving a double share to the eldest son. Maryland, after 1715, and Pennsylvania almost from its settlement, in like manner distributed the inheritance among all the children and other next of kin. New Hampshire, although a royal province, steadily clung to the system of Massachusetts, which she had received when she formed an integral part of the latter. But Rhode Island retained (as we have already seen) its attachment to the common-law rule of descents down almost to the era of the American Revolution.1
and enduring an existing authority, through which alone they were known in the family of nations.
"The Union," it is said in the inaugural address of President Lincoln, "is much older than the Constitution. It was formed in fact by the Articles of Association of 1774. It was matured and continued by the Declaration of Independence of 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual by the Articles of Confederation in 1778, and finally, in 1787, one of the declared objects in ordaining and establishing the Constitution was 'to form a more perfect Union.'"
For a brief account of the Colonial Confederacies, the reader is referred to Mr. Towle's Analysis of the Constitution, p. 298, et seq.]
1 To 1770, Gardner v. Collins, 2 Peters's Sup. Ct. R. 58.
§ 180. In all the colonies, where the rule of partible inheritance prevailed, estates were soon parcelled out into moderate plantations and farms; and the general equality of property introduced habits of industry and economy, the effects of which are still visible in their local customs, institutions, and public policy. The philosophical mind can scarcely fail to trace the intimate connection which naturally subsists between the general equality of the apportionment of property among the mass of a nation and the popular form of its government. The former can scarcely fail, first or last, to introduce the substance of a republic into the actual administration of the government, though its forms do not bear such an external impress. Our Revolutionary statesmen were not insensible to this silent but potent influence; and the fact, that at the present time the law of divisible inheritances pervades the Union, is a strong proof of the general sense, not merely of its equity, but of its political importance.
§ 181. A very curious question was at one time 1 agitated before the king in council, upon an appeal from Connecticut, how far the statutes of descents and distributions, dividing the estate among all the children, was conformable to the charter of that colony, which required the laws to be "not contrary to the laws of the realm of England." It was upon that occasion decided, that the law of descents, giving the female as well as the male heirs a part of the real estate, was repugnant to the charter, and therefore void. This determination created great alarm, not only in Connecticut, but elsewhere; since it might cut deep into the legislation of the other colonies, and disturb the foundation of many titles. The decree of the council, annulling the law, was upon the urgent application of some of the colonial agents revoked, and the law reinstated with its obligatory force.2 At a still later period the same question seems to have been presented in a somewhat different shape for the consideration of the law-officers of the crown; and it may now be gathered as the rule of construction, that even in a colony, to which the benefit of the laws of England is expressly extended, the law of descents of England is not to be deemed as necessarily in force there, if it is inapplicable to their situation; or at least, that a change of it is not beyond the general competency of the colonial legislature.3
1 In 1727.
21 Pitk. Hist. 125, 126.
8 Att. Gen. v. Stewart, 2 Meriv. R. 143, 157, 158, 159.