ference of interpretation, the common law, as actually administered, was not in any two of the colonies exactly the same. The general foundation of the local jurisprudence was confessedly composed of the same materials; but in the actual superstructure they were variously combined, and modified, so as to present neither a general symmetry of design, nor an unity of execution.

§ 164. In regard to the legislative power, there was a still greater latitude allowed; for notwithstanding the cautious reference in the charters to the laws of England, the assemblies actually exercised the authority to abrogate every part of the common law, except that,' which united the colonies to the parent state by the general ties of allegiance and dependency; and every part of the statute law, except those acts of Parliament, which expressly prescribed rules for the colonies, and necessarily bound them, as integral parts of the empire, in a general system, formed for all, and for the interest of all.1 To guard this superintending authority with more effect, it was enacted by Parliament in 7 & 8 William 3, ch. 22, "that all laws, by-laws, usages, and customs, which should be in practice in any of the plantations, repugnant to any law made, or to be made in this kingdom relative to the said plantations, shall be utterly void and of none effect." 2

§ 165. It was under the consciousness of the full possession of the rights, liberties, and immunities ol British subjects, that the colonists in almost all the early legislation of their respective assemblies insisted upon a

1 1 Chalmers's Annals, 139, 140, 684, 687, 671, 675; 1 Tucker's Black. Comm. 384, App.; 2 Wilson's Law Lect. 49, 50; 1 Doug. Summ. 213; 1 Pitk. Hist. 108; Mass. State Papers, 345, 346, 347, 351 to 364, 375, 390; Dummer's Defence, 1 American Tracts, 65, &c.

2 Stokes's Colon. 27.

declaratory act, acknowledging and confirming them.1 And for the most part they thus succeeded in obtaining a real and effective magna charta of their liberties. The trial by jury in all cases, civil and criminal, was as firmly, and as universally established in the colonies, as in the mother country.

§ 166. (2.) In all the colonies local legislatures were established, one branch of which consisted of representatives of the people freely chosen, to represent and defend their interests, and possessing a negative upon all laws. We have seen, that in the original structure of the charters of the early colonies, no provision was made for such a legislative body. But accustomed as the colonists had been to possess the rights and privileges of Englishmen, and valuing as they did, above all others, the right of representation in Parliament, as the only real security for their political and civil liberties, it was easy to foresee, that they would not long endure the exercise of any arbitrary power; and that they would insist upon some share in framing the laws, by which they were to be governed. We find accordingly, that at an early period [1619] a house of burgesses was forced upon the then proprietors of Virginia. In Massachusetts, Connecticut, New-Hampshire, and RhodeIsland, the same course was pursued. And Mr. Hutchinson has correctly observed, that all the colonies before the reign of Charles the Second, (Maryland alone excepted, whose charter contained an express provision on the subject,) settled a model of goverment for themselves, in which the people had a voice, and represen

1 1 Pitk. Hist. 88, 89; 3 Hutch. Coll. 201, &c.; 1 Chalmers's Annals, 678; 2 Doug. Sumı. 193.

2 1 Doug. Summ. 213 to 215.

3 Robertson's America, B. 9.

4 1 Tucker's Black. Comm. App. 386.

tation in framing the laws, and in assenting to burthens to be imposed upon themselves. After the restoration, there was no instance of a colony without a representation of the people, nor any attempt to deprive the colonies of this privilege, except during the brief and arbitrary reign of King James the Second.1

