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§182. (2.) Connected with this, we may notice the strong tendency of the colonies to make lands liable to the payment of debts. In some of them, indeed, the English rule prevailed of making lands liable only to an extent upon an elegit. But in by far the greatest number, lands were liable to be set off upon appraisement, or sold for the payment of debts. And lands were also assets, in cases of a deficiency of personal property, to be applied in the course of administration to discharge the debts of the party deceased. This was a natural result of the condition of the people in a new country, who possessed little moneyed capital, whose wants were numerous, and whose desire of credit was correspondently great. The true policy in such a state of things was to make land, in some degree, a substitute for money, by giving it all the facilities of transfer, and all the prompt applicability of personal property. It will be found that the growth of the respective colonies was in no small degree affected by this circumstance. Complaints were made, and perhaps justly, that undue priorities in payment of debts were given to the inhabitants of the colony over all other creditors; and that occasional obstructions were thrown in the way of collecting debts.1 But the evil was not general in its operation; and the policy, wherever it was pursued, retarded the growth and stinted the means of the settlements. For the purpose, however, of giving greater security to creditors, as well as for a more easy recovery of debts due in the plantations and colonies in America, the statute of 5 Geo. 2, ch. 7 [1732], among other things declared, that all houses, lands, negroes, and other hereditaments and real estates in the plantations should be liable to, and chargeable with, the debts of the proprietor, and be assets for the satisfaction thereof, in like manner as real estates are by the law of England liable to the satisfaction of debts due by bond or other specialty, and shall be subject to like remedies in courts of law and equity, for seizing, extending, selling, and disposing of the same, toward satisfaction of such debts, in like manner as personal estates in any of such plantations are seized, extended, sold, or disposed of, for satisfaction of debts. This act does not seem to have been resisted on the part of any of the colonies to whom it peculiarly applied.2

§ 183. In respect to the political relations of the colonies with

1 1 Chalm. Annals, 692, 693.

2 Telfair v. Stead, 2 Cranch, 407.

the parent country, it is not easy to state the exact limits of the dependency which was admitted, and the extent of sovereignty which might be lawfully exercised over them, either by the crown or by Parliament. In regard to the crown, all of the colonies admitted that they owed allegiance to the king, as their sovereign liege lord, though the nature of the powers which he might exercise, as sovereign, were still undefined.1

§ 184. In the silence of express declarations we may resort to the doctrines maintained by the crown-writers, a furnishing, if not an exact, at least a comprehensive view of the claims of the royal prerogative over the colonial establishments. They considered it not necessary to maintain that all the royal prerogatives exercisable in England were of course exercisable in the colonies, but only such fundamental rights and principles as constituted the basis of the throne and its authority, and without which the king would cease to be sovereign in all his dominions. Hence the attributes of sovereignty, perfection, perpetuity, and irresponsibility, which were inherent in the political capacity of the king, belonged to him in all the territories subject to the crown, whatever was the nature of their laws and government in other respects. Everywhere he was the head of the Church and the fountain of justice; everywhere he was entitled to a share in the legislation (except where he had expressly renounced it); everywhere he was generalissimo of all forces, and entitled to make peace or war. But minor prerogatives might be yielded, where they were inconsistent with the laws or usages of the place, or were inapplicable to the condition of the people. In every question that respected the royal prerogatives in the colonies, where they were not of a strictly fundamental nature, the first thing to be considered was, whether the charter of the particular colony contained any express provision on the subject. If it did, that was the guide. If it was silent, then the royal prerogatives were in the colony precisely the same as in the parent country; for in such cases the common law of England was the common law of the colonies for such purposes. Hence, if the colonial charter contained no peculiar grant to the contrary, the king might erect courts of justice and exchequer therein; and the colonial judicatories, in point of law, were deemed to emanate from the crown, under the modifications made by the colonial assemblies under their charters. The king also 1 Marshall's Colon. ch. 13, p. 353; 3 Wilson's Works, 236, 237, 238, 241, 242, 243. 9


