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 of British subjects, that the colonists in almost all the early legislation of their respective assemblies insisted upon a declaratory act, acknowledging and confirming them. 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 colonics 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

1 Chalmers's Annals, 139, 140, 671, 675, 684, 687; 1 Tucker's Black. Comm. 38, App.; 2 Wilson's Law Lect. 49, 50; 1 Doug. Summ. 218; 1 Pitk. Hist. 108; Mass. State Papers, 315, 346, 847, 351 to 364, 375, 390; Dummer's Defence, 1 American Tracts, 65, &c.

2 Stokes's Colon.

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

♦ 1 Doug. Summ. 213 to 215.

period (1619) a house of burgesses was forced upon the then proprietors of Virginia.1 In Massachusetts, Connecticut, New Hampshire, and Rhode Island the same course was pursued.2 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 government for themselves, in which the people had a voice and representation in framing the laws, and in assenting to burdens being 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.8

1 Robertson's America, B. 9.

21 Tucker's Black. Comm. App. 386.

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 them. selves. 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 color 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 proceedings 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 assembly was called, and no reason given but this, viz.: That, by the grant of 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 representation 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 recognized 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 favor 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.1 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 assem blics 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) in establishing septennial assemblies, in imitation of the 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."

§ 168. For all the purposes of domestic and internal regulation, the colonial legislatures deemed themselves possessed of entire and exclusive authority. One of the carliest 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

1 1 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.

81 Pitk. Hist. 86, 87.

41 Pitk. Hist. 87, 88.

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

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 strikes 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.3

§ 169. On the other hand, the statute of 6 Geo. 3, ch. 12, contained an express declaration by Parliament that "the colonies and plantations in America have been, are, and of right ought to be, subordinate unto and dependent upon the imperial crown and Parliament of Great Britain," and that the king, with the advice and consent of Parliament, "had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America in all cases whatsoever." 4

§ 170. It does not appear that this declaratory act of 6 Geo. 3 met with any general opposition among those statesmen in England who were most friendly to America. Lord Chatham, in a speech on the 17th of December, 1765, said: "I assert the authority of this country over the colonies to be sovereign and supreme in every circumstance of government and legislation. But," he added, "taxation is no part of the governing or legislative power; taxes are the voluntary grant of the people alone." 5 Mr.

1 Chalm. Annals, 658, 681, 683, 686, 687; Stat. 6 Geo. 3, ch. 12. 21 Pitkin's Hist. 89, 90, 91; 2 Holmes's Annals, 133, 134, 135; 2 Doug. Summ. 251; 1 Doug. Summ. 213; 3 Hutch. Coll. 529, 530.

1 Pitkin, 89, &c., 97, 127, 129; Marsh. Colon. 352, 353; Appx. 469, 470, 472; Chalm. Annals, 658.

46 Geo. 3, ch. 12; Stokes's Colon. 28, 29. See also Marshall on Colon, ch. 13, p. 353; Vaughan, R. 300, 400; 1 Pitkin's Hist. 123.

Mr. Burke has sketched with a most masterly hand the true origin of this resistance to the power of taxation. The passage is so full of his best eloquence, and portrays with such striking fidelity the character of the colonists, that, notwithstanding its length, I am tempted to lay it before the reader in this note.

"In this character of the Americans, a love of freedom is the predominating feature,

Burke, who may justly be deemed the leader of the colonial advocates, maintained the supremacy of Parliament to the full

which marks and distinguishes the whole; and as an ardent is always a jealous affection, your colonies become suspicious, restive, and untractable, whenever they see the least attempt to wrest from them by force, or shuffle from them by chicane, what they think the only advantage worth living for. This fierce spirit of liberty is stronger in the English colonies probably than in any other people of the earth: and this from a great variety of powerful causes; which, to understand the true temper of their minds, and the direction which this spirit takes, it will not be amiss to lay open somewhat more largely.

"First, the people of the colonies are descendants of Englishmen. England, Sir, is a nation which still, I hope, respects, and formerly adored, her freedom. The colonists emigrated from you, when this part of your character was most predominant; and they took this bias and direction the moment they parted from your hands. They are therefore not only devoted to liberty, but to liberty according to English ideas, and on English principles. Abstract liberty, like other mere abstractions, is not to be found. Liberty inheres in some sensible object; and every nation has formed to itself some favorite point, which by way of eminence becomes the criterion of their happiness. İt happened, you know, Sir, that the great contests for freedom in this country were from the earliest times chiefly upon the question of taxing. Most of the contests in the ancient commonwealths turned primarily on the right of election of magistrates, or on the balance among the several orders of the state. The question of money was not with them so immediate. But in England it was otherwise. On this point of taxes the ablest pens and most eloquent tongues have been exercised, the greatest spirits have acted and suffered. In order to give the fullest satisfaction concerning the importance of this point, it was not only necessary for those who in argument defended the excellence of the English constitution to insist on this privilege of granting money as a dry point of fact, and to prove that the right had been acknowledged in ancient parchments and blind usages to reside in a certain body called the House of Commons. They went much further; they attempted to prove, and they succeeded, that in theory it ought to be so, from the particular nature of a house of commons, as an immediate representative of the people, whether the old records had delivered this oracle or not. They took infinite pains to inculcate, as a fundamental principle, that in all monarchies the people must in effect themselves mediately or immediately possess the power of granting their own money, or no shadow of liberty could subsist. The colonies draw froin you, as with their life-blood, these ideas and principles. Their love of liberty, as with you, fixed and attached on this specific point of taxing. Liberty might be safe or might be endangered in twenty other particulars, without their being much pleased or alarmed. Here they felt its pulse; and as they found that beat, they thought themselves sick or sound. I do not say whether they were right or wrong in applying your general arguments to their own case. It is not easy indeed to make a monopoly of theorems and corollaries. The fact is, that they did thus apply those general arguments; and your mode of governing them, whether through lenity or indolence, through wisdom or mistake, confirmed them in the imagination, that they, as well as you, had an interest in these common principles.

"They were further confirmed in this pleasing error by the form of their provincial legislative assemblies. Their governments are popular in an high degree; some are merely popular; in all, the popular representative is the most weighty; and this share of the people in their ordinary government never fails to inspire them with lofty sen.