1 1 Hutch. Hist. Mass. 94, note; 1 Doug. Summ. 213. — Mr. Hutchinson's remarks are entitled to something more than this brief notice, and a quotation is therefore made of the leading passage. "It is observable, that all the colonies before the reign of King Charles the Second, Maryland excepted, settled a model of government for themselves. Virginia had been many years distracted under the government of presidents and governors, with councils, in whose nomination or removal the people had no voice, until in the year 1620 a house of burgesses broke out in the colony; the king nor the grand council at home not having given any powers or directions for it. The governor and assistants of the Massachusetts at first intended to rule the people; and, as we have observed, obtained their consent for it, but this lasted two or three years only; and although there is no colour for it in the charter, yet a house of deputies appeared suddenly, in 1634, to the surprise of the magistrates, and the disappointment of their schemes for power. Connecticut soon after followed the plan of the Massachusetts. New-Haven, although the people had the highest reverence for their leaders, and for near thirty years in judicial proceeding submitted to the magistracy, (it must, however, be remembered, that it was annually elected,) without a jury; yet in matters of legislation the people, from the beginning, would have their share by their representatives. — New-Hampshire combined together 'under the same form with Massachusetts. — Lord Say tempted the principal men of the Massachusetts, to make them and their heirs nobles and absolute governors of a new colony; but, under this plan, they could find no people to follow them. Barbadoes and the leeward islands, began in 1625, struggled under governors, and councils, and contending proprietors, for about twenty years. Numbers suffered death by the arbitrary sentences of courts martial, or other acts of violence, as one side, or the other happened to prevail. At length, in 1645, the first assembly was called, and no reason given but this, viz. That, by the grant to the Earl of Carlisle, the inhabitants were to enjoy all the liberties, privileges, and franchises of English subjects; and therefore, as it is also expressly mentioned in the grant, could not legally be bound, or charged by any act without their own consent. This grant, in 1627, was made by Charles the First, a prince not the most tender of the subjects' liberties. After the restoration, there is no instance of a colony settled without a representative of the people, nor any attempt to deprive the colonies of this privilege, except in the arbitrary reign of King James the Second."

§ 167. In the proprietary and charter governments, the right of the people to be governed by laws established by a local legislature, in which they were represented, was recognised as a fundamental principle of the compact. But in the provincial governments it was often a matter of debate, whether the people had a right to be represented in the legislature, or whether it was a privilege enjoyed by the favour and during the pleasure of the crown. The former was the doctrine of the colonists; the latter was maintained by the crown and its legal advisers. Struggles took place from time to time on this subject in some of the provincial assemblies; and declarations of rights were there drawn up, and rejected by the crown, as an invasion of its prerogative. The crown also claimed, as within its exclusive competence, the right to decide, what number of representatives should be chosen, and from what places they should come. The provincial assemblies insisted upon an adverse claim. The crown also insisted on the right to continue the legislative assembly for an indefinite period, at its pleasure, without a new election; and to dissolve it in like manner. The latter power was admitted; but the former was most stoutly resisted, as in effect a destruction of the popular right of representation, frequent elections being deemed vital to their political safety; "a right," (as the declaration of independence emphatically pronounces,) "inestimable to them, and formidable to tyrants only." In the colony of New-York the crown succeeded at last [1743]4 in establishing septennial assemblies, in imitation of the

2

11 Pitk. Hist. 85, 86, 87; 1 Chalm. Opin. 189; 2 Doug. Summ. 251, &c. 21 Pitk. Hist. 88; 1 Chalm. Opin. 268, 272; 2 Doug. Summ. 37, 38, 39, 40, 41, 73; Chitty Prerog. ch. 3.

31 Pitk. Hist. 86, 87.

41 Pitk. Hist. 87, 88.

septennial parliaments of the parent country, which was a measure so offensive to the people, that it constituted one of their grievances propounded at the commencement of the American Revolution.1

§ 168. For all the purposes of domestic and internal regulation, the colonial legislatures deemed themselves possessed of entire and exclusive authority. One of the earliest forms, in which the spirit of the people exhibited itself on this subject, was the constant denial of all power of taxation, except under laws passed by themselves. The propriety of their resistance of the claim of the Crown to tax them seems not to have been denied by the most strenuous of their opponents. It was the object of the latter to subject them only to the undefined and arbitrary power of taxation by Parliament. The colonists with a firmness and public spirit, which strike us with surprise and admiration, claimed for themselves, and their posterity, a total exemption from all taxation not imposed by their own representatives. A declaration to this effect will be found in some of the earliest of colonial legislation; in that of Plymouth, of Massachusetts, of Virginia, of Maryland, of Rhode-Island, of New-York, and indeed of most of the other colonies. The general opinion held by them was, that parliament had no authority to tax them, because they were not represented in parliament.1

ch.

§ 169. On the other hand, the statute of 6 Geo. 3, 12, contained an express declaration by parliament, that

1 In Virginia also the assemblies were septennial. The Federalist, No. 52.

2 Chalm. Annals, 658, 681, 683, 686, 687; Stat. 6 Geo. 3, ch. 12.

3 1 Pitkin's Hist. 89, 90, 91; 2 Holmes's Annals, 133, 134, 135;

2 Doug. Sum. 251; 1 Doug. Sum. 213; 3 Hutch. Coll. 529, 530. 41 Pitkin, 89, &c. 97, 127, 129; Marsh. Colon. 352, 353; Appx. 469, 170, 472; Chalm. Annals, 658.