might extend the privilege of sending representatives to new towns in the colonial assemblies. He might control, and enter a nolle prosequi in criminal prosecutions, and pardon crimes, and release forfeitures. He might present to vacant benefices; and he was entitled to royal moneys, treasure-trove, escheats, and forfeitures. No colonial assemblies had a right to enact laws, except with the assent of the crown by charter, or commission, or otherwise; and if they exceeded the authority prescribed by the crown, their acts were void. The king might alter the constitution and form of the government of the colony, where there was no charter or other confirmatory act by the colonial assembly, with the assent of the crown; and it rested merely on the instructions and commissions given, from time to time, by the crown to its governors. The king had power also to vest in the royal governors in the colonies, from time to time, such of his prerogatives as he should please; such as the power to prorogue, adjourn, and dissolve the colonial assemblies; to confirm acts and laws, to pardon offences, to act as captain-general of the public forces, to appoint public officers, to act as chancellor and supreme ordinary, to sit in the highest court of appeals and errors, to exercise the duties of vice-admiral, and to grant commissions to privateers. These last, and some other of the prerogatives of the king, were commonly exercised by the royal governors without objection.

§ 185. The colonial assemblies were not considered as standing on the same footing as Parliament in respect to rights, powers, and privileges; but as deriving all their energies from the crown, and limited by the respective charters, or other confirmatory acts of the crown, in all their proceedings. The king might, in respect to a colonial assembly, assent to an act of assembly before it met, or ratify it, or dissent from it, after the session was closed. He might accept a surrender of a colonial charter, subject to the rights of third persons previously acquired, and give the colony a new charter or otherwise institute therein a new form of government. And it has been even contended that the king might, in cases of extraordinary necessity or emergency, take away a charter, where the defence or protection of the inhabitants required it, leaving them in possession of their civil rights.

§ 186. Such are some of the royal prerogatives which were supposed to exist by the crown-writers in the colonial establishments, when not restrained by any positive charter or bill of rights.

Of these, many were undisputed; but others were resisted with pertinacity and effect in the colonial assemblies.1

§ 187. In regard to the authority of Parliament to enact laws which should be binding upon them, there was quite as much obscurity and still more jealousy spreading over the whole subject.2 The government of Great Britain always maintained the doctrine that the Parliament had authority to bind the colonies in all cases whatsoever. No acts of Parliament, however, were understood to bind the colonies, unless expressly named therein. But in America, at different times and in different colonies, different opinions were entertained on the subject.5 In fact, it seemed to be the policy of the colonies as much as possible to withdraw themselves from any acknowledgment of such authority, except so far as their necessities, from time to time, compelled them to acquiesce in the parliamentary measures expressly extending to them. We have already seen that they resisted the imposition of taxes upon them without the consent of their local legislatures, from a very early period.

§ 188. But it was by no means an uncommon opinion in some of the colonies, especially in the proprietary and charter governments, that no act of Parliament whatsoever could bind them without their own consent. An extreme reluctance was shown by Massachusetts to any parliamentary interference as early as 1640; and the famous Navigation Acts of 1651 and 1660 were perpetually evaded, even when their authority was no longer denied, throughout the whole of New England. Massachusetts, in


1 The reader will find the subject of the royal prerogative in the colonies discussed at large in Chitty on the Prerogatives of the Crown, ch. 3, p. 25 to 40; in Stokes on the Constitution of the Colonies, passim; in Chalmers's Annals of the Colonies; and in Chalmers's Opinions, 2 vols. passim. See also Com. Dig. Prerogative.

21 Pitk. Hist. 164 to 169, 186, 198, 199, 200 to 205; App. 448, No. 9; Id. 452, 453; 3 Wilson's Works, 238, 239, 240, 241, 242, 243; 2 Wilson's Works, 54, 55, 58 Mass. State Papers, 338, 339, 344, 352 to 364; 1 Pitk. Hist. 255.

