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CHAPTER III.

§ 26. HAviNG thus adverted to the legislative power of England, its origin, progress, and efficacy, it is proper that we should advert to some of the prominent facts connected with the origin of legislation in the United States. In doing so, it will become necessary to have recourse to the history of some of our early colonial governments. In doing so, however, the design of this treatise will necessarily restrict us to a consideration of only so much of the colonial history as relates to the subject of political power and legislation. Nor shall we be able to trace the origin, rise and progress of legislation in more than three of the colonies, to wit: those of Virginia, Massachusetts and Connecticut. The first in order is that of Virginia. Under the charter of James the Ist, granting certain parts of the country to two colonies, subsequently known as that of Virginia and Plymouth, the political power of government was vested in a local council appointed and renewable by the crown; legislative as well as executive power was vested in the president and council of the colonies, subject to the restriction touching ordinances as to life or limb, and that their enactments were to be conformable to the laws of England, and to be continued in force until declared void by the crown or council in England. § 27. No legislative power whatever seems to have been delegated to the colonists themselves. In fact there was so great destitution of legislative authority as to lead the American historian to conclude, that “by placing the legislative and executive powers in a council nominated by the crown and guided by its instruction, every person residing in America seemed to be bereaved of the noblest privilege of a freeman.” He accounts for this from the fact, that in the infancy of colonization and without the guidance of observation or experience, the ideas of men, with respect to the mode of forming new settlements, were not fully unfolded or properly arranged. At this earlier period, it was impossible for them to foresee the future grandeur and importance of the communities which they were about to call into existence; and they were but illy qualified to concoct the best plans for their future government. The probabilities, however, are, that this withholding of a right to legislate from the colonists, originated in the spirit of the age, in the character of a monarch accustomed to claim the high prerogative of an arbitrary rule, and whose breast was not animated with a single liberal sentiment, in relation to the political rights of his subjects.(a) § 28. In 1610, Lord Delaware, under his commission being invested with the sole command of the colony of Virginia, appointed a council of six persons to assist him in the administration. A very essential change seems at this time to have taken place in the form of the ancient Virginia Constitution, for we find substituted in the place of the original aristocratic council in England, the arbitrary rule of one man, over whose deliberations the people had no control. § 29. In 1619, we find that the spirit of the colonies, as they increased in numbers, partook of a more independent character. Hitherto they had been subject to the decision of martial law, which however, in all probability, was tempered by all the mildness with which the

(a) Robertson's History of America; Book 9, Vol. i. p. 403.

circumstances of the case would admit, nevertheless they longed for the opportunity of exercising the exalted privilege of prescribing rules for their own government. In compliance with the spirit which had then become prevalent among the colonies, in June, 1619, Sir George Yeardly called the first general assembly that was ever held in Virginia, which is the commencement of the history of the introduction of provincial legislatures. The numbers of the people, though small, had become so increased, their new settlements so dispersed, that eleven corporations appeared by their representatives in this convention, where they were permitted to assume legislative authority, and to exercise this noblest function of freemen. They sat in the same house with the governor and council, after the manner of the Scotch Parliament.(a) The laws enacted in it seem neither to have been many, nor of great importance; but the meeting was highly acceptable to the people, as they beheld amongst themselves the foundations of a national constitution. In Crder to make these rights more certain, the company issued a charter of ordinance on the 24th of July, which gave a legal and permanent form to the government of the colony.(b) Thus was formed and established the first representative legislature that ever sat in America, and this example of a domestic parliament to regulate all the internal concerns of the country, was never lost sight of, but was ever afterwards cherished throughout America as the dearest birthright of freemen.(c) § 30. The supreme legislative authority in Virginia, in imitation of that in Great Britain, was divided, and

(a) Holme's American Annals, Vol. i., pp. 169 to 195; Robertson's Amer., Book 9, Vol. i. p. 412.

(b) Robt. Amer., Book 9, p. 412.

(c) Story on Cons., Vol. i. book 1, p. 26.

lodged partly in the governor, who held the place of the sovereign; partly in a council of state named by the company, which possessed some of the distinctions and exercised some of the functions belonging to the peerage; partly in a general council or assembly, composed of the representatives of the people, in which were vested powers and privileges similar to those of the house of commons. In both those councils all questions were to be determined by the majority of voices, and a negative was reserved to the governor ; but no law or ordinance, though approved by all the three members of the legislature, was to be of force until it was ratified in England by a general court of the company, and returned under its seal. The ordinance further required the general assembly, as also the council of state, "to imitate and follow the policy of the form of government, laws, customs, and manner of trial, and other administration of justice, used in the realms of England, as near as may be.” Thus the constitution of the colony became fixed, and the members of it thenceforth, were considered not merely as servants of a commercial company, dependent on the will and order of their superiors, but as freemen and citizens.(a)

§ 31. In May, 1623, King James, without regard to the rights conveyed to the company by their charter, or without the formality of judicial proceedings, appointed certain commissioners, of whom Sir William Jones was one, to examine into the transactions of the company, and lay the result of their inquiry before him.(6) After their departure a quo warranto was issued from the King's Bench, which terminated, as was usual in that

(a) Story on Cons., Vol. i. Book 1, ch. 2, p. 26 ; Robt. Am., Vol. i. Book 9, p. 413 ; Holme's Amer. Annals, Vol. i. pp. 214, 215.

(6) Robt. Amer., Vol. i. Book 9, p. 416.

reign, in a decision perfectly consonant to the wishes of the monarch. The charter was declared forfeited, and the company dissolved in June, 1624; and all the privileges conferred upon it reverted to the king.(a) James then issued a new commission for the government of Virginia, constituting Sir Francis Wyall governor, with eleven assistants, or counsellors. The governor and council were appointed during the pleasure of the king, and no assembly was mentioned or allowed.(b) James indeed purposed to provide and draw a form of government, but before it was done, death put an end to his career. Robertson conveys the impression, that on the accession of Charles I., March 27, 1625, he declared the colony as annexed to the crown, and immediately subordinate to its jurisdiction. Under the administration of Governor Yeardly, and a council of twelve and a secretary, was delegated to them the exercise of supreme authority, under an injunction from the king to conform in every point to such instructions as should, from time to time be received from him.(c) From the term of the king's commission, as well as from the known spirit of his policy, it seems manifest that it was his intention to invest every power of government, both legislative and executive, in the governor and council, without recourse to the representatives of the people. During a great part of this king's reign, the colonists knew no other law than the will of the sovereign. Statutes were published, and even taxes imposed, without once assembling the representatives of the people to authorize or sanction them.(d)

(a) Robt. Amer., Vol. i., Book 9, p. 417; Holme's Amer. Annals, Vol. i., p. 233. (b) Holme's Annals, p. 234; Robt. America, p. 418. " (c) Robt. Am., 418. (d) Ibid.

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