3 3 Wilson's Works, 205; 1 Chalm. Annals, 140, 687, 690; Stokes's Colon. 146. 4 1 Black. Comm. 107, 108; Chitty on Prerog. 33.

5 1 Pitk. Hist. 198, 199, 200 to 205, 206, 209; Marshall's Colon. ch. 13, p. 352; 1 Chitty on Prerog. 29; 1 Chalmers's Opinions, 196 to 225; 1 Pitk. Hist. ch. 6, p. 162

to 212.

6 Marshall's Colon. ch. 13, p. 353; 1 Pitk. Hist. 89, 90, &c., 98; Id. 164, 174, 179, 182 to 212; Mass. State Papers, 359 to 364.

71 Pitk. Hist. 91; 1 Chalm. Annals, 443.

8 2 Winthrop's Jour. 25.

91 Chalm. Annals, 277, 280, 407, 440, 443, 448, 452, 460, 462, 639, 698; Hutch. Coll. 496; Mass. State Papers [1818], Introduction; Id. 50; 2 Wilson's Works, 62.

1679, in an address to the crown, declared that she "apprehended them to be an invasion of the rights, liberties, and properties of the subjects of his Majesty in the colony, they not being represented in Parliament; and, according to the usual sayings of the learned in the law, the laws of England were bounded within the four seas, and did not reach America."1 However, Massachusetts, as well as the other New England colonies, finally acquiesced in the authority of Parliament to regulate trade and commerce, but denied it in regard to taxation and internal regulation of the colonies.2 As late as 1757 the General Court of Massachusetts admitted the constitutional authority of Parliament in the following words: "The authority of all acts of Parliament, which concern the colonies and extend to them, is ever acknowledged in all the courts of law, and made the rule of all judicial proceedings in the province. There is not a member of the General Court, and we know no inhabitant within the bounds of the government, that ever questioned this authority.” 3 And in another address in 1761, they declared that "every act we make, repugnant to an act of Parliament extending to the plantations, is ipso facto null and void. And at a later period, in 1768, in a circular address to the other colonies, they admitted" that his Majesty's high court of Parliament is the supreme legislative power over the whole empire"; contending, however, that as British subjects they could not be taxed without their own consent.5

§ 189. "In the Middle and Southern provinces," (we are informed by a most respectable historian,)6 "no question respecting the supremacy of Parliament in matters of general legislation existed. The authority of such acts of internal regulation as were made for America, as well as those for the regulation of com

1 1 Chalm. Ann. 407; 1 Hutch. Hist. 322; 2 Wilson's Works, 62, 63.

21 Pitk. Hist. 92, 98, 181 to 212, 285, 473, 475; 1 Chalm. Annals, 452, 460; 1 Hutch. Hist. 322; 3 Hutch. Hist. 23, 24; Dummer's Defence, 1 American Tracts, 51; Burke's Speech on Taxation in 1774, and on Conciliation in 1775.

8 3 Hutch. Hist. 66; Mass. State Papers, 337.

4 3 Hutch. Hist. 92; App. 463; Marshall's Colon. No. 5, p. 472.

5 Marshall's Colon. ch. 13, p. 371; App. No. 5, p. 472, 473; 1 Pitk. Hist. 186; App. 448, 450, 453, 458. This was the ground asserted in Mr. J. Otis's celebrated pamphlet on the Rights of the Colonies. 1 American Tracts [1766], 48, 52, 54, 56, 59, 66, 73, 99; and also in Dulany's Considerations on Taxing the Colonies, 1 Amer. Tracts, 14, 18, 36, 52. See also 1 Jefferson's Corresp. 6, 7, 12.

6 Marshall's Colon. ch. 13, p. 354. See also 1 Pitk. Hist. 162 to 212, 255, 275, 276; Jefferson's Corresp. 6, 7, 104; Id. 117